PRIVILEGE SEC.

87-110
– Privilege is a special legal right, exemption or immunity
granted to a person or a class of persons.
– A witness in a matter is said to be privileged when he/she
may legally claim not to answer a question or supply
information which will be relevant to the determination of a
judicial proceeding.

– By sec 87 of NRCD, the provisions on privileges apply to all

proceedings.e.g. Arbitration, inquiring, judicial, executive
legislative fact finding.etc.it therefore means that
proceedings are not limited to matters before the court.

Sec.88 – no person has privilege to:

 Refuse to appear as witness when subpoenaed
 Refuses to disclose any matter
 Refuse to produce any writing or object.
 No person shall prevent another person from being a
witness and disclosing any writing or object, except
otherwise provided.
 It must be noted that this section abolishes all
existing common law privileges and the only
recognized ones are the ones specified in this
decree, although they re – enact most of the
common law
 Note that privileges apply mostly to oral and
documentary evidence at a trial.e.g. Producing
documents for inspection at the discovery stage in
civil cases.

Sec.90 – the judge or counsel of the parties may comment on the

claim of privilege by a party and the jury can draw any inference
from it.

Sec.91 – no person who claims privilege and fails to disclose or

produce any privileged information shall be punished. Unless he
has failed to comply with any order of the court.
 The judge determines when to accept or not to accept a
claim of privilege.
Sec. 92 – the judge may not ask privileged information to be
disclosed to enable him to rule on the matter.
 When a court is ruling on a claim of privilege relating to
state secret or informants and is unable to do so without
requiring the information to be disclosed. The court may
 require such information to be disclosed in chambers out of
the presence and hearing of all persons.
 If the judge decides that the information is privileged no
person shall disclose what was disclosed in chambers
without the consent of the person claiming the privilege.

Sec. 93 – a communication which privilege is claimed is

presumed to have been made in confidence. This is a rebuttal
presumption and the person rebutting it bears the burden of
persuasion to show that the communication was not made
confidential. E.g. priest - church member in a confession.

Sec 94 – a privilege holder may appeal against an error in

disallowing a claim of privilege.

Sec 95 – any privileged information that was enormously

disclosed in court is made inadmissible against the holder of the
privilege, in any later proceedings or appeal.

Sec.96 – an accused in a criminal case has a privilege not to be

called as a witness and compelled to testify unless he waives
such a privilege.
 If he testifies then he shall be cross examined
 An accused in a criminal cases can’t refuse to submit his
body for examination to the court or refuse body fluids
taken from the body or to do any act in their presence for
the purpose of identification
 If the accused refuses to testify on his own behalf, the
judge, the prosecution and defense may comment on it
and the jury may draw all reasonable inferences.

Sec.97 – a person in all proceedings has the privilege to refuse to

disclose any matter or produce any writing that will self
incriminate him.
 Self incriminating information will be admissible if a
person/accused voluntarily testifies on his behalf.
 If a person is permanently immune from
punishment/prosecution, nothing will incriminate e.g.
Testimony of adjei boadi at the NRC sittings.

Sec 98 – no person can refuse the courts order to produce any

information under his control which will incriminate him, if some
superior person has a right to that information.
Sec 99 – a person who keeps records by law can’t refuse to
disclose any information contained in the reports unless specified
by an enactment, not to do so.
  A public officer has a privilege over records inhis custody if
the law requiring disclosure to be made prevent s its
disclosure, on that issue.

Sec. 100 – a client refers to;

 A person
 A public entity
 A body corporate
Who directly or through an authorized representative seeks
professional legal service from a lawyer?

- The core of the lawyer – client privilege is communication

between the lawyer and the client conveying legal advice
relating to the conduct of on – going litigation which need not
be disclosed to a 3rd party without the consent of the client.
 A communication is confidential if not intended to be
disclosed to 3rd parties other than those to whom
disclosure is permitted.
 It must be stated that the privilege is more the clients
than the lawyer. This privilege is to ensure full
disclosure of facts.
 A client thus has a privilege to refuse to disclose and
prevent any other person from disclosing a confidential
communication reasonable related to professional legal
services sought by him.
 Confidentiality is at the core of the lawyer – client
privilege and thus for a communication to be said to be
privilege it must be proven to have been given in
confidence.

Note that it’s not just any communication with a lawyer that is
privileged. It needs to be;
 Confidential
 Must give professional legal advice
 Must be related to an on – going litigation.

- The clients privilege can be claimed by

 The client
 The clients guardian
 The personal representative of a dead client
 The successor of a client
 The client’s lawyer at the time the communication was
made.

