"The letter written 'without prejudice' is in pages 15 - 16 of the record. Paragraph 5 thereof which is in page 16 of the record concludes thus
"The parties further agree that the amount to be liquidated in accordance with the arrangements set out above is N66,823,036.22 (sixty-six million, eight hundred and twenty three thousand, thirty six naira and twenty two kobo only)".
The subsequent letters or correspondence between the parties attached to the affidavits in the case were on modalities of repayments of the admitted indebtedness of N66,823,036.22 in the course of which the appellants made part repayment of N4.5 million. There was thus a concluded and enforceable agreement (supra) on the quantum of indebtedness and the subsequent correspondence did not therefore derogate from it nor constituted further negotiation on the quantum of the indebtedness.
A letter written with the expression 'without prejudice' is restricted only to cases where there is unresolved dispute or negotiation is still in progress and is yet to crystallise into an agreement between the parties to the dispute in which case the letter or correspondence is inadmissible in evidence on the footing that confidential overtures so made should be excluded from evidence on the ground of public policy. Because if it is not so, amicable settlement of disputes would be difficult and the defendant would be prejudiced and/or unprotected by a grasping adversary who may exploit the amicable arrangement to settle the dispute by relying on an offer made in the course of the negotiation as binding on the person that made it in disregard of the fact that it was made under disputed circumstances or at the time there was dispute between the parties.
In the instant case, the extract (supra) which referred to what was arrived at a meeting between the representatives of the parties on 11-08-1999, while the letter, Exhibit AS1, was on 18-11-99 indicated concluded agreement on the quantum of indebtedness in that meeting of 11-08-99 which is unequivocal admission of the amount in question by the appellants, so the expression "without prejudice" in Exhibit AS1 became cosmetic or decorative and/or impotent and did not drain the agreed indebtedness of potency and efficacy vide Greyshot Enterprises Limited v. The Hon. Minister of Agriculture and Ors. (supra) at 22 - 23 where it was held inter alia that if, however, there is a concluded agreement the fact that the correspondence is 'without prejudice' would not affect its admissibility in evidence.
Thus in United Bank for Africa Limited v. I.A.S. Company Limited (2001) FWLR (pt.75) 578 cited with approval by the learned author, S.T. Hon. SAN, in his great works titled 'S.T. Hon's Law of Evidence in Nigeria (vol.II)' published in 2012 in pages 858 - 859 thus " If 'A' owes 'B' N1,000.00 and "A" writes 'B' admitting that he owes the amount but offers to pay N900.00 in final settlement, it seems to me that even if the offer is made without prejudice, the evidence of admission ought to be receivable in evidence....................... Now, can it be said that the letters written by the 1st plaintiff's solicitor under the cover "without prejudice" ought to be excluded from evidence on the ground that they covered admissions made in the course of bona fide negotiation? I think not.
The solicitor to the 1st plaintiff/respondent never in any of the letters disputed that a loan of N70,000.00 was granted to his client. ............ therefore the plaintiff's solicitor by writing exhibit BON7 was not in the course of negotiating to resolve a dispute .........Merely putting the heading on the letter "without prejudice" cannot in my view make it inadmissible. This was not a negotiation in good faith to compromise a dispute." The subsequent letters in question being on the modalities for repayment of the agreed indebtedness cannot be said to be continuation of negotiation of the quantum of indebtedness because once a debt is admitted, the mode or time for repayment is a different matter vide Kenfrank Nigeria Limited and Ors. v. Union Bank of Nigeria Plc (2002) 8 NWLR (pt.789) 46 at 73 per the lead judgment prepared by Ikongbeh, J.C.A., (now of blessed memory). The Court below was therefore right in entering judgment on the agreed sum of N66,823,036.22."
Per IKYEGH, J.C.A. IN PACERS MULTI-DYNAMICS LTD & ANOR v. ECOBANK CITATION: (2018) LPELR-45008(CA)
