JUDICIAL NOTICE AND FAIR HEARING IN THE ADMINISTRATION OF JUSTICE IN NIGERIA
Generally, all facts before courts of law need to be proved by the respective parties. But besides this, there are occasions where some issues before the courts were decided by other means such as “Judicial Notice”. Judicial notice is similar to evidence, but it is procedurally different from it, since it can be used by the court without referring to parties’ initiatives. Due to the fact that criminal cases are upheld seriously in our judicial system, judicial notice needs strict scrutiny when applied. Judicial notice must be applied in such a manner that it will be compatible with the principles of fair hearing. Otherwise, the criminal process will be nothing but fiction in some circumstances. This study explores judicial notice and fair hearing in the administration of justice in Nigeria. The study explores extensively the consequences of judicial notice, the rights to fair hearing, judicial notice from the stand point of fair trial, as well as limitations on judicial notice from general perspective of fair hearing. The methodology to be employed in this research is doctrinal. The doctrinal legal research involves analysis of case laws and statutory provisions by application of the power of reasoning. It is a research into law as it stands in the books. By these methods, this study is organized around legal propositions. This study combined both primary and secondary sources of data collections. Primary sources are case laws and statutes while the secondary sources are: text books, journals, articles, internet sources. Based on the review it was found that judicial notice has evidentiary effect and therefore its scope may affect the rights of the accused. Based on the findings of the study, the study recommends among others, that there should be limitation on the use of judicial notice by the judges to ensure effective adherence to the principle of fair hearing.
TABLE OF CONTENTS
Cover Page i
Title Page ii
Table of contents vii
Table of Cases x
Table of Statutes xi
Table of Abbreviation xii
CHAPTER 1: INTRODUCTION
1.1 Background of the Study 1
1.2 Statement of the Problem 3
1.3 Purpose of the Study 4
1.4 Scope of the Study 5
1.5 Significance of the Study 5
1.6 Methodology 5
1.7 Literature Review 6
1.8 Organizational Layout 9
1.9 Definition of Terms 10
CHAPTER TWO: THE CONCEPT OF JUDICIAL NOTICE
2.1 Import and Scope of Judicial Notice 12
2.2 Facts expressly listed in section 122(2)(a) to (m) of the Evidence Act 14
2.3 Judicial Notice of Facts of Common Knowledge and Facts Capable of Verification 17
2.4 judicial Notice of Custom 20
2.5 Discretion of the Court to Seek Assistance and Obligation on the Party to Assist
the Court 22
CHAPTER THREE: FAIR HEARING
3.1 Right to Fair Hearing 25
3.2 Fair trial Norms 35
3.2.1 A person charged with a criminal offence must be tried within a reasonable time 35
3.2.2 Right to Publicity of a Criminal Trial. 35
3.2.3 Right to Presumption of Innocence 36
3.2.4 Right of the Accused to be promptly informed of his Offence 37
3.2.5 Right to Adequate Time and Facilities to Prepare for his case 37
3.2.6 Right to Employ Counsel of His Choice. 38
3.2.7 Right to Examination of Witness 39
3.2.8 Right to have an Interpreter 40
