Facts Not Required to Be Proved: Judicial Notice and Notorious Facts in Nigeria

Imagine a trial judge in Lagos who is told, in the middle of a contested criminal matter, that counsel needs to call three witnesses to prove that Lagos State is part of Nigeria. The judge would be right to stare in disbelief. Some facts are so obvious, so universally known, or so well-established in law that requiring formal proof of them would be a waste of everyone’s time and an insult to common sense.

The law recognises this. Not every fact that is relevant to a case needs to be formally proved through witnesses and documents. Three categories of facts are exempt from the proof requirement: facts of which courts take judicial notice, facts that have been admitted by the parties, and facts that are presumed. We examine presumptions in a separate article. This article focuses on judicial notice and admitted facts, with particular attention to the often-overlooked distinction between mandatory and discretionary judicial notice, and the treatment of notorious facts under section 124 of the Evidence Act 2011.

The General Rule and Its Exceptions

The general rule under section 1 of the Evidence Act 2011 is that facts must be proved by evidence before a court can act on them. A court cannot simply assume the truth of a fact because it seems likely or because the judge personally knows it to be true.

But section 122 immediately carves out a set of exceptions. It provides that no evidence need be given of certain facts because the courts shall take judicial notice of them. These are facts that the law declares to be established without requiring any party to prove them.

The exception exists for practical and principled reasons. Requiring proof of obvious, universally known, or legally established facts would waste the court’s time, increase the cost of litigation, and potentially produce the absurdity of a court being unable to proceed because no one has formally proved that Nigeria is a sovereign state.

Mandatory Judicial Notice: Section 122

Section 122 of the Evidence Act 2011 lists the categories of facts of which Nigerian courts shall take judicial notice. The word “shall” is important. Taking judicial notice of the matters in section 122 is not optional for the court. It is a legal obligation.

The section 122 categories include:

All laws, enactments, and subsidiary legislation in force in Nigeria. A court does not need to be formally proved the content of the Companies and Allied Matters Act or the Criminal Code. It must take judicial notice of the law.

All seals of courts, seals of notaries public, and all seals that persons or authorities are authorised to use.

All territories within the Commonwealth of Nations.

The commencement, continuance, and termination of hostilities between Nigeria and other states.

Roads that have been publicly notified or gazetted.

General customs, rules, and principles of common law and equity.

All public acts, such as proclamations and acts of state.

The course of proceedings in courts of justice.

The assumption of office by the President of the Federal Republic of Nigeria, Governors of States, and other persons holding public office.

The existence of the title and national flag.

Public festivals and public holidays.

The practical significance of mandatory judicial notice is that counsel need not formally tender the Constitution, the Evidence Act, or any other Nigerian statute in evidence. The court knows the law and applies it. A party relying on a statutory provision simply refers the court to it. They do not prove it.

In AG Federation v AG Abia State,¹ the Supreme Court held that where a state boundary can be determined by reference to a law defining it, the court does not need affidavit evidence proving the boundary. The court takes judicial notice of the law and applies it directly. In Faroly Establishment v NNPC,² the court applied similar reasoning to statutory provisions.

Judicial Notice of Custom: Sections 16, 17, and 18

Customary law occupies a special place in Nigerian evidence law because it straddles the boundary between judicial notice and formal proof.

Section 16 of the Evidence Act 2011 provides that a custom must generally be proved by the person who relies on it. A party asserting that a particular customary rule applies to their case must lead evidence of that custom. The default position is therefore that custom requires proof.

Section 17 creates an exception. A court may take judicial notice of a custom that has been adjudicated upon by a superior court of record. The word “may” signals that this is discretionary, not mandatory.

How many times must a custom have been adjudicated before a court will take judicial notice of it? The cases are divided. In Cole v Akinyele³ and Olagbenro v Oba Ajagungbade III,⁴ the courts held that adjudication on one occasion is sufficient for judicial notice to be taken. In Giwa v Erinmilokun,⁵ the court required that the custom have been adjudicated upon several times before it could be judicially noticed. The conflict has not been definitively resolved and remains a live examination question.

Section 18 provides that where a custom must be formally proved, it must be proved through the opinion of persons who are in a position to know the custom. Chiefs, elders, and other persons familiar with the custom of the relevant community qualify as such persons under section 18(1) and (2).

