CHAPTER SEVEN

JUDICIAL NOTICE

I. General remarks

The general rule relating to proof is that all facts in issue or relevant facts in issue
or relevant facts must be proved by evidence, that is, by statement of witness,
admissions or confessions of parties and production of documents. If the plaintiff
or prosecutor fails to prove an essential fact, his opponent may succeed on the
submission that there is no case to answer even if the evidence is really available.
In Middleton V Rowlet (1954) 2 ALLER 277, for instance, the prosecution failed
to ask a police witness at a trial for motoring offence whether the driver of the car
about which he testified was the accused. The case was dismissed on a submission
of no case to answer and appeal against the refusal to allow the case to be reopened
failed.

There are two exceptions to this general rule on proof; first, no evidence need be
given to prove the existence or non-existence of relevant facts or facts in issue of
which judicial notice is taken and secondly, of those facts which are formally
admitted.

When a court takes judicial notice of a fact, it declares that it will find that
the fact exists, although the existence of the fact has not been established by
production of testimony, admissible hearsay, or documents.

If, for instance, the date for Uganda’s independence is in issue, or a relevant fact, it
will not be necessary for the party who desires to establish that fact to call a
witness to answer that Uganda became independent on the 9 th October,1962,
because is a matter of such public notoriety that judicial notice thereof is taken by
the court. There are two classes of cases in which the court will take judicial
notice, namely; facts which a judge can be called upon to receive and act from his
general knowledge of them; or for inquires to be made by himself for his own
information from such sources to which it is proper for him to refer. Indeed, the
party who asks that judicial notice be taken of a fact as the burden of convincing
the court either that the matter is so notorious as not to be subject of dispute among
reasonable man or that the matter is capable of immediate accurate demonstration
by resort to readily accessible sources of undisputed accuracy. Some statutes also
prescribe circumstances or facts of which judicial notice must be taken. We shall
therefore discuss this subject under three sub-headings; facts judicially noted
without inquiry, those noticed after inquiry and under statutory provisions.

Cross has pointed out that there are three reasons why we should have the
doctrine of judicial notice. In the first place it expedites the hearing of many cases,
since much time would be wasted if every fact which is not admitted would be
proved by the production of evidence. Secondly, the doctrine tends to produce a
uniformity of findings and decisions on matter of fact where different findings
could sometimes be confusing and embarrassing. Thirdly, the doctrine provides
one of the most effective machineries for the control of assessors or the jurors
because their freedom to find facts as they please is restricted by the application of
the unconditional doctrine of judicial notice.

II. APPLICATION OF THE DOCTRINE OF JUICIAL NOTICE

It is provided in S.54 of the U.E.A that no fact of which the court will take judicial
notice need to be proved. S.55(1) makes a long list of facts which
the……………………the lists of these facts are not exhaustive and they are
subject to the notice of all the facts which are so notorious as not to require proof.
However, these facts can be placed into four broad categories , namely ;legal
matters , geographical divisions of the world, constitutional matters, and mattered
of common knowledge.

1. Legal matters

The legal matters are covered in S.55 (1) (a) and (b). The courts shall take judicial
notice of all ordinances, Acts of Parliament of UK, all Orders-In-Council, Laws,
Statutory Instruments and subsidiary legislations in force. Similar provision was
discussed in Saleh V R (1950)20 E.A.C.A 141. The appellant was convicted of an
offence against S.5 of the sugar ordinance. The magistrate took judicial notice of
the fact that sugar was found in the prohibited area.

