ADMISSIBILITY OF EVIDENCE IN NIGERIAN LAW
ABSTRACT
A cardinal principle of admissibility of evidence under the Nigerian law of evidence is that for any evidence to be admissible, it has to be relevant to the fact (s) in issue or any other relevant fact. However, a document though relevant to a fact (s) in issue or other relevant fact (s) may be rendered inadmissible by various reasons one of which is where such a document is captioned expressly or by reasonable inference, “without prejudice.” This situation is so because where parties are contemplating, or have resorted to, litigation as a means of settling a dispute, they are not foreclosed to explore amicable settlement as Alternative Dispute Resolution (ADR) is a statutorily recognized dispute resolution mechanism in Nigeria. This paper examines generally the issue of admissibility of documents under the Nigerian law of evidence. It argues that, where a document is marked “without prejudice” the intention of the marker is to render it inadmissible. It further examines circumstances under which a document marked without prejudice though relevant will be inadmissible and when a document purportedly marked “without prejudice” will still be admissible. It compares the concept of “without prejudice” under the repealed Evidence Act and the new 2011 Evidence Act with the finding that, without prejudice is now a statutorily recognized exclusionary evidential provision in Nigerian Law of Evidence. The paper highlights circumstances under which without prejudice should not be used on a letter. The paper finds that, without prejudice cannot be used as a sham to blindfold the court from admitting a document. It is therefore recommended that the relevant section should be amended to read communication made during negotiation and not just documents marked without prejudice to statutorily capture documents not so marked which is what is in practice.