Judicial Notice

Introduction:

This note will discuss the meaning of judicial notice, its rationale, the base condition for taking judicial notice, the circumstances under which a court may take judicial notice, when judicial notice may be taken, and some instances where it was validly taken.

Meaning of Judicial Notice:

In Black’s Law Dictionary, 9^th ed, judicial notice is defined as:

A court's acceptance, for purposes of convenience and without requiring a party's proof, of a well-known and indisputable fact; the court's power to accept such a fact … Also termed judicial cognizance; judicial knowledge.

The learned author Maxwell Opoku Agyeman in his book, Law of Evidence in Ghana at page 106 defines judicial notice as

It simply means recognition without proof of something as existing or being true. Further, judicial notice is said to be based upon very obvious reasons of convenience and expediency, and the wisdom of dispensing with proof of matters within the common knowledge of everyone has never been questioned.

In the recent case of Otoo & Anor v Dwamena [2018-2019] 1 GLR 23, the Supreme Court of Ghana characterised judicial notice as follows:

It is trite learning that the doctrine of judicial notice is one of the exceptions to formal proof of facts before a court or tribunal , which is by adduction of evidence. Judicial notice may be taken only of facts which are notoriously true or are capable of accurate determination by resort to sources whose accuracy cannot reasonably be questioned. Courts frequently take judicial notice of geographic information, scientific data and statutes that are passed by the legislature or under its authority. Where a fact is subject to dispute on reasonable grounds, a court ought not to accede to an invitation to take judicial notice of it. Courts may take Judicial notice of court records, including final judgments, in other cases either by the court itself or other courts. By Section 127 of NRCD 323, final judgments of courts in Ghana are admissible evidence in proceedings.

In the even more recent case of Quaye v. Poku (J4/15/2022) [2024] GHASC 65 (18 December 2024) , the Supreme Court cited with approval the definition of judicial notice by G.D Nokes (4th edition) as follows:

An acceptance by a judicial tribunal of the truth of a fact without proof, on ground that it is within the tribunal’s own knowledge.

In Commonwealth Shipping Representative v. Peninsular and Oriental Branch Service [1923] A.C. 191 , Lord Sumner defined judicial notice follows:

Judicial notice refers to facts, which a judge can be called upon to receive and to 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.

This definition was cited with approval in the case of Mensah and Others v. The Republic [1979] GLR 523-551 .

Rationale for Taking Judicial Notice:

The courts have held that judicial notice is taken to save time and resources by not requiring a party to prove a fact that is undisputed or well-known. This was captured in the case of Otoo & Anor v Dwamena (supra) where the Supreme Court said:

Generally, the main purpose of the doctrine of judicial notice is to bring about judicial economy by saving time and resources proving what is already known.

Base Condition for Taking of Judicial Notice:

The taking of judicial notice is primarily governed by Section 9 of the Evidence Act, 1975 (NRCD 323) . In Section 9(1) of NRCD 323, it is provided that:

This section governs the taking of judicial notice of facts in issue or facts which are relevant to facts in issue.

The import of this section is that the power of the court to take judicial notice, granted under Section 9, becomes operative if what the court is taking judicial notice of is either a fact in issue or a fact relevant to the facts in issue.

A fact in issue: These are facts that must be proved for a party to succeed in litigation. In the case of Shagang Shipping Company Ltd (in liquidation) v HNA Group Company Ltd [2020] UKSC 34, the House of Lords defined these facts as

Those facts which as a matter of law it is necessary to prove in order to establish a claim or a defence…

A fact which is relevant to the facts in issue: Also known as relevant facts, these are facts which when proved, provide indirect evidence that proves or disproves the facts in issue. In Black’s Law Dictionary, this is defined as

A probative or evidentiary fact; a subsidiary fact tending to prove a principal fact in issue.

