Subpoena is a potent tool available for any party in the course of dispute resolution before a court, particularly a trial court in Nigeria. It is a common feature in various legal jurisprudence across the world. In Nigeria, the term “subpoena” is well known to most legal practitioners under our jurisprudence. Tellingly, there have been several controversies regarding the appropriate procedure for the issuance and use of subpoenas by parties in their attempts to present and prove their respective cases in proceedings before the court. In fact, most of the objections that are raised against the use of subpoenas by lawyers during trial are procedural in nature. They border on the issuance and form of the subpoenas. 

To buttress this fact, recently, whilst waiting before a High Court of Lagos State sitting in Igbosere for my matter to be called, a case involving a Senior Advocate of Nigeria listed for trial was called. The parties in the case are a leading commercial bank in Nigeria and a property company as Claimant and Defendant respectively. The Learned Silk who appeared for the Claimant informed the Court that the matter was for trial and that the Claimant’s first witness, who was appearing pursuant to a subpoena ad testificandum/duces tecum was available in court to give evidence.  

The Defendant’s counsel opposed the calling of the subpoenaed witness first on the ground of service. He contended that a copy of the subpoena was not served on the Defendant. The Claimant applied for leave to serve the Defendant in open court in order for trial to proceed and same was granted. However, and like most lawyers, the Defendant’s counsel was not done.  After the said subpoena was served on the Defendant’s representative in court, counsel for the Defendant raised another objection on the ground that the documents which the witness was going to tender were not listed on the face of the subpoena as required under the High Court of Lagos State (Civil Procedure) Rules 2019  (“Lagos Rules”). It was argued that failure to so list the documents on the subpoena is contrary to the purport and intendment of frontloading of documents under the Lagos Rules which is to avoid springing surprises on the other party. In response to the objection, the Learned Silk argued that the said witness, being on subpoena, is a witness of the court, the Claimant is not aware of the documents he is coming to tender and/or the testimony he is coming to give and that in any case, the Defendant was at liberty to cross-examine the witness thereafter.

The court in that case agreed with the Defendant that the documents ought to have been listed on the subpoena as required by the Lagos Rules and therefore adjourned the suit for the Claimant to the needful. Another issue thrown up in the arguments by counsel in the scenario mentioned above is whether there was a need for the Claimant as part of the frontloading procedure of the court to have filed a witness statement on oath for the subpoenaed witness

The above case captures some of the fundamental issues surrounding the use of subpoenas in our legal system. Thus, this article will attempt to answer the issues raised in the scenario above including but not limited to (a) what are subpoenas? (b) when are subpoenas required? (c) what is/are the appropriate mode(s) of serving subpoenas? (d) what is the correct order of the procedure for the use of subpoenas by a party in proof of its case in court? (e) whether the filing of a witness statement on oath is required for a witness on subpoena? (f) where a subpoena has been issued by the court at the instance of a party, can the adverse oppose same? (g) if (f) is answered in the affirmative, on what grounds and what is the procedure for such opposition to a subpoena? The answers to these questions will be attempted in the succeeding paragraphs of this article.

It remains to add that, as we shall see in the succeeding paragraphs hereof, the power of the courts to issue subpoenas is principally statutory and is variously provided in the different Rules of courts. The analysis of subpoena in this paper shall be limited to the extant Lagos Rules, the Federal High Court (Civil Procedure Rules) 2019 (“the FHC Rules”) and the National Industrial Court (Civil Procedure) Rules 2017 (“the NICN Rules”). Reference will also be made to local and foreign case law on the use of subpoenas.

What are Subpoenas?

According to Black’s Law Dictionary[1], a subpoena is a writ issued by a court or a tribunal commanding a person to appear before it subject to a penalty for failing to appear. In Omidiran v Patricia[2], 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. A subpoena was also defined as a writ[3] commanding a person to appear before it, subject to a penalty for failing to comply.

What is clear from the above definitions is that though the subpoena is a writ issued by the court commanding the appearance of a person to give evidence and/or produce documents, the request or application for same is at the instance of the parties to the matter.

Power of the courts to issue subpoenas

It is important to mention that the power of the courts to issue subpoenas is statutory as provided for in our substantive laws and various Rules of different courts in the country. Sections 218 and 219 of the Evidence Act 2011 (“the Evidence Act”) provide as follows:

Section 218

“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.”

