Historical development and the impact of law reforms on inherent powers in Sudan

Within the sphere of judicial practice in Sudan, national courts have frequently employed the doctrine of inherent powers to signify the court's capacity to undertake whatever is required to achieve justice. In essence, this principle has been consistently applied to prevent miscarriages of justice.Footnote ⁷ An illustration of this authority can be found in a plethora of precedents, as will be discussed later. However, in order to grasp the nature and limitations of inherent powers, certain clarifications are necessary; it may therefore be beneficial to trace the historical background from which this doctrine originates. Understanding the doctrine of inherent powers within the legal context of Sudan involves investigating the origins of the doctrine through an exploration of the legacy of British colonial rule, which had a distinct impact on the framework of Sudanese law. Sudan was placed under Anglo-Egyptian rule by a joint agreement in 1899, which reinstated Egyptian authority once more after British rule.Footnote ⁸ Ironically, the partnership between the two countries was merely nominal, as the British assumed control of the condominium and the governor general assumed leadership of military and civil command in Sudan.Footnote ⁹ The agreement not only enabled the British to be the de jure ruler of Sudan but also the de facto one.Footnote ¹⁰

Shortly after the proclamation of the joint agreement, the issue of the legal system to be applied in Sudan was raised among policy-makers.Footnote ¹¹ Based on the martial law imposed in the country, the governor general was authorized to replace or modify all laws whenever it was deemed necessary.Footnote ¹² A notable illustration of this authority can be found in Sudan Government v National Contracting Co of Egypt (1939), where Justice Flaxman stated:

Interestingly, the British administration made concerted efforts to extricate Sudan from the influence of Egyptian law.Footnote ¹⁴ To this end, the condominium agreement stipulated that the legal system in Sudan would be distinct and autonomous.Footnote ¹⁵ With a commitment to establishing an independent legal system, the introduction of English common law in Sudan was part of the broader mission announced by Lord Cromer: “The cannon which swept away the Dervish hordes at Omdurman proclaimed to the world that on England – or, to be more strictly correct, on Egypt under British guidance – had devolved the solemn and responsible duty of introducing the light of western civilisation amongst the sorely tried people of the Sudan.”Footnote ¹⁶ The British administration persisted in modernizing Sudan's legal system, and these endeavours culminated in the creation of the Civil Justice Ordinance in 1900.Footnote ¹⁷ It is worth noting that this was repealed in 1929 and subsequently reinstated as the Civil Justice Ordinance 1929 (CJO 1929).Footnote ¹⁸ The provisions of this Ordinance comprise a blend of the Indian Civil Procedure Code and English procedural rules. A comparison between the Indian Code and the CJO 1929 reveals that the doctrine of inherent powers was borrowed from Indian law and reintroduced in the CJO 1929.Footnote ¹⁹

At this point, it is important to emphasize that the doctrine of inherent powers is a fundamental characteristic of the common law system, which originates from England.Footnote ²⁰ Numerous countries have embraced the doctrine, including Sudan and India. When considering other common law jurisdictions, such as the United States, Canada, Nigeria and Uganda, it is important to observe that the inherent powers doctrine is distinctive to these legal systems.Footnote ²¹ In light of this context, it can be asserted that the doctrine of inherent powers is a product of the entire common law system, rather than being confined to a specific jurisdiction within the broader common law framework. Consequently, it appears indisputable that the doctrine of inherent powers, introduced to Sudan through Indian law, fundamentally originates from the common law system.Footnote ²² Interestingly, a similar conclusion can be drawn from the well-established case law. For instance, courts have turned to English and Indian precedents when interpreting or justifying their use of inherent powers, as both the English and Indian legal systems have a rich tradition of acknowledging and employing the doctrine of inherent powers. This practice is not unusual in many jurisdictions globally; courts often refer to case law and legal principles of other jurisdictions to guide their own decisions and reasoning. This trend in judicial practice is apparent in a series of cases. For instance, in Halifax Ali Mohammed Heirs v Osman Ali Mohammed Heirs, the Court of Appeal cited common law jurisprudence in the context of inherent powers; it was ruled that “the court can assume jurisdiction under its inherent powers to issue declaratory judgments not accompanied by consequential relief. The court must be satisfied that a genuine dispute exists regarding the right being asserted.”Footnote ²³ This is also clearly articulated by Allen in Law and Orders.Footnote ²⁴ Similarly, in Dariat El Mahdi v Abd El Agadir Abu Regaaila, the Court of Appeal made it evident that section 226 of the CJO 1929 closely mirrors its Indian counterpart; in this context, Abdel Mageed Imam PJ remarked:

In Sayed Abdullahi El Fadil El Mahdi v Arab Bank, Khartoum, Justice Babiker Awadalla similarly cited section 151 of the Indian CPC and drew a comparison with section 226 of the Sudanese CJO 1929.Footnote ²⁶