The requirement that custom not be repugnant to natural justice, equity, and good conscience applies to all custom. A custom that is repugnant will not be recognised regardless of how well it is proved.

Notorious Facts: Section 124

Section 124 of the Evidence Act 2011 deals with notorious facts. It provides that the court is not bound to call for proof of facts of which it has judicial knowledge.

A notorious fact is a fact so commonly known and so generally accepted that its truth is not open to question. It does not require proof because requiring proof of it would waste the court’s time and risk making the court appear ignorant of what every reasonable person knows.

The distinction between mandatory judicial notice under section 122 and notorious facts under section 124 is worth noting. Section 122 lists specific categories of facts that the court shall judicially notice. Section 124 covers facts of general knowledge that fall outside those specific categories but are equally indisputable.

Examples of notorious facts in Nigerian law include: the existence of the Lagos-Ibadan Expressway, the fact that December 25 is Christmas Day, the general geography of major Nigerian cities, the approximate duration of human pregnancy, and well-established historical events like Nigerian independence in 1960.

In R v Luffe,⁶ the court applied this principle: notorious facts, being facts of common knowledge, do not require formal proof. The court may take notice of them as part of its general knowledge.

The limits of notorious facts must be understood. A court cannot take judicial notice of a fact simply because the judge personally knows it to be true. The fact must be commonly known and beyond reasonable dispute. A judge who decides a case based on personal knowledge not accessible to the parties has violated the principle of fair hearing under section 36(1) of the 1999 Constitution, because neither party has had the opportunity to address that privately known fact.

This constitutional dimension is important. Section 36(1) guarantees that every person is entitled to a fair hearing. If a court reasons on the basis of facts of which the parties are unaware, they have no opportunity to challenge those facts, which is a denial of fair hearing. Judicial notice of notorious and judicially noticed facts is not a violation of fair hearing because those facts are publicly available and beyond dispute. But personal knowledge applied without disclosure is a violation.

Admitted Facts: Section 123

Section 123 of the Evidence Act 2011 provides that facts admitted in any civil proceeding need not be proved. An admission in civil proceedings removes the admitted fact from the arena of dispute. The court treats it as established without requiring evidence.

Admissions may be made before or during the hearing, in writing, or by rule of pleadings. In AG Nasarawa v AG Plateau,⁷ the court confirmed these possibilities.

The rules and characteristics of formal and informal admissions are examined in detail in the article on admissions in Nigerian evidence law. What matters for this article is that a formal admission in civil proceedings eliminates the need for proof of the admitted fact, directly reducing the scope of what the court must determine through evidence.

Admissions in criminal proceedings do not operate in exactly the same way as section 123 only covers civil proceedings. In criminal proceedings, an accused’s admission of a fact may be evidentially significant, but the prosecution must still prove all the elements of the offence. The constitutional presumption of innocence under section 36(5) of the 1999 Constitution means that admissions by the accused in criminal cases cannot relieve the prosecution of its burden to the same extent as in civil proceedings.

The Constitutional Dimension of Judicial Notice

The way in which judicial notice is taken in a case has direct implications for the constitutional right to fair hearing under section 36(1) of the 1999 Constitution.

Where a court takes judicial notice of a fact under section 122 or section 124, it is acting on information that is publicly available and beyond reasonable challenge. Neither party is prejudiced because the information is accessible to both and beyond dispute.

But where a court begins to reason on the basis of facts drawn from its own experience or knowledge that are not common knowledge and not judicially noticeable, the parties have had no opportunity to address those facts. This risks violating section 36(1). The practical requirement is that where a judge is inclined to take notice of a fact that is not clearly within the categories of mandatory judicial notice or notorious facts, the judge should invite submissions from counsel before doing so.

In Isiyaku Mohammed v Kano Native Authority,⁸ the Supreme Court held that the true test of fair hearing is whether a reasonable person present at the trial would conclude that justice had been done. A judge who reasons on privately known facts without disclosure fails this test.

A Quick Reference Table

Key Cases

AG Federation v AG Abia State (2002) FWLR (Pt. 102) 1 SC The Supreme Court held that where a state boundary can be determined by statutory reference, the court takes judicial notice of the statute and no affidavit evidence is required to prove the boundary.