3.2.9 Right to obtain a copy of the Judgment of his Case 40
3.2.10 No valid trial on Retrospective Legislation 41
3.2.11 Plea against Double Jeopardy 41
3.2.12 Effect of Amnesty 42
3.2.13 The offence and the Penalty must be known to Law 42
3.3 Consequence of a Breach of the Right to Fair Hearing 44
CHAPTER FOUR: JUDICIAL NOTICE AND FAIR HEARING IN THE ADMINISTRATION OF JUSTICE
4.1 Whether the Doctrine Have Any Merits 46
4.2 Whether Doctrine of Judicial Notice May Occasion Injustice 47
4.3 Judicial Notice from the perspective of English Law 48
4.4 American Law on Judicial Notice from fair hearing stand point 50
4.5 Nigeria Law in Perspective 53
4.6 Rebuttal of Judicial Notice 54
CHAPTER 5: CONCLUSION AND RECOMMENDATION
5.1 Conclusion 57
5.2 Recommendations 58
TABLE OF CASES
Abiola v FRN(1995) 7 NWLR (pt. 405)1 at 24 28
Adegboyega v. Igbinosun (1993) NMLR 9 12
Adigun v A.G of Oyo State (1987)1 NWLR (pt53) 678, (1987)3 SCNJ 118 44
A-G Anambara State v Okeke (2002) FWLR (Pt. 112) 24
Akoh v Abuh (1988) 3 NWLR (pt. 851) pg. 696. 10
Alake v Pratt (1955) 15 WACA 20
Alakija v. Medical Disciplinary Committee (1959) 4 FSC. 38 53
Alhaji Idris Cassidy & ors v The Federal Republic of Nigeria (2002) 47 WRN 102 CA. 44
Alhaji Mika v The State (2001)5 WRN 74 41
Amaechi v INEC(2007) 18 NWLR (Pt. 1065) 105 SC 29
Aoko v Fagbemi (1961) All NLR 400 HC. 43
Areh v Police (1959) WNLR 230 20
Ariori & Ors v Elemo & Ors(1983) 1 SCNLR 29
Aromolarajn v Oladele (1990) 7 NWLR (Pt 162) 359 13
Asemota v Yesuf & Anor (1981) 1 NCLR 4 20 34
Attorney General of the Federation v All Nigerian Peoples Party & Ors 41
Awolowo v Minister of Internal Affairs (1962) LLR 177 39
Barare v Ishola (1939) WRNLR 106. 17
Bunge & Ors. v Governor of Rivers State & Ors (2006) 12 NWLR (Pi. 995) 573 at 628 – 629 17
Chapman v Kirk« (1948) 2 KB 430 at 434 17
Chief Omjni v Chief Eno (2010) 8 NWLR (Pt. 1197) 453 at 467-468 23
Cole Aanor v Akinyele A Ors(I960) S FSC 84 21
Daniel Holdings Ltd v Lea Plc (2005) 13 NWLR (Pt. 943) 533 at 552 per Belgore, JSC 19
Daniel Holdings Ltd v UBA Plc (2005) 13 NWLR (Pt 943) 533 13
Doherty v Balewa(1961) ALLNLR 604 29
Ebe v Commissioner of Police (2008) 1 SCNU 462 19
Ezechukwu v Onwuka (2005)AllF.W.L.R(pt.280)@pp.1553 31
Federal Government Civil Service Commission v Laoye (1992) 2 NWLR (pt. 106) 652 at pg. 702 25
Garba & Ors. v The University Of Maiduguri(1986) 1 NWLR. 550 26
Global Soap & Detergent Ind Ltd v NAFDAC (2012) 5 NWLR (Pt. 1294) 511 at 536, 12
GopkavI.G.P (1961)1AllNLR, 423 38
Ifeagwu v Federal Republic of Nigeria (1985) 1 NWLR (pt.2) 223 43
Ingram v Percival (1968)3 All ER 657 46
Jayawardane v Silva(1970) 1 WLR 1365 54
Josiah v The State (1951)1 NCR 27 39
Kopek Construction Ltd v Ekisola (2010) 3 NWLR (Pt. 1182) 618 at 655 per Muhammed, JSC. 19
Lawlor v Union of Post Office Workers  Ch. 712, 7.18. 50
LPDC v Fawehinmi(1985) 2NWLR (PT. 7) 300 SC 30
M.W.T. Nig Lid v P. T. F 15 NWLR [Pt. 1058) 451 @ 487 14
Mohammed v Kano N.A(1968) ALL NLR 424 at 426 32
Mohammed v Kano Nature Authority (1968) 1 AllNLR 424 at 426 32
Moses v State (2003) FWLR (Pt 141) 1969 13
Mukete v NBC (1961) 1 ALL NLR 4&2 20
Mullen v. Hackney London Borough Council,  1WLR 1103. 49
Ntukiden v Oko(1986) 5 NWLR (pt. 45) 909 at 936 per Oputa JSC 30
Nyt v K'iblcn (1918) I KB 23 17