Section 219 of the Evidence Act also states that:

“A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called a witness.”

In addition to the provisions of the Evidence Act, several rules of court in Nigeria also make provisions for issuance of subpoenas. Order 20 Rule 8 of the FHC Rules provides as follows:

“The Judge may at any stage of any proceeding order the attendance of any person for the purpose of producing any writing or documents named in the order.

Provided that no person shall be compelled to produce under any such order any writing or other document which he could not be compelled to produce at hearing or trial.”

Order 36 Rules 16(1) and (2) of the Lagos Rules and Order 40 Rule 10 of the NICN Rules contain similar provisions on the power of the Court to issue and order subpoenas for the production of documents or securing the attendance of individual to give evidence and be cross-examined on any such evidence given.

Types of Subpoenas

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.[4] 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.[5]

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.[6]

In Flour Mills of Nigeria Plc v Nigerian Customs Service Board & Ors[7], 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 evidence. The application was refused by the Lower Court following which the appeal was lodged on the grounds that the Lower Court denied the party fair hearing. In its decision, the Court of Appeal[8] affirmed the decision of the Lower Court and held that the witness who produced documents pursuant to a subpoena duces tecum without being sworn on oath could not give evidence on oath[9]. The argument that the subpoena duces tecum used also stated that the witness could give oral testimony was rejected.

It may be contended that a witness called pursuant to a Subpoena Ad Testificandum would ordinarily be allowed to tender documents mentioned in his or her oral testimony. It is however desirable that where a witness is required to serve two purposes-give testimony and produce documents- a Subpoena Duces Tecum Ad Testificandum is issued to cover the field and prevent any possible objection by the adverse party. One of such objections will be the requirement in the Rules that documents to be produced must be listed on the face of the subpoena to avoid springing surprises on the adverse party.

When is a Subpoena used?

 The distinction between the types of subpoena offers an insight to when they are deployed by parties. Where the document needed by a party in the proof of its case is in the hands of an unwilling or reluctant adverse or even third party, a subpoena duces tecum may be deployed to ensure the said documents are produced in court. In the same vein, where an adverse party or a third party is necessary for the proof of certain state of facts, a party may apply to the court for the issuance of a subpoena to compel such individual to give testimony on the facts. Therefore, a subpoena is inappropriate where the witness to be called is within the control of the calling party.

In civil proceedings, a subpoena is mostly deployed in cases commenced by Writ of Summons and is likely to proceed to trial. In Inc. Trustees of Island Club & Ors v Sikuade[10], it was held that a subpoena, even if it is to produce documents is inappropriate for a proceedings commenced by Originating Summons. It must be added that facts or documents in respect of which a subpoena is deployed must not only be pleaded, they must also be relevant. Where the facts are not pleaded or found to be irrelevant or at large, or frivolous and perhaps calculated to frustrate and embarrass the adverse or third party, the court may set aside the issuance of such subpoena.

Furthermore, the principles of competence and compellability of witnesses will also apply in mandating the attendance of a witness vide the use of a subpoena. Therefore, where however a witness is competent to testify or produce documents, but he is not compellable, the court will not give effect to the subpoena. In Famakinwa v University of Ibadan[11], it was held that a secretary or a registrar of a corporate body such as a university cannot be compelled by subpoena duces tecum to produce the university’s document where the members of the university council have forbidden him to produce such document or have not been shown to have consented to producing the document.

 It is instructive to add that a defendant is both competent and compellable to testify on behalf of the plaintiff, especially when the defendant has been served with a subpoena for the purpose.[12] This much is the very essence of subpoenas; securing the attendance of an unwilling  party to give a testimony in support of a party’s case or the production of documents for that purpose. It is however unlikely that a party may subpoena an adverse party to testify on an issue as that adverse party is likely weaken the party’s case.

A subpoena can be deployed strategically by a party to cross the hurdle of satisfying the requirements for the admissibility of a document. For instance, where the admissible originals or certified true copies of a document are in the hands of a reluctant adverse or third party, the party in need of such document can apply for the issuance of subpoena duces tecum to command the production of such documents.

