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THE COURT CANNOT IGNORE GOVERNMENT CIRCULARS

Dictum

Government circulars convey Government Policy and serve as the mouth-piece of Government on such issues and cannot be ignored by the Court – See C.B.N. v. Amao and Ors. (2007) ALL FWLR (Pt. 1614) 1490 at 1522-1525. One of such circulars is contained at pages 52-54 of the record helpfully referred to by Mr. Ganiyu for the respondent. It is Federal Inland Revenue Circular No. 9801 dated 1.10.98, stating inter alia at page 54 of the record that- “…where the trader enters into contract for the sale of the goods, he is no longer acting within his ordinary course of business, that is trading, but has made an adventure into another business, that is contracts. Further, a manufacturer who makes contractual sale or purchase is no longer acting within his ordinary course of business that is contract. Although the manufacturer may use the items purchased or sold in his manufacturing business, the contractual arrangement for the sale or purchase will be subject to 5% withholding Tax.” (My emphasis.) The circular (supra) appears to me to be explanatory of the Schedule to the WHT Regulations of 1997 made pursuant to section 63(7) of CITA and section 72(6) of PITA which provides 5% WHT for – “All types of contracts and agency arrangements, other than outright sale and purchase of goods and property in the ordinary course of business.”

– J.S. Ikyegh, JCA. Nigerian Breweries v Oyo BIR (2012) – CA/I/M.25/2007

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A SEPARATE PANEL CANNOT TAKE JUDICIAL NOTICE OF NULLIFIED JUDGEMENT OF ANOTHER EARLIER PANEL

In argument, we were not referred to any decided case that appeared to have answered the basic problem in the above questions. I shall therefore attempt to answer them inferentially from some decided cases and from general principles. In the case of Craven V. Smith (1869) L.R. 4 Exch. 146 which was referred to in argument, it is clear from a careful reading of the report that what the court was held to be entitled to look at was the lawful record of the same panel of the court in the same case. It cannot, therefore, be regarded as supporting a case like this in which the question is whether a separate panel can take notice of the nullified judgment of an earlier panel. Even though the courts in England took judicial notice of the law of England as administered in the Court of Chancery (for which see e.g. Sims v. Marryatt 17 Q.B. 281), yet the practice of that court was earlier proved by oral evidence before it would be noticed. Hence in Dicas v. Brougham Ltd M. & Rob, 309, Lord Eldon had to be called as a witness to prove that practice. In Tucker V. Inman 4 M & Gr 1049 an equity counsel was called for the same purpose. In Place V. Potts 8 Exch. 705 at the invitation of counsel, the court made its own inquiry and informed itself as to the jurisdiction of the Court of Admiralty. See also Williams V. Lloyd 1 M & Gr. 671.

— P. Nnaemeka-Agu JSC. Gbaniyi Osafile v. Paul Odi (SC 149/1987, 4th day of May 1990)

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ALL LAWS ARE UNDER JUDICIAL NOTICE FOR A COURT

It is also settled beyond doubt that by virtue of section 74 of the Evidence Act, the facts which a court is enjoined to take judicial notice of include all laws or enactments and any subsidiary legislation made thereunder.

– Abdullahi JCA. Ekiti v. Ojo (2005)

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THE ONLY FOUNDATION FOR JUDICIAL NOTICE IS THAT IT HAS TO BE COMMON KNOWLEDGE

