The Rule On Inadmissibility Of Documents Marked "Without Prejudice": Extent Of Application And Limitations To The Rule

1. Introduction

Most times parties to a dispute engage in negotiations to settle their disputes out of court before ultimately resorting to litigation. During such negotiations parties often make concessions, admissions and compromises which may be detrimental to their legal position or rights. It is thus common practice for the parties to mark their correspondence and documents during the negotiations with the term "without prejudice", which simply means "without detriment to any existing right or claim". The term 'without prejudice' is of common law origin and it is used to preclude certain documents, statements, or letters from being adduced as evidence upon the discontinuation or failure of the negotiation or discussions during which such correspondence were made to settle a dispute out of court. The use of the term encourages parties to speak and communicate freely during negotiations without fear of their statements being used against them during litigation of the dispute. Hence, the position of the law is that the contents of such documents are privileged and are not admissible in evidence to prove the content of the documents in any subsequent litigation between the parties. This article seeks to explore the extent of the application of the rule of law on inadmissibility of documents marked "without prejudice", the conditions to be satisfied before the rule can be invoked and the exceptions thereto.

2. The Rule on Inadmissibility of Documents Marked "Without Prejudice"

A party who, prior to the institution of a court action, would have made some offers, concessions or compromises in good faith with the intention to forestall the possibility of litigation deserves to be protected, otherwise people will be discouraged from giving settlement a chance.¹ The law assumes the mantle of protection, and it is upon this foundation that the rule that documents marked "without prejudice" are inadmissible in evidence is based.² In Nigeria's legal system, the aforesaid rule is enshrined in and enabled by section 196 of the Evidence Act,³ which provides, ipsissima verba, that: 'A statement in any document marked "without prejudice" made in the course of negotiation for a settlement of a dispute out of court, shall not be given in evidence in any civil proceedings in proof of the matters stated in it.' The rationale for this rule was stated by the Court of Appeal in Obeya v. F.B.N. PLC.,⁴ when the court observed that letters marked "without prejudice" are confidential overtures by the defendant to the plaintiff and are excluded from evidence in the court on the ground of public policy.⁵

There is no gainsaying that the position of the law is to encourage parties to speak freely and be unencumbered in any negotiation directed at the possible settlement of a dispute and avoidance of litigation. An amicable settlement of a dispute would be difficult to attain if documents or correspondence marked "without prejudice" are subsequently admitted in evidence. In the case of La Roche v. Armstrong,⁶ the Learned Justice opined that it is the policy of the law that disputes should be amicably settled if possible and it would be unwise to enter into negotiations, if statements made during such negotiations were admissible in evidence at the trial in the event that the attempt to settle is not successful.⁷ The law stresses the importance of, and its support for, resolving disputes amicably where it provides that documents need not be expressly marked 'without prejudice' to enjoy the protection of the law, in so far as the contents therein or any other statement in question is made in view of the possibility of settlement of a dispute out of court. In the locus classicus of Ashibuogwu v. A.G., Bendel State & Anor,⁸ the Supreme Court held; 'Where such negotiations are made by written communication, they are usually recognized that in some circumstances it is not essential that the words "without prejudice" should have been used; it may be implied that negotiations were conducted on this understanding'.⁹

This view also finds support in section 26 of the Evidence Act,¹⁰ which expressly states; 'In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given'.

3. Conditions to be Satisfied before the Rule is Invoked

It is crucial to note that a document marked 'without prejudice' is not automatically deemed inadmissible simply by the fact that it is marked or labelled as such. There are certain prerequisites that must be satisfied as laid down in the case of Jadesimi v. Egbe.¹¹ The court in this case noted that the following conditions must be satisfied before the rule under section 196 of the Evidence Act¹² may be invoked and applied:

1. The letter/document must have been made in the course of negotiation or settlement of a dispute out of court between parties. Essentially, such letter, document or statement must have been made bona fide with the intention to avoid possible litigation.
2. The document must contain an admission that can be detrimental/disadvantageous to the maker. That is, the content of the document or letter sought to be rendered inadmissible by utilization of this rule must contain statements against the pecuniary or proprietary interest of the maker in an attempt to settle the dispute amicably.¹³
3. The document or statement must be made in such circumstances from which the Court can infer that parties intended that evidence of it should not be given.
4. These prerequisites are cumulative and not mutually exclusive of each other. Thus, any document marked 'without prejudice' that fails to meet any of the conditions highlighted above is purely cosmetic and cannot take benefit of the rule.

