THE EFFECT OF SUBPOENA DEUCES TECUM ON THE PRINCIPLE AGAINST DUMPING OF DOCUMENTS IN COURT
By Adedolapo Adeyosoye Esq
INTRODUCTION
A subpoena is a potent tool that enables parties to compel a witness to attend court or produce specified documents. The legal framework governing subpoenas in Nigeria is defined by statutory laws, court rules and case law, which collectively govern their issuance, service and enforcement. The litigation system in Nigeria is adversarial in nature, placing a duty on the judges to remain impartial and neutral throughout proceedings.
Despite this, a recurring issue arises when documents are produced under subpoena but not properly linked to the case, leaving the court to do the heavy lifting. This practice, known as dumping documents on the court, is discouraged because it undermines judicial efficiency and weakens the evidentiary value of the documents.
This article examines the effect of subpoena deuces tecum on the principle of dumping of documents on the court, highlighting the legal framework, judicial position, and practical lessons for litigants and counsel.
LEGAL FRAMEWORK OF SUBPOENA DEUCES TECUM
A subpoena duces tecum is an order requiring a person to attend court and produce specified documents or records, with non-compliance attracting sanctions. In Owolabi v. Bakare (2013) LPELR-21968(CA), the Court of Appeal, relying on the Blacks’ Law Dictionary, described a subpoena duces tecum as:
“a subpoena ordering the witness to appear and to bring specified documents, records or things;” …. By this definition, a person who attends Court on subpoena is no doubt a witness.”
The Court of Appeal in Obi-Odu v. Duke[1]further clarified the meaning and scope of subpoena duces tecum. Importantly, the Evidence Act 2011 draws a distinction between subpoena duces tecum and subpoena ad testificandum:
- Section 218 of the Evidence Act 2011 allows a person to be summoned to produce documents (subpoena duces tecum) without being required to testify.
- Section 219 of the Evidence Act 2011 provides that merely producing a document does not make the person a witness subject to cross-examination, unless they are separately summoned to give oral evidence (subpoena ad testificandum).
The courts have consistently emphasised that while a subpoena duces tecum compels production, it does not relieve parties of their duty to present and explain the documents in open court.
THE PRINCIPLE AGAINST DUMPING DOCUMENTS IN COURT
Dumping of documents is a concept of American law which describes the mischievous practice where counsel buries a document required to be produced or front loaded in a ton of other documents in the hope that it would be missed by his opponent or lost in the pile. It is the process of tendering bulk exhibits without linking them to specific issues in the case.
The courts have rejected this practice and made it clear that a party relying on documents must breathe life into them by explaining their relevance through witness testimony, and judges cannot sift through piles of documents to make connections on behalf of a litigant. In Buhari v. I.N.E.C (2008) 18 NWLR (Pt. 1120) 246, the Supreme Court held that,
…it is the failure of the appellant to call a witness to provide the necessary nexus between the documentary evidence tendered and the particular purpose or aspect of the case of the party tendering same that makes the difference between the notion of dumping exhibits on the one hand and tendering bulk exhibits on the other.
Similarly, in Makinde v. Adekola (2022) 9 NWLR (Pt. 1834) 45-48, the court reiterated that it is not the duty of judges to investigate documents privately as the adversarial system requires parties to establish the link themselves. See also A.N.P.P. v. I.N.E.C (2010) 13 NWLR (Pt. 1212) 549.
DUMPING OF DOCUMENTS vs. ADMISSIBILITY OF DOCUMENTS
Dumping of documents and admissibility of documents are distinct concepts. Dumping occurs when counsel presents large volumes of documents without linking them to specific issues, effectively leaving the court to sort them out. Admissibility, on the other hand, deals with whether a document satisfies the legal requirements under the Evidence Act to be received as evidence.
The rule against dumping is aimed at ensuring that documents are not simply tendered but also explained. A witness must connect each document to the case at hand, breathing life into it so that the court can properly evaluate the evidence. Admissible documents usually fall into two categories:
- Those made by the witness and serving as an alternative to oral testimony, and
- Official or public documents admitted as exceptions to the hearsay rule, provided they are duly certified.
Once admitted, a document speaks for itself. The witness’s role ends with tendering and answering cross-examination, while counsel bears the responsibility of showing how the document supports the client’s case.[2] Thus, even where documents are admitted, their probative value depends on whether they have been tied to live issues in the case. Otherwise, they risk being treated as having been dumped on the court.
CAN DOCUMENTS BE DUMPED WITHOUT WITNESSES?
