subpoena & compellability of witness

There are times where a witness whose evidence is every important in determining a case may deliberately refuse to come to court and testify for reasons best known to him. Of course, this can be very frustrating. However, the appearance of such witness can be secured where he or she is mandated or compelled to appear before the court on a stated date via a writ of court known as subpoena ducestecum a witness is ordered to produce a specified document while by a subpoena ad testificandum the witness is ordered to appear and give testimony. A subpoena is an Order of court, disobedience of which carries serious penalty as in every order of court.

See Omidiran V. Etteh (2011) 2 NWLR (Pt. 1232) 471 @ 500; Akintayo V. Jolaoye (2013) All FWLR (Pt. 679) 1172 – 1173.

Where a witness had been served a subpoena ad testificandum et duces tecum and appears before a court to give evidence or produce a document, the court cannot by its own volition turn around to refuse to allow him or his representative to be sworn and give evidence since the subpoena had commanded him to do so. The cannot compel him to come and then refuse to allow him perform the function for which he was so compelled. It will amount to a denial of fair hearing for the court to do so.

Akintayo V. Jolaoye (2013) All FWLR (Pt. 679) 1156; Lasun V. Awoyemi (2009) 16 NWLR (Pt. 1168) 513 (at 550); Aregbesola V. Oyinola (2009) All FWLR (Pt. 472) 1147.

Where a witness subpoenaed to give evidence is refused the opportunity to do so by the court, such court cannot be said to have obeyed the hallowed principle of natural justice, equity and good conscience. It will amount to a denial of fair hearing against party for whom the witness is to testify. This breach is fundamental and will vitiate the entire proceeding rendering it null, void and of no effect.

Akintayo V. Jolaoye (2013) All FWLR (Pt. 679) 1173.; Mohammed V. Kano N.A. (1968) 1 All NLR 42.; Elike v. Nwankwola (1984) 12 SC 301.

A person subpoenaed to produce documents in any proceedings before a court need not be sworn and cannot be cross examined for merely producing such document. A person merely required to produce a document is not a witness and so cannot be cross examined in relation to the document produced by him. The fact that he was subpoenaed to produce documents does not make him a witness in the proceeding.See Mainasara V. Imam (2012) All FWLR (Pt. 618) 894;Section 219 Evidence Act, 2011; MBAT v. HON. MIN, FCDA (2018) HELAR ratio 6

Not really. Once there is sufficient proof before the court that a person was indeed

subpoenaed and the court finds satisfaction in such proof, then a subpoena does not need to be tendered.

See Edoho V. A.G Akwa Ibom (1996) 1 NWLR (Pt. 425) 488 (at 498).

Where upon evidence that a subpoena issued by the court has been served on the person named in the subpoena and such person refuses to comply with the order, the court upon satisfaction that the service was indeed made on the person and that the sum prescribed by law was indeed tendered to him for his expenses but he still refuse to come to court, the court will issue a warrant of arrest against the person subpoenaed. In fact, it will be contempt of court to flagrantly and without reason refuse to obey the order of the court.

See Section 253(2) Evidence Act, 2011

Absolutely. Where it is necessary for the purpose of obtaining evidence in any proceeding in court from a person and such person is undergoing sentence, such person can of course be summoned or ordered to appear in court. This order is usually directed to the Superintendent or Officer in charge of Prison or place where the person is undergoing his sentence requiring him to produce the person at the time and place specified in the order.

See Section 251(1) Evidence Act, 2011.

A person upon whom a subpoena is served is not expected to bear the financial responsibilities that arise from his effecting of the subpoena served on him. For instance, a person upon whom a subpoena is served is not expected to come to court while bearing the financial responsibility of his transport. The court usually makes an order as to the cost of compliance with the order of a subpoena.

See section 253(2) and 254(3) Evidence Act, 2011.