Order 40 — Evidence/proof Generally

(1) Subject to these Rules and to any enactment relating to evidence, any fact required to be proved at the trial of any action may be proved by written deposition and oral examination of witnesses in open Court.

(2) All agreed documents or other exhibits may be deemed admitted or tendered from the Bar or by the party where the party is not represented by a Counsel.

(3) Real evidence as referred to in the witness statement on oath shall be tendered during the trial.

(4) The oral examination of a witness during trial shall be limited to facts pleaded and the sworn deposition frontloaded.
Provided that a Judge may in appropriate cases, allow a witness on subpoena to lead oral evidence in examination-in-chief without having deposed to a written statement.

(1) The Court may, at or before the trial of an action, order or direct that evidence of any particular fact be given at the trial in such manner as may be specified by the order or direction.

(2) The power conferred by sub-rule (1) of this Rule extends in particular to ordering or directing that evidence of any particular fact be given at the trial by:
(a) statement on oath of information or belief;
(b) by the production of documents or entries in books;
(c) by copies of documents or entries in books; or
(d) in the case of a fact which is or was a matter of common knowledge either generally or in a particular district, by the production of a specified newspaper which contains a statement of that fact.

The Court may, at or before the trial of an action order or direct that the number of medical or expert witnesses who may be called at the trial be limited as specified by the order or direction.

Unless the Court for special reasons at or before trial, otherwise orders or directs, no document, plan, photograph or model shall be receivable in evidence at the trial of an action unless it has been filed along with the pleadings of the parties under these Rules.

Any Order or Direction under this Order may, on sufficient cause being shown, be revoked or varied by a subsequent Order or Direction of the Court made or given at or before the trial.

Certified true copies of all complaints, processes, records, pleadings, and documents filed in any Court shall be admissible in evidence in all matters to the same extent as the original would be admissible.

Where an Order is made for the issuance of a request to examine a witness or witnesses in any foreign country with which a Convention in that behalf has been made, the following procedure shall be adopted:
(1) the party obtaining such Order shall file in the Registry an Undertaking in the Form 53 which form may be varied as may be necessary to meet the circumstance of the particular case in which it is used.
(2) such Undertaking shall be accompanied by:
(a) a Request in Form 54 or 56, with such modifications or variations as may be directed in the Order for its issuance, together with a translation into the Language of the Country in which it is to be executed (if not English);
(b) a copy of the Interrogatories (if any) to accompany the Requests, with a translation if necessary;

Where an Order is made for the examination of a witness or witnesses before the Nigerian Diplomatic Agent in any foreign country with which a Convention in that behalf has been made, the Order shall be in Form 50 or 55, with such modification and variation as may be necessary to meet the circumstances of the particular case in which it is used.

Where any civil or criminal matter over which the Court has jurisdiction is pending before a Court or tribunal of a foreign country, and it is made to appear to the Court by Commission rogatoire, or a letter of request, or other sufficient evidence that such Court or tribunal is desirous of obtaining the testimony in relation to such matter of any witness or witnesses within the jurisdiction, the Court may, on the ex parte application of any person shown to be duly authorized to make the application on behalf of such foreign Court or tribunal, and on production of the Commission rogatoire, or letter of request, or such other evidence as the Court may require or consider sufficient, make such order or orders as may be necessary to give effect to the intention of the Commission rogatoire or letter of request.

The Court may at any stage of any proceedings order the attendance of any person for the purpose of producing any writings of or other document named in the Order.
Provided that no person shall be compelled to produce under any such Order any writing or other document which the person would not be compelled to produce at the hearing or trial.

Any person willfully disobeying any Order requiring the person’s attendance for the purpose of being examined or producing any document shall be in contempt of Court, and may be dealt with accordingly.

Any person required to attend for the purpose of being examined or of producing any document, shall be entitled to payment for expenses and loss of time occasioned by the person’s attendance.

• If any person duly summoned by subpoena to attend for examination refuses to attend or if having attended, the person refuses to be sworn or to answer any lawful question such a person shall be in contempt of Court and may be dealt with accordingly by the Court.

