A statement made in the course of a negotiation of the compensation or the offer of such a compensation would, in my view, be analogous to a statement made “without prejudice” during a negotiation. The law has always taken the view that parties should speak freely in attempting a settlement of their disputes. That freedom of discussion will be seriously prejudiced if any offer or admission made in the process of the negotiation could be given in evidence and be used to support a party’s case in court afterwards, should the negotiation break down. Where such negotiations are made by written communication they are usually marked “without prejudice” and are inadmissible against the parties in that suit. But it is 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. Hence in Mole v. Mole (1951) Probate 21, C.A., oral communications to a conciliator by a party to a matrimonial dispute was treated as having been made without prejudice. See also Pool v. Pool (1951) Probate 470; also Henley v. Henley (1955) Probate 202. Although these two cases deal with privilege attaching to statements made during negotiations as between a husband and his wife during a dispute, the principle is rather broadly – based. The learned authors of Phipson: On Evidence (11th Edu.) put it thus at p. 307 in para. 679. “Offers of compromise made expressly or impliedly ‘without prejudice’ cannot be given in evidence against a party as admissions; the law on grounds of public policy, protecting negotiation bonafide entered into for the settlement of disputes.” The privilege is, however, that of the parties. There can be no doubt that the Commissioner for Works and Transport is part and parcel of the Bendel State Government whom the Attorney-General represents in the suit. In the instant case, I believe I am entitled to take notice of the position of a Commissioner in Government. He is the political head of his Ministry. He receives some of such petitions from members of the public from time to time. In this case, he not only received a petition from the appellant but had the one which the appellant sent to the Military Governor referred to him. His mandate was to negotiate compensation, not to investigate liability; the latter being an exercise by the Courts. To hold that evidence of such an offer which was clearly stated to have been made as a mere compensation is admissible as proof of admission of liability is to suggest that before a Commissioner who receives a petition makes an offer of compensation in settlement he must first wait to know the opinion of the arm of government designed, the courts, designed for the investigation of the merits and demerits of every claim. That would be an untenable position and one which will work hardship on the public in general, who often petition their governments for redress, even if their claims might have failed in court for one reason or the other. I believe that public policy dictates that such an offer should be privileged. In my judgment it would be wrong in the circumstances to treat whatever the Commissioner offered as any proper basis for finding the respondent liable for the appellant’s claim in Court. I shall not do so.
— Nnaemeka-Agu, JSC. Ashibuogwu v AG Bendel State (1988) – SC.25/1986
