Order 35 — Evidence 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 shall be proved by written depositions and oral examination of witnesses in open court.

(2) All agreed documents or other exhibits may be tendered from the bar or by the party where he is not represented by a Legal Practitioner.

(3) Real evidence shall be tendered during the trial.

(4) The oral examination of a witness during evidence-in-chief shall be limited to confirming written depositions and tendering in evidence all documents or other exhibits referred to in the depositions.

Provided that a Judge may allow a witness on subpoena to lead oral evidence in examination-in-chief without having made a written deposition.

(1) A Judge 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:

(a) by 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

Judge 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, at or before trial, a Judge for special reasons 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 a Judge made or given at or before the trial.

Certified true copies of all Writs, processes, records, pleadings, and documents filed in the Courts 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 issue of a request to examine a witness or witnesses in any foreign country with which a Convention in that behalf has been or shall be made, the following procedure shall be adopted:

(a) the party obtaining such order shall file in the Registry an undertaking in Form 22 which form may be varied as may be necessary to meet the circumstances of the particular case in which it is used;

(b) such undertaking shall be accompanied by –

(i) a request in Form 23, with such modifications or variations as may be directed in the order for its issue, together with a translation in the language of the country in which it is to be executed (if not English);

(ii) a copy of the interrogatories (if any) to accompany the requests, with a translation if necessary;

(iii) a copy of the cross-interrogatories (if any) 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 24. The form may be modified or varied as may be necessary to meet the circumstances of the particular case in which it is used.

The Judge may at any stage of any proceedings order the attendance of any person for the purpose of being examined or producing any writings or other documents 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 could not be compelled to produce at the hearing or trial.

Any person who wilfully disobeys 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 shall refuse to attend or if, having attended, the person shall refuse to be sworn or to answer any lawful question, the person shall be in contempt of Court and may be dealt with accordingly by the Judge.

When 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 of the Court and filed.

Except where, by this Order, it is otherwise provided or directed by a Judge, 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 Judge is satisfied that the deponent is dead or beyond the jurisdiction of the court or unable from 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 now made or which may hereafter be made with any foreign country, may administer oaths.

(1) A party may, by subpoena ad testificandum or subpoena 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 the witness’ evidence upon any proceeding in the cause or matter in like manner as 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 such officer or person for cross-examination.

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

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

Subject to the provisions of the Evidence Act, 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 25 containing:

(a) the name or firm and the place of business, telephone number and email address of the Legal Practitioner intending to issue out the same;

(b) the name or firm and place of business, telephone number and email address of the principal Legal Practitioner, where such Legal Practitioner is an agent only;

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 money on the prescribed scale is deposited to cover the first day’s attendance.

A subpoena shall be in one of Forms 26, 27 or 28 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 Writ 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.

(1) A subpoena shall be served personally, unless substituted service has been ordered by a Judge in a case where a person persistently evades service.

(2) The provisions of Order 7 of these Rules 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.

A person who may, under the circumstances alleged by him to exist, become entitled, upon the happening of or any further event, to any honour, title, dignity or office or to any estate or interest in any property, real or personal, the right or claim to which cannot be brought to trial by him before the happening of such event, may commence an action to perpetuate any testimony which may be material for establishing such right or claim.

A witness shall not be examined to perpetuate his testimony, unless an action has been commenced for that purpose.

An action to perpetuate the testimony of a witness shall not be set down for trial.

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 he believes to be in the possession or power of that other party, the party desirous of the production shall give “Notice to Produce” to that other party.

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 his Legal Practitioner.

A notice to produce shall specify sufficient particulars, so as to enable the other party identify the exact document or thing required.

The fees for a notice to produce shall be paid as prescribed by these Rules, and where more than one is included in the pleadings, payment shall be made for only one notice.

Where a party to whom notice to produce is given fails to produce the document or thing required to be produced, the party that gave the notice shall be at liberty to lead secondary evidence of the matter contained in the document or thing that was not produced.

On the application of any party to a proceeding, the Court may order that such party be at liberty to inspect and take copies of any entry in a banker’s book for any of the purposes of such proceeding.

An order under Rule 34 of this Order may be made either with or without summoning the bank or any other party and shall be served on the bank 3 days before the same is to be obeyed, unless the Court otherwise directs.

The costs of any such application, and the costs of anything done or to be done under an order of the Court made under or for the purposes of the foregoing Rule, or under the provisions of the Evidence Act relating to the proof of an entry in a banker’s book, shall be at the discretion of the Court, which may order the same or any part of it to be paid to any party by the bank, where the same have been occasioned by any default or delay on the part of the bank.

The order against a bank in Rule 36 of this Order may be enforced as if the bank were a party to the cause or matter.

An expression relating to a banker’s book includes a ledger, daybook, cashbook, an account book and any other book used in the ordinary business of the bank.

Subject to the provisions of the Evidence Act, a Judge sitting at trial may admit evidence of a witness through video conference or any other electronic device capable of recording live (as if the witness is personally in attendance in Court) whenever the Judge considers it expedient to do so, particularly a protected witness.