Evidence-Experts-Foreign law-Evidence on whether notes are legal tender­Competency of experienced bank manager-(Nigeria) Evidence Ordinance, sections 56 and 57.

" A principle which emerges from them (viz. the cases) 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 regarded as a competent expert. So the practical knowledge of a person who is not a lawyer may be sufficient in certain cases to qualify him as a competent expert on a question of foreign law." (From the judgment infra.)

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 as follows:-

" Manager, Barclays Bank, Kano, in Banking business 32 years, 24 years 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."

He was not cross-examined. A Gazette was also produced to show that Barclays Bank had been appointed an •. authorised dealer in foreign currency" under the Ordinance, under which only authorised dealers could normally deal in foreign currency. No evidence was called for the appellant. The above evidence was accepted in Nigeria: the judgment of W.A.C.A. is dated 19th February, 1952.

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.

Section 56 of the Evidence Ordinance (Nigeria) provides that .. when the court has to form an opinion upon a point of foreign law ... the opinions of persons specially skilled in such foreign law ... are relevant facts ", and" such persons are called experts"; and section 57 provides that" Where there is a question as to foreign law the opinions of experts who in their profession are

  acquainted with such law are admissible evidence thereof ".                           •

.'

Held: (1) The knowledge which entitles a person to be deemed .. specially skilled" on some points of foreign law may be gained in appropriate circumstances by a person whose profession is not that of the law; [pg37]

(2) The witness had had long banking experience in Nigeria, which adjoins French West Africa, and was an authorised dealer in foreign currency; and upon a fair view of his evidence it must be presumed that he was speaking with a sense of responsibility from adequate personal experience;

(3) .• To the best of my knowledge" in his evidence did not deprive it of a probative value: no attempt was made by the appellant to contradict what he said, and his evidence must be held to have established the facts to which he deposed.

Case cited :-

Vander Doncld v. Thellusson (18'19). 8 C.B. 812, 814.

Appeal from the \Vest African Court of Appeal: Privy Council No. 16 cf 1953.

The judgment of the Lords of the Judicial Committee of the Privy

Council was delivered on the 8th November, 1954, by Mr. L. M. D. de Silva.

This is an appeal from a judgment of the West African Court of Appeal dated the 19th February, 1952, dismissing an appeal from a judgment of the Supreme Court of Nigeria dated the 19th November, 1951. The Supreme Court had by its judgment dismissed an appeal from a judgment in the Magistrate's Court in favour of the respondent dated the 11th August, 1951.

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. It is further not disputed that the respondent is entitled to succeed in this appeal if it is held that the said section of the Exchange Control Ordinance prohibited the exportation of the said 9,881,500 notes.

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 ...

It is not disputed on this appeal that French \Vest Africa comes within the meaning of the word" territory" in section 22 (1) quoted above ..

It is contended by the appellant that the evidence led by the respondent in the Magistrate's Court did not establish a fact sought to be proved in, and held to be proved by, the courts in Africa namely that the notes in question were legal tender in French West Africa on the 15th June, 1951. This is the sole point raised by the appellant and the sole point for decision by their Lordships.

It was necessary to call an expert to prove that the francs were legal tender in \Vest Africa on the 15th June, 1951, and the expert evidence called by the respondent was that of one 1\1r. Greenway. The whole of his evidence given in examination-in-chief consisted of the following :-

.• Manager, Barclays Bank, Kano, in Banking business 32 years, 24 years 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 \Vest 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."

He was n,..,t cross-examined and no evidence was led by the appellant to contradict what he said. After the respondent had closed his case the appellant did not give evidence, no: was any evidence led on his behalf.

The appellant concedes that Mr. Greenway is a credible witness but contends that upon the facts deposed to by him he cannot be regarded in law as a competent [pg 38] expert witness. It is further contended that even if it be held that Mr. Greenway was competent to give evidence as an expert, he ha~ so qualified his evidence that it cannot be regarded as proving the facts sought to be established.

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 cognisance" of the point, was a competent witness on that point. Their Lordships share this view. A number of other cases were cited to their Lordships 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 the case referred to above. Their 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 regarded as a competent expert. So the practical knowledge of a person who is not a lawyer may be sufficient in certain cases to qualify him as a competent expert on a question of foreign law.

Their Lordships observe that there is nothing opposed to the views they have expressed above in the relevant statute law of Nigeria which is to be found in sections 56 and 57 of the Evidence Ordinance of Nigeria and is to the following effect:-

"56. (1) When the court has to form an opinion upon a point of foreign law, native law or custom, or of science or art, or as to identity of hand­writing or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, native law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts.

" (2) Such persons are called experts.

"57. (1) where there is a question as to foreign law the opinions of experts who in their profession are acquainted with such law are admissible evidence thereof, though such experts may produce to the court books which they declare to be works of authority upon the foreign law in question, which books the court, having received all necessary explanations from the expert, may construe for itself.

" (2) Any question as to the effect of the evidence given with respect to foreign law shall, instead of being submitted to the jury, in the case of trial with a jury, be decided by the judge alone."

The Ordinance enacts that the evidence of a person" specially skilled" on a point of foreign law is admissible as expert evidence. The knowledge which entitles a person to be deemed " specially skilled" on some points of foreign law may, in their Lordships' opinion, be gained in appropriate circumstances by a person whose profession is not that of the la\\'.

In the case before them their Lordships have to be satisfied on two points before they can regard Mr. Greenway as competent. Firstly, that he conducted a business which made it his interest to take cognisance of what notes were legal tender in French West Africa. Secondly, that he did in fact take cognisance of what notes were legal tender in that country.

It would have been prudent for the respondent to have led evidence more clearly directed to establishing thah these points. As the recorded evidence is very much compressed their Lordships have had some difficulty in arriving at a conclusion.

It appears from a notification in the Gazette of the 9th November, 1950, that [pg39 ]  Barclays Bank had been apl10inted 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 sections 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 " ..