Faroly Establishment v NNPC (2011) 5 NWLR (Pt. 1241) 457 CA The Court of Appeal applied the principle that courts take judicial notice of Nigerian legislation and apply it without requiring formal proof.

Cole v Akinyele (1960) 5 FSC 84 The court held that one adjudication on a customary rule by a superior court of record is sufficient for judicial notice to be taken of that custom.

Giwa v Erinmilokun (1961) 1 All NLR 294 The court held that a custom must have been adjudicated on several occasions before judicial notice can be taken of it. This conflicts with Cole v Akinyele and the tension remains unresolved.

AG Nasarawa v AG Plateau (2012) LPELR-7823(SC) The Supreme Court confirmed that admissions may be made before or during the hearing, in writing or by pleadings, and that facts so admitted need not be proved.

R v Luffe (1807) 8 East 193 The early English authority establishing that notorious facts of common knowledge do not require formal proof. The principle has been adopted in Nigerian courts.

Isiyaku Mohammed v Kano Native Authority (1968) 1 All NLR 424 The Supreme Court held that the true test of fair hearing is the impression of a reasonable observer of the trial. Courts must disclose the basis of their reasoning to allow parties to address it.

Problem Question Framework

When a problem question raises a dispute about whether a fact needs to be formally proved, apply this framework.

First, check whether the fact falls within the mandatory judicial notice category in section 122. Is it a law, an enactment, a public act, a public official, a public holiday, or another category listed? If yes, the court shall take judicial notice of it and no proof is required.

Second, if the fact is not in section 122, ask whether it is a notorious fact under section 124. Is it so commonly known and beyond reasonable dispute that proof would be absurd? If yes, the court need not require proof.

Third, if the fact involves a custom, ask whether it has been adjudicated upon by a superior court of record under section 17. If yes, the court may (not shall) take judicial notice. If not, the custom must be proved through opinion evidence under sections 16 and 18.

Fourth, if the fact is admitted in civil proceedings, section 123 eliminates the need for proof.

Fifth, in criminal proceedings, even where facts are admitted or judicially noticeable, the prosecution’s constitutional duty to prove the offence beyond reasonable doubt remains. No admission or presumption can displace this duty entirely.

Sixth, consider the fair hearing dimension. If a court is considering acting on information that is not in the above categories and has not been disclosed to the parties, this raises a section 36(1) concern.

Common Student Mistakes

The first mistake is treating all judicial notice as mandatory. Section 122 creates mandatory judicial notice. Section 124 (notorious facts) and section 17 (custom adjudicated upon) are discretionary. The distinction matters because a court that refuses to notice a section 122 fact has made an error of law, but a court that declines to notice a notorious fact has exercised discretion.

The second mistake is treating notorious facts and judicially noticed facts as identical. They overlap but are different. Notorious facts are facts of common knowledge under section 124. Judicially noticed facts under section 122 include many that are not common knowledge, such as the seals of courts and the details of subsidiary legislation.

The third mistake is treating section 123 on admitted facts as applying to criminal proceedings. Section 123 applies only to civil proceedings. In criminal proceedings, admissions are governed by different provisions and the prosecution’s constitutional burden is not displaced by them.

The fourth mistake is the custom controversy. Students who state confidently that one adjudication is sufficient (or that several are required) without acknowledging the conflict between Cole v Akinyele and Giwa v Erinmilokun are presenting a one-sided answer. Both cases should be mentioned and the unresolved tension acknowledged.

The fifth mistake is forgetting the constitutional fair hearing dimension of judicial notice. A judge who acts on personal knowledge not disclosed to the parties has violated section 36(1) of the Constitution, not just made an evidentiary error.

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Footnotes

¹ AG Federation v AG Abia State (2002) FWLR (Pt. 102) 1 SC.

² Faroly Establishment v NNPC (2011) 5 NWLR (Pt. 1241) 457 CA.

³ Cole v Akinyele (1960) 5 FSC 84.

⁴ Olagbenro v Oba Ajagungbade III (1990) 7 NWLR (Pt. 162) 359.

⁵ Giwa v Erinmilokun (1961) 1 All NLR 294.

⁶ R v Luffe (1807) 8 East 193.

⁷ AG Nasarawa v AG Plateau (2012) LPELR-7823(SC).

⁸ Isiyaku Mohammed v Kano Native Authority (1968) 1 All NLR 424.