WITHOUT PREJUDICE: THE SHIELD OF AMICABLE SETTLEMENT.

INTRODUCTION

The phrase “without prejudice” is a vital safeguard in Nigerian civil practice, designed to encourage parties to negotiate settlements openly and without fear that their offers, concessions, or admissions will later be used against them in court. Rooted in public policy that favours amicable resolution over time consuming litigation, it protects bona fide communications made in the course of genuine attempts to compromise.

This article examines the meaning and legal foundation of the doctrine under the Evidence Act 2011 (2023 as amended), its practical effects, the conditions for its application, recognised exceptions, and its continuing relevance in modern commercial disputes. It underscores that while the label is useful, substance and good faith remain decisive, ensuring the rule continues to promote efficient, fair, and voluntary dispute resolution.

MEANING AND LEGAL FOUNDATIONS.

The phrase “without prejudice” means without loss of any right; in a way that does not harm or cancel the legal right or privilege of a party[1]. It connotes communications made “without detriment to any existing right or claim.” In essence, it signals that the content is offered in a spirit of compromise and does not prejudice the position of the maker if the offer is rejected. Nigerian law has seamlessly incorporated this principle, codifying it while retaining its common law foundation. In the case of Grayshot Entreprise Ltd. V Minister of Agriculture (2002) 9 NWLR (Pt. 771) 1 @ (P. 22, paras. F-H), the Court of Appeal held that the phrase without prejudice is used to compromise negotiations and guard to waiver of rights.

“Without prejudice” is a phrase used in offers in order to guard against any waiver of right. It is also used for the purpose of negotiating a compromise. Communications made “without prejudice” for the purpose of negotiating a compromise are not admissible in evidence”.

The Supreme Court held that “without prejudice” protects subsequent and even previous correspondence and admissions made during a bona fide attempt to settle a dispute.[2]

The phrase, “Without Prejudice” is deeply rooted in public policy and serves as a mechanism to encourage parties to negotiate settlements freely, without the fear that their concessions or statements will later be weaponized against them in court. In a jurisdiction where litigation can be time consuming and costly, this rule promotes efficiency and harmony, aligning with the judicial system’s preference for amicable resolutions.

Essentially, most documents marked “without prejudice” are so marked to protect the writer who would, in the pre-litigation period, have some offers, concessions or compromises with all good intentions, possibly to forestall litigation. The law looks at such gentlemanly conducts especially bona fide element in them, as good, for there must always be an end to litigation. It is for this same reason that documents marked “without prejudice” are most at times inadmissible, or become admissible only upon fulfillment of certain stiff conditions.

Pursuant to Evidence Act 2011(2023 as amended), the rule was applied through Section 196 which addressed conditional admissions. The Act provides thus:

“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.”

This provision is reinforced by Section 26 of the Evidence Act 2011, which renders inadmissible admissions made upon an express condition that evidence of them shall not be given, or in circumstances from which the court can infer such an agreement between parties.

“In civil cases no admission is relevant, if it is made either upon 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”.

These sections embody the public policy that it is better to settle than to litigate, protecting bona fide negotiations to prevent parties from being deterred by the risk of their words being used as admissions.

It should be noted that the mere fact that any document/letter has been marked “without prejudice”, does not automatically disqualify such document from being admissible in evidence. The crucial test and conditions which the Court will look at and critically consider when presented with letters/documents marked “without prejudice” was held by the in the case of Jadesimi v Egbe (2003) 10 NWLR 1 (Pt. 827) @ Pp. 25-26, paras. G-F;

“By virtue of section 25 of the Evidence Act, the following ingredients must be present before the provision can be applied to exclude a piece of evidence;

(a)the piece of evidence concerned must relate to an admission by the person against whom the evidence is to be given;

(b)the admission must have been made upon an express condition that evidence of it is not to be given; or

(c)the admission must have been made in the circumstances from which the court can infer that the parties agreed together that evidence of it should not be given.

The presence of the first ingredient is important and a sine qua non for the rule to be applied. In the instant case, the 1st appellant’s letter, exhibit “CC”, dated 15th January, 1995 conveying a specific instruction to her solicitor as to what to be done on her behalf does not contain any admission by the 1st appellant. It is simply a letter of instruction written by the 1st appellant to the 1st respondent, her solicitor, instructing him on what he should do on her behalf. In the circumstance, the letter was properly admitted in evidence by the trial court notwithstanding that it was written “without prejudice”

This rule applies to letters, emails, meeting minutes, and even oral discussions in mediation or direct talks. It extends to negotiations before or during litigation, provided they aim at compromise.

LEGAL EFFECTS AND PRACTICAL IMPLICATIONS

The primary effect is inadmissibility in civil proceedings to prove the matters stated therein. A party cannot tender “without prejudice” correspondence to establish liability, the quantum of a claim, or an admission against interest. This shields the negotiating party from having their settlement offers interpreted as weaknesses in their legal position.

For instance, an offer to pay a reduced sum in full and final settlement cannot be used as evidence that the offeror admits owing the higher amount. This fosters open dialogue, as parties can explore creative solutions without litigation risks.

In commercial disputes, this rule is invaluable. Banks, contractors, and businesses routinely use it in debt recovery or contract variations. However, misuse such as marking routine correspondence “without prejudice” without a genuine dispute will not invoke protection.

EXCEPTIONS TO THE RULE

The rule is not absolute. Key exceptions, drawn from Nigerian and persuasive authorities, include:

-Absence of bona fide or good faith.

-Concluded Agreement: If negotiations result in a binding contract, the correspondence is admissible to prove the agreement’s existence and terms. The privilege does not prevent enforcement.[3]

-Fraud, Misrepresentation, Undue Influence, or Illegality: Communications furthering crime, fraud, or improper conduct lose protection.[4]

-Waiver by Consent: Both parties may agree to admit the material.

-Third Parties or Non-Negotiation Context: The rule does not extend to communications with strangers or non-settlement matters.[5]

CONTEMPORARY RELEVANCE AND CHALLENGES

In rising commercial disputes amid economic pressures, the rule remains crucial. Digital communications (emails, WhatsApp in formal contexts) can qualify if they meet the criteria, though proving genuineness requires care.

Challenges include tactical abuse as parties overuse the label or disputes over whether a communication was truly “in the course of negotiation.” Judges exercise discretion, often inspecting documents where necessary. Using this tool responsibly yields better outcomes. It de-escalates conflicts and saves judicial time.

CONCLUSION

The “without prejudice” doctrine is a cornerstone of Nigerian evidence law, embodying enlightened public policy that values settlement over dispute. it provides a reliable shield for negotiators while admitting necessary exceptions for justice.

Practitioners must understand its nuances. The label is helpful but substance prevails; this protection encourages candour but yields to concluded deals or misconduct. As disputes evolve, this rule will continue safeguarding pathways to resolution, ensuring parties can negotiate boldly without undue prejudice to their rights. It also upholds the administration of justice by fostering voluntary compliance.

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