4. Exceptions to the Rule

It is a popular legal parlance that the practice of the law is one that is riddled with numerous exceptions to every general rule. Some have even described this as the beauty of the law. It is no surprise that the general rule of inadmissibility of documents marked 'without prejudice' accommodates certain exceptions, which are discussed below:

1. Firstly, pursuant to section 196 of the Evidence Act, the rule will only apply to documents or statements made and exchanged in the course of negotiation for the settlement of a dispute out of court. Hence, it logically flows to posit that the rule will not apply when such statements or documents are not made and exchanged by the parties with the motivation to resolve their dispute amicably. In Acmel (Nig.) Ltd v. F.B.N. Plc,¹⁴ the Court of Appeal held that a document marked "without prejudice" was admissible on the ground that there is nothing to show that the document was made as an offer of compromise in anticipation or likelihood of litigation between the parties.¹⁵
2. Another exception housed in section 196 of the Evidence Act is that the rule may only be successfully applied in civil proceedings. It does not apply in criminal cases.
3. Additionally, it was the position of the court in Nwadike v. Ibekwe,¹⁶ that the rule will also not apply when the party seeking to rely on the document is a third party, who was not a party to the negotiations and the making of the document. This exception may be likened to the rule of privity of contract as established in Tweddle v Atkinson.¹⁷
4. A document marked without prejudice may also be admissible on the ground that the document was tendered to prove that such document was made and not to prove the content or an admission against interest therein¹⁸
5. As previously stated, one of the conditions to invoke this rule is that the document so marked must contain an admission that is disadvantageous to the maker,¹⁹ thus, it follows explicitly from this requirement that the rule will not apply if said document sought to be protected under this rule does not contain any such admission.²⁰
6. Another exception to this rule which has been recognized by Nigerian courts as illustrated in the case of Greyshot Enterprises Ltd v. The Hon. Minister of Agriculture & Ors.,²¹ is that where a document marked without prejudice is necessary to prove the existence of a concluded agreement, it will be admissible.

5. Conclusion

The law encourages that litigation should be the last resort; that attempts to resolve disputes peacefully and amicably out of court should be exhaustively explored before parties head to court. During such attempts, certain statements, admissions against interest, concessions, and compromises may be made by the disputing parties and as such the law deems it necessary to act as a protector, shielding the makers of such statements by precluding the admissibility of adverse statements in a trial in the event that attempts to settle out of court fails. However, as hitherto explained, the protection afforded by the law is not absolute. The law recognizes certain situations where the shield of protection will be the lifted.

Footnotes

1. Titilayo Wunmi, 'a Document Marked "Without Prejudice" Is Inadmissible; Exceptions Thereto'(2024) (https://lawandlifepartners.com.ng/a-document-marked-without-prejudice-is-inadmissible-exceptions-thereto/#:~:text=Section%20196%20of%20the%20Evidence%20Act%2C%202011%20provides%3A,in%20proof%20of%20the%20matters%20stated%20in%20it. ) accessed 6 September 2025.

2. See, UBN Plc v. Okoror (2002) 10 NWLR (PT.774) 1; Akanbi v. Alatede (Nig.) Ltd (2000) 1 NWLR (PT.639) 125 and Jadesimi v. Egbe (2003) 10 NWLR (PT.827) 1 CA.

3. Evidence Act, 2011 (as amended).

4. (2012) ALL FWLR (PT. 636) 544 CA.

5. (n2).

6. (1922) 1 K.B. 485 at 489 (Lush J).

7. David T. Eyongndi and Cletus Gladys Ochu, 'Admissibility Of Documents Under The Nigerian Law Of Evidence: The Province Of "Without Prejudice" Determined' (https://www.studocu.com/row/document/university-of-lagos/law-of-evidence/admissibility-of-documents-under-the-nig/115925790 ) accessed 6 September 2025. See also, United Bank of Africa Ltd. v. I.A.S & Co. [2001) FWLR (Pt. 75) 578.

8. (1988) LPELR- (SC) (Nnaemeka-Agu JSC).

9. Peter Onole, 'A LEGAL POSITION ON ADMISSIBILITY OF DOCUMENTS MARKED 'WITHOUT PREJUDICE' UNDER NIGERIAN LAW'(2024) (https://jurislawng.com/a-legal-position-on-admissibility-of-documents-marked-without-prejudice-under-nigerian-law/ ) accessed 6 September 2025.

10. Evidence Act, 2011 (as amended).

11. (supra).

12. Evidence Act, 2011 (as amended).

13. See, Spring Capital Markets Plc v. Ikara (2016) 9 NWLR (PT. 1516) 173 C.A.

14. (2014) 6 NWLR (Pt. 1402) 158 CA.

15. See also, Obeya v. F.B.N Plc (supra) and Jadesimi v. Egbe (supra).

16. [1987] 4 NWLR [Pt. 67] 718.

17. (1861) 121 ER 762.

18. See Jadesimi v. Egbe (supra).

19. Spring Capital Markets Plc v. Ikara (supra).

20. Jadesimi v. Egbe (supra).

21. (2002) 9 NWLR (Pt.771) 1

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