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Judicial Notice: The Law of Evidence II Notes Kobusinge K. Nyakoojo - Lectrurer UCU - Mukono 1

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Moses Mai
Judicial notice allows courts to accept facts as true without requiring proof. There are two categories of facts courts can take judicial notice of: 1) matters that are so well known that formal evidence is unnecessary, like common knowledge, and 2) matters of common notoriety. Courts can take notice of legal matters like laws and regulations, constitutional matters recognized by the government, and customary matters that have become notorious through frequent proof in courts. However, courts cannot take notice of private matters or assume knowledge of all customs, and foreign laws still require proof through experts or documents. Judicial notice serves as a shortcut to avoid unnecessary evidence, but courts must still sometimes refer to documents to determine if notice should be taken.

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183 views4 pages

Judicial Notice: The Law of Evidence II Notes Kobusinge K. Nyakoojo - Lectrurer UCU - Mukono 1

Uploaded by

Moses Mai
Judicial notice allows courts to accept facts as true without requiring proof. There are two categories of facts courts can take judicial notice of: 1) matters that are so well known that formal evidence is unnecessary, like common knowledge, and 2) matters of common notoriety. Courts can take notice of legal matters like laws and regulations, constitutional matters recognized by the government, and customary matters that have become notorious through frequent proof in courts. However, courts cannot take notice of private matters or assume knowledge of all customs, and foreign laws still require proof through experts or documents. Judicial notice serves as a shortcut to avoid unnecessary evidence, but courts must still sometimes refer to documents to determine if notice should be taken.

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JUDICIAL NOTICE

This is the process by which courts take cognizance or notice of matters which are so notorious or
clearly established that formal evidence of their existence is unnecessary, as well as matters of
common knowledge and everyday life.

The common law doctrine is that whenever a fact is so generally known, that every ordinary person
may be reasonably presumed to be aware of it, the court notices it. According to Justice Isaacs in this
case:

Holland v Jones
Held: “Judicial notice is a judicial short cut,” i.e. it is a doing away with a judicial necessity for
evidence because there is no real necessity for it.

Judicial notice therefore means the acceptance by a tribunal, of the truth of a fact without proof on
the grounds that it is within the tribunal’s own knowledge. This is an exception to the rule that all
facts in issue and relevant facts must be proved by evidence, e.g. ss 55-56, 101

What then is the basis of the court applying judicial notice?

Matters that may be taken judicial notice of are either matters of:
1) A public or universal nature which are so well known that courts will not require formal
proof thereof, OR:
2) Matters of common notoriety.

In effect, this means that the courts may take into consideration those two premises and dispense
with formal proof. However, courts may not take into account any personal knowledge that they may
have of private matters. For that reason therefore, we have said that the things court may take
judicial notice of should be either a public or universal nature which are so well known that it would
be wastage of court’s time to require further proof of them.

The Law of Evidence II Notes 1 Kobusinge K. Nyakoojo -Lectrurer UCU - Mukono


If a judge has private knowledge of an admissible fact affecting a case before him, then he should
disqualify himself from presiding over that case.

S.56 has a list of various matters of which court shall take judicial notice. Apart from these matters,
there are generally 3 broad categories of matters that a court may take judicial notice of. These are
divided into legal, constitutional and customary matters, i.e. the list in s.56 is not exhaustive.

Legal matters

Ugandan courts may take judicial notice of all Ugandan laws, as well as all laws of the UK which
are in force in Uganda.

Saleh Mohammed v R
Held: The correct interpretation of s.57 (1) of the Indian Evidence Act equivalent to [the then s.55
(1)] of the Ugandan Evidence Act is that a court must take judicial notice of all ordinances and
regulations enacted in Kenya.

Singh v R
Held: Court must take judicial notice of a Government notices issued under the Defense (Controlled
Produce) Regulations 1946.

R v Joshua
Held: Although court had to take judicial notice of an order issued under the Tanganyika Native
Authority Ordinance, this did not dispense with the need to prove that the order had been duly
promulgated in the required manner.

Apart from the above, all other foreign laws must be proved. Singh v R that dealt with the
application of Islamic law to parties in Tanzania. The question then becomes, how do you prove
foreign laws? Experts in the area of foreign law- s.44; reliance on books and journals on that foreign
law.

The Law of Evidence II Notes 2 Kobusinge K. Nyakoojo -Lectrurer UCU - Mukono


Constitutional matters

Courts may take judicial notice of constitutional matters e.g. under s.56 (1), the existence, title and
national flag of a Government. Courts may also take judicial notice of hostilities, wars and conflicts
involving Uganda which have been recognized by the Government, i.e. if the Government
acknowledges or says so.

See:
Duff Development Co. v Kelantan (Government)
Dolder v lord huntingfield 1805 11 PES 282
There is no doubt that
S.56

Customary matters

If a particular customary law becomes so notorious, it may be judicially noticed. 56(3)

Angu v Atta [1916] PC 43


Held: Customary law must first be proved by calling witnesses acquainted with the native customs,
until the particular customs may have, by frequent proof in courts become so notorious that the
courts will take judicial notice of them.

Kimani v Gikanga
Held: Customary law as a matter of judicial practice has to be proved by:
a) Calling experts;
b) Adducing texts/books on those customs;
c) Calling persons acquainted.

However, customary law is not at the same level as foreign law. But we cannot presume that the
judges know all the Ugandan customs therefore these persons and evidence is admitted before court

The Law of Evidence II Notes 3 Kobusinge K. Nyakoojo -Lectrurer UCU - Mukono


until judicial notice can be taken of it. It must also be noted that at the time, foreign judges presided
over our courts.

S. 56(2) provides that the court may refer to appropriate books or documents in all cases listed under
s.56 (1) or on matters of public history, literature, science or art in determining whether judicial
notice should be taken. However, under s.56(3), court may refuse to take judicial notice of a matter
until the interested person produces either a book or document for court’s reference in support of the
fact.

The Law of Evidence II Notes 4 Kobusinge K. Nyakoojo -Lectrurer UCU - Mukono

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