IN THE COURT OF APPEAL IBADAN DIVISION
CORAM
JOSEPH DIEKOLA OGUNDERE. JUSTICE, COURT OF APPEAL, (Presided and Dissented)
ISA AYO SALAMI. JUSTICE, COURT OF APPEAL, (Read the Leading Judgment)
RABIU DANLAMI MUHAMMAD JUSTICE, COURT OF APPEAL
BETWEEN
MR. J.O. FAMAKINWA APPELLANTS
AND
1. UNIVERSITY OF IBADAN
2. THE REGISTRAR, UNIVERSITY OF IBADAN RESPONDENTS
SALAMI, J.C.A. (Delivering the Leading Judgment): In the High Court of A Justice of Oyo State of Nigeria, in lbadan Judicial Division the appellant who incidentally was plaintiff in the court below applied for subpoena testificandum et duces tecum: which the court below issued inter alia in the following terms -
"Subpoena. The registrar, University of Ibadan. lbadan as witness for the plaintiff. Date of Attendance: 7th and 8th June. 1989,"
When the Registrar, University of lbadan, the second defendant was called the learned counsel for the appellant stated thus-
"I want the 2nd defendant in this case to produce some documents before this honourable court. He is on subpoena. I refer to section 192 of the Evidence Act. I am not calling him as witness and I want him to tender the document from the floor of the court."
To this request of the learned counsel for the appellant, the learned counsel for the two defendants (hereinafter referred to as respondents) Chief Ladapo, S.A.N. retorted thus:-
"The 2nd defendant has been subpoenaed as a witness. Section 192 of the Evidence Act does not support Mr. Olawoye. The 2nd defendant is not just a person but a party to this action."
The learned trial Judge then ruled as follows:-
"The plaintiff's application for a subpoena is referred to the Registrar of the University of Ibadan and on 29th May. 1989 this Honourable Court issued a subpoena containing the following particulars, among other
"Subpoena. The Registrar, University of lbadan, lbadan, as witness for the plaintiff. Date of Attendance: 7th E and 8th June. 1989,"
In view of the above, the witness will enter the witness box as a witness before tendering the document he is subpoenaed to tender and I so order."
Upon the delivery of the short ruling stated above, learned counsel for the appellant sought and obtained an adjournment on terms against the opposition of F the learned Senior Counsel and appealed against that ruling on two grounds of appeal.
The two grounds of appeal read as follows:-
"1. The learned trial Judge erred in law when he held that he Registrar of the University of Ibadan has to be sworn before he could tender documents under Subpoena Duces Tacum:
(a) When there is nothing under sections 191 and 192 of the Evidence Act that a person called to produce documents under sections 191 and 192 of the Evidence Act must first be sworn before he can tender documents in his duty:
(b) When there is no provision in the Evidence Act that only sworn witnesses can tender documents in any action during trial.
2. The learned trial Judge erred in law in refusing the plaintiffs application to tender the documents produced from the custody of a person called under sections 191 and 192 of the Evidence Act, when the intendment of the law is to enable a party to a cause to produce and tender a document which is in the custody of the adverse party without necessarily making him a witness:
(a) when if the adverse party was sworn he would be liable to be cross-examined by his own counsel thereby ruining the opponent's case; and
(b) when such adverse party is the only person who in law can tender the document coming from his custody and the refusal to allow him to tender the documents would damage the case of the party calling him."
The two parties filed and exchanged briefs of argument. In the respective briefs an issue for determination was formulated. The issue adumbrated in the appellant's brief is as follows: "The only issue for determination in this appeal is whether the law permits a defendant in a civil action to be called by the plaintiff to produce and tender certain documents made by such defendant which are in his custody without being sworn and or cross-examined."
And, in the respondents' brief, the issue identified on behalf of the respondents in their brief reads as follows:
"The real issue for determination in this appeal is whether it is within the discretion of a trial Judge to order that a party to an action, properly summoned by the other party, to TESTIFY AS A WITNESS should enter the witness box and be sworn before tendering any documents:
In my humble opinion, I think the only issue calling for determination is whether a document produced consequent upon issuance of subpoena duces tecum is ipso facto without more admitted in evidence. In arguing the appeal the counsel representing either party adopted and relied on his client's brief. .
