NIGERIA Law and Practice Contributed by: Tayo Oyetibo LP
frontload the documents they intend to rely on at the commencement of proceedings. Beyond frontloading, disclosure is obtained through discovery, which is granted upon application to the court. A party seeking discovery must identify specific documents or classes of documents and the court will only order disclosure where such documents are relevant to the issues in dispute and necessary for the fair determination of the case. Broad or speculative “fishing expeditions” are not permitted. The duty of disclosure is therefore limited to docu- ments within a party’s possession, custody or power and is subject to established protections, including legal professional privilege. In appropriate cases, courts may also order third-party disclosure. Overall, the regime seeks to balance fairness with efficiency by ensuring targeted, relevant disclosure rather than wide-ranging document production. 8.2 Privilege The two types of privilege that are recognised in our jurisdiction are State and Private Privilege. State Privilege covers persons who work in the public service of the country. Public service has been defined by Section 318 of the Nigerian constitution to mean the service of the State in any capacity in respect of the Government of the State. Instances of this type of privilege can be seen in Section 191 of the EA, which provides that, “ no public officer shall be compelled to disclose communication made to him in official confi - dence when he considers that the public interest will suffer by the disclosure ”. Private privilege encompasses several categories of protected communications. These include: • legal professional privilege, covering confidential communications between a lawyer and client made for the purpose of obtaining or giving legal advice (Sections 192–195 Evidence Act); • marital privilege, protecting communications between spouses (Sections 184–185 Evidence Act); and
• certain protections relating to title deeds and docu- ments, particularly where their production may prejudice proprietary interests. Documents falling within these categories may be withheld from disclosure unless the privilege is waived. 8.3 Confidentiality Nigeria recognises the right to withhold evidence on grounds of confidentiality. Generally, where such a document is not “without Prejudice”, it can be tendered in law. However, the Official Secrets Act restricts certain documents from being tendered in law and criminalises certain acts, especially where they prejudice the government. See Section 26 Evidence Act The Evidence Act provides for privileged communica- tion, which is an exception to the admissibility of all relevant evidence. See Sections 188,190 (1), 191 of the Evidence Act The recognised right to confidentiality is subject to specific exceptions where disclosure is necessary to prevent harm to the public interest or the safety of individuals. Consequently, the privilege of confiden- tiality may be waived in instances involving the com- mission of a crime or the management of public health risks, such as infectious diseases. 8.4 Witness Evidence Witness evidence in Nigeria is governed principally by the Nigerian Evidence Act (2011) and the applicable Rules of Court. In civil proceedings, the modern practice, particularly in High Courts, is the use of written witness deposi- tions, commonly referred to as Witness Statements on Oath . These are filed and frontloaded at the com- mencement of the action (especially in matters com- menced by writ of summons) and constitute the wit- ness’s evidence-in-chief. The witness subsequently attends court to adopt the deposition on oath, after which the evidence is deemed to have been given. While this is the general rule, there are limited excep- tions, ie, in matrimonial proceedings, where oral evi-
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