It follows from what I have been saying that every matter entitled to be judicially noticed has its appropriate and necessary foundation without which it cannot be judicially noticed. It must be noted that judicial notice is an anomalous appendage in the law relating to proof. Some regard it as part of the law of evidence; but then it has not the trammel of the law of evidence, such as scrutiny under cross-examination, the rules of admissibility, and so on. Save in such cases as ascertainment of notorious custom and of the practice of the Court of Chancery, in which evidence may be required before judicially noticeable in the first instance, it has really nothing to do with the rules of evidence. What is necessary in the case of judicial notice is a proper foundation for that particular type of fact before it could be judicially noticed. That foundation may be common knowledge, common knowledge reinforced by such information material as the Judge may deem it necessary to consult under Section 73(2) of the Evidence Act, statute, the common law, and acquired knowledge under section 73(3) of the Act (See: -Nokes: The Limits of Judicial Notice – 74 L.Q.R. 59). As I have stated, judicial notice founded on common knowledge is founded on the Judge’s actual knowledge, experience and memory as a member of society; sometimes however, he finds it necessary to refresh his memory by reference to records, books and reports. The material foundation of notice of a statute is the production of a copy of the statute; that of any official act is the production of the Official Gazette. Where the matter to be noticed is an acquired knowledge, the only foundation is the production of the book, document, or other material, which will enable the court to do so under section 73(3) of the Act.

— P. Nnaemeka-Agu JSC. Gbaniyi Osafile v. Paul Odi (SC 149/1987, 4th day of May 1990)

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A COURT WILL TAKE JUDICIAL NOTICE OF HIS JUDGEMENT, REPORTED OR UNREPORTED

I think it is fairly well settled and not a matter of argument that a court will take judicial notice of its records and proceedings. In respect of the valid judgments of a court of Record, the court will readily take judicial notice of its judgments reported and unreported. I would not draw any distinction between panels of the same court. A decision of one panel is a decision of the Court and each Panel will take judicial notice of it. In my view, it is only for convenience that published report of valid judgments of court or copies of its unreported judgments are brought before a court. They need not be, they could just be cited.

— Nnamani JSC. Gbaniyi Osafile v. Paul Odi (SC 149/1987, 4th day of May 1990)

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COURT CANNOT TAKE JUDICIAL NOTICE OF A NULLIFIED JUDGEMENT NOT PRODUCED BEFORE IT

Whether the record and contents of a nullified judgment ought formally be produced in court or extract thereof be placed before the court before the opinions expressed therein could be countenanced; or whether the Court of Appeal could have taken notice of their existence and contents by the mere fact that the nullified judgment was probably in the archives of the court. In Attorney-General v. Silem L.R. 10 H.L. Cas. 704, it was held that S.26 of the Queens Remembrance Act, 1859, which empowered the Barons of Exchequer to frame rules for making “the process, practice and mode of pleading” on the revenue side of the court uniform with that of the plea side, did not give the Judges the power of entertaining appeals on revenue cases, as they assumed. It is always necessary to exercise powers conferred by an enabling statute within the four comers of the statute: see Australian cases of Tavcar v. Tavcar (1950) A.L.R. 260; White v. White (1947) A.L.R. 342. It therefore appears to me that the power, conferred by S.73(1) of the Evidence Act, for a court to take judicial notice of its course of proceedings and rules of practice cannot rightly be invoked to take judicial notice of the contents of a nullified judgment, which the members had not earlier had an opportunity of seeing. For, true, it existed as a fact, being devoid of any legal consequences, it was then like any other opinion, say, in a textbook. I do not think that anybody can suggest that such a textbook opinion should be judicially noticed.

— P. Nnaemeka-Agu JSC. Gbaniyi Osafile v. Paul Odi (SC 149/1987, 4th day of May 1990)

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MEANING OF JUDICIAL NOTICE

So, “judicial notice” remains in Nigeria what it is in England, that is to say: – …….facts, which a Judge can be called upon to receive and act upon either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer. See: – Commonwealth Shipping Representative v. P. & O. Branch Services (1923) A.C. 191 at p. 212. Needless to say that it is for the party to lay the foundation and call upon the Judge in the appropriate manner to take judicial notice of the fact: the importance of this point in this appeal will become more obvious anon.

— P. Nnaemeka-Agu JSC. Gbaniyi Osafile v. Paul Odi (SC 149/1987, 4th day of May 1990)

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