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

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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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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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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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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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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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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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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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