Ogbomor v The State (2001) 47 WRN 86 CA. 43
Oke v Nwaogbuiniya(2001) 1 SC (pt. 1) 22 at 35-36 29
Okoro v Okoro (2010) 2 NWLR (Pt 217) 198 at 212 13
Okoro v Okoro (2010) 2 NWLR (Pt. 1177) 198 at 212 per Dongban-Mesen, JCA. 19
Olabanki & Anor vs. Omokewu (1992) 7 SCNJ [Pi. 11] 266 at 280 22
Olatunbosunv.NISERCouncil(1988)3NWLR PT80p. 25 1
Olugbenga Daniel v. Federal Republic of Nigeria (2014) 8 NWLR PT 1410 p. 570 @ 575-576 1
Orugbo v Una (1991) 1 NWLR (Pt. 167) 369 23
Osafile v Odi (1990) 5 5CNI 118 13
Osafile v Odi (1990) 5 5CNI 118 24
Osafile v Odi (No.1) (1990) 3 NWLR (Pt. 135) 130 12
Preslon-Jones v Preton-Jones (191) AC 391. HL. 17
Queen v Bukar(1961) All NLR 34
R. v Chancellor of University of Cambridge (1720) 1str 552 27
R. v Uifte (1807) 8 East 193 16
R. v. Sutton (1816) 4 M. & S. 532. 50
Romaine v Romaine (1992) 5 SCNJ I; (1992) 4 NWLR [Pi. 233] 650 at 669. 22
Sampson Uweakweyhinya v The State (2005)6 MJSC 1 at 17,18 40
Shemfe v COP (1962) NNLR 87. 38
Sossa v Fokpo (2000) FWLR (pt.22) 1111 @ 1127. 38
Taiwo vs. Dosunmu (1965) 1 ANLR 399 21
Tulu v Bauchi Native Authority (1988)7 SCN (pt. 1) 118 39
UBA v. Oranuba (2014) 2 NWLR PT 1390 p. 1 @10 (Per Iyizoba, JCA); 1
University of Ceylon v. Fernando (1960) 1 All E.R. 631. 50
Victino Fixed Odds Ltd v Ojo (2010) 8 NWLR (Pt 1197) 486 at 505 13
WoolmingtonvD.P.P (1935)AC 465. 36
TABLE OF STATUTES
Administrative Procedure Act in 1946
Constitution of Federal Republic of Nigeria, 1999 as Amended
Federal Rules of Evidence of the United States of America
Lagos State High Court Rules 2004
Nigerian Evidence Act 2011
CA Court of Appeal
FRE Federal Rules of Evidence (America)
FRN Federal Republic of Nigeria
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
PTC Pre-trial Conference
NWLR Nigerian Weekly Law Report
SC Supreme Court
1.1 Background of Study
A hearing can only be fair when all the Parties to a dispute are given an opportunity to be heard. The concept of Fair hearing postulates a hearing in which the authority is fairly exercised, that is, consistent with the fundamental principles of justice embraced within the concept of the due process of law. Contemplated in fair hearing is the right to present evidence, to cross examine and to have findings supported by evidence. Thus, it implies that both sides be given an opportunity to present their respective cases, and that each side is entitled to know that a case is being made against it and be given an opportunity to reply thereto. See Olugbenga Daniel v. Federal Republic of Nigeria.
The Right to be heard is such an important radical and protective right that the courts strain every nerve to protect it and even imply it where a statutory form of protection will be less effective if it did not carry with it the right to be heard. See UBA v. Oranuba.
Fair hearing lies not in the correctness or propriety of the decision but rather in the procedure followed in the trial and determination of the case. It is only when the opponent has been heard that the Judge would be seen to be discharging the duty of an unbiased umpire. The violation of the rule of audi alteram partem lies in the breach of the fundamental human right. Once the right is violated, it is irrelevant whether the decision made subsequent thereto is correct.