Where the examination of any witness before any examiner under Rule 7 above shall have been conducted, the original depositions authenticated by the signature of the examiner, shall be transmitted by the examiner to the Registry and filed.

Except where otherwise provided in this Order or where directed by the Court, no deposition shall be given in evidence at the hearing or trial of the cause or matter without the consent of the party against whom the same may be offered, unless the Court is satisfied that the deponent is dead or beyond the jurisdiction of the Court or unable for sickness or other infirmity to attend the hearing or trial, in any of which case the depositions certified under the hand of the person taking the examination shall be admissible in evidence, saving all just exceptions, without proof of the signature to such certificate.

Any Officer of the Court or other person directed to take the examination of any witness or person or any person nominated or appointed to take the examination of any witness or person pursuant to the provisions of any Convention made with any foreign country, may administer oaths.

(1) A party may by subpoena ad testificandum or duces tecum require the attendance of any witness before an Officer of the Court or other person appointed to take the examination, for the purpose of using witness’ evidence upon any proceeding in the cause or matter in like manner and such witness would be bound to attend and be examined at the hearing or trial.

(2) Any party or witness having made an affidavit to be used in any proceeding in the cause or matter shall be bound on being so subpoenaed to attend before the Court for cross-examination.

Any person present in Court, whether a party or not in a cause or matter, may be compelled by the Court to give evidence or produce any document in the person’s possession or power in the same manner and subject to the same rules as if the person had been summoned to attend and give evidence or produce such document and may be punished for any refusal to obey the order of the Court.

(1) The practice with reference to the examination, cross examination and re-examination of witness(es) at a trial shall extend and be applicable to evidence taken in any cause or matter at any stage.

(2) In any matter for cross-examination, the Presiding Judge or Judge in the matter shall have control of the duration of the cross-examination.
Provided that no party cross-examining a witness shall be allowed more than forty (40) minutes to do so.

The practice of the Court with respect to evidence at a trial, when applied to evidence to be taken before an Officer of the Court or other person in any cause or matter after the hearing or trial shall be subject to any special directions which may be given in any case.

Subject to the provisions of Section 46 of the Evidence Act, 2011, all evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter.

(1) Where it is intended to issue a Subpoena, a praecipe for that purpose in Form 68 containing the name of the firm and the place of business or residence of the legal practitioner intending to issue out the same, and where such Legal Practitioner is an agent only, then also the name of the Firm and the place of business or residence of the Principal Legal Practitioner, shall in all cases be delivered and filed at the Registry.

(2) No Subpoena shall be issued unless all Court fees have been paid (including fee for service) and unless sufficient conduct money on the prescribed scale is deposited to cover the first day’s attendance.

A Subpoena shall be in one of Forms 37 or 39 with such variations as circumstances may require.

Where a Subpoena is required for the attendance of a witness for the purpose of proceedings in Chambers, such Subpoena shall issue from the Registry upon the Judge’s directive.

In the interval between the issue and service of any Subpoena the Legal Practitioner issuing it may correct any error in the names of parties or witnesses, and may have the Complaint resealed upon leaving a corrected praecipe of the Subpoena marked with the words “altered and resealed” with the signature, name and address of the Legal Practitioner.

A Subpoena shall be served personally unless substituted service has been ordered by the Court in a case where a person persistently evades service. The provisions of Order 7 shall so far as possible apply to service and proof of service of a Subpoena.

A Subpoena shall remain in force from the date of issue until the trial of the action or matter in which it is issued.

Where a party to a suit desires any other party to the suit to produce in Court at the trial, a document or any other thing, which the first party believes to be in the possession or power of that other party, the first party shall give “Notice to Produce” in Form 35 to that other party. The Notice shall be given and served not less than five (5) days before the date slated for the trial.

A “Notice to Produce” may be included in the pleadings of the party seeking the production of the document or thing or be in a separate notice delivered to the other party or counsel to the other party.

A “Notice to Produce” shall specify sufficient particulars to identify to the other party the exact document or thing required.

Fees for “Notice to Produce” shall be paid as prescribed by these Rules;
Provided that where more notices than one are included in the pleadings payment shall be made for only one notice.