The general and fundamental rule of the law of evidence is that the court can only base its decision in any litigation on facts that are proved to exist by evidence. It may be parenthetically observed that by section 121 of the Evidence Act, 2011, which provides for prove of facts, a fact is said to be—
(a) “Proved” when, after considering the matters before it. the court either believes it to exist or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does exist;
(b) “disproved” when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does not exist;
(c) “not proved” when it is neither proved nor disproved.
The usual method of proving facts in court is by the oral testimony of witnesses or production of documentary or real evidence. However, it is not all matters that need to be proved before a court during litigation.
For instance, by section 124(1) of the Evidence Act, 2011, “proof shall not be required of a fact the knowledge of which is not reasonably open to question and which is-
(a) common knowledge in the locality in which the proceeding is being held, or generally; or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
Such matters or facts are taken as proved by the court. Examples of other matters that do not require proof by evidence are; (a) facts admitted for the purpose of trial, (b) facts judicially noticed, and (c) facts presumed. We shall briefly explain these.
1. Facts Admitted for the Purposes of Trial (Formal Admissions)
By section 20 of the Evidence Act, 2011, an „admission‟ is defined as “a statement, oral or documentary, or conduct which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances, mentioned in this Act”. Admissions may be formal or informal. Our concern is with formal admissions. A formal admission is usually made in a pending litigation and is a concession by one of the parties in a civil proceeding of the truth or existence of a fact asserted by the other party. Where the truth or existence of a fact is so admitted, proof of it in the litigation is dispensed with. The admission is thus treated as conclusive. Formal admissions are therefore on of the ways by which facts can be established without proof by evidence. That formal admission is an exception to the general rule requiring that facts must be proved is statutorily recognized in section 123 of the Evidence Act, 2011, which provides that: No fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings;
Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
It is germane to note a few characteristic features of formal admissions. These are:
(i) Formal admissions are confined to civil proceedings only and it is usually made with reference to and in contemplation of civil proceedings. The nearest phenomenon to formal admissions in criminal proceedings is a plea of guilty by an accused person.
(ii) Formal admission may be made either by the party to the suit or his agent; which includes his legal practitioner who is charged with the responsibility of conducting the case. Consistent with this position is section 21(1) of the Evidence Act, 2011, which provides that statements made by a party to the proceeding or by an agent to any such party, whom the court regards, in the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions.
(iii) Formal admissions may be made by a party in a representative character; and also, by a party having a proprietary or pecuniary interest in the subject matter of the proceedings; and equally, by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute.
(iv) Formal admissions may be made either before or during the pendency of the suit in court.
(v) Formal admissions are not confined to written or documentary admissions. They include oral admissions provided they are made in open court during the proceedings.
(vi) The court may, in its discretion require that any fact which has been admitted be proved otherwise than by such admissions.
Finally, in civil proceedings, a formal admission may be made in any of the following ways;
(a) By pleadings (that is to say in the statement of claim or statement of defence);
(b) In answer to a notice to admit under the High Court Rules;
(c) In answer to interrogatories;
(d) By advocates (legal practitioners); and
(e) By agreement.
- Facts Judicially Noticed
Facts which are judicially noticed constitute another class of facts which need not be proved by evidence. By judicial notice, we mean the acceptance by a court of the truth of a fact without proof on the ground that such a fact is within the court’s own knowledge. When a court takes judicial notice of a fact, as it may in civil and criminal cases alike, it declares that it will find that the fact exists, although the existence of the fact has not been established by evidence. This is consistent with the provisions of section 122(1) of the Evidence Act, 2011, which provides that no fact of which the court shall take judicial notice under this section needs to be proved.
There are certain facts, which must be judicially noticed and others which may be judicially noticed. This categorization shows that taking judicial notice may be mandatory or judicially discretionary. Where a fact must be judicially noticed, the court is under a mandate or an obligation to take judicial notice of that fact. On the other hand, where a fact may be judicially noticed, it means that the court has discretion either to take judicial notice of it or not. However, judicial notice cannot be taken of a matter requiring proof. We shall examine these two approaches.
