Subpoena is a potent tool available for any party in the course of dispute resolution before a court, particularly a trial court in Nigeria. Despite being well known to most legal practitioners under our jurisprudence, several controversies abound on the proper form and procedure for the issuance and use of subpoenas. This Blog Post shall try and address some of these controversies including some of the pertinent questions about subpoenas.

In Omidiran v Patricia[1], a subpoena was defined as a formal document issued by the court commanding a person required by a party to a suit to attend before the court at a given date, to give evidence on behalf of the party or to bring with him and produce any specified documents required by the party as evidence or for both purposes. The power of Courts to issue Subpoenas is essentially statutory as provided in Setions 218 and 219 of the Evidence Act 2011 and the various Rules of Court of the different courts in the country. There are two basic types of Subpoenas; Subpoena Duces Tecum is used when a party needs documents in the hands of an adverse party whilst a Subpoena Ad Testificandum is used to secure the attendance of an adverse party to testify on oath. Where a witness is required to testify on oath and also tender documents, a third type referred to as Subpoena Duces Tecum Ad Testificandum is used. A specie of Subpoena Ad Testificandum known as Habeas Corpus Ad Testificandum is used to compel the Controller of Prisons to produce any individual in his custody in court at a given date and time to testify in a pending matter and return such individual back to the Prisons thereafter.

The Forms for these types of Subpoenas are usually contained in the various Rules of Court and may be modified to suit peculiar circumstances. It is important that a party uses the type of subpoena that suits its case; where a subpoena duces tecum is used, the documents expected to be tendered by the witness are required by the different Rules of Court to be listed on the Subpoena. It is critical to note that facts or documents in respect of which a subpoena is to be deployed must be pleaded and relevant; where are irrelevant and/or frivolous, the court may set aside the issuance of the subpoena. A witness to be subpoenaed must also be competent and compellable, otherwise, the court may not give effect to such subpoena.

Though, it is said that a subpoena is a court document, it is issued by counsel to the party that intends to use it. The pracecipe and the Forms for the different types are contained in the various Rules of Court, Counsel to the party will take them out, pay the necessary fees including filing fees, cost of service and deposit the fees to cover the first attendance of the witness to be subpoenaed. After that, the Subpoena is sealed at the Registry and the Judge gives the final order issuing and approving the Subpoena. Service of Subpoena is to be effected personally except a Judge orders substituted service. Once service is effected and the fees to secure the attendance of witness paid, attendance is mandatory. Failure to attend is contempt, the applicant may apply to arrest such witness or even commit him to prison in order to compel his attendance. It is incumbent on the applicant to take all legal processes to ensure compliance with the subpoena, where the documents are not produced and he fails to take the steps, he cannot complain of the non-production after trial.

Whether a subpoenaed witness is expected to file witness statement on oath depends on the Rules of Court in question; a party must check and be sure to comply to the specific Rule in question. Where a Subpoena is properly issued and served, any party affected by same may apply by Motion to have it set aside. Some of the grounds for setting a Subpoena aside include that documents or information required relates to the personal affairs of a party, or that it is vague, frivolous, embarrassing with no beneficial purpose to serve or that the witness has no material evidence to give. A subpoena served on an employee may also be set aside on the grounds that he has no authority from his employers to produce the documents.

There are basically two types of Subpoenas: Subpoena Duces Tecum and Subpoena Ad Testificandum:

Subpoena Duces Tecum: is the type by which the court at the instance of a party commands a witness who has in his possession or control some documents or papers that are pertinent to the issues involved in a pending suit to produce it at trial.[2] The duty “to produce” documents on a subpoenaed witness is not the same as to “tender”.

Subpoena Ad Testificandum: is subpoena to testify on oath or affirmation and be liable to be cross-examined.[3]

There is a specie of Subpoena Ad Testificandum referred to as Habeas Corpus Ad Testificandum. This type is used to compel the Controller of Prisons to produce any individual in his custody in court at a given date and time to testify in a pending matter and return such individual back to the Prisons thereafter. See Forms 28, 22 and 71 of the Lagos, FHC and NICN Rules, respectively.

The distinction in the types of subpoenas is the very essence of Sections 218 and 219 of the Evidence Act; the statutory powers and basis for a Subpoena Duces Tecum is contained in Section 218 while Section 219 covers Subpoena Ad Testificandum.

However, where a witness is needed not only to produce documents required by a party but also to give oral testimony pursuant to which he may be cross-examined, a third type of subpoena known as Subpoena Duces Tecum Ad Testificandum is desirable. A Subpoena Duces Tecum Ad Testificandum is a jumbo subpoena that combines two qualities or characteristics namely: commanding or ordering a person to appear and bring specified documents or records and to give testimony.[4]

In Flour Mills of Nigeria Plc v Nigerian Customs Service Board & Ors[5], the legal distinction between a subpoena duces tecum and a subpoena ad testificandum was made. In that case, a witness was called to produce documents pursuant to subpoena duces tecum and after the production of the document, the applicant applied to have the same witness give viva voce.

[1] (2010) LPELR-9160 (CA)

[2] See the case of Famakinwa v University of Ibadan (1992) 7 NWLR (Pt. 255) 1992. See Order 36 Rule 21 and Form 29 of the High Court Rules for a Praecipe of a Subpoena Duces Tecum. See also Order 20 Rule 20 and Form 23 of the FHC Rules.

[3] See the case of Famakinwa v University of Ibadan supra. For a praecipe of a Subpoena Ad Testificandum, see Order 36 Rule 21 and Form 27 of the High Court Rules and Order 20 Rule 20 and Form 21 of the FHC Rules for both the High Court of Lagos State and Federal High Court, respectively.

[4] See the pronouncement of Muhammad JCA in Omidiran v Etteh (2011) 2 NWLR (pt.1232) 471 at 500 para F and Ibrahim v Ogunleye (2010) LPELR-4656 (CA).

[5] (2016) LPELR-41256(CA)

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