Background
The doctrine of judicial notice is thought to have its origins in the early procedures of the English courts, which heavily depended on the judgment and experience of judges. Judges were once expected to possess a broad understanding of the law, as well as knowledge of society, customs, and other topics of general interest.
As the courts evolved and the volume of cases increased, it became impractical for judges to have such broad knowledge. The doctrine of judicial notice developed as a way to allow judges to rely on common knowledge and information that could be easily verified, rather than requiring them to have specialized knowledge in every area that might come before the court.
In civil and criminal cases, the general rule of evidence is that all relevant facts must be proved. This is done through the statements of witnesses, admissions, confessions, or the production of documents.
The doctrine of judicial notice operates as an exception to the general rule which states that all relevant facts must be proved in that it allows court to notice facts before it without requiring formal proof as evidence.
Judicial notice as as provided by Section 55 of the Uganda Evidence Act, states that no fact of which the court will take judicial notice need be proved.
Simply put, court takes cognizance of matters that are so notorious or clearly established, or of common knowledge and everyday life that parties don’t need to provide evidence to prove them.
What is Judicial Notice?
Judicial notice is the doctrine where courts take cognizance of matters that are so well known that formal evidence of their existence is unnecessary. This doctrine is an exception to the general rule that all facts must be proved.
When a fact is generally known, the court may presume that every ordinary person is aware of it, and thus the court notices it.
According to Halsbury's Laws of England, 3rd Edition, Vol. 15, judicial notice is taken of facts that are familiar to any judicial tribunal by their universal notoriety or regular occurrence in the ordinary course of nature or business.
In Arim Felix Clive vs. Stanbic Bank (U) Ltd [2016], Lillian Tibatemwa-Ekirikubinza, JSC defined judicial notice as a process by which courts take cognizance of a matter that is so notorious or clearly established that there is no need for formal evidence to prove it.
According to the Black’s Law Dictionary, a matter or practice is said to be notorious if it is “generally known and talked of, well or widely known, forming a part of common knowledge, universally recognized”.
The doctrine of judicial notice is based on two legal maxims; First, manifesta (notoria) non indigent probatione which translates to Obvious facts need no proof. This maxim states that there is no need to prove that which is self-evident or so well known to everyone.
Second, Non Refert Quid Notum Sit Judici Si Notum Non Sit in Forma Judicii which translates to It matters not what is known to the judge if it is not known judicially. Both maxims collectively predate the notion of the doctrine of Judicial notice.
As previously discussed, facts can be judicially noticed if they are so notorious or of common knowledge to the court that they are easily recognizable and no need for tendering in formal evidence to the effect.
To that end, Justice Nnaemeka-Agu of the Nigerian Supreme court in Gbaniyi Osafile and John Emeri vs Paul Odi and Okwumaso Nwaje provided that two categories of facts can be judicially noticed;
The first category includes matters which are widely known (notorious) that the court automatically takes notice of them, once it is invited to do so.
The second category includes matters, although judicially noticeable, the court will not do so unless additional information is presented to inform or remind the court of the issue at hand. In general, courts have been unwilling to acknowledge matters falling under the second category unless the party requesting for notice provides the necessary material to enable the court to gain knowledge or jog its memory about the specific matter–Vide Section 56 (3) Evidence Act.
In the Arim Felix Vs Stanbic Bank case, Justice Lillian Tibatemwa refused to take judicial notice of the fact that it was a common practice in banking to use both account names and numbers to identify customers since the plaintiff failed to show literature (evidence) to that effect.
In the instant case, there was an error in the account numbers contained in a formal document from the High Court that ordered for the freezing of the plaintiff’s bank account. Despite the error, the bank followed the orders and froze the plaintiff's account.
The case raised the question of whether banks were required to use both the account names and account numbers in identifying their customers, or if one alone was sufficient.
The plaintiff's counsel prayed that court should judicially notice the fact that it was a common practice in banking to use both account names and numbers to identify customers, and that the bank was at fault for freezing the account despite the mismatch in numbers.
However, the court rejected this argument on the basis that the plaintiff had failed to present any evidence to support that this was a widely known practice in banking practice.
The court further ruled that the mismatched figures were a minor error, and that the rest of the content in the document ordering the freeze was sufficient to identify the plaintiff. Therefore, the court concluded that the bank had not acted improperly in following the orders to freeze the plaintiff's account, despite the error in the account numbers.
When a court takes judicial notice of a fact, it means that the fact exists without requiring any further proof.
For example, if the date of Uganda's independence is a relevant fact, the court takes judicial notice that Uganda got independence on 9th, October 1962.
JUDICIAL NOTICE: AN ABSOLUTE RULE?
The doctrine of judicial notice is a fundamental aspect of the Ugandan legal system that allows courts to accept certain facts without requiring formal evidence.
However, the question remains: is the doctrine of judicial notice an absolute or flexible principle?
At its core, the doctrine of judicial notice is designed to promote efficiency and accuracy in the legal system by allowing judges to take notice of facts that are commonly known or easily verifiable.
This can include, for example, facts about vernacular language, history, science, or geography, as well as matters of law or public policy. By doing so, courts can avoid unnecessary delays and reduce the burden on parties to provide formal evidence of facts that are not in dispute.
However, despite its practical benefits, the doctrine of judicial notice is not an absolute rule.
Courts are generally required to apply the doctrine in a manner that is consistent with due process and fairness.
Judicially noticing facts means that the matters presented before court raise prima facie evidence of those facts. It is presumed by the judge until there is a reason to think otherwise.
Courts provide parties with a chance to be heard, contest, oppose and present evidence in support of or against any facts that have been tendered in to be judicially noticed. See Arim Felix Clive V Stanbic Bank Uganda, Buryahika V Hoima Sugar Ltd wherein court granted a chance to both parties to present their arguments in support of and against the judicial notice prayed for.