In light of the above, if a fact is not a fact in issue or a relevant fact, there is no need and basis to take judicial notice of same, as the basis of taking judicial notice in Section 9is limited to facts in issues and relevant facts. This position is supported by the case of The Republic V. The High Court, Accra (General Jurisdiction 11) Ex Parte: Anas Aremeyaw Anas Kennedy Ohene Agyapong [2024]DLSC17473 , where the court advanced that:

At any rate, a trial Judge is entitled, in his judgment, to take judicial notice of matters which are of public knowledge as long as they remain relevant to the case before him ;

The facts or matters that are relevant to the case before the judge are the facts in issue and the relevant facts. It is after this base condition is fulfilled that the judge can take judicial notice of the fact, provided it falls under any of the circumstances under which he can take judicial notice.

Circumstances under which Judicial Notice can be Taken:

In Section 9(2) of NRCD 323, it is provided that:

Judicial notice can be taken only of facts which are either:

(a) so generally known within the territorial jurisdiction of the court, or

(b) so capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, that the fact is not subject to reasonable dispute.

This provision contains two circumstances under which the court may take judicial notice of facts.

a. First Circumstance (Facts Generally Known within Territorial Jurisdiction of the Court):

The first circumstance is that the facts must be generally known within the territorial jurisdiction of the court. This has been severally held to be facts which are so notorious that everyone (sometimes in a particular locality) can be said to be aware of their existence. In the case of Barake v. Barake [1993-94] 1 GLR 635—668, for instance, Brobbey J advanced that:

it is imperative that we in the courts muster sufficient courage to take cognisance of the happenings in our society and ensure that our judgments duly reflect facts of common notoriety. Facts so notorious that everyone in our society can be deemed to be aware of, can be said to be matters in respect of which judicial notice can be taken.

Also, by this provision, the knowledge is not restricted to the knowledge of only a judge but must be of such nature that it is generally known by persons within the territorial jurisdiction of the court. In the case of Makab Company Ltd v. Bragha Construction Ltd [2023] GHASC 9 (22 February 2023) , their lordships of the Supreme Court delivered themselves as follows on this point:

It is however established that facts which are available to a judge personally cannot be assumed to be ones of public notoriety which the public could be presumed to know. To quote the learned Author and Jurist S A Brobbey from his book Essentials of the Ghana Law of Evidence

“….the fact should not be one in respect of which different people share different ideas and notions. It should be certain and definite. It should be beyond dispute, contest or controversy.”

In the case of Mensah and Others v. The Republic (supra) , the trial judge took judicial notice of a fact that was not of public notoriety and was subject to reasonable dispute. In that case, the trial Circuit Court judge said it is well known that there is world inflation and that countries, including Ghana, have been affected by same. On appeal, the appellant contended that the trial judge was wrong in taking judicial notice of the impact of world inflation on Ghana. The High Court, in allowing the appeal, said:

To take judicial notice of a fact, however, the judge has to be convinced that the matter is so notorious as not to be the subject of dispute among reasonable men, or that the matter is capable of immediate accurate demonstration by resort to readily accessible sources of indisputable accuracy: see Cross on Evidence (3rd ed.), p. 129.

The facts which the trial judge took judicial notice of in this case cannot be classified under this definition.

The court added that whereas world inflation is a matter of public notoriety, the extent to which each country is affected by such inflation is not a matter of public notoriety and consequently not a matter of which judicial notice can be taken. The court also stated that “one cannot also make a sweeping statement about world inflation being due to the oil crisis and the extent to which this country has been affected without basing such observation on any evidence.”

In cases where the judicial notice was taken of matters that are of public notoriety, however, the judicial notice was held to be validly taken. For instance, in the case of Nye v. Niblett [1908] 1 KB, three boys killed two cats with great cruelty. In Section 41 of the Malicious Damage Act, 1861 , it was an offence to kill animals in such a manner if the animals were kept for domestic purposes. At the trial court, they were acquitted because the court did not find any evidence that the cats were kept for domestic purposes. They appealed, and the court had to decide whether or not it had to be proved that the cats were kept for domestic purposes. The court noted that there was no such need because the cats killed “belonged to the class of cats which are ordinarily kept for domestic purposes.” In the opinion of Justice Avory,

Cats belong to a genus or class of animals that are ordinarily kept for domestic purposes. There is no doubt that that is the usual description of cats. "Domestic cats" is a well-known expression.