- Facts which the courts must take judicial notice of
Facts which the courts must take judicial notice of are enumerated in section 122(2) of the Evidence Act, 2011, as follows; the court shall take judicial notice of—
(a) all laws or enactments and any subsidiary legislation made under them having the force of law now or previously in force in any part of Nigeria;
(b) all public Acts or Laws passed or to be passed by the National Assembly or a State House of Assembly, as the case may be, and all subsidiary legislation made under them and all local and personal Acts or Laws directed by the National Assembly or a State House Assembly to be judicially noticed;
(c) the course of proceeding of the National Assembly and of the Houses of Assembly of the States of Nigeria;
(d) the assumption of office of the President, a State Governor or Chairman of a Local Government Council, and of any seal used by any such public officer;
(e) the seals of all the courts of Nigeria, the seals of notaries public, and all seals which any person is authorized to use by any Act of the National Assembly or other enactment having the force of law in Nigeria;
(f) the existence, title and national flag of every State or sovereign recognized by Nigeria;
(g) the divisions of time, the geographical divisions of the world, the public festivals, fasts and holidays notified in the Federal Gazette or fixed by an Act;
(h) the territories within the Commonwealth;
(i) the commencement, continuance and termination of hostilities between the Federal Republic of Nigeria and any other State or body of persons;
(j) the names of the members and officers of the court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all legal practitioners and other persons authorized by law to appear or act before it;
(k) the rule of the road on land or at sea;
(l) all general customs, rules and principles which have been held to have the force of law in any court established by or under the Constitution and all customs which have been duly certified to and recorded in any such court; and
(m) the course of proceeding and all rules of practice in force in any court established by or under the Constitution.
Two points must be noted about the foregoing provisions. First, the matters enumerated therein are only those which the courts are obliged to take judicial notice of; secondly, no court is empowered to insist on the proof of any of the matters by a party who relies on any such matter.
- Facts which the courts may take judicial notice of
The court has discretion to judicially notice these set of facts. The court may take judicial notice of some matters usually by reason of their common occurrence or notoriety. Such notorious facts will include the ordinary course of nature. Thus, in Preston-Jones v. Preston-Jones (1951) AC 391; (1951) All ER 124, the court took judicial notice of the fact that the normal gestation period of a human being is about 9 months. The facts that cats are domestic animals was judicially noticed in the case of Nye v. Niblett (1918) 1 KB 23. In similar vein, the court took judicial notice of the fact that camels are domestic animals in MC Quaker v. Goddard (1940) 1 KB 687.
Also, matters of common knowledge and human affairs will in appropriate cases be judicially noticed. In Bakare v. Ishola (1959) WR NLR 106, the court took judicial notice of the fact that people commonly abuse each other as a prelude to a fight and no one takes such insults seriously. In that case, the defendant had called the plaintiff, during an altercation between them which preceded a fight, a thief, and an ex-convict. It was held that the words were nothing but vulgar abuse which the court will take judicial notice of.
Indeed, there is a vast number of facts which the court may be invited to take judicial notice of. No exhaustive list can be drawn of such facts. Accordingly, the court may be invited to take judicial notice of a fact which has not been previously judicially noticed.
However, it is not in all case that a court is invited to take judicial notice of a fact that it will do so. As a matter of law, section 122(4) of the Evidence Act, 2011, provides that “if the court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document, as it may consider necessary to enable it to do so”.
Another category of fact which may be judicially noticed is custom. By section 258 of the Evidence Act, 2011, “custom” means a rule which, in a particular district, has, from long usage, obtained the force of law. A custom is otherwise known as customary law. A custom may be adopted as part of the law governing a particular set of circumstances if it can be judicially noticed or can be proved to exist by evidence: section 16(1) of the Evidence Act, 2011.
By section 17 of the Evidence Act, 2011, a custom may be judicially noticed when it has been adjudicated upon once by a superior court of record. This provision is a codification of the ratio in Rabiu v. Abasi (1996) 7 SCNJ 53 @ 58, to the effect that customary law can be judicially noticed on the basis of a single decision of a court of superior jurisdiction. Lastly, where a custom cannot be established as one judicially noticed, it shall be proved as a fact: section 18(1) of the Evidence Act, 2011.