On appeal it was argued that a notice published in the Gazette which declares
certain districts in the purpose of the sugar ordinance was not an order issued by
the governor. It was held that the correct application of this provision was that a
court must take judicial notice of all ordinances and regulations enacted in Kenya
and by virtue of the definition of “ordinance ‘under S.2 of the interpretation
ordinance a notice a notice published in the gazette made in pursuance of S.14 of
the sugar ordinance is an order issued under that section. Similarly it was held in
Singh V R (1951) 1 T.L.R 345 that the court must take judicial notice of a
government notice issued under the defence regulations 1948. In R V Joshua
(1939) 1 T.L.R 60 it was held that although the court had to take judicial notice of
an order issued under the Tanganyika native authority ordinance, it was necessary
for the court to first inquire that the order was duly, promulgated in the manner
required by S.10 of the ordinance. This section deals with the laws in force in
each of the east African countries and not foreign laws. It was thus held in Hakam
Bibi V Mahommed (1955)28 K.L.R 91 that Islam is law when administered as
the personal law of immigrants domiciled in Kenya must be proved. It was also
held in Land Officer V Motor Mart and Exchange(1956) 2 T.L.R 295 that
German law which was in force in Tanganyika before the establishment of the
British administration in that country was not foreign law and that judicial notice
could be taken of it.

2. Geographical divisions of the world.

The courts must take judicial notice of the geographical divisions of the world and
territories of the commonwealth. In Salah V R (Supra) it was stated that where the
location of a place is material to the case of the prosecution, the prosecution should
produce evidence of the place because it was of the essence of the charge that
sugar had been found in the appellant’s possession in a prohibited area. However
this was qualified by a decision of the Privy Council in Karuma V R (1955) 22
E.A.C.A 364 that when an indictment alleges that a particular place and no
challenge or issue is raised on that point the court may assume or take judicial
notice that the place is situated where the charge stated it is.

3. Constitutional matters

The court must take judicial notice of the following constitutional matters and
those relating to matters of public administration; the course of proceedings of
parliament, assemblies or council; the accession and death of the head of state ; the
seals of all the courts in Uganda duly established; accession to office, names,
titles ,functions and signatures of all public officers if the fact of appointment is
notified in the gazette; the existence title and national flag of every state or
sovereign recognized by the government; the commencement continuance and
termination of hostilities between the government and any other state or body of
persons and the rule of the road on land or on sea.
In East Africa, the rule of the road is that all the vehicles should keep to the left
side of the road. At sea the rule is that ships and steam-boats, on meeting, should
port their helms, so as to pass on the port or left side of each other; steam boats
should keep out of the way of sailing ships; and every vessel overtaking another
should keep out of its way. As stated by Nokes, the courts have not failed to notice
the existence of a state of war to which Great Britain was a party including an early
invasion by hostile aircraft. The continuance or termination of a state may be
certified by the ministry of foreign affairs and such certificate will be judicially
noticed.

For instance , the state of war with Germany was ended by an order on the 9 thjuly,
1951 judicially noticed in Re Grofrian (1955) Ch. 501. In Duff Development Co.
V Government of Kelantan (1924) A.C 797. The government of Kelantan
applied for an order against the enforcement of an arbitration award on the ground
that Kelantan was an independent sovereign state. In reply to an inquiry from the
courts the secretary of state for the colonies wrote that Kelantan was a sovereign
state and the sultan ruler thereof. The House of Lords held that this concluded the
matter because it has been the practice of the English court that if such questions of
political matters are raised judicial notice must be taken on the matter and for that
purpose to seek information from the secretary of state. When the information is
obtained, the court does not admit it to be questioned by the parties. The source of
information to which the court resorts is treated as one of indisputable accuracy for
reasons of public policy- the undesirability of conflicts between the courts and the
executive.

it is interesting to note that when the validity of the 19966 revolutionary

constitution was challenged before the Uganda high court in the famous Matovu’s
Case (1966) E.A 514, the attorney general endeavored to prove that the new
constitution was efficacious and was accepted by the people since it came into
force by affidavits sworn by a large number of officials. After the perusal of the
affidavits the court was satisfied and found as a fact that the new constitution was
accepted by the people of Uganda and that it has been firmly established
throughout the country, the changes therein having been implemented without
opposition, as there was no evidence before the court in the contrary. The court
particularly referred to the affidavit of the permanent secretary to the ministry of
foreign affairs , the substance of which was that, ever since the coming into force
of the new constitution and the installation of the new executive president and the
new government by all foreign countries with which Uganda dealt. The attitude of
the court in question the acceptance and efficaciousness of the government in this
case and to require it to be proved as a fact by affidavits was rather curious and
apparently pretentious. It would seem that the proper thing for the court to do in
this type of situation is to take judicial notice of the fact of the revolution, its
efficacy and acceptance either by accepting as conclusive affidavit produced
before it by the executive as in the duff development corporation v government of
Kelantan, supra or by stating that the fact of the revolution and its success was
notorious and required no proof. The application of the doctrine of judicial notice
was necessary here to avoid any possible constitutional conflict between the
executive and judiciary should hold a contrary law.

