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MEANING OF JUDICIAL NOTICE

Dictum

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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THE COURT CANNOT IGNORE GOVERNMENT CIRCULARS

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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JUDICIAL NOTICE OF THE FIVE PILLARS OF ISLAM

The Five Pillars of Islam are 1. To testify and believe that there is no God except Allah and that Mohammed is the Messenger of Allah. 2. To perform the prayer (Five Times) regularly. 3. To pay the legal alms (Zakat, one time yearly). 4. To fast (in the month of) Ramadan, (every year.) 5. To perform the Pilgrimage to the Holy House of Allah (at Mecca once in a life time).

– Obaseki, JSC. Shodeinde v. Ahmadiyya (1983) – SC.64/1982

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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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JUDICIAL NOTICE: MATTERS SO NOTORIOUS, AND MATTERS WHERE COURT MEMORY NEEDS TO BE REFRESHED

✓ It seems to me from a view of all the decided cases that matters which can be judicially noticed fall into two broad classes. First: There are those which are so notorious that the court automatically takes notice of them, once it is invited to do so. Secondly: There are others which, although judicially noticeable, the court will not do so until something is produced, though not formally tendered as evidence, in order to inform the court or refresh its memory on the matter before it notices it. Thus the court may be invited to, and does, inform itself as to a date (Tutton v. Darke (1860) 5 H & N 649; for a publication in a Gazette by the production of the Gazette (Ogbunyiya v. Okudo (supra). On this broad division of judicial notice, the courts have usually refused to take notice of matters falling within the second category when the material from which it can inform itself or refresh its memory is not produced by the party inviting it to take notice of the particular matter. In Omeron v. Dowick (1809)2 Camp. 44, Lord Ellenborough declined to take judicial notice of the King’s proclamation because counsel failed or neglected to produce a copy of the Gazette in which it was published. In R. v. Holt (1793) 5 T.R. 446 the court held that articles of war of which it ws invited to take notice ought to have been produced. Also in Pilkington v. Cooke, 16 M & W. 615, the court refused to take judicial notice of when an order of the Judges, allowing a scale of fees to be taken by the sheriffs, was made. It appears to me from the decisions in the above cases that the courts will take notice without more of cases falling within the first category of matters that could be judicially noted, above; but will, in the case of the second insist on the appropriate material from which it can inform itself or refresh its memory being produced. I believe that the underlining assumption is that cases of the first category are matters of knowledge of which the Judge knows or is expected to know. He is not expected to know or remember off hand matters falling within the second category. But because of their very nature, the court can be informed of them or his memory be refreshed thereon; without the matter requiring to be proved by evidence. — P. Nnaemeka-Agu JSC. Gbaniyi Osafile v. Paul Odi (SC 149/1987, 4th day of May 1990)

✓ The point that I need to emphasize at this stage is that our law preserves the distinction between those facts of which the court shall take judicial notice, when called upon by a party to do so, because those facts are notorious to him, on the one hand, and those facts which, in exercise of its powers under subsection (3) of Section 73 of the Evidence Act, he may, when called upon to take judicial notice of the fact, refuse to do so unless and until such a person produces the necessary material or he has informed himself properly to enable him to do so. When the former is the case, the Judge, once called upon to take judicial notice of the fact, proceeds to do so based on his general knowledge, memory and experience. In the latter case, a proper foundation must be laid for him to take notice of the fact. The only difference is that under section 73(2), even for matters falling within the first category he may resort for his aid to appropriate books or other documents or reference. — P. Nnaemeka-Agu 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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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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