It was submitted that at the stage when a document is sought to be tendered the only issue for the court to consider is the admissibility of the document itself as well as the admissibility through the particular person summoned to produce and tender the document, that is whether the document was from proper custody. Counsel referred to section 91 of the Evidence Act which makes documents admissible through their makers. It was further contended that any person whether a party or not in a cause of action may be summoned to produced a document without asking him to give evidence and that if he causes that document to be produced in court, the court may dispense with his personal attendance. Counsel referred to Sections 192 and 193 of the Evidence Act Cap. 112 of the Laws of the Federation of Nigeria, 1990.
Counsel for the appellant in the appellant's brief argued further that when the person competent to tender the document and who also has it in his possession and custody is the adversary, that the proper procedure is to issue a subpoena on the adversary under sections 192 and 193 of the Evidence Act to produce and tender the document but he gives no evidence relating to the document. Counsel then observed that the person so subpoenaed does not expose himself to cross-examination not having been sworn. He contended further that tendering in this case means no more than putting forward for admission. See Summers v. Koseley (1834) 3 L.J. Exch, 128. Counsel submitted that the principle of law governing the only issue calling for determination in this appeal vis-a-vis the provisions of sections of Appeal in its unreported judgment in the case of Mr. M.O. Lawal & Ors. v. Area Planning & Anor: Appeal No. FCA/1/2/82 delivered on 28/2/85 coram Maidama, Dosunmu and Onu JJ.C.A. He finally submitted that the application was improperly refused by the learned trial Judge and. Therefore, urged the court to allow this appeal.
It was contended on behalf of the respondents that the appellant's subpoena ad testificandum et duces tecum presupposes that the 2nd respondent would be required in court not only for purpose of producing documents but also to testify. It was then submitted that the nature of the subpoena disavailed the appellant of the benefit of the provisions of sections 192 and 193 of the Evidence Act (supra). It was then argued on behalf of the appellant that once a person is called as witness as in the instant appeal he must be sworn and be liable to cross-examination by virtue of sections 180 and 192 of the Evidence Act. Counsel also relied on Onwuamaka v Albert Okolio 1955-56 WRNLR 159 at 160.
The learned counsel however conceded respectfully that a person summoned merely to tender documents vide subpoena duces tecum and not to give evidence need not be sworn as a witness if he produces the document or caused it to be produced the court may not insist on his personal attendance. He referred the court to section 192 of the Evidence Act (supra).
It was also submitted that the prevalent practice of some Iitigants rushing to the Court of Appeal to test and challenge the ruling of the trial court on the smallest issue which arise in the course of trial of cases should be deprecated. Invariably the habit of such litigants entails adjournment of the cases sine die as in the instant case. See Bakare v.
African Continental Bank Ltd. (1986) 3 NWLR (Pt.26) 47 at E 58-59. He then urged that the appeal be allowed having contended that the learned trial Judge rightly up held the objection of the learned Senior Counsel for the respondents to the tendering of the documents.
I agree with the learned counsel for the respondents that the appellant having caused a subpoena ad testificandum et duces tecum to be issued to the 2nd respondent he cannot complain against the learned trial Judge's ruling giving full force to his own request. By the nature of the appellant's application which reads inter alia as follows:-
"Kindly cause writ of subpoena ad testificandum and Duces Tecum to issue on the persons whose names and addresses are given below for the purposes listed against their names to appear in court on 7th and 8th June. 1989 to give evidence and or tender documents at the G bearing of this case and at any subsequent adjournment dates at the instance of the plaintiff:'
It cannot be forcefully argued on his behalf that his counsel is not dominus litis. The application for subpoena ad testificandum et duets tecum applied for by the learned counsel for appellant was voluntary and in free exercise of his right to be dominus litis in respect of the appellant's case. The purport of the appellant's application for the writ of subpoena is that the witness so summoned should come to court to testify {give evidence) in addition to producing the documents listed against his name in court. The said writ of subpoena the appellant voluntarily applied for was not amended at any stage of the proceedings. It was probably open to the appellant to seek and obtain leave of the court below to amend the application for writ of subpoena ad testificandum er duces tecum and retaining the portion asking for production of the documents simpliciter. His failure to seek the amendment entitled the learned trial Judge to give him what he applied for and he cannot justifiably complain that he was thereby forced out of the saddle of his client's case. It would have been otherwise if the learned trial Judge. after he had applied for a subpoena ad testificandum ec duces tecum had confined him to either arm of the two reliefs sought. In civil cases, I am quite aware that counsel has a right 10 choose what witnesses to call and in what order to call them: Briscoe v. Briscoe (1966) 2 WLR. 205: and M AIao v. Bello Akanbi (1989) 5 SCN} I. 1989 3 NWLR (PI. IDS) 118. 153. It is in pursuant to that right that he sought the writ and if he found he had blundered it is in the best interest of justice and of his client too, to gracefully admit his error and make necessary amendment rather than seeking to bluff his way through.