Hence, courts always exercise caution and consider the nature and quality of the evidence before deciding whether to take notice of a particular fact.
LEGAL BASIS OF JUDICIAL NOTICE IN UGANDA
Sections 55 and 56 of the Uganda Evidence Act deal with the doctrine of judicial notice.
Section 55 states that facts judicially noticeable do not need to be proved.
MATTERS COURT MUST TAKE JUDICIAL NOTICE OF
Section 56(1) of the Evidence Act lists the facts that the court must take judicial notice which can be broadly categorized as follows;
Legal matters
Constitutional matters, and
Matters of custom
Matters that are of a public or universal nature. These are matters which are so well known that it would be a waste of time to require further proof of them.
Although the Evidence Act lists categories of facts that court must take judicial notice of, it appears that given the evolving nature of society and the law, there might arise instances that are not covered by the stagnant list in the Act.
It is not long before a similar contention arose in Buryahika Stephen & Ors Vs Hoima Sugar Ltd & Ors [2022] where the applicant prayed that the court judicially notices court records. The defendant on the other hand contended that court records were outside the matters that court must take judicial notice of enlisted under Section 56 of the Evidence Act. Furthermore, the defendant stated that judgements were sufficient for that purpose which court could judicially notice as precedent.
However, Justice Byaruhanga Jesse denied the defendant’s argument and relied on the reasoning of Kavuma J.A in Mifumi & 12 Ors vs. AG & anor, where he stated that the list prescribed by the act is not exhaustive.
Many such facts not enlisted under Section 56 (1) may be presented to court for judicial notice as long as they fulfill the test of notoriety, awareness and common knowledge to the tribunal.
LEGAL MATTERS
Legal matters that Uganda courts take judicial notice of include all Ugandan laws and all United Kingdom laws that are in force in Uganda.
The Judicature Act provides for the domestication of applied law whereunder Section 47 of the Judicature Act, the High court is bound to take cognizance of certain UK Acts.
CONSTITUTIONAL MATTERS
Constitutional matters that the court may take judicial notice of include the accession of the head of the Commonwealth, seals of all Ugandan courts, and all seals that English courts take judicial notice of.
The existence of titles, names, and signatures of persons in public offices in Uganda, as well as the titles and national flags of all states recognized by the Ugandan government, are also matters of which the court may take judicial notice.
CUSTOMARY MATTERS
The court may take judicial notice of the laws and customs involving Uganda that have been recognized by the government.
Sections 55 and 56 of the Evidence Act deal with the doctrine of judical notice in Uganda. That is to say, the general rule laid down in the latter provisions is that facts judicially noticeable need not be proved.
In line with the same, Section 56 (1) of the Act provides that facts of which court must take judicial notice.
However, as noted by Kavuma J.A in Mifumi (U) Ltd & 12 Ors vs. AG & Kenneth Kakuru, Constitutional Appeal No. 02 of 2014 the list prescribed by the British is not exhaustive. The discussion of customary matters in line wiith judicial notice draws its validity from the latter decision.
In customary matters, if a particular customary law becomes so notorious, it may be judicially noticed.
In the case of Angu v Atta [1916] PC 43 established that in order to prove customary law, witnesses familiar with the native customs must be called upon until the customs become so well-known that the courts will take notice of them without requiring further proof.
The same practice was carried out by Justice Mubiru in the Supreme court case of Kanyamunyu Mathew v Uganda in which the accused contended that he had initiated the cultural reconciliation process with the deceased’s family according to the Acholi customs. Mr. Olaa Ambrose the Prime Minister of the Ker Kwaro Acholi, the supreme cultural institution of the Acholi was invited by court to provide an insight of the whole cultural process and its status under the Acholi norms which he did through an affidavit.
Section 56 (3) of the Evidence Act provides that if court is called upon by any party to take judicial notice of any fact, it may refuse to do so until the person produces any such book or document to consider necessary to enable it do so. This section applies to the case as discussed above.
SHORTCOMINGS OF THE DOCTRINE OF JUDICIAL NOTICE
Although the doctrine of Judicial notice is of profound advantage, the rule has some weaknesses or problems that need to be considered.
These shortcomings include the potential for judges to rely on outdated or inaccurate information, the risk of unfairness to parties who are not familiar with the facts that judges are taking notice of, and the limitations on the types of facts that can be noticed.
The following are the shortcomings associated with the doctrine of judicial notice.
Subjectivity: The application of judicial notice depends on the discretion of the judge or tribunal. What is considered common knowledge or of universal notoriety may vary from judge to judge, which can lead to inconsistencies in the application of the doctrine.
Potential errors: There is a risk that courts may take notice of a fact that is actually false or incorrect. This may occur due to inaccurate information, misunderstandings, or misconceptions. When this happens, the decision based on the fact may be erroneous, which can lead to injustice.
For example, in United States v. Oakland Cannabis Buyers’ Cooperative (2001) the US Supreme court took judicial notice of the fact that marijuana is a dangerous drug with no medical value. However, this fact was based on outdated information and biased sources, and failed to consider emerging evidence of marijuana's medical benefits. This led to an unjust decision that ignored the changing social and scientific context.
Dependence on sources of information: In order to apply the doctrine of judicial notice, courts rely on sources of information such as textbooks, dictionaries, or other legal materials.
With the recent evolution, the internet has become the immediate data base for fact finding matters that can be judicially noticed such as geographical location.
However, these sources may contain outdated or inaccurate information. Some authors argue: that whereas information from government websites and verified sources might be accurate, information from anonymous sources or persons who can’t be identified may not be reliable which can lead to incorrect conclusions or decisions.