Grand Master - , 2:23 am On 9 Sep 2017
The term subpoena is gotten from two Latin words- 'sub' which means under, and 'poena' which means punishment. Thus, the term literally means under punishment. It is a writ usually issued by the court. It is a valuable tool in both civil and criminal procedure to secure the attendance of a witness, or cause a person to produce a document.
There are two types of subpoena:
1. . subpoena ad testificandum: This orders a person to testify before the ordering authority or face punishment.
2. subpoena duces tecum orders a person or organization to bring physical evidence before the ordering authority or face punishment.
A person served with a subpoena duces tecum does not automatically become a witness and thus cannot be examined unless he is called as a witness or the writ commands him to both present the documents and testify.
Difference between Notice to Produce and Subpoena duces tecum?
A notice to produce is served on an adverse party to produce a document in his custody, if he fails to produce it upon receiving the notice, secondary evidence may be tendered in place of primary evidence. see Gani Fawehinmi v. IGP & Ors. (2000) 7 NWLR (Part665) 481 At Pages 524-525. On the other hand, if the recipient of subpoena duces tecum who fails to produce the specified document renders himself liable to civil or criminal contempt charges. see Buhari v. Obasanjo (2005) 13 NWI & (Part 941).
How is Subpoena Served?
A subpoena is typically requested by an attorney and issued by a court clerk, a notary public, or a justice of the peace. Once a subpoena is issued, it may be served on an individual in any of the following ways:
a) Hand-delivered (also known as "personal delivery" method);
b) E-mailed to the last known e-mail address of the individual (receipt acknowledgement requested);
c) Certified mail to the last known address (return receipt requested); or
d) Hearing it read to you aloud.
Can I Refuse to Produce the Document or Appear in Court?
Disregarding a Subpoena is usually considered as contempt of court but there are situations where a person may refuse to produce a document or appear as a witness, some of these are:
1. Privileged Information: A person may refuse to produce a document or testify if it will reveal some information which is considered to be privileged or the document is lost.
2. Self Incrimination: A person may decline a subpoena if obliging would mean incriminating himself or his spouse.
If you are intending to decline a subpoena you are advised to seek the guidance of a lawyer.