Here, the court was simply relying on the well-known fact that cats are kept for domestic purposes.

In the case of R v. Luffe (1867) 9 EAST 193, there was an issue concerning the legitimacy of a child. It was clear that the man had been away and only returned two weeks (a fortnight) before the birth of the child. The court took judicial notice of the fact that a man who only has sexual intercourse with his wife two weeks before the birth of a child cannot be the father of the child. Per Lord Bollenborough,

…In nature, the fact may certainly be known that the husband, who had no access until within a fortnight of his wife's delivery, could not be the actual father of the child. Where the thing cannot certainly be known, we must call in aid such probable evidence as can be resorted to, and the intervention of a jury must, in all cases in which it is practicable, be had to decide thereupon ; but where the question arises as it does here, and where it may certainly be known from the invariable course of nature, as in this case it may, that no birth could be occasioned and produced within those limits of time, we may venture to lay down the rule plainly and broadly, without any danger arising from the precedent.

By this reasoning, the court was essentially alluding to a notorious fact that a man who has only been with his wife two weeks before the birth of a child cannot be said to be the father of the child because fertilisation and childbirth naturally take a longer time.

b. Second Circumstance (Facts Capable of Immediate Accurate Demonstration by Resort to Readily Accessible Sources of Indisputable Accuracy) :

The second circumstance is that the fact, even if not generally known within the territorial jurisdiction of the court, is so capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned that the fact is not subject to reasonable dispute.

Again, in the case of Mensah and Others v. The Republic (supra) , the court noted that the impact of world inflation on Ghana could not be determined by reference to readily accessible sources of indisputable accuracy.

In the case of Hilodjie & Another v. George [2005-2006] SCGLR , the Supreme Court commented on this provision as follows:

…the rule under section 9(2)(b) is rather limited in scope, it being restricted to sources from which the facts are drawn and whose accuracy cannot reasonably be questioned; and understandably, thereby not open to reasonable dispute, for the obvious reason that the court would be entitled to take judicial notice of those facts, that is, treat the facts drawn from these sources as proven evidence. Unfortunately, the law is silent on what constitutes “sources.” In typical common law fashion, I would not attempt a closed definition of the term. I would, nevertheless, identify some of the “sources” which a court could resort to under this provision. I should think that archival records, the arts (by definition the creative and performing arts, eg music, poetry, painting and dance), literary works, findings and decisions of courts of competent jurisdiction, textbooks including history books, would all qualify.

When Judicial Notice May be Taken:

In Section 9(3) of NRCD 323, it is provided that:

(3) Judicial notice may be taken whether requested or not.

In Section 9(6), it is also provided that:

(6) Judicial notice may be taken at any stage of the action.

The combined effect of these provisions is that at any stage of an action, the court may take judicial notice suo motu or upon request by a party. On the power of the court to take judicial notice suo motu, the Supreme Court of Ghana, in the case of Hilodjie & Another v. George (supra) , said:

As a matter of law, a trial court has power in exercise of its discretion, suo moto, to take judicial notice of facts not pleaded, as for example, historical facts which have neither been pleaded nor tendered in evidence at the trial

If a party requests for judicial notice to be taken, Section 9(4) provides that the judicial notice shall be taken if the following two conditions are fulfilled:

i. The requesting party gives each adverse party fair notice of the request, through the pleadings or otherwise, and

ii. Supplies the necessary sources and information to the court.

It is respectfully submitted that the effect of this provision is to enable, if necessary, the adverse party to challenge whether the fact is one of which judicial notice can be taken, thereby dispensing with the need for formal proof of facts, and to enable the court to determine if the fact is one of which judicial notice can be taken.

Beyond the time of taking judicial notice and the power of the court to take judicial notice suo moto or upon request, judicial notice may be taken with enquiry or without enquiry.