4. Matters of common knowledge

S. 60(1)(m) – (p) of the Kenya Evidence Act contains a list of matters of common
knowledge of which judicial notice should be taken. These matters are the meaning
of English words, all matters of general or local notoriety and all matters of which
it is dinected by any written law to take judicial notice. Indeed, reasoning in
general assumes possession of common knowledge. Therefore courts of law have
after assumed acquaintance with matters of notoriety. Some of these facts are
noticed without comment. The meanings of words may be judicially noticed, but a
dictionary may be consulted. S.55(2) of the U.E.A provides that in all cases where
the court is required to take judicial notice and on matters of common knowledge ,
public history, literature, science or art , the court may resort for its aid to
appropriate books or document of reference. The scope of this provision was
considered in Sharmpal Singh V R (1960) E.A 762 where it was stated that the
provision does not mean that the court is to take judicial notice of all facts in all
books of public history of literature.

Only books which are accepted and recognized authority may be resorted to for
obtaining information regarding undisputed and notorious facts. The provision
does not intend to make books or documents of reference themselves as
conclusive. What is meant is that the court may use them in approving the evidence
given and coming to a right understanding and conclusion. The section is not
intended to enable or require the court to solve for itself by reference to textbooks,
difficult technical or controversial questions in science and technology.

S.55(3) provides that if the court is called upon by any person to take
judicial notice of nay 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. Under this paragraph the court is given the discretion to refuse to take
judicial notice of any fact unless the person calling upon the court to take judicial
notice of such fact produces any such book or document as may be necessary to
enable it to do so.

III. FORMAL ADMISSIONS

As we have seen in chapter four, in civil cases any party may admit facts for the
purpose of the trial thus saving his adversary the trouble and expense of proving
them. We have dealt with informal admissions before the suit in chapter four. S. 56
deals with admissions at or before hearing;

“no fact need be proved in any proceeding which the parties thereto or their agents
agree to admit at the hearing or which before the hearing they agree to admit by
writing under their hands, or which by any rule of 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.

Thus under this section no proof need be given of facts which the parties or their
agents agree to admit in writing or which they are deemed to have admitted by
rules of pleading. The rule of pleading is that every allegation of fact in a plaint, if
not denied specifically or by necessary implication, shall be taken to be admitted.

Admissions which are therefore deliberately made for the purpose of the suit will
act, under this section, as estoppels of the suit to the admission of any evidence
contradicting the. The primary purpose of admission is to dispense with proof of
facts and documents. Therefore a party who unreasonably refuses or neglects to
admit any document or fact when called upon to do so may be ordered to pay the
cost of the proof. According to the provision if the court is satisfied that the
admission has been obtained by fraud or that there is other good and sufficient
cause, it will be in its discretion to require the fact to b otherwise than by such by
admission

IV. ASCERTAINING OF CUSTOMARY LAW

1. General background
The statutory basis for the application of customary law by the Uganda high court
and subordinate courts during the protectorate period was article 20 of the 1902
Ugandas order-in- council;

“In all cases civil and criminal to which natives are parties every court shall
be guided by native law so far as it is applicable and not repugnant to
natural justice, equity and good conscience”.

It was thus clear that cases between natives were to be decided in accordance with
native law. The application of customary law by native courts, outside Buganda,
was statutorily provided for by S.11(a) of the native courts ordinance 1940;

“Native court shall administer and enforce only the native law and custom
prevailing in the area of the jurisdiction of the court, so far as it is
applicable and not repugnant to natural justice, morality and not in conflict
with written law”.

