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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA HOLDEN AT ABUJA Before His Lordship: - Hon. Justice P.O Lifu (JP) - Judge Tuesday 20th May, 2014 SUIT NO: NICN/ABJ/190/2013 Between: Usman Suleiman Claimant AND Mainstreet Bank Plc and Another Defendants REPRESENTATION Parties absent; J.O. Okete Esq. holding the brief of K .C. Ochu Esq. for the claimant; No legal representation for the defendant. Ruling At the resumed hearing of this suit on the 15th of May 2014, the claimant counsel Mr. K.C. Ochu conceded to an adjournment being sought through a letter by a subpoened witness, the managing director of the Nigerian Deposit Insurance Corporation to enable him come to court or send a proxy. At this juncture, counsel to the defendant, Mr. Farouk Asekhome objected to the issuance and enforcement of the subpoena issued by this court on the Managing Director of the Nigerian Deposit Insurance Corporation to come and testify in this suit. His objection is based on the ground that the subpoened witness has not deposed to any witness statement on oath neither has he frontloaded any process in this case. Counsel submitted further that in accordance with the rule of natural justice, he is suppose to know what the subpoened witness is coming to do or say in court as the law in our adversary system abhor springing of surprises. Learned counsel for the claimant on whose instance the subpoena was issued posited that the submission of counsel to the defendant was misconceived as the spirit behind the issuance and enforcement of subpoena is to bring a witness to court for the purpose of eliciting evidence as it is almost impossible to get a subpoened witness to sign an oath for the purpose of frontloading. Counsel call in aid the case of Yusuf Sulaiman Lasun Vs. Awoyemi and Others 2011 All FWLR Pt. 577 at 713 – 759 at 745 paragraph H -746 Paragraph A. Counsel urged the court to enforce the subpoena. I have carefully considered the arguments and submission of learned counsel for the parties. A subpoena ad testificandum which is a writ of this court was issued by this court on the 6th of March 2014 at the instance of claimant commanding the Managing Director of the Nigerian Deposit Insurance Corporation to appear before this court from day to day to give evidence in this suit. The subpoena was duly served on the witness and on the 10th of April 2014 when this matter came up for the court to take his evidence, he was unavoidably absent but sent a representative to court to excuse his absence. This matter was further adjourned to the 15th of May 2014 when this objection was raised and argued even though the subpoened witness did not come to court, he sent in a letter to explain his where about and offered to send in a proxy. A subpoena is an order of court. The subpoena in this case have been duly issued and served on the witness. It is an order of court which by implication the defence counsel orally want the court to set aside. The court has the inherent powers to summon any witness through a subpoena which has three categories: (1) Subpoena adtestificandum compels a witness to come to court to testify (2) Subpoena duces tecun compels a witness to come and tender documents (3) Subpoena simplicita compels a witness to do both. The effect of subpoena ad testificandum is that there is an obligation on the person subpoened to give evidence; see Obi-Odun Vs. Donald Duke 2006 1 NWLR Pt. 961 at 375 at 391. By the provision of section 44 of the (NICA) National Industrial Court Act 2006, this court has the power as follows; “ The court may issue a summons for bringing up any person under civil process to be examine as a witness in any cause or matter pending or to be inquired into in the court” Order 19 Rule (11) of the National Industrial Court (NIC) Rules 2007 has this provision; “The court may of its own motion or on the application of any party order any person to appear before the court as a witness or to produce any document” Mr. Farouk Asekhome contended that the subpoened witness need to file a witness statement on oath in other not to spring a surprise. I don’t think this is compulsory as the rule of court only contemplates a willing and voluntary witness to file a witness statement on oath and not a subpoened witness because it will be extremely difficult if not impossible for an adverse party or a witness who has an interest in the adverse party to sign a prepared witness statement on oath. See the case of Lasun Vs. Awoyemi 2011 All FWLR 713. In essence, the law does not command the impossible. Consequently and in view of what I have earlier said in this ruling, the objection of the defendant is overruled. The subpoened witness shall honour the subpoena in person for the purpose for which it was issued. ------------------------------- Hon. Justice P.O Lifu (JP.) Judge