Issuance of Subpoenas

Order 20 Rule 19(1) of the FHC Rules provides that “Where the Court intends to issue a subpoena, a praecipe for that purpose as specified in Form 20 in Appendix 6 to these Rules shall be filed.” A similar provision to Order 20 Rule 19(1) of the FHC Rules is contained in Order 36 Rule 20(1) of the Lagos Rules and Order 40 Rule 22(1) of the NICN Rules.

It is taken that a Subpoena is a writ issued by the court given the language of Order 20 Rule 19(1) which states that “where the court intends to issue a subpoena…”. However, in practice, it is counsel that takes out a subpoena to suit the purpose of his client’s case. In fact, a standard praecipe for a subpoena contain, in addition to details of the suit such as suit number, name of the parties, details of the subpoena also contains information on the name or Firm and the place of business, telephone number and e-mail address of the Legal Practitioner or where such Legal Practitioner is an agent, the details of the Principal Legal Practitioner intending to issue same.[13]

The praecipe for the subpoena and  either of the respective Forms[14] for the subpoena, that is subpoena duces tecum, habeas corpus ad testificandum and subpoena ad testificandum or a modification[15] of any of them is taken out by the legal practitioner and filed at the court registry with requisite fees paid. The requisite fees include filing fees, fees for service of the subpoena and assessed fees deposited to cover the first day attendance of the witness in court. No subpoena shall be issued unless all court fees have been paid[16]. This includes the fee for service and sufficient money on the prescribed scale deposited to cover the witness’s first day attendance in court[17]. It is believed that all costs and fees to be paid and/or deposited will be assessed at the Court Registry.

After payment of all requisite fees by counsel, the responsibility for sealing the writ of subpoena and securing the approval of the Judge is that of the Registry[18]. The final order of the court approving and issuing the subpoena is made in Chambers[19]. It is expected that as many copies as would be needed for the court, the party issuing it, service on the subpoenaed witness and the adverse party are issued for filing. 

The issuing Legal Practitioner must comply with all the conditions required and as listed on the Forms in the Appendix to the relevant Rules of Court. For a Subpoena ad Testificandum, the date and time the witness is required to attend court and on behalf of which party the testimony is required. For a Subpoena Duces Tecum, the specific documents to be produced by the witness must be listed on the face of the subpoena.

A subpoena shall be effective from the date of issue until trial in respect of the matter in which it is issued[20]. During the interval between issuance and service of any subpoena, errors in the names of parties or witnesses may be corrected by the Legal Practitioner and the subpoena marked with the words “altered and resealed” with the name of the Legal Practitioner.[21]

Service of a subpoena shall be done personally on the witness except a judge otherwise orders substituted service[22]. This puts the Registry through its Bailiffs and other officers in a better place to effect service on the named witness. However, what obtains in practice is that it is difficult to effect personal service of subpoenas, hence the need to apply and obtain leave to serve by substituted means.

Attendance of the Subpoenaed Witness

After the witness has been properly served with the Subpoena and the relevant fees to cover the attendance of the subpoenaed witness is deposited or paid to the Registry and made available to the witness, it becomes mandatory for the witness to appear pursuant to the summons. In Usani v Duke[23] the court held that the onus is on the applicant to ensure that the two requirements of proper service and making funds available to the witness to ensure attendance of the witness failing which penalties for non-attendance cannot apply. Where both conditions are complied with, the witness is expected to appear on the date mentioned in the subpoena and give testimony and/or tender documents required.

Where such witness appears and is compelled to give oral testimony, is he/she expected to file a written statement on oath in line with the frontloading procedure of the courts?

The FHC Rules and the NICN Rules require such witnesses to file witness statement on oath. Under the FHC Rules, the witness statement on oath of a witness appearing by subpoena is not expected to be filed at the time of filing the suit.  However, a witness appearing pursuant to a subpoena shall file a witness statement on oath of such testimony after he has been served with a Civil Form 1(a) by the party calling him in line with the Appendix to the FHC Rules[24]. Though the FHC Rules makes it a responsibility of the subpoenaed witness to file the witness statement upon being served with Civil Form 1(a), the responsibility of preparing and ensuring the filing of such witness statement is in practice, often that of the party calling the witness on subpoena. Order 38 Rule 18(4) of the NICN Rules also require a witness attending pursuant to a subpoena to give viva voce evidence to file a witness statement on oath.

