Subpoena

A party who needs evidence from somebody outside the case applies to the registry for a subpoena to be issued.

The application identifies the witness, and for a subpoena duces tecum it must specify the documents required with enough precision that the recipient knows what to bring. A demand for all documents relating to the matter is too wide, and it invites an application to set it aside.

The subpoena is then served personally on the recipient, together with conduct money where required, being reasonable expenses of attending.

On the return date the witness attends, produces what was required, and gives evidence if that is what was sought.

A recipient who considers the subpoena oppressive, too wide, or directed at privileged or irrelevant material can apply to the court to have it set aside or narrowed. That is the correct response to an unreasonable subpoena. Simply ignoring it is not.

For an organisation receiving one, the practical steps are to identify exactly what is required, check whether any of it is privileged or confidential in a way that needs to be raised with the court, and take advice before either complying fully or objecting.

Subpoenas are used routinely in Nigerian civil and criminal proceedings, and businesses receive them more often than they expect.

Banks are the most frequent recipients, because account records are central to so many disputes. Employers receive them where a former employee is a witness. Professionals receive them for records of work done. Telecommunications operators receive them for call and subscriber data.

Two practical points matter for a recipient.

First, scope. A subpoena duces tecum that requires every document touching a subject over several years is burdensome and may be oppressive, and the recipient can ask the court to narrow it. Nigerian practice does allow that, and the application should identify the burden specifically rather than objecting generally.

Second, confidentiality and privilege. A recipient holding confidential customer information, or documents subject to legal professional privilege, should raise it with the court rather than deciding unilaterally what to withhold. Producing privileged material can waive the privilege; withholding without raising it can be contempt.

For a party seeking a subpoena, precision is what makes it survive challenge. Name the documents, define the period, and explain their relevance if pressed.

Three ways evidence is obtained, from different sources.

A subpoena compels a non party to attend, give evidence or produce documents. It is the tool for reaching people and organisations outside the case.

A witness summons is the same instrument by another name in some rules and courts, and functions identically: attendance is compelled rather than requested.

Discovery, or disclosure, operates between the parties to the case. Each side is required to disclose documents relevant to the issues, and to allow inspection. It does not reach outsiders.

So a claimant who needs the defendant's internal emails asks for discovery. A claimant who needs the defendant's bank's records serves a subpoena on the bank. Using the wrong mechanism wastes a hearing.

A subpoena cannot compel somebody outside the court's jurisdiction, which limits its reach against foreign entities.

It also cannot override privilege. Documents protected by legal professional privilege are not produced simply because they were subpoenaed, though the privilege must be claimed properly.

Overly wide subpoenas are vulnerable, so a party who drafts a fishing expedition may find the whole thing set aside rather than narrowed.

And it obtains evidence, not cooperation. A hostile witness compelled to attend may give evidence that helps nobody, and a party should think about whether they actually want that person in the box.