Order 20 — Evidence Generally

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

(2) Any agreed document or other exhibits shall be tendered from the bar or by the party where he is not represented by a legal practitioner.

(3) The oral examination of a witness during his evidence-in-chief shall be limited to confirming and adopting his written deposition and tendering in evidence the disputed document or other exhibit referred to in the deposition.

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

(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 to ordering or directing that evidence of any particular fact be given at the trial by:

(a) a statement on oath of information or belief;

(b) the production of documents or entries in books;

(c) copies of documents or entries in books; or

(d) the production of a specified newspaper which contains a statement of that fact, in the case of a fact which is or was a matter of common knowledge either generally or in a particular locality.

A document, plan, photograph or model shall not 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, except the Judge in the interest of justice otherwise orders or directs.

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 or given at or before the trial.

Certified true copies of a writ, process, record, pleading, and document filed in any Court shall be admissible in evidence in any matter 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 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 as specified in Form 17 in Appendix 6 to these Rules 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 18 with such modifications or variations as may be directed in the order for its issuance, 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, where necessary, and

(iii) a copy of the cross-interrogatories, if any, with a translation, where 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 as specified in Form 19 in Appendix 6 to these Rules, 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 proceeding order the attendance of any person for the purpose of producing any writing or other document named in the order:

Provided that no person shall be compelled to produce under any order a writing or other document which he could not be compelled to produce at hearing or trial.

Any person willfully disobeying any order requiring his 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 his attendance and the party at whose instance such person is summoned shall make the payment.

(1) A person shall be in contempt of Court where he is duly summoned by subpoena to attend for examination but refuses to attend or where he attends, he refuses to:

(a) be sworn;

(b) affirm; or

(c) answer any lawful question.

(2) Where a person is in contempt, he shall be dealt with by the judge.

Where the examination of any witness before any examiner under Rule 7 of this order 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 by this order otherwise provided or directed by a Judge, a deposition shall not 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, beyond the jurisdiction of the Court or unable to due to sickness or other infirmity to attend the hearing or trial, in any of which case the deposition certified under the hand of the person taking the examination shall be admissible in evidence, saving all just exception, without proof of the signature to such certificate.

An officer of the Court or any other person directed to examine any witness or person or any person nominated or appointed to examine any witness or person pursuant to the provisions of any Convention made or which may later be made with any foreign country, may administer oath.

A party may, by subpoena ad testificandum or duces tecum request a subpoena for the attendance of any witness before an officer of the Court or any other person appointed to examine, for the purpose of using his 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 and 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.

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

(2) The Judge shall have control over the duration for cross-examination of witness in any matter.

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 direction which may be given in any case.

Subject to the provisions of section 34 of the Evidence Act, any evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceeding in the same cause or matter.

(1) Where the Court intends to issue a subpoena, a praecipe for that purpose as specified in Form 20 in Appendix 6 to these Rules shall be filed.

(2) A subpoena shall not be issued unless all the Court fees have been paid including the fee for service and sufficient money on the prescribed scale is deposited to cover the witness’s first day’s attendance.

A subpoena shall be in either Form 21, 22 or 23 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, the subpoena shall be issued 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 any party or witness, 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.

A subpoena shall be served personally unless a Judge has ordered substituted service in a case where a person persistently evades service.

The provisions of order 6 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 future 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 counsel.

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 legal 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 purpose 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 three 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 section 97 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.