Buganda native courts were empowered to administer customary law by S.10 of

the Buganda courts ordinanace,1940; but there was a notable absence of the
repugnancy clause in case of Buganda courts. The jurisdictions of the Buganda
native courts and native courts outside Buganda were limited to Africans or
natives. It is important to note that customary law had to pass through two filters or
check points before it could be applied by a court; first ,it had to pass the
repugnancy test; secondly, the rule was that customary law must not contradict any
written statute.

The statutory basis upon which customary law is applied today in Uganda is rather
obscure because article 20 of the order-in –council has been repealed and the super
ceding provision in the judicature act 1967 is vague and negative.
 “nothing in this act shall deprive the high court of the right to observe or
enforce the observance of or shall deprive any person of the benefit or any
justice ,equity and good conscience and not incompatible either directly or
by necessary implication with any written law”

From march,1962 to the date the present judicature act came into force there was
no provision similar to the above S.8(1) or article.20 of the order-in-council.
Literal interpretation of the independence order-in-council led to the conclusion
that the high courts were longer to be guided by customary law; this created a
curious situation since the high court was a final court of appeal from magistrate
courts which had wide customary law jurisdiction.

This hiatus has now been corrected and improved by the new judicature act which
provides the statutory basis for the application of customary law, although by a
negative as opposed to positive approach.

The application of customary law in the magistrates’ courts was governed by

S.15 of the magistrates courts act. A magistrate court shall administer the
customary law prevailing in the area of its jurisdiction so far as it is applicable and
not repugnant to natural justice, equity and good conscience, and not in conflict
with any written law. Therefore the judicature act and the magistrates’ courts act
have taken it for granted that customary law must continue to be administered,
possibly because of Bentham’s imperative of the greatest happiness for the greatest
number. It should be pointed out that S.9 of 1970 magistrates courts act is identical
to S.8 of the judicature act 1967. Since we are clear about the statutory basis for
the application of customary law is applicable and its judicial ascertainment.
 There is a full integration of courts today in the sense that all people in
Uganda of different tribes, races and religion are subject to the jurisdiction of the
same courts without any discrimination whatsoever.

However, on the question of integration of laws the position of the law does not
seem to be clear .the question, therefore is to whom does customary law apply
today.

We have already seen that during the protectorate period, in cases to which natives
were parties ,it was mandatory for the courts to be guided by customary law.

In other words customary law applied to natives or Africans. Since art.20 of the
Uganda –order-in-council and identical relevant provisions of the native courts
ordinance and the Buganda courts ordinance are repealed and not repeated in any
of the material post-independence legislation, the basic question now is whom is
customary law applicable.

The importance and relevance of this question is illustrated by a recent high court
appellate decision on a case from Gulu; Rodent Larok V Pyerino Obwoya
(Reported In M.B 130, 36/70). In the case an acholi girl sued an acholi boy for
breach of promise to marry. The trial magistrate applied common law and awarded
damages of shs.2, 000 to the girl. The boy appealed to the high court and his appeal
was dismissed. It can be stated dogmatically that under acholi customary law there
is no liability for breach of promise to marry because marriage is regarded as a
consensual transaction. If acholi customary law was applied in this case, the girl’s
action would have failed. The question of ascertaining and choosing the proper
applicable law was therefore very important.

The Uganda high court considered the effect of the repeal of art.20 of the
order-in-council in Wamala V Sebutemba and expressed the view that an African
litigation was free to seek the redress to which he considered himself entitled under
an ordinance, statute and common law against another African.

The effect of this ruling was that the court was no longer bound to administer
customary law where all the parties were Africans. However this view was
considered and rejected by the court of appeal in The Kabaka’s Government V
Musa .N.S.W Kitonto Lord J.A said that the fact that the common law applied to
Uganda in so far as the circumstances of Uganda and its people permit, supported
the conclusion that, where common law and customary law conflict, customary law
prevails. In other words, where all the parties are Africans, customary law now
applies and not common law. Thus where all parties were acholi as in Larik V
Obwoya (supra) acholi customary should have been the applicable law and not the
common law.

Indeed, the view expressed in kitonto’s case seems to be a more satisfactory

position of the law. The opinion expressed in Wamala V Sebutemeba (supra) has
the effect of creating a privileged class of litigants. It thus emphatically submitted
that the courts in Uganda are African.