The situation is however different with the HC Rules which is silent on the filing of a witness statement for a witness appearing pursuant to a subpoena. Though like the FHC Rules, the HC Rules does not require the filing of a witness statement on oath for a subpoenaed witness at the time of filing of the Suit[25]. There is also no specific provision on the requirement for the witness statement on oath of subpoenaed witness to be filed prior to giving his or her testimony.

This may however slow down the trial process as most courts still take notes in long hand and the testimony itself could be lengthy. This will also likely slow down the process of cross-examination as the adverse counsel is entitled to receive certified copies of such testimony before cross-examination. The writer however believes that given the usefulness of witness statements on oath, the party calling such witness under the HC Rules may apply to the court to have such a subpoenaed witness file a witness statement.

The requirement of a witness statement on oath for a subpoenaed witness will however pose challenges where the witness is an unwilling adverse or third party. Apart from the fact such witness may refuse to file the witness statement, where one is filed at all, such may not help the case of the party calling the witness.  Furthermore, given the technique and strategy often deployed by lawyers in the art of examination in chief or even cross-examination, an applicant calling an adverse or third party witness will want to tailor the testimony of such witness to specific and closed questions to elicit facts that will help its case. No such applicant will likely allow such an adverse party to file a detailed witness statement on oath on facts not helpful to the applicant’s case.

The requirement for filing witness statements on oath for a subpoenaed witness exists even in our Election Petitions jurisprudence. By virtue of the extant Electoral Act and Practice Directions[26] made thereunder, a Petitioner is expected at the time of filing his petition to file witness statements on oath for all its witnesses including those on subpoena. The position has however been deprecated by the courts with respect to an unwilling adverse or third party. In the case of Amachree v INEC[27], it was held that the Lower Court was wrong to have prevented an adverse party witness in that case being an INEC witness from being sworn on oath to testify because witness statement was not filed. The Court acknowledged that to insist on the filing of witness statement on oath for an adverse party by a petitioner at the time of filing his petition would mean to make proving election petition impossible. See also Lasun v Awoyemi (2009) CA LPELR-11912(CA), Ibrahim v Ogunleye supra, Akintayo v Jolaoye (2010) LPELR-3688 CA.

What then is the consequence of failure to appear pursuant to a Subpoena? Failure to appear to an order of subpoena is a grievous offence that may attract sanction from court. In I.N.E.C v Oshiomole[28], the Court of Appeal held that “……Being subpoenaed to appear before a Tribunal is therefore a very serious matter, and not one that can be treated with levity. Thus, a person must produce the documents as commanded in the subpoena, or suffer the penalty.”

The exact penalty or consequence of failure to appear pursuant to subpoena has been stated by the Rules to be Contempt[29]. The Applicant for the subpoena may also apply to the court for a warrant of arrest to secure the attendance of the subpoenaed witness. These powers of coercion and punishment for default is a distinguishing feature of subpoenas from a Notice to Produce[30]. Where such defaulter is held in contempt, the Rules say that the offender shall be dealt with accordingly.

It must be mentioned also that duty of taking out committal proceedings is on the applicant for the subpoena as failure to answer to the subpoena simpliciter will not result in any adverse finding on the defaulting party. See the case of Buhari v Obasanjo (2005) 13 NWLR (pt. 941) 1 at 257 paras A - B.  The Applicant for the subpoena may also apply to the court for a warrant for the arrest of the defaulting party. In Usani v Duke[31], the Court held that distance and status of subpoenaed witness regardless, once there is proof of service and evidence of tender of the prescribed sum needed for his attendance, the court can issue a warrant for arrest of the witness for failure to obey the summons. It is the duty of the Applicant for the subpoena to see the committal process through or secure the arrest of the defaulting witness, for failure to do so may have adverse effect on the Applicant’s case. It is trite that the onus of proof is on the party who will lose if no evidence is led at all[32].

