SUBPOENA

A subpoena is a special writ that is used to compel the attendance of a witness to give evidence before the court. See the case of FAMAKINWA v UNIVERSITY OF IBADAN (1992) 7 NWLR (Pt. 255) 192. The courts may however mandate the attendance of a witness without necessarily using the word “subpoena”. In BUHARI v OBASANJO (2005) 12 NWLR (Pt. 941) 1 @ 257 para A, the Supreme Court held that a subpoena is a court process commanding a person to attend court and produce a document or evidence before the court. A party in action may by subpoena require the attendance of any witness before the court. A subpoena is primarily served personally except in cases where an order of substituted service has been granted by the court or a Judge in chambers. By rules of the courts, a subpoena is to last till the end of the trial in which it was granted. However, in practice, once the witness has appeared before the court and has given his oral testimony or has produced the documents he is to produce in line with the subpoena, the court usually discharges him and he need not return. 

Failure to obey the subpoena amounts to contempt of court and such a disobedient individual may be liable to committal to prison. Where a party has failed to produce documents demanded by another party through a subpoena, the proper procedure is for the party that demanded the documents to adduce secondary evidence of the documents in accordance with sections 90 and 91 of the Evidence Act, 2011 as amended. Another option the demanding party has is for such a party to ask the court to compel the defaulting party to produce the documents demanded, by committal of the defaulting party to prison.

TYPES

While there are two main types of subpoenas, there is a third type which is a combination of the two main types. These include:

•    Subpoena ad testificandum: this is a type of subpoena which compels the person to whom it is addressed to appear before the court and give his oral testimony.
•      Subpoena duces tecum: this compels a witness to produce relevant documents before the court. By section 218 Evidence Act, 2011, a person, whether a party or not in a cause, may be summoned to produce a document without being summoned to give evidence and if he causes such document to be produced in court, the court may dispense with his personal attendance. By section 219 of the same Act, the person summoned to produce a document does not become a witness by the mere fact that he produces it and he cannot be cross-examined unless and until he is called as a witness. See BUHARI v OBASANJO supra
•     Subpoena duces tecum ad testificandum: this is a mixture of the earlier listed subpoenas. The person served with this subpoena is to produce documents before the court and also give oral evidence. This means he can be cross-examined on the documents he is to provide.

NOTE: a subpoena which has not been specifically labelled as duces tecum or ad testificandum will be regarded as subpoena duces tecum ad testificandum.

One may ask what differentiates a subpoena from a witness summons. The major difference between the both is that while a subpoena can only be issued by a superior court (such as the High Courts), a witness summons can be issued by both superior courts and inferior courts (such as the Magistrate Courts)