✓ It seems to me from a view of all the decided cases that matters which can be judicially noticed fall into two broad classes. First: There are those which are so notorious that the court automatically takes notice of them, once it is invited to do so. Secondly: There are others which, although judicially noticeable, the court will not do so until something is produced, though not formally tendered as evidence, in order to inform the court or refresh its memory on the matter before it notices it. Thus the court may be invited to, and does, inform itself as to a date (Tutton v. Darke (1860) 5 H & N 649; for a publication in a Gazette by the production of the Gazette (Ogbunyiya v. Okudo (supra). On this broad division of judicial notice, the courts have usually refused to take notice of matters falling within the second category when the material from which it can inform itself or refresh its memory is not produced by the party inviting it to take notice of the particular matter. In Omeron v. Dowick (1809)2 Camp. 44, Lord Ellenborough declined to take judicial notice of the King’s proclamation because counsel failed or neglected to produce a copy of the Gazette in which it was published. In R. v. Holt (1793) 5 T.R. 446 the court held that articles of war of which it ws invited to take notice ought to have been produced. Also in Pilkington v. Cooke, 16 M & W. 615, the court refused to take judicial notice of when an order of the Judges, allowing a scale of fees to be taken by the sheriffs, was made. It appears to me from the decisions in the above cases that the courts will take notice without more of cases falling within the first category of matters that could be judicially noted, above; but will, in the case of the second insist on the appropriate material from which it can inform itself or refresh its memory being produced. I believe that the underlining assumption is that cases of the first category are matters of knowledge of which the Judge knows or is expected to know. He is not expected to know or remember off hand matters falling within the second category. But because of their very nature, the court can be informed of them or his memory be refreshed thereon; without the matter requiring to be proved by evidence. — P. Nnaemeka-Agu JSC. Gbaniyi Osafile v. Paul Odi (SC 149/1987, 4th day of May 1990)
✓ The point that I need to emphasize at this stage is that our law preserves the distinction between those facts of which the court shall take judicial notice, when called upon by a party to do so, because those facts are notorious to him, on the one hand, and those facts which, in exercise of its powers under subsection (3) of Section 73 of the Evidence Act, he may, when called upon to take judicial notice of the fact, refuse to do so unless and until such a person produces the necessary material or he has informed himself properly to enable him to do so. When the former is the case, the Judge, once called upon to take judicial notice of the fact, proceeds to do so based on his general knowledge, memory and experience. In the latter case, a proper foundation must be laid for him to take notice of the fact. The only difference is that under section 73(2), even for matters falling within the first category he may resort for his aid to appropriate books or other documents or reference. — P. Nnaemeka-Agu JSC. Gbaniyi Osafile v. Paul Odi (SC 149/1987, 4th day of May 1990)