2. Ascertaining of Customary Law

a. Judicial

This subject has been exhaustively dealt with by Professor Allot. We shall
endeavor here merely to look at this topic within the context of the law of evidence
and at a macroscopic level. This should not be taken to be a flinch.

This subject deserves serious attention for the following reasons; first , because
most African customary law exists in a vague ,nebulous and unwritten form and
the only repository of customary rules is the good memory of elders; secondly,
because of the multiplicity of customary law communities which makes it
important to determine the applicable law; thirdly, owing to the fact that there is
uncertainty regarding the limit of the operation of customary law in competition
with general law; fourthly, because customary law is basically fluid-rapid changes
in social and economic life induce corresponding fluctuation in customary
law ,which renders out-of date many past findings on its rules; finally, it is difficult
for the courts to distinguish between customs having the force of law and that
which lacks that force though perhaps it may have a moral or religious sanction. As
judge are barred from expressly drawing from their own knowledge and
experience, it is important that we are clear on the various modes according to
which customary law can be judicially ascertained.

The view expressed by Duffs J.A on this question of ascertaining of customary law
is most interesting and pertinent;

“cases the courts will be able to take judicial notice of these customs without
further proof as for instance in case where the particular customary law has been
the subject of previous judicial decision or where the customary law is set out in a
book or document of reference, but usually in the high court or in a magistrates
court, the relevant customary law will ,as a matter of practice and of convenience,
have to be provided by witnesses called by the party relying on that particular
customary law in support of his case”.

This is important statement of principles which were made in Kimani V Gikanga

(1965).

From the above quotation it is relevant to state, first, that the burden of proving the
existence or non-existence of customary law is on the party intending to rely on it.
It would seem also that customary laws relied upon by a party must be specially
pleaded in cases filed before a high court. If a civil suit is instituted by a party who
is not represented by an advocate under R.12 of the civil procedure rules (G.III and
G.II ) magistrates would seem that the necessity for special pleading would be
dispensed with.

Customary law can therefore be proved by witnesses as a fact in the same way as
relevant facts in a case would be proved. This was established by the privy council
in Angu V Attah(1916) followed by the west African court of appeal in Amissah
V Krasa(1936) and adopted by the court of appeal in Kimani V Gikanga
(Supra). There are two ways in which the existence of a custom may be proved;
first, by testimony in accordance with S13 of the evidence act; and, secondly, by
means of expert opinion under S.46 of the evidence act. As Sir John Gray said, the
court has a right to question the qualification of a witness as an expert.

Duffs J.A (supra) made it abundantly clear that it would be wrong to rely on
the opinions of assessors given in the conclusion of the trial because the other party
would not be able or have the chance to contradict the opinion of assessors by
production of contrary evidence or through cross-examination. He approved the
opinion expressed in R V Ndemra (1947). The discretionary power given to the
court to call assessors does not cast the burden of proving customary law on the
court, although it may be of great value. As Professor Allot pointed out, it would
be a sound practice for the opinion of assessors on customary law to be given
publicly and recorded in writing.

On the basis of S.58 of the evidence act, customary law may be proved by
documentary as well as oral evidence. Therefore, books or manuscripts purporting
to describe native law and custom are admissible in evidence. The Uganda high
court for instance in Njirwa V Kagang’ama (1935) be relied on Roscoe’s book on
Kinyankole customary law. However, here in Uganda all such statements are to be
treated as facts and a text book on customary law must not be treated as an
authority as it is done in Ghana. In Kigizi V Lukiko of Buganda(1943) the high
court also stated that a court would quite legitimately prove customary law by
reference to a text book.

Judicial notice may be taken about the existence of customary law” in cases
where the particular customary law has been the subject of a previous judicial
decision or where the customary law is set out in a book or document of reference.
It could be stated rather dogmatically that the decision of the high court in
M.Bukuku and Other V Uganda (1964) can no longer be regarded as good law
owing to the integration of courts and abolition of native courts which were in the
opinion of the court not bound by the evidence act. The distinction between
‘British and native” courts is now moribund.

b. By legislation

Codification or legislation is one of the ways by which customary law may be

ascertained, legislation has certain inherent democratic advantages. However, it
has long been objected to by historical and evolutionary jurist Edmund Burke, in
his Reflection on the revolution in France (1970), denounces the excess of that
revolution and emphasized the values of tradition and gradual growth.