The applicant for a subpoena should therefore not expect any adverse finding against the party subpoenaed if such applicant fails to take all legal processes involved in ensuring compliance with the subpoena. In Uzoho v Taskforce (2004) 5 NWLR (pt. 867) 627 the Solicitor-General of the Ministry of Justice was subpoenaed to tender documents in Court. He attended Court once but did not have the documents with him and never came back despite several adjournments in that regard. In dismissing the Appeal, the Court of Appeal held at pages 642 – 643 paras H –B that since the appellant was aware of non-compliance of the Solicitor-General and failed to take steps, he cannot complain of non-production of the documents.

The position is the same even in criminal proceedings. Failure of Counsel to cause the committal or arrest of a subpoenaed witness will not operate as withholding evidence on the part of the adverse party to attract the invocation of Section 167(d) of the Evidence Act, 2011.. See the case of Umar v State (2019) LPELR-47167 (CA), Per Joseph Eyo Ekanem, JCA, pages 11-13, paragraphs E-C. See also Gambari & Anor v Saraki & Ors (2009) LPELR-4182 (CA).

Setting aside a Subpoena

 A Subpoena validly issued and served can be set aside. Who can apply for such subpoena to be set aside? The grounds and the procedure for applying for such setting aside are examined below.

Who can apply and how?

The Rules referenced in this paper do not make any provisions or offer any guidance on who can apply for setting aside a subpoena, therefore, recourse will be made to the case law on the subject. A person on whom a subpoena has been served can apply by an application to have the subpoena set aside. In Obi-Odu v Duke (2006) 1 NWLR (pt. 961) 375 at 391 para B; at 410 - 411 paras H - C the Court of Appeal held that:

A person served with a subpoena has the right to apply to the court to set it aside on the ground that the subpoena is not bona fide required for the purpose of obtaining evidence that can be relevant and the court on application will interfere where it is satisfied that its process is being used for indirect or improper objects. See Rex v. Agwuna (Italics by the Court)”

Similarly, in Marcel v. Comm of Police of the Metropolis (1991) 1 All E.R 845 wherein the Court granted the Defendants’ application to set aside a subpoena issued to the police to produce some of the documents seized from them. At page 855 para h of the Report, the Court stated that there was no reason any affected third party should not be heard to challenge the subpoena.

Clearly, from the afore-referenced decisions, a person on whom a subpoena is served and indeed anyone whose legal rights may be affected by the order of such subpoena may apply for it to be set aside, with leave of the court. In Senior v. Holdsworth, Ex p. I.T.N (1976) QBD 23 at pages 32-33, paragraphs F-A, Lord Denning held that “Although he is not a party to the suit, he is a person who is aggrieved by the order: and he is entitled, by leave, to appeal against it.”

The procedure for such challenge is by filing a motion on notice by counsel to the aggrieved party and served on other parties in the suit. See also the case of Morgan v. Morgan (1977) 2 All ER 515. The party can apply by himself to have the subpoena set aside or do it by Counsel and such application should be filed and served ahead of the trial date. See also Senior v. Holdsworth supra at page 31, paragraph F.

Grounds upon which a subpoena may be set aside

The grounds upon which a subpoena may be challenged will vary from case to case and will be decided based on the peculiarities and the underlying facts and circumstances of each case. As we have mentioned in the body of this paper, documents or facts in respect of which a subpoena is being applied for must be pleaded and relevant, the rules of competence and compellability of witnesses also apply to subpoenas, otherwise, a subpoena may challenged on any of the grounds. The following are some of the other grounds upon which a subpoena has been challenged in decided cases:

  1. Where a witness is subpoenaed to give evidence of his personal affairs especially where he was not a party to the suit. In Morgan v. Morgan (supra), the Court set aside a subpoena ad testificandum and a subpoena duces tecum on the ground that a stranger to a suit should not be forced to divulge against his will, evidence of his assets and what he means to do with them. At 518 para F, the Court upheld the right of the individual and held that “…. I do not see why a stranger to this suit should be forced to divulge evidence of this kind against his will. I therefore dismiss this appeal with cost.”
  2. A subpoena duces tecum may be set aside where it is vague and applied for on frivolous grounds. The Supreme Court reiterated this principle in African Press Ltd & Anor v A.G. (supra) per the leading judgment of Brett JSC when the apex Court held that the subpoena issued in the case was not only vague but represents a mere fishing application and set same aside. Also, where a request for a subpoena is found to be irrelevant, fishing, speculative and oppressive, the court may set it aside. See the case of Senior v. Holdsworth, Ex p. I.T.N  supra where in allowing the appeal and setting aside the order of subpoena, Lord Denning M.R. held at pages 34 – 35 para H – A of the Report that where the request is irrelevant, or fishing, or speculative, or oppressive, the court should refuse it.