Where in any proceedings the rules of natural justice or the principles of fair hearing are breached, such a breach renders the entire proceedings null and void and the appropriate consequential order is one of retrial before another judge of the court. In the instant case, the entire proceedings in the trial court was null and void because the appellants were denied right to fair hearing.
Section 36 of the 1999 Constitution of the Federal Republic of Nigeria has the relevant provisions for Fair Hearing and states as follows: Section 36 (1) - In the determination of his Civil Rights and Obligations, including any question or determination by or against any Government or Authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by Law and constituted in such manner as to secure its independence and impartiality. Section 35 (5) - Every person who is charged with a criminal offence shall be presumed innocent until proved guilty.
Generally, all facts before courts of law need to be proved by the respective parties. However, there are some facts before the courts that were decided by other means such as “Judicial Notice”. This is traditionally defined as “taken facts which may be established from an authoritative source”. Judicial notice is similar to evidence, but it is procedurally different from it, since it can be used by the court without referring to parties’ initiatives. It proves the existence of certain facts and gives a judge a possibility to use it in the reasoning of a judgment. Like every other proceeding, criminal justice also relies on judicial notice actively for several reasons. Firstly, it ensures economy of the procedural costs and, additionally, it prevents the court overburdened by repeating cases. Judicial notice requires that the court should act upon its own knowledge or upon a notorious fact. It is an acceptance of the truth of a fact by the court without proof. For this reason judicial notice is being regarded as another expression for a conclusive facts or prima facie fact.
In criminal proceedings the presumption of innocence requires a prosecutor to provide all the relevant evidence which will confirm a criminal charge beyond reasonable doubt. In contrast, a defendant has the right to rebut all the evidence and thus present its own case. It is the very essence of the adversarial process where the judge has a limited capacity.
Due to the fact that in criminal proceedings, judicial notice needs strict scrutiny when being applied. Therefore judicial notice must be applied in such a manner that it will be compatible with the principle of fair hearing. Otherwise, the criminal process will be nothing but fiction in some circumstances. There may be other instances when judicial notice may compromise the rights of other defendants when using res judicata judgments of other cases.’ This leads to the conclusion that there should be some limitations on judicial notice from the standpoint of fair hearing in order to ensure a fair balance between effective justice and the basic human rights of individuals.
1.2 Statement of Problem
Fair hearing lies not in the correctness or propriety of the decision but rather in the procedure followed in the trial and determination of the case. It is only when the opponent has been heard that the Judge would be seen to be discharging the duty of an unbiased umpire. The violation of the rule of audi alteram partem perse lies in the breach of the fundamental human right. Once the right is violated, it is irrelevant whether the decision made subsequent thereto is correct.
Despite the doctrine of judicial notice having some merits it also have demerits which may be fatal to a party in the proceedings by occasioning him injustice if the court was to apply it anyhow. An accused person or any party has the right to a fair trial which entails his being able to call his evidence so as to buttress a point, if a court is to take judicial notice of such fact that would jeopardise the interests of the opposing party who otherwise was willing to bring evidence in court so as to controvert the opponent’s case. In addition, the right to be heard is clearly one of the most basic rights of a person accused of a crime. Hence, to deny an accused person the opportunity to challenge factual assumptions on which his conviction may rest, would constitute serious injustice.
Where in any proceedings the rules of natural justice or the principles of fair hearing are breached, such a breach renders the entire proceedings null and void and the appropriate consequential order is one of retrial before another judge of the court. In such instance, the entire proceedings in the trial court was null and void because the appellants were denied right to fair hearing. Hence, this study dwells on judicial notice and fair hearing in the administration of justice in Nigeria
1.3 Purpose of the study
The study sets to achieve the following purposes:
1. To examine the consequences of judicial notice.
2. The rights to fair hearing.
3. Find out the judicial notice and fair trial.
4. Examine the limitations of judicial notice from general perspective of fair hearing.
1.4 Scope of the study
This study is designed to cover all the salient issues surrounding judicial notice and fair hearing in the administration of justice in Nigeria. It dwells on issues, laws as well as cases concerning judicial notice and fair hearing in the administration of justice.
