The Quagmire of Conflicting Court Decisions: A Look at the Mechanism of Subpoenas in Civil Trials in Nigeria

Abstract

Subpoena being an instrument of law commanding the compulsory attendance of witnesses to court proceedings either to testify, produce documents or both is a tool that helps in the attainment of justice. The justice sector would have suffered a lot of setbacks in the adjudication of cases if not for this mechanism. This paper examines the mechanism of subpoenas in Nigeria, United States and Canada, and the conflicting decisions of the Court of Appeal in Nigeria surrounding it. The doctrinal method of research was adopted in this paper by analysing laws, rules of court, judicial decisions and relevant papers in arriving at our findings. The work espouses the conflicting decisions of the court on the mechanism of subpoena and the confusion and hardship it has created in achieving justice particularly in election petition cases. The judicial authorities and rules of practice created a dichotomy on the application of the principle of subpoena. This is with particular reference to election petition where the Rules of Procedure for Election Petitions contained in the 1st Schedule to the Electoral Act, 2022 stipulates that the written statements on oath of the witnesses must accompany the Petition.  Where the witness statement of the witness does not accompany the Petition, evidence of the witness cannot be given via the instrumentality of subpoena while in other civil matters evidence can be given via subpoena. The paper finds that where subpoena duces tecum is issued for the production of document(s) in court some judicial authorities are to the effect that it need not be tendered through the witness while others assertively holds that it can be tendered through the witness. In addition, in electoral matters, the judicial authorities are insistent on having witness deposition on oath within the twenty-one days even if the subpoenaed witness is an adversary. The work postulates that there is need for certainty in this area of law for the objectives of the concept of subpoenas to be achieved. It recommends that the testimony of official witnesses or adversaries should be allowed to be given viva voce in the interest of justice, progress and development of our electoral jurisprudence.