➥ CASE SUMMARY OF:
Said Ajami v. The Comptroller of Customs (1952) – WACA
by “PipAr” Branham-Paul C. Chima (SAL)
West Africa Court of Appeal – (1952) 14 WACA 34
➥ JUDGEMENT DELIVERED ON:
➥ AREA(S) OF LAW
Exportation of legal tender;
➥ PRINCIPLES OF LAW
⦿ A PERSON THOUGH NOT A LAWYER IS CONVERSANT WITH FOREIGN LAW IS A COMPETENT WITNESS
It has been argued strenuously that upon a matter which involves a question of law no person who is not a professional lawyer could be regarded as a competent expert. Their Lordships do not agree. In the case of Vander Donckt v. Thellusson (1849) 8 C.B. 812 at p. 814 it was held that a person who though not a lawyer, had become conversant with a point of foreign law by “carrying on a business which made it his interest to take cognizance” of the point, was a competent witness on that point. Their Lordships share this view. A number of other cases were cited to their which, although they contain observations relevant to the facts of each case do not, in their Lordships view, qualify in any way the principle stated in their Lordships’ view Lordships do not propose to refer to each of these cases separately. A principle which emerges from them considered together is that not only the general nature, but also the precise character of the question upon which expert evidence is required, have to be taken into account when deciding whether the qualifications of a person entitle him to be regard as a competent expert. So the practical knowledge of a person who is not a lawyer may be sufficient in certain case to qualify him as a competent expert on a question of foreign law … The knowledge which entitles a person to be deemed “specially skilled” on some points foreign law may in their Lordships opinion be gained in appropriate circumstances by a person whose profession is not that of the law. Secondly that he did in fact take cognizance of what notes were legal tender in that country. — Verity, C.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
Sir Adeyeyemo Alakija
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The Exchange Control Ordinance prohibits the export of “any notes of a class which are or have at any time been legal tender in the United Kingdom or in any other territory.” The Comptroller of Customs sued the appellant for attempting to export French Colonial Franc Notes, and, to prove that they were legal tender in French West Africa (a territory adjoining Nigeria), he called a witness who testified.
The point raised for the appellant in the Privy Council was that the evidence did not prove that the notes were legal tender in French West Africa because (1) the matter involved a question of law, but the witness, not being a professional lawyer, could not be regarded as a competent expert (2) that it had not been shown that as part of his duties he kept in such close touch with the currency of French West Africa as to make him competent to give the evidence he gave and (3) that by the words “to the best of my knowledge” he so qualified his evidence as to render it of no probative value.
The respondent who is the Comptroller of Customs of Nigeria claimed in the Magistrate’s Court of Nigeria against the appellant a penalty of £61,778 2s. 6d. and the forfeiture of 9,884,500 French Colonial Franc Notes on the ground that the appellant had on the 15th June, 1951, attempted to export the said notes, the exportation of which was prohibited by section 22 (1) of the Exchange Control Ordinance, 1950. On this appeal the appellant does not dispute that he attempted to export 9,884, 500 notes from Nigeria on the said 15th day of June, 1951.
Section 22 (1) prohibits the exportation amongst other things of:- “any notes of a class which are or have at any time been legal tender in the United Kingdom or any part of the United Kingdom or in any other territory.”
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the evidence led by the respondent in the Magistrate’s Court established as a fact that the notes in question were legal tender in French West Africa on the 15th June 1951?
RULING: IN RESPONDENT’S FAVOUR.
A. THE RESPONDENT WITNESS MEETS THE CRITERIA TO BE CALLED AN EXPERT WITNESS IN THIS CASE
“The whole of his evidence given in examination in chief consisted of the following: ‘Manager Barclays Banks Kano in Banking business 32years 24years in Nigeria I look at these notes they are to the best of my knowledge French Colonial Franc notes they were legal tender in French West Africa on 15th June this year. On that day these francs were worth 490 to £1 English note. The English value of 9,884,500 francs is therefore £20, 172’.”
“It appears from a notification in the Gazette of the 9th November, 1950, that, Barclays Bank had been appointed an “authorised dealer in foreign currency” within the meaning of that term in the Exchange Control Ordinance (No. 35 of 1950) of Nigeria. It is also clear from section 5 and 42 (to which their Lordships do not think it necessary to make detailed reference) of that Ordinance that dealings in foreign currency could normally be conducted only by an “authorised dealer”. It is difficult to imagine that an “authorised dealer” would not keep himself informed as to the notes that were legal tender in French West Africa, an adjoining territory unless special circumstances existed which rendered it unnecessary for him so to do. No such special circumstances have been proved or even suggested in the evidence in the case.”
“Mr. Greenway is a manager of a branch of Barclays Bank in Nigeria and has been in banking business for thirty- two years twenty-four years of which have been spent in Nigeria. He has been regarded without challenge by the courts below as a credible witness, and must also be regarded as a persons with a sense of responsibility. Therefore the opinion which he has expressed cannot be the result of mere conjecture. It has been suggested by counsel for the respondent that upon a fair view of the evidence as a whole it must be presumed that Mr. greenway was speaking from adequate personal experience. This suggestion their Lordships accept. It has also been contended that the use of the words” to the best of my knowledge “ by Mr. Greenway so qualified his evidence as to render it of no probative value. Their Lordships do not agree. The meaning of the words mentioned could be best appreciated by the judge who saw the witness and heard the evidence given and the qualification cannot be said to deprive the witness’s evidence of all probative value. No attempt was made by the appellant to contradict what Mr. Greenway said and their Lordships are of the view that his evidence must be held to have established the facts to which he deposed.”
“For the reasons given their Lordships are of the opinion that it must be held that Mr. Greenway was a person who in the course of his business had to and did keep in touch with current law and practice with regard to notes that were legal tender in French West Africa. They are of the opinion that the notes of which exportation was attempted must be held to be notes which were legal tender in French West Africa on the 15th June 1951. They will therefore humbly advise Her Majesty that the appeal be dismissed. The appellant must pay the respondent the costs of this appeal. Appeal dismissed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)