Nigerian courts have consistently held that documents cannot simply be tendered from the Bar or produced under subpoena without being tied to witness testimony. In Makinde v Adekola (2022) 9 NWLR (Pt. 1834) 44 and PDP v INEC & 2 ORS (SC.409/2019) (UNREPORTED), the courts rejected thousands of documents tendered without calling their makers or relevant witnesses. In Makinde v Adekola (supra), the court held:
The trial tribunal finding that, In respect of the bulk of these documents the makers were not called to testify and speak to the said documents, concluded that the documents “were merely dumped on the Tribunal.” It accordingly discountenanced the documents.
The rationale is clear: the opposing party must have an opportunity to cross-examine a witness on the contents of any document tendered. Without this safeguard, such documents carry no probative value.
The Supreme Court has further emphasised that judges cannot descend into the arena to investigate documents on their own. Their role is limited to evaluating what is properly presented and explained in open court. In Omisore vs. Aregbesola (2015) NWLR (Pt. 1482) 205 at 322-323, the court held:
“The law is well settled that a Court is not allowed to embark on an inquisitorial examination of documents outside the court room.”
This principle has been reaffirmed in several other cases, including Sijuade v. Oyewole (2012) 11 NWLR (Pt. 1311) 280 and ACN v. Lamido & Ors (2012) LPELR-7825(SC). Whether produced voluntarily or under subpoena, documents must be linked to testimony before the court can attach any evidential value to them.
THE EFFECT OF DUMPED DOCUMENTS
The effect of dumping is that documents that are not explained carry no evidentiary weight, regardless of their apparent relevance. The courts have consistently held that it is not the duty of a judge to comb through exhibits, sort them out, or attempt to match their contents to a party’s case.[3] In Omisore vs. Aregbesola (supra) at 323 – 324, the court held:
In other words, documentary evidence, no matter its relevance, cannot on its own speak for itself without the aid of an explanation relating to its existence. The validity and relevance of documents to admitted facts or evidence is when it is done in the open Court and not a matter for Counsel’s address. It is not the duty of a Court to speculate or work out either mathematically or scientifically a method of arriving at an answer on an issue that could only be elicited by credible and tested evidence at the trial.
This principle was also affirmed in Onibudo v Akibu (1982) 7 SC 60, 62, as well as in more recent cases such as Great (Nig) Insurance Plc v. Zeal Trust Ltd (2020) LPELR-53107(CA) and Dame Pauline K. Tallen & Ors v. David Jonah Jang & Ors (2011) LPELR-9231(CA),[4]wherethecourt stressed that even admissible documents become useless if they are not connected to the issues in dispute. In such instances, the documents are treated as silent.
Thus, while a document may speak for itself in terms of content, it does not explain its relevance to the case. That duty rests with counsel and witnesses, and unless the link is established in open court, the documents will attract no probative value.
RECOMMENDATION
To avoid documents being rejected as having been dumped on the court, it is essential that counsel, when preparing witness statements on oath, ensure that every exhibit or document to be tendered is properly referenced and clearly tied to the witness’s testimony. This practice not only strengthens the evidentiary value of the documents but also curbs the tendency of litigants to engage in indiscriminate seeking for evidence.
By insisting that a party links the documents tendered to its case, the courts minimise procedural abuse while ensuring that judges are not drawn into the arena of conflict or left to speculate on the relevance of unexplained documents. In summary, linking documents to specific issues in dispute promotes fairness, clarity, and efficiency in judicial proceedings.
CONCLUSION
A proper balance must be maintained between the process of subpoenaing a witness to produce documents and the rights of the subpoenaed party. Where a party or witness produces documents in court, such documents must be properly linked to the relevant aspects of the case, with the assistance of counsel. Failure to do so amounts to dumping documents on the court, a practice that strips evidence of its probative value.
The consistent enforcement of this principle will not only safeguard judicial efficiency but also promote greater accountability among litigants. It will encourage lawyers to be more deliberate in preparing witness statements and presenting evidence, while ensuring that the rights of subpoenaed parties are respected. Over time, this discipline will help reduce frivolous litigation practices, streamline trials, and reinforce confidence in the fairness and integrity of the judicial process.
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[1] (2006) 1 NWLR (PT 961) 375 at 391 PARA F, Black’s Law Dictionary
[2] https://wwwjurisprudence.blogspot.com/2016/01/the-issue-of-dumping-documents-on-trial.html
[3] Senator Ladoja V Senator Ajimobi & Ors (2016) 10 NWLR PT 1519 P 87 AT 145 TO 146 PARAS H-F
[4] https://ls-ng.com/index.php/docs/at-the-hearing-3-probative-value-of-specific-documents/ accessed on 1st August 2023