This study will be of great significance to legislators, legal luminaries and the future researchers in this area. To the legislators, the findings of this study will help them to know the need for expeditious modification of relevant laws to ensure a better protection of the right of persons to fair hearing. To the legal luminaries, the findings of this study will expose them to the dangers that abound when judicial notice is abused and or the right to fair hearing trampled upon. The findings of study will contribute to wealth of study conducted in judicial notice and fair hearing in the administration of justice in Nigeria.
The type of legal research deployed in this work is doctrinal. The doctrinal legal research involves analysis of case law and statutory provisions by application of the power of reasoning. It is a research into law as it stands in the books. By these methods, this study is organized around legal propositions.
This study combines both primary and secondary sources of data collections. Primary sources are case law, statutes etc. while the secondary sources are, text books, journals, newspapers, magazine articles, internet sources etc.
A combination of comparative, hermeneutical, analytical and phenomenological methods used to realize the salient purposes of the study.
1.7 Literature Review
Halstead takes the view that is it possible to have a fair trial despite flaws in the procedure. He notes that there are circumstances where a conviction can be upheld even though some principles of the right to a fair trial have been violated. This view has created a gap since these principles are aimed at ensuring that no party is disadvantaged by having a right violated. Any violation is likely to give an advantage in favour of the violator. This will more often than not, affect the fairness of trial. It is my opinion that this goes against the natural law of justice. The researcher agrees with Kameri-Mbote and Akech that pointed out that some courts have taken the view that any violation of the right to fair trial, even at the pre – trial stage, is fundamental and affects the validity of the entire proceedings. This entitles an accused to be acquitted.
Chadambuka in her study on the co-relation between the seriousness of an offence with which an accused is charged vis a vis the right to a fair trial within a reasonable time. She argues that where there is an inordinate delay in trial, the court should be more willing to find a violation of the right to trial within a reasonable time in cases where an accused person is charged with a serious offence than where the charge is minor. Seriousness of the crime relates to the gravity or weight of the crime committed by the alleged criminal and how heavy the possible penalties can be if one is found guilty. She bases the right to speedy trial on seriousness of offence.
Furthermore in concord with the submissions of Chadambuka , Ried explores the concept of right to have a fair trial without unreasonable delay. She observes that the reasonableness of the length of proceedings should be assessed in light of particular circumstances of a case, regard being had to three factors: the complexity of the case; the conduct of an applicant; and the conduct of state authorities. The period to be taken into account in determining the duration of a case, starts from the time a formal charge is brought against an accused until the charge is finally determined or when the sentenced imposed becomes final. This may be the date of the last appeal or issuing of judgment. In cases, where a charge is brought in ongoing proceedings, the period which has already elapsed since the laying of the formal charge should be considered. This period should exclude any period which an accused absconds during proceedings. On the issue of complexity, she observes that factors which should be taken into account while analysing this concept include the subject matter of the case, the number of disputed facts, international elements in a trial, the number of witnesses or volume of evidence to be considered. This should, however, be balanced against the general principle of securing proper administration of justice by ensuring that trials are heard and determined expeditiously. With regard to the conduct of parties, she argues that only delays which are attributable to the State may justify a finding of failure to comply with the reasonable time rule.
In another study, Nlerum examines the importance of access to justice as an essential instrument for the protection of human rights in Nigeria and demonstrates that it is only when an individual has access to courts that his fundamental rights can be enforced. It then looks at the reality of the Nigerian situation and posits that there are a number of obstacles to the realization of access to justice in the country. These obstacles, such as undue delay in the administration of justice, high cost of litigation, reliance on technical rules, locus standi, and illiteracy are then examined, in validation of the proposition. Finally, it inquires as to the prospects for improvement of access to justice in Nigeria and opines that if mechanisms such as judicial reforms and resort to alternative dispute resolution mechanisms are encouraged and properly put in place, with less emphasis on technical rules, and if the Legal Aid Scheme is strengthened, there would be meaningful access to justice which will impact positively on the quest for the protection of human rights in the country.