Be that as it may, it is, in my humble view. not the law that a Secretary or a Registrar of a corporate body such as University can be compelled by subpoena duces tecum to produce the University's document where the members of the University Council have forbidden him to produce or have not been shown to have consented to producing the University document. The law forbids a party from compelling a witness to produce his principal's document. See paragraph 146 of Phipson on Evidence 12th Edition where the learned authors said -
.......... a witness cannot be compelled 10 produce his principal's documents: A steward having title of the deeds of the estates, for his possession is that of his employer, a secretary of a company, whose directors have forbidden him to produce, or not been shown to have consented to his producing, the company's books a clerk in a public office, with respect to official papers;
...........
This seems to answer counsel's submission that the document which the second respondent was called upon 10 produce and tender are made by and in the possession of the first respondent for whom the second respondent is appointed a registrar by virtue of which post he is the administrative head and secretary of the first respondent.
I am quite aware that certain provisions of Evidence Act permits certain class of documents to be given in evidence by merely producing them in court. I have in mind here sections 113 and 116 which deals with Official Gazette. sections 73 and 74 concern taking judicial notice of certain events or matters while section 75 concerns documents admitted by consent of parties as well as section 34 which deals with receipt of deposition in evidence in the absence of the witness who testified during preliminary investigation at the trial of a criminal case in the High Court. Apart from these exceptions and some others which may escape my attention there is no authority for reception of evidence, both oral and documentary, without a witness being summoned to testify to its admissibility under sections 192 and 193 of the Evidence Act (supra).
A witness has to show for example that the document emanated from proper custody and it is original and, if it is not the original, to account for the whereabout of the original before a secondary evidence thereof could be admissible. Similarly evidence of a witness is required to prove the maker of the document. Neither sections 192 and 193 of the Evidence Act (supra) dispensed with these proofs. The two sections provide as follows:
"192. Any person, whether a party or not, in a cause may be summoned A to produce a document without being summoned to give evidence, and if he causes such document to be produced in court the court may dispense with his personal attendance.
193. A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross- examined unless and until he is called as a witness,"
The determination of the issue turns on the interpretation to be placed on the word 'produce.' The word is nowhere defined in the Act, Undoubtedly the word "produce" in the context of the two sections set out above is not synonymous with the word "tender", The word "produce" can, therefore not by any stretch of imagination be construed to mean "tender" or "give". I find support for this proposition in the case of Ogbunyiya & Ors. v, Okuda & Ors. (1979) 3 L.R.N. 318 C which, although, is a decision on the interpretation of section 113 of the same Evidence Act it is iIIuminating or of great assistance in the interpretation of sections 192 and 193 of the Evidence Act (supra). At pages 322 and 323 the Supreme Court per Idigbe, J.S.C. said -
.. What seems to us to admit of argument is the precise meaning of the expression, in s.112 of the Evidence Act, 'production of such Gazette.' 'Produced', is a word 'which has not got any exact or special meaning, but which requires to have an interpretation placed upon it in the statute in which it is used': See Rigby L.J. in Honfetsengl v. American Tobacco Co. (1895) I Q.8. 347. The ordinary or dictionary meaning of 'produce' is 'to bring forward' or 'to bring out', or 'to put on the stage', The question before the Court of Appeal in these proceedings was whether it was enough for the document in question (i.e. the October Gazette) to be brought forward simply. or whether it was necessary for it to be produced under oath. In other words, does s.112(a)(i) contemplate that documents mentioned therein require to be produced only by a witness testifying under the sanctity of an oaths? As far back as F 1834 it was decided in Perry v.Gibson that a witness called merely for the purpose of producing a document need not be sworn: See Perry v. Gibson (1834) I Ad & EI 48. Following Perry, in 1961, the Supreme Court of New Zealand held that a person called in criminal proceedings merely to produce documents was not required to be sworn but that he could place the documents on the table in G court where they could be identified and made evidence and use of by other witnesses: See N. v. Oilmore (196\) NZLR 735,"
