SAID AJAMI V. THE COMPTROLLER OF CUSTOMS

Verity, C.J. This is an appeal from a decision of Bairamian, J., dismissing an appeal from a judgment in the Magistrate’s Court in an action in which the Comptroller of Customs sought to recover penalties amounting to £60,517 6s. 9d. in respect of an alleged attempt by the defendant therein to export certain goods, described in the claim as “French Colonial Franc Notes”, the export of which is prohibited by section 22 (1) of the Exchange Control Ordinance, 1950, thereby contravening section 125 (1) of the Customs Ordinance (Cap. 48).

The Magistrate gave judgment for the Comptroller and the defendant appealed to the Supreme Court. His appeal was dismissed and he has now appealed to this Court.

The most important of the grounds of the appeal is that the learned Judge erred in affirming the judgment of the Magistrate where there is no admissible evidence that the notes in question are legal tender in French territory. It was further submitted that there is no averment that they are legal tender such as might have been sufficient to evoke the provision (if applicable) of section 245 of the Customs Ordinance.

It is conceded by the respondent that the prohibition extends only to notes which are or have been legal tender and the point is, therefore, one of substance.

In the claim these notes are described simply as “French Colonial Franc Notes” and there is no averment that they are legal tender. This averment should no doubt have been made but its omission from the claim is not necessarily fatal, nor indeed does the argument on behalf of the appellant go so far, for it is not contended that if it were established that in point of fact the notes were legal tender that would not be sufficient. This the Comptroller sought to establish by the testimony of a witness, Greenway, who averred that he was the Manager of Barclays Bank, Kano, and that he had 32 years experience of Banking business, 24 years being in Nigeria. He then proceeded to testify that to the best of his knowledge the notes are French Colonial Franc Notes and that they were legal tender in French West Africa on the material date.

No objection was taken at the time to the admissibility of this evidence nor was the witness cross-examined either as to his qualifications or opinion, but it is now submitted on behalf of the appellant, as it was contended in the Supreme Court, that the question whether the notes were or were not legal tender is a question of foreign law and that the witness Greenway was not shown to be so qualified therein as to render admissible his opinion as that of an expert witness.

On behalf of the respondent it is contended that the facts that the witness has no less than 24 years’ banking experience in Nigeria, bounded as it is on three sides by French Colonial territory and that Barclays Bank, of which he is a branch Manager, is a duly authorised dealer in foreign currency are sufficient prima facie to show that the witness is sufficiently qualified to express an expert opinion on this particular question.

A great many authorities were cited by Counsel for the appellant on the question of the admission of expert evidence on foreign law. These authorities go no further, I think, than to establish two principles: firstly that the witness must be, as is prescribed by section 56 of our Evidence Ordinance “specially skilled” in the subject upon which he expresses an opinion, and, secondly, that

it is for the Court to determine whether in fact the particular witness is shown to have such special skill, Within the framework of these general principles it is possible to find such extreme illustrations as that in which an hotel keeper who formerly carried on business as a merchant commissioner in stocks and bills of exchange in Brussels was admitted to give evidence as to the law of Belgium relating to such matters (Vander Donckt v, Thellusson (1) or in Shand v. Kidd (2), SAID AJAMI where the affidavit of a gentleman describing himself as a “solicitor practicing in the Supreme Courts of Scotland “ was not acted upon by the Master of the Rolls on the question as to what was the law of Scotland in relation to funds affected by a settlement.

It is clear, I think, that the test must always be the knowledge and experience of the particular witness and whether the evidence justifies the conclusion that “specially skilled “ within the meaning of the Evidence Ordinance, which means no more than that he has special knowledge, training or experience in the matter in question.

In judging of this skill it is to be borne in mind that there are factors other question upon which expert evidence than direct evidence of personal experience which may properly be considered, In the Sussex Peerage Case (3) it was held that a Roman Catholic Bishop holding the office of coadjutor to a Vicar-apostolic in England, is, by virtue of that not a lawyer may be sufficient office, to be considered as a person skilled in the matrimonial law of Rome, In that case the Attorney-General submitted that the wtiness “was clearly not a professional lawyer” and added “to render his evidence admissible he must have some peculiar means of knowledge, as from office, for instance”

The Lord Chancellor then observed” he comes within the description of a person peritus virtute officii”, and Lord Langdale said, “ The witness is in a situation of importance; he is engaged in the performance of important and responsible public duties; and connected with them and in order to discharge them properly he is bound to make himself acquainted with this subject of the law of marriage. It is impossible to say that he is incompetent”.

The question for this Court to determine is, therefore, a simple one: whether upon the evidence it has been shown that the witness Greenway by virtue of his peculiar knowledge and experience and by virtue of his office was competent to express an opinion, not upon some abstruse problem of French law, but upon a question which, while perhaps strictly speaking one of law, is for all practical purposes a question of every day fact in banking and commercial practice, the nature of certain foreign currency.

There can be no doubt that in the course of twenty-four years banking experience .in Nigeria the witness has had “peculiar means of knowledge” on this subject and it is equally beyond doubt that as the Manager of a branch of a duly authorised dealer in foreign currency he is called upon to engage in” the performance of important .and responsible public duties” in relation to such currency, and “in connection with them and in order to discharge them properly he is bound to make himself acquainted with this subject”.

In my view therefore the evidence of this witness was rightly admitted and was sufficient to establish the averment that the notes were legal tender. In these circumstances I do not consider it necessary to enter upon consideration of the other grounds of appeal, all of which must fail if my views as to the first ground are correct and I would therefore dismiss the appeal with costs.