– Under English law legal privilege includes;

  Communication between a lawyer and his client in
connection with giving legal advice.
 Communication between a lawyer and his client
made in contemplation of legal proceedings.
 Items enclosed or referred to in such
communications made while giving legal advice or in
contemplation of legal proceedings.
The items must also be in the hand s of the authorized
person.

– Under common law the lawyer – client privilege is divided into

2;
- Legal advice privilege
- Litigation privilege.

– Even though the privilege relates to communications between

a lawyer and his client with regards to legal advice in on –
going litigation some jurisdiction have extended the privilege
to legal advice outside the context of on – going litigation, but
within litigation in general and also documents for the
purpose of litigation.

– A parties brief in civil cases remains immune from discovery,

if it’s privileged. If an opponent wants to use privilege
documents in a trial, the lawyer can apply for an injunction
restraining the use of such documents, by his opponent.
 Guiness Peat v Fitzroy (1987) 2 AER710

– Can one disclose privilege information which he overhears or

finds in the case of a document?
See R v Governor Of Prisons, exparte Osman (1989) 3AER
701.
Rumpin v DPP C (1964) A.C.64.

Exceptions
– There are situations which materials which would otherwise
be privileged must be disclosed for reasons of
 Public policy
 Statutory provisions

– These communications are not privileged;

 Legal advice sought from a lawyer to aid in the planning or
committing of a crime or tort. If the lawyer is ignorant of
the purpose of the advice the communication will still not
be privileged and the lawyer can be compelled to disclose
the information.
 R v Cox and Railton, here a lawyer was compelled to disclose
the communication between him and a prisoner, when the
prisoner sought legal advice for the drawing up of the
fraudulent bill of sale.
 Communication that is a breach of duty by the lawyer to
his client and vice – versa.
 A client has a privilege to refuse to disclose work produced
by his lawyer while seeking legal advice.

– A court in its discretion may disallow a claim of privilege if;

1) The information can’t be obtained from another source.
2) And the value of the information being disclosed outweighs
substantially its non – disclosure.

Sec. 103 – a person has a privilege to refuse to disclose a

confidential communication;
1) To a 3rd party made between himself and a physician or
psychologist.
2) Or any person who took part in the diagnosis(e.g. nurses) if
the communication was made for the purpose of diagnosis
or treatment:
 Mental
 Emotional conditions

– Thus the communication that is privileged is limited only to

mental and emotional problems and not general medical
practice.

– Wigmore gave 4 conditions under which this privilege can be

said to exit; he has not too much in favor of this privilege, like
the lawyer – client
 The communication must be confidential
 Confidentiality must be essential between doctor and
patient
 The community must see such a relationship as one that
needs to be protected.

– A court in its discretion will disallow this claim of privilege if;

 The disclosure of this information is important to
determine whether a person should be convicted of an
offense or not
 The person claiming the privilege raised any issues about
his mental or emotional condition (e.g. am insane)
  The court orders a patient to submit himself for an
examination of his mental or emotional condition by a
doctor (it could be another doctor ordered by the court).

sec.104 – A person has a privilege to refuse to disclose a

confidential communication by the person to a professional
minister of religion, who by the code of his religion is prevented
from disclosing such information to 3rd parties.
 Note that the code those not say who a professional
minister of religion is. If it’s the ordained priests or any of
the many “priests” who without any training from
churches and call themselves by many titles.
 Note also that the professional minister must have been
consulted in his professional role as a spiritual advisor.
who is a spiritual advisor?
Is it one who is specially trained for that?
Could it be a church counselor or any “priest”?
The code gives no clue.
 Thus if these requirements are not fulfilled a clergy man
may be asked to disclose such information as that which
happened in Norman Shaw v Norman Shaw, where a
clergyman was obliged to disclose an admission of
adultery made in conversation by a friend.

– A priest may also waive such privilege as was held in Broad v

Pitt when best CJ said, he will not compel a clergyman to
disclose communication made to him by a prisoner, but if he
(clergyman) choose to disclose them he will receive then in
evidence.

Sec. 106 – the government has a privilege to refuse to disclose

and to prevent any person from disclosing a state secret.
 The only instance where such secret can be disclosed is
when its disclosure is in the interest of justice.
 A state secret is information considered
a) Confidential by the government
b) Has not been officially disclosed to the public
c) And which if disclose will be prejudicial to the
security of the state.
d) Or injurious to the public

 Where the government claims a state secret privilege. The

court either;
- On its own
- By the parties
 Shall stay the proceeding s and refer the claim of
privilege to the court of appeal for determination.