In Obi-Odu v Duke (supra), the Lower Tribunal had earlier set aside the subpoena duces tecum it issued on the 1st Respondent to produce documents in respect of educational qualifications which was in issue in the case on the grounds that to do so will embarrass the subpoenaed witness, facts in respect of those documents having been admitted by the 1st Respondent in its pleadings. On appeal to the Court of Appeal, the Court held that the Lower Tribunal had acted in haste, that admission of the facts in respect of the documents were not enough and that the applicant reserved the right to sight the documents. The Court further held that here was nothing embarrassing in asking a party to produce his qualifying certificates which were in issue in the case.

Though the argument was rejected in Obi-Odu v Duke (supra), it is the law that where the issuance of a subpoena is calculated at embarrassing a party and with no beneficial purpose in the resolution of the disputes involved, the courts may set aside such subpoena.

  1.  In African Press Ltd. (supra), another basis for setting aside the subpoena was the certificate under the hand of the Minister of Trade pursuant to section 219 of the Evidence Act stating that the Minister was satisfied that the production of requested document was contrary to the public interest. See page 16 of the Report.
  2.  A subpoena would be set aside if the witness can show that he has no material evidence to give. See R v Hove Justices (1967) 2 ALL E.R. 1253 at 1254  para G per Parker CJ. In Rex v Baines (1909) 1 K.B. 258, the subpoena was set aside for having been issued in bad faith. The Applicants therein, the Prime Minister, and the Home Secretary, challenged an order of subpoena issued to them in a trial of an indictment for breach of peace and unlawful assembly. In the Affidavit in Support of the Application, each Applicant personally deposed that they have no material evidence to give. The Court[33] found that the subpoenaed witnesses could have no material evidence to give and thus set aside the subpoena for being issued mala fide.
  3. A subpoena issued to an employee may be set aside on the ground that the former does not have his employer’s authority to produce the said documents. See Famakinwa v Unibadan supra.  In Senior v. Holdsworth, Ex p. I.T.Nsupra, a subpoena duces tecum was issued against the producer of Independent Television News (“ITN”) to attend Court and bring all the film and video taken during a particular event, as well as equipment to show the film and video. However, Counsel to ITN successfully applied for the said summons to be set aside on the ground that “he was an employee who had no authority to show the film”. The Court per Lord Denning at page 31 paragraph E pronounced on the proper procedure for requesting for documents in the custody of a Corporate entity and stated thus “If the documents are in the possession of a limited company, such as I.T.N. the subpoena is to be served on the company itself, requiring it, by the proper officer to produce the documents.”

Therefore, where the documents required are in the possession of a company, the proper strategy is to serve the subpoena on the company itself and then requiring the appropriate officer to give evidence and produce documents. Where a particular officer or servant is named, such may challenge the subpoena on the grounds that it has no authority from the company to produce the document. See the case of Penn-Texas Corpn v Murat Anstalt (supra) at page 598 -599 paras I –B


As we have seen in the body of this paper, a subpoena is a veritable instrument to secure the production of necessary documents and testimony in proof of a party’s case from an unwilling third or adverse party. Where it is sought, the proper forms should be taken out in the relevant Rules of Court, filed and served on the party to be subpoenaed. Proper filing fees must be paid and adequate deposit to secure the attendance of the witness must also be paid or deposited at the Registry.

It is also important for the subpoena document to indicate clearly whether the witness is coming to produce documents only or a coming to give testimony on oath or a combination of both. Where it is a subpoena duces tecum, the documents expected from the witness must be listed on the face of subpoena to avoid the argument of springing a surprise on the other party.

Finally, Service of the subpoena is a critical issue. Service must be effected personally on the witness and where personal service is impossible, the court may order substituted service. A subpoenaed witness must appear to testify or produce documents or otherwise face the consequences which may include an arrest warrant or even a committal to prison. A party on whom a subpoena is issued may apply for same to set aside where the subpoena is vague, frivolous, and totally unnecessary or on other grounds mentioned in this article.