(Italics mine)
The word produce, therefore, means no more than "bring forward" or 'to bring out' or 'to put on stage' . A person who brings forward a document cannot be said to have given it in evidence not to talk of his having capacity to give or tender it in evidence particularly when the person served with subpoena duces tecum has the option or liberty to cause it to be produced in court through any other person of his choice. It is, therefore, my firm view that section 192 merely authorises a subpoena duces tecum to be issued to a person to deliver to the court a document either personally or through any other person he may consider suitable for the assignment. Once such a document is delivered or caused to be delivered to court the person's obligation is discharged and cannot be sworn nor cross-examined. But the deli very of the document in court in pursuant to section 192 of the Evidence Act does not relieve the person who summoned an adverse party to produce a document of the burden of proving the document by having it admitted in evidence by tendering it through a person who has capacity to do so. In other words, if the appellant has a competent person other than his opponent to identify and tender the document he may not call the opponent as a witness. In the absence of such a witness, he may be compelled by circumstances to call his adversary to tender the said document in that case, the adverse party subpoenaed to produce the document would have to testify which action may call for his being sworn and put in the witness box to tender the document. Thereafter the counsel for the adverse party through whom the document was identified and tendered would be entitled to
cross-examine the witness notwithstanding the likelihood of his taking an undue advantage of the opportunity offered him. The case of M.D. Lawal (supra) cited by the learned counsel for the appellant is wrong. The said decision is also per incuriam. As stated in the dictum of Idigbe set out above a person subpoenaed to court to produce a document merely places the documents before the court "where they could be identitied and made evidence and use
of by other witnesses." The person who by subpoena duces tecum produces a document does not merely by such production make it evidence and for that reason he needs not be sworn nor cross-examined. A fortiori a witness that is issued with subpoena ad testificandum et duces tecum would not only be required to produce the document he would in addition be led in evidence on oath as well as cross-examined.
By the nature of the subpoena appellant applied for the 2nd respondent should have been sworn to give evidence. Thereafter he would be liable to cross-examination by the counsel representing the 2nd respondent. But if the appellant had asked for subpoena duces tecum simpliciter the 2nd respondent could only place the documents on a table before the court for other witnesses to identify, make evidence and use of them. The 2nd defendant surely cannot make evidence of the documents without being sworn,
The appeal therefore fails and I accordingly dismiss it. The decision of the court below is affirmed. The case is hereby remained back to the court below to be assigned to be heard de novo by another Judge. I make order as to costs which I assess at N200.00.
MUHAMMAD, J.C.A.: This is what transpired on 8/2/90 before Adeyemi. J. sitting in the Ibadan Judicial Division of the Oyo State High Court:
Mr. Olawoye: I want the 2nd defendant in this case to produce some documents before this honourable court. He is on a Subpoena. I refer to section 192 of the Evidence Act. I am not calling him as witness and I want him to tender the documents from the floor of the court.
Chief Ladapo, SA.N.: The 2nd Defendant have been subpoenaed as a witness. Section- 192 of the Evidence Act does not support Mr. Olawoye. The 2nd Defendant is not just a person but a party to this action.
Ruling: The plaintiff's application for a subpoena is referred to the Registrar of the University of Ibadan and on 29th May, 1989, this Honourable (sic) issued a subpoena containing the (sic) follow A particulars among others:-
"Subpoena: The Registrar, University of lbadan, Ibadan, as witness for the plaintiff.
Date of Attendance: 7th and 8th June. 1989:
In view of the above, the witness will (sic) entered the witness box as a witness before tendering the documents he is subpoenaed to tender B and I so order."
(Sgd) OoA. Adeyerni, JUDGE 8/2/90."