He protested against the reckless reshuffling of the political and legal order of
French people and pointed to history, habit and religion as the true guidance to
social action. Savigny is known as the staunchest opponent of legislation. When
Professor A.F.J Thibaut proposed the codification of German law in the law of the
Napoleonic code, Savigny vehemently attacked the suggestion in his famous
pamphlet, “of the vocation of our age for legislation and jurisprudence”, that the
law is not something to be made arbitrarily and deliberately by law makers. Law
was a product of internal and silently operation forces. It was deeply rooted in the
past of the nation and its true source was popular faith, custom and the common
conscience of the people.

Law .like language, the constitution and the manner of the people, was determined
by the peculiar character of the people. In every people certain tradition and
customs grow up and evolve gradually into legal rules. Only by careful study of
these traditions and customs can be the true content of the law be found. Law is the
product of organic growth. Codification is normally also objected to become it
tends to rigidify the law and keep it out of touch with social trends, changes and
flux.

We are in a revolutionary age. We cannot afford to be bogged down by

Savigny’s reactionary evolutionary theory. Legislation is the only method by
which we can reform our laws and forge ahead developmental programme and
modernization. The peculiar advantages of legislation in east Africa today are as
follows; - first, by means…………………….shrouding customary law would be
removed ; secondly, it is the best way by which customary legal concept can be
unified in national interest; thirdly it stresses centralization which is one of our
chosen institutional means of bringing about or achieving nationalistic goals ;
finally, it means that reforms on customary law will pass through the process of
government by discussion- the sanction of popular sentiments.

However, even if we accept legislation as our only method of reforming our

law, it is important to emphasize that legislation should only be applied
intelligently on the correct subject and at the right time. For instance doubts have
been expressed on the wisdom of incorporating elopement in the penal code.
Tanner expressed the view that codification in Tanzania would loosen the
emotional comprehension of customary law by lower court magistrates and
weaken their capacity to satisfy the balancing requirements of the community. Mr.
L.L Kato strongly criticized the reform of the kibanja system of tenure in the west
lake region by legislation which he claimed was not of touch with social trends and
was therefore ineffective and a fiasco.

c. Restatement of Customary Law.

The orthodox academic opinion of most scholars of customary law today is in

support of restatement, as opposed to codification of customary law.

Restatement is preferred because it combines both the very much needed certainty
and flexibility-hence the establishment of the restatement of customary law
projected under Professor Allot centered at the school of Oriental and African
studies. Although the official attitude of Uganda towards customary law has been
Luke-warm, it is seriously proposed that a project for restatement and possible
unification of customary law could be established at the Development Centre.
Recording customary law is a useful harbinger to any legislation on customary law.

The survival or disappearance of customary law depends on its certainty. We have

attempted in this book to outline the various modes in which customary law may b
ascertained so that we all, teachers and administrators of customary law make
conscious efforts to rescue customary law from drowning.

The magistrates particularly tend to ignore customary law because it exists in

uncertain and nebulous forms. They are therefore tempted to resort to the common
because there are many reported cases and textbooks on the common law.
Customary law is one of the essential elements of our indigenous and original
national character. It should not be allowed to die.
Notes

1. Generally see Morris, 107 – 111; Cross, 129 – 137;

Nokes ,53- 63
2. Quoted by Cross ,at p.129
3. Cross, 129; Nokes, 54; Woodroffe & Ali, 466.
4. Nokes, ibid
5. See Cross, 129- 132
6. At pp. 135 – 137
7. See Cross’s comment on the scope of the doctrine at p.136
8. See U.E.A , S.55; K.E.A, S.60; T.E.A S.60; I.E.A S.57
9. This seems to be on an assumption of continuity of government
10.S.55(1)(i) of the U.E.A
11.See also Nokes, 59 – 60

END OF CHAPTER SEVEN