How To Ensure That Your Letters And Words Can Not Be Used Against You In Court.

Daily Law Tips (Tip 485) by Onyekachi Umah, Esq., LLM.
ACIArb(UK)

HOW TO ENSURE THAT YOUR LETTERS AND WORDS CAN NOT BE
USED AGAINST YOU IN COURT.

+234 803 766 5878, [email protected]^[1]

Ordinarily, communication made between persons can be used in
any civil or criminal proceeding/case in a court. However, there
are exceptions to this, that allow certain communication between
persons not to be used in court over civil cases.

Communication made expressly or impliedly “Without Prejudice” in
the course of negotiation for settlement of a dispute cannot be
used in any civil proceedings in proof of matters stated in it,
involving same parties on same issues.

The Supreme Court in the case of NWADIKE & ORS v. IBEKWE & ORS,
stated that, ”Offers of compromise made expressly or impliedly
“without prejudice” cannot be given in evidence against a party as
admissions;… Letters and other communications, however, are only
protected when there was a dispute or negotiations pending between
the parties, and the letters were bona fide written with a view to
its compromise… And the protection applies only in the same action,
and between the same parties, and not between them and third
persons, but letters and negotiations between solicitors are
inadmissible against themselves as well as against their
clients.”

Also, the Supreme Court reiterated the above recently in the
case of ASHAKACEM PLC v. ASHARATUL MUBASHSHURUN INVESTMENT LTD,
when it stated that; “That being the law it falls to reason that
the letter dated 2nd March 2009 having been made in the process of
reconciling the dispute between the parties and so the Court of
Appeal was right to have upheld the decision of the trial Court on
the document. The principle is anchored on the basis that at the
point of mediation, parties should speak freely all in the quest
for a peaceful resolution of the dispute. This principle of free
discussion will be seriously prejudiced or impaired if any offer or
admission made in the process of the negotiation could be given in
evidence and used in support of a party’s case in Court afterwards
where the negotiation breaks down.”

The above judgements of the apex court on this issue are in line
with the Evidence Act, where it states that in civil cases, no
admission is relevant, if such admission was made where there is
express or implied condition that no evidence of such admission can
be given.

My authorities are;

1. Sections 26 and 196 of the Evidence Act, 2011.
2. NWADIKE & ORS v. IBEKWE & ORS (1987) LPELR-2087(SC).
3. ASHAKACEM PLC v. ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019)
LPELR-46541(SC)

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