As a result of the above ruling, Mr. Olawoye asked for an adjournment. Chief Ladapo S.A.N. opposed the adjournment. On the other hand, he asked for N1,000.00 costs if the court was minded to adjourn the mutter. The learned Judge C then adjourned the case and awarded N250.00 costs to the defendants.
Apparently, Mr. Olawoye sought for the adjournment to afford him opportunity to appeal against the Ruling. The Notice of Appeal to this Court was filed on 19/2/90 containing three grounds of appeal.
The appellant formulated only the issue for determination:
"Whether the law permits a defendant in a civil action to be called D by the plaintiff to produce and tender certain documents made by such defendant which are in his custody without being sworn and or made to be cross-examined." "Subpoena" is a compound Latin word. "Sub" means "under" and "Poena" means
"penalty". Subpoena is therefore defined as a writ or summons issued in an action or suit requiring the person to whom it is directed to be present at a specified place and time, and for a specified purpose, under a penalty for non-attendance, See Jowin's Dictionary of English Law 2nd Edition Volume 2. There are varieties of subpoena in use, but the ones that are commonly in use are subpoena ad testificandum and subpoena duces tecum.
Subpoena ad testificandum is a technical and descriptive term for the ordinary subpoena. It simply means subpoena to testify. A person summoned under this subpoena is a witness in the true sense of the word. He must go into the witness box and testify upon oath or affirmation and is liable to be cross-examined.
A subpoena duces tecum is a process by which the court, at the instances of a party, commands a witness who has in his possession or control some document or paper that is pertinent to the issues of a pending suit. 10 produce it at trial. A person attending under a subpoena duces tecum to produce a document need not G be sworn, and in that case he cannot be cross-examined. See Sections 191 and 192 of the Evidence Act which provides
-
"191 Any person, whether a party or not, in a cause may be summoned to produce a document without being summoned to give evidence, and if he cause such document to be produced in court the court may dispense with his personal attendance.
192 A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness."
It therefore follows, to determine the issue before the court, all we have to do is to ascertain the purpose the 2nd defendant was summoned. If he was to merely produce documents, he cannot be cross-examined. But if he was summoned to testify, he is liable to be cross-examined. At page 15 of the record of the appellants application to the Principal Registrar for the issue of the subpoena on the 2nd defendant i.e. The Registrar. University of Ibadan and the Director-General. Federal Ministry of Establishments. Pension and Gratuities Division. lkoyi, Lagos. The application is headed.-
"APPLICATION FOR SUBPOENA AD TESTIFICANDUM AND DUCES TECUM"
The application goes on to state:
"Kindly cause Writ of Subpoena ad (sic) Testificandum and Duces Tecum to issue on the persons whose names and addresses are given below for the purposes listed against their names to appear in Court on 7th and 8th June, 1989 to give evidence and or tender documents at the hearing of this case and at any subsequent adjournment dates at the instance of the plaintiff."
(Italics mine)
From the heading and the body of the application it is obvious that the plaintiff summoned the 2nd defendant to testify and produce documents. Since the 2nd Defendant apart from producing documents was to testify, it is my humble opinion that he is liable to cross-examination. Moreover, the subpoena actually issued to the defendant stated he was being summoned as a witness for the plaintiff, In my view the learned trial judge is right to order the 2nd defendant to enter the witness box before tendering any document.
On the question of costs, I see no reason in tampering with the learned Judge's award of N250.00 costs to the respondent. The appellant asked for adjournment which was opposed by the respondent. The trial Judge granted the adjournment on terms, The only reason given why we should set aside the cost awarded, is that the trial Judge's ruling is wrong. Having held that he is right, I will not tamper with his award of costs.
The appeal therefore fails and is dismissed with N200.00 costs to the respondent.
OGUNDERE,J.C,A. (Dissenting): This is an interlocutory appeal of the ruling of Adeyemi, J. of 8/2/90 in respect of the issue of subpoena Duces Tecum et ad Testificandum to the second defendant/respondent so as to tender on behalf of plaintiff/appellant some documents in his possession. When the said Registrar was called, learned counsel for the plaintiff/appellant submitted to the court that he should tender the documents without going to the witness box. Learned counsel for the defendants/respondents on the other hand. insisted that since a subpoena duces tecum et ad testificandum was issued it was in order that the witness might enter the witness box testify, and tender the documents in his possession. The learned trial Judge ruled in favour of the submission of learned counsel for the defendants/respondents.