In a similar vein, Bakayana discusses the right to a speedy trial by the Uganda Human Rights Commission (UHRC), a human rights institution in Uganda mandated to protect and promote human rights. He opined that right to fair hearing is one of the key rights enshrined by the Constitution of the Republic of Uganda, 1995. From his study on the right to speedy trial as a safeguard to a fair trial. From his analyses, the key challenging Uganda Human Rights Commission in promoting the right to a speedy trial include; legal dilemmas such as lack of legislative anchoring, limited staff for the tribunals, unlimited adjournments, financial constraints and duplication of various human rights institution. From the foregoing, it can be deduced that there are differing views on what constitutes a breach to the fair hearing right while Halstead takes the view that is it possible to have a fair trial despite flaws in the procedure, Kameri-Mbote and Akech are of the view that any violation of the right to fair trial, even at the pre – trial stage, is fundamental and affects the validity of the entire proceedings. Finally from the review, it can be deduced that delay in trials can be dependent on some factors not limited to weight of the offence.
1.8 Organisational Layout
This study is organized into five chapters in order to achieve the purposes of the study.
Chapter one dwells on the introduction it covers background of the study which involves judicial notice and fair hearing in the administration of justice in Nigeria, statement of the problem, purpose of the study, its scope and its significance, research methodology, literature review, organizational layout and definition of terms.
Chapter two, covers the concept of judicial notice, rationale for judicial notice, components of judicial notice, salient provisions in the Evidence Act 2011 (judicial notice), whether the doctrine have any merits and fuinally, whether the doctrine of judicial notice may occasion injustice.
Chapter three centres on fair hearing. It covers the right to fair hearing, fair trials norms and consequences of a breach of right to fair hearing,
Chapter four dealt with judicial notice and fair hearing in the administration of justice. It centres on the applications of judicial notice, notorious facts of which court may take judicial notice, facts which the judge may not judicially notice, applications of fair hearing and limitations of judiciary notice from the general perspective of fair hearing Chapter five covers conclusion and recommendations
1.9 Definition of Terms
Fair: Merriam Webstar Dictionary defines fair as treating someone in a way that is right or reasonable, or treating a group of people equally and not allowing personal opinions to influence your judgment:
Hearing: In the context of the administration of justice, to hear a matter means to listen to a matter attentively, consider and decide it. In Akoh v Abuh the Supreme Court said that to hear a cause or matter, means to hear and determine the cause or matter. Delivery of the judgments in a matter is part of the hearing of the cause or matter. A matter is in the process of being heard from its commencement up to, and including the delivery of the final judgment.
Fair hearing: Fair hearing is the hearing, consideration and decision of a matter according to all the rules of justice, fairness and due process of law enshrined in the constitution and the laws of the lans to ensure justice and prevent a miscarriage or failure of justice.
Judicial: Belonging to the office of the judge as judicial authority. Relating to or connected with the administration of justice; as a judicial officer. Having the character of judgment or formal legal procedure; as a judicial act. Proceeding from a court of justice; as a judicial writ, a judicial determination.
Notice: Black’s Law Dictionary defines notice as a legal notification or warning that is delivered in a written format or through a formal announcement. An individual or party is considered liable if the party (1) has knowledge of the notice, (2) received the notice, (3) knows it through experience, (4) has knowledge with regards to an associate fact and (5) could have gained knowledge had an enquiry been undertaken.
Judicial Notice: Black’s Law Dictionary defines judicial notice in the following terms: ‘A court’s acceptance, for purpose 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.
Administration: In public law. The administration of government means the practical management and direction of the executive department, or of the public machinery or functions, or of the operations of the various organs of the sovereign. The term “administration” is conventionally applied to the whole class of public functionaries or those in charge of the management of the executive department.
Justice: Protecting rights and punishing wrongs using fairness. It is possible to have unjust laws, even with fair and proper administration of the law of the land as a way for all legal systems to uphold this ideal.
Tags: Law Project,