Sec.107 – the government has the privilege to refuse to disclose

the identity of a person who has supplied to the government
information that reveals the commission or plan of a crime.
 The government can refuse to disclose any communication
got from the informant so as to protect his identity.
 However the government has not privilege to refuse to
disclose the identity of the informant if he has been
disclosed by the government or he has disclosed his
identity to the public or he appears as a witness to which
the information relates to
 The court in a criminal case on its own accord may dismiss
such a claim if the informant’s testimony is necessary to a
fair trial. (Determination of guilt or innocence.)

Privileges in civil proceedings

– Under C.I.47, a party may apply to the court for an order;
a) To serve on the other party interrogations (questions)
concerning matters in dispute between the parties and
b) Requesting that the other party answers the questions in
an affidavit within the prescribed time intended for that.
c) If a party fails to comply with this order, the court may;
I. Dismiss the action
II. Order that the defense be struck out and enter
judgment against the party.

– However a person can refuse to answer such questions, if the

information required are privileged:
 Under Ord.22 (4), such a person is required to state his
objection in an affidavit and claim the privilege in the
affidavit.

Sec.110 – a person has a privilege to refuse to disclose a

confidential communication made between him and his spouse
during their marriage (not girlfriend in a relationship). This
applies in both monogamous and polygamous marriages.
 OPINION EVIDENCE – SEC.111 – 115

– Opinion means inference from observed facts.

– In common law its considered that the drawing of inferences
from facts is the task of the jury or judge. The witness es
business is only to state the observed facts and leave the rest
to the jury or judge.
– As a general rule in evidence, opinion evidence is
inadmissible because a witness is supposed to give fact which
he personally saw/perceived.
 However there are 2 main exceptions
 Exceptions
Opinion evidence is admissible in the following cases;
Sec 111 –
1. a witness who is not an expert may give testimonies in the
form of an opinion or inference only if;
 he saw/perceived what he is testifying to and
 the opinion or inference will help him give a clearer
picture/statement
 This will be helpful to the judge or jury in determing
the issue at stake.

- In R v Beckett, a non – expert witness testimony which was

an opinion on how much a plate glass window was worth
(£5) ws held to be admissible. This was because he saw the
window and thus could make an inference as to its worth
which will be helpful to the judge or jury(e.g. in assessing
damages to award).
- Note that the other party may cross examine the witness
as to the basis/reasons of his opinion or inference etc. he
shall then disclose his basis for the opinion.

Sec 112 -
2. sec.67 says that a person is qualified to testify as an expert
if he satisfies the court that he is an expert on the subject
to which he testifies by reason of his skill experience or
training.
 Note that the fact that he has no formal education or
training does not disqualify him as an expert, as an
expert can also be acquired by experience.
 In R v Silverlock – a solicitor was held to be a competent
expert on hand writing analysis even though he had no
qualification, but had gained the experience in the
course of his practice as a solicitor.

- Thus expert opinion or inference is admissible

only if the subject of the testimony is sufficiently
beyond common experience and the opinion or
inference given by the witness will assist the
judge or jury in either understanding the facts or
determining the issues at stake.

 An expert witness may base his opinion or inferences

from;
- Facts seen or perceived by him
 - Facts known to him to be true by reason of his
expertise.
 He may be cross examined by a party concerning the
basis for his opinion/inferences and he shall disclose
such basis.
 It must be noted that experts give their opinions on a
matter and do not decide the outcome of an issue.
ABC v Chewing Gum Ltd

Sec 115 – even though cn experts may give an opinion n an

ultimate issue, its admissible what weight if any is to be attached
to the opinion of the expert is a matter for the jury.e.g. The
doctor can say that from his expert opinion, the death of the
victim. This is admissible but if up to the jury to believe him or
not.

– The position at common law is different. At common law

there is a distinction between expression of opinion and its
application to a set of facts. It’s been the practice of judges to
prevent expert witness from stating their opinion on an
ultimate issue.
 In HG v R, held that it was acceptable for a psychiatrist to
express an opinion on the Childs behavior as to if he had
been sexually abused, but wrong for him to say that the
abuse was done by the accused.

Sec 114 – the court in its discretion may;

 On its own motion
 At the request of any party
Appointed a court expert to investigate into any matter
and report to the court by giving an expert opinion on that
matter.

– The report of the court expert shall be in writing and each

party shall have a copy of the report.
– The court expert shall be a person agreed by the parties.
– If they fail to agree on the court expert, the court shall
nominate one for the parties.
– The court expert may be cross examined by all parties.
– The remuneration of the court expert shall be paid by the
parties by way of costs.

– Order 26 of C.I.47 deals with court experts on civil cases

(almost the same as the above).