Whereupon the learned counsel for the plaintiff/appellant sought an adjournment and appealed that ruling. The short ruling is as follows:-
"The plaintiff's application for a subpoena is referred to the Registrar of the University of lbadan and on 29th May, 1989., this Honourable Court issued a subpoena containing the following particulars, among others.-
"Subpoena: The Registrar, University of lbadan, lbadan, as witness for the plaintiff. Date of Attendance: 7th and 8th June, "ln view of the above, the witness will enter the witness box as a witness before tendering the documents he is subpoenaed to tender and I so order.
(Sgd) O.A. Adeyemi Judge 8/2/90."
Both parties filed briefs of arguments. The only issue for determination is as follows: "The only issue for determination in this appeal is whether the law permits a defendant in a civil action to be called by the plaintiff to produce and tender certain document made by C such defendant which are in his custody without being sworn and or made to be cross-examined."
It was submitted that at the stage when a document is sought to be tendered the only issue for the court to consider is the admissibility of the document itself as well as the admissibility through a particular person called to produce and tender the document, that is whether the document was from proper custody. See section D 91 of the Evidence Act which makes documents available through their makers. It was further submitted that any person whether a party or not in a cause may be summoned to produce a document without asking him to give evidence and that if he causes that document to be produced in court the court may dispense with his personal attendance. Section 192 of the Evidence Act is very clear and unambiguous on this point. Section 193 of the Evidence Act is on all fours with the only issue E in this appeal. Sections 192 and 193 of the Evidence Act provide as follows:-
"192. Any person, whether a party or not, in a cause may be summoned to produce a document without being summoned to give evidence. and if he causes such document to be produced in Court the court may dispense with his person attendance.
193. A person summoned to produce a document does not become a F witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness:'
In the case in hand the documents, which the second defendant was called upon to produce and tender. were made by and were in the custody of the first defendant for whom the second defendant is appointed Administrative Head and Secretary of the University of Ibadan, It is obvious that to render the 2nd defendant G open to cross-examination will be to expose the plaintiff appellant's case to be ruined by the said defendant and his counsel during cross-examination; yet those documents had to be placed before the court. It was then submitted that the very essence of Sections 192 and 193 of the Evidence Act is to ensure that a document with an adversary can be produced by him for the use of the party seeking to tender it. See PHIPSON on Evidence 12th Edition paragraphs 1464 and 1527. It was H further submitted that the 1st defendant/respondent has the choice and chance to call the same person its Administrative Head and Secretary, as a defence witness to comment on the authenticity of the document already tendered by him and make all the comments he can as a witness for the 1st defendant. The plaintiff will then be in a position to discredit the witness under cross-examination and to call upon the court to disbelieve part of it. That will not be possible if he had to be sworn and cross-examined since any impugning of his evidence will mean treating him as a hostile witness and rendering of little value the totality of his evidence including the documents tendered by him. Muka v. The State (1976) 9-19 S.C. 305 at 325-326.
The plaintiff in the court below was therefore within his rights under sections 192 and 193 of the Evidence Act to issue a subpoena on his adversary and to seek that he tendered documents without being sworn as a witness. Summers v. Moseley ( 1834) 3 LJ. Exch. 128. This submission is in line if with the decision of this court, unreported, in M.O. Lawai & Ors. v. Area Planning Authority & Anor. FCA/1/2 82 delivered on 28/2/85 by Umoru Maidama, Junaid Dosunmu, and Umaru Onu, JJ.C.A where the court held thus:
"A witness merely subpoenaed from the adverse party to produce a document may in accordance with section 191 and need not be sworn as a witness .. For purposes of this case, to "produce" and "tender" mean the same."
It was then submitted that the Court should allow this appeal and order that the costs of N250.00 awarded in the court below be paid back to the appellant.
The respondents in their brief put issue for determination as follows:-
"The real issue for determination in this appeal is whether it is within the discretion of a trial Judge to order that a party to an action, properly summoned by the other party, to TESTIFY AS A WITNESS should enter the witness box and be sworn before tendering any documents."