Judicial notice with enquiry is when the court takes judicial notice only upon reference to extraneous sources of information. This is often used when the facts being judicially noticed are not commonly known, thereby requiring the court to make further enquiries to satisfy itself of the existence of the fact. In making the further enquiries, evidence (which is simply information used to prove the existence or non-existence of a fact) may be used by the court. In the case of McQuaker v. Goddard [1940] 1 K.B. 687, a trial court took judicial notice of the fact that camels are not wild animals after enquiring from experts on the nature of camels. At the appellate court, the court clarified that a judge may take judicial notice upon taking evidence and distinguished between taking evidence for the purpose of proving a fact and taking evidence for the purpose of taking judicial notice as follows:

I should like, however, to add a word as to the part taken in the matter by the evidence given as to the facts of nature in regard to camels. That evidence is not, it must be understood, in the ordinary sense evidence bearing upon an issue of fact. In my view the exact position is this. The judge takes judicial notice of the ordinary course of nature, and in this particular case of the ordinary course of nature in regard to the position of camels among other animals. The reason why the evidence was given was for the assistance of the judge in forming his view as to what -the ordinary course of nature in this regard in fact is, a matter of which he is supposed to have complete knowledge.

The point is best explained by reading a few lines from that great work, the late Mr. Justice Stephen's, "Digest of the Law of Evidence.'' In the 12th edition, Article 62 is as follows: " No evidence of any fact of which the Court will take judicial notice need be given by the party alleging its existence; but the judge, upon being called upon to take judicial notice thereof, may, if he is unacquainted with such fact, refer to any person or to any document or book of reference for his satisfaction in relation thereto, or may refuse to take judicial notice thereof unless and until the party calling upon him to take such notice produces any such document or book of reference.

This ruling was to the effect that if a judge is unacquainted with a fact, he may, upon being called to take judicial notice of that fact, make references to external sources of information or request the party calling upon him to take judicial notice to provide external sources of information from which the existence of the fact can be verified. The judge does this to satisfy himself that the fact exists.

Judicial notice without enquiry: Here, the facts are often so notorious that the court takes judicial notice of them without reference to external information. For example, in Nye v. Niblett (supra) , the court took judicial notice of the fact that cats are often kept by humans for domestic purposes without reference to external information.

Instances Where Judicial Notice was Validly Taken:

1. Nature: In the cases of R V Luffe (supra) and of McQuaker v. Goddard (supra), the court took judicial notice of the facts that in nature, it takes more than two weeks for a man to father a child and that camels are not wild animals.

2.The Law: The courts can also take judicial notice of the law because judges are presumed to know the law without the need for proof of same (except for foreign laws). In the case of Seraphim v. Amua-Sekyi [1971] 2 GLR 132-136, the court stated that “one must concede to a judge who is deemed to know the law, the right to apply it in determining a dispute even if such law is unknown to the parties or mutually misunderstood by them.” In the case of Angu v. Attah (1916) P.C. 1874-1927 (Privy Council Appeal No. 78 of 1915) , the Privy Council held, in relation to the existence or content of a rule of customary law, proof of which was then a question of fact, that a judge was entitled to take judicial notice of its determination by a court in another case.

3. Decisions of other Courts: In the case of Republic v The High Court, Denu Ex parte Togbe Agbesi Awusu II and Another [2003-2004] 2 SCGLR 864 , the Supreme Court took judicial notice of matters determined in a ruling by the High Court judge because those matters were capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned, and judicial notice of same could be taken pursuant to Section 9(2)(b) of NRCD 323.

4. Historical Facts: In the case of Hilodjie & Another v George (supra) , the Supreme Court stated that a trial court has the power to take judicial notice of historical facts that have neither been pleaded nor tendered in evidence at the trial. This is true if those historical facts can be easily verified from sources that cannot be reasonably questioned. In light of this, if the historical facts are disputed, the court cannot take judicial notice of those facts.

5. Political and Administrative Matters:Judicial notice can be taken of facts such as names of persons in government positions among others. See the case of Duff Development Company v Kelantan Government [1924] UKHL J0410-1 where Viscount Cave said “It has for some time been the practice of our courts, when such a question is raised, to take judicial notice of the sovereignty of a state, and for that purpose (in any case of uncertainty) to seek information from a Secretary of State; and when information is so obtained the court does not permit it to be questioned by the parties.”