It was submitted that the appellant's application for a subpoena ad testificandum and duces tecum on pages 15-16 of the record shows that the appellant specifically summoned the second respondent to attend court on 7th and 8th June 1989 for the purpose of giving oral evidence and to tender some documents. That application by its very contents disavail the appellant of the provisions of sections 192 and 193 of the Evidence Act since the second defendant was called as a witness. It was conceded that a person summoned merely to tender documents by a subpoena duces tecum need not be sworn as a witness if he produced the document or caused it to be produced and the court may not insist on his personal attendance. Section 192 of the Evidence Act. Further. once a person is called as a witness then in accordance with sections 180 and 193 of the Evidence Act he must be sworn and be liable to cross-examination. Michael Onwuamaka v. Albert Okolie (1955-56)
W.R.N.L.R. 159 at pp.160-161. Also in accordance with Order 39 of the Oyo State High Court Civil Procedure Rules 1988 the appellant is at liberty to call anyone he wishes to testify as a witness in support of his case. That privilege has been exercised by the appellant in this case by calling the second respondent as his witness to given evidence and to tender W.R.N.L.R. certain documents in his favour. The respondent then has a corresponding right in the interest of justice to have opportunity of cross-examining the witness on his evidence.
Whereupon it was submitted that the prevalent habit of some litigants rushing to the court of Appeal to test and challenge the ruling of the trial court on the smallest issue which arise in the court of trial of cases should be discredited. Invariably this entails suspension of the trial by the Judge and adjournment of the case sine die as in this case. Bakare v. A.C.B. Ltd. (1986) 3 NWLR (Pt.26) 47 at pp.511-59. It was then finally submitted that the learned trial Judge rightly upheld the objection of the respondents counsel in disallowing the tendering of the documents through the 2nd respondent without being sworn. It was then urged that the appeal be dismissed
I have given very careful thought and consideration to the record of proceedings; and the arguments proffered by learned counsel in both the appellant's and respondents' briefs. In my view the only issue in the appeal is straight forward. Sections 192 and 193 of the Evidence Act give a person whether a party or not the B liberty to summon anyone to produce a document without being asked to give evidence and a person summoned to produce a document does not become a witness by the mere fact that he produces the document and cannot be cross-examined, unless and until be is called a witness. It is true that a subpoena ad testificandum and duces tecum was issued on the 2nd defendant/respondent on behalf of the plaintiff; but one should consider this matter from the point of view C that a counsel in a case is dominus litis .and he has a right or privilege to conduct the case of the person he represents 10 the best of his ability and in the manner he chooses. Although, the plaintiff issued the subpoena for the second defendant/respondent to testify and produce documents it is within the rights of counsel for the plaintiff to choose to ask him to produce onIy documents. It would be wrong in my view for counsel for the defendant being dominus litis as far as the case M D the defendant is concerned. to also assume the role of dominus litis as far as the case of the plaintiff is concerned and to insist that counsel for the plaintiff should go one way and not another. In the case of Memudu Alao v. Bello Akanhi (1989) 5 SCNJ 1. (1989) 3 NWLR (Pt.108) 118. 153. the Supreme Court opined thus.-
"As was pointed by this court in Elike v. Nwankwoala & Drs. (1984) 12 S.C 301. 311- "Counsel conducting a civil case is . as a matter of law and civil procedure inacompletecontrol of his case. He is master in his own house. He knows the witnesses sufficiently for the case be is presenting to court. the order of presenting and marshaling those witnesses for the proof of vita I points in his case for effectiveness in support of his case."
In the light of my observation and the dictum of the Supreme Court above, it is clear that Adeyemi J ought not to have ruled that the second defendant called by the appellant to testify and produce documents should be sworn as a witness to testify on oath when the plaintiff/appellant wanted him in the end to tender only documents.
The appeal is accordingly allowed. The N 150.00 costs is hereby ordered G against the defendants/respondents and they shall also refund the N250.00 costs ordered by the court below to the plaintiff/appellant. The case is hereby remitted to the High Court for the hearing to be commenced before another Judge.
Counsel:
A. Oluwoye for the Appellant
Ladosu Ladopo, S.A.N.- for the Respondents