Some scholars contend that the impact of common law in Sudan was not substantial, nor was it firmly ingrained in the beliefs of the indigenous population, except for a few legal professionals and elites.Footnote ²⁷ Nonetheless, it is generally believed that the influence of common law persisted even after Sudan gained independence in 1956, as a significant portion of the legal workforce (including judges and lawyers) had been trained by British authorities and may have leaned towards relying on English case law.Footnote ²⁸ Furthermore, it is noteworthy that English remained the language used in litigation until 1970. Undoubtedly, shortly after gaining independence, there were pressing demands for reforming the legal system, particularly when Colonel Gaafar al-Nimeiry seized power in a coup on 25 May 1969.Footnote ²⁹ At the start of his rule, a committee was tasked with crafting recommendations for a new system, but he disbanded it and established another committee primarily composed of twelve Egyptian jurists and three Sudanese lawyers.Footnote ³⁰ Following recommendations from this committee, Sudan transitioned from the common law system to the civil law system and replaced the CJO 1929 with the Civil Procedure Code (1972).Footnote ³¹

However, the common law system was reinstated in Sudan shortly thereafter, leading to the repeal of the CPC (1972) and its subsequent re-enactment as the CPC (1974).Footnote ³² President al-Nimeiry forged an alliance with the Muslim Brotherhood movement and declared Sharīʿah as the foundation of the Sudanese legal system in September 1983. Consequently, the legal landscape underwent reforms to align with Islamic laws, leading to the repeal of the CPC (1974) in 1983 and its subsequent re-enactment as the Civil Procedure Code (1983).Footnote ³³ Despite the surge of Islamic influence, the entire legal landscape continued to closely resemble the common law system.

The doctrine of inherent powers within the Sudanese Civil Procedure Code must be understood within the context of the broader constitutional framework that governs the administration of justice in Sudan. Articles 4, 6 and 8 of the Sudanese Constitution of 2019 provide a foundational legal ethos that informs the judiciary's interpretive and procedural discretion.Footnote ³⁴ Article 4 enshrines the state's commitment to a democratic, pluralistic and decentralized system, underpinned by the principles of justice, equality and the guarantee of human rights and fundamental freedoms. This commitment establishes a constitutional mandate for the judiciary to interpret laws in a manner that furthers these foundational values, thereby providing a constitutional basis for the purposive interpretation of statutes and procedural rules. Article 6 reinforces the supremacy of the rule of law and the transitional authority's dedication to upholding legal accountability. It implies a constitutional endorsement for the judiciary to rectify grievances and restore rights, which may necessitate the invocation of inherent powers to ensure that justice is not encumbered by procedural irregularities. Article 8 explicitly directs state agencies, including the judiciary, to engage in legal reform aimed at developing a rights and justice system characterized by independence and adherence to the rule of law. This directive is indicative of a constitutional recognition of the judiciary's role in shaping the legal system to align with the evolving needs of justice.

In light of these constitutional provisions, it is evident that the Sudanese Constitution contemplates a flexible and dynamic application of justice, one that prioritizes substantive outcomes over procedural formalities. This is in harmony with the constitutional practices of many countries in the developing world, where the purposive interpretation of the constitution and the principle of administering substantive justice without undue regard to technicalities are widely recognized. The constitutional context of Sudan therefore not only permits but arguably necessitates that courts exercise their inherent powers when such actions are required to uphold the constitutional mandates of justice, equality and human rights. This interpretive stance is crucial for determining whether a court can justifiably set aside a provision of law in the Civil Procedure Code and underscores the judiciary's constitutional duty to ensure that the administration of justice is not strictly confined to the letter of procedural codes but is also guided by the spirit of the Constitution, which seeks to deliver justice in its most equitable form.

Understanding the ambiguity of inherent powers and inherent jurisdiction

Generally speaking, the endeavour to formulate a precise definition for the doctrine of inherent powers, like the majority of legal terms, is fraught with difficulty, as exemplified in Jawahar Singh Sobha Singh v Union of India (UOI) and Others. Although the question of the exact meaning of the term “inherent powers” was raised by the Punjab-Haryana High Court, the Court acknowledged that it is an ambiguous concept; it was observed that

Nevertheless, a clear understanding of the term and its functioning can be gleaned from the legal heritage of common law, and it is therefore beneficial to draw upon some examples from English and Indian law as points of reference. In this regard, the words of Justice Baron Alderson can be cited, as he once described the doctrine of inherent powers with the following: “The power of each court over its processes is unlimited; it is a power inherent to all courts, both inferior and superior; without it, the court would be compelled to remain passive and witness the abuse of its processes leading to injustice.”Footnote ³⁶ The Supreme Court of Sudan adopted a similar approach; for example, in El Nur Abdullah v Nasra Ahmed Salem, it was determined that the Supreme Court, like any other lower court, possesses a broad spectrum of inherent powers to extend the legal timeframes provided in accordance with the rules of law.Footnote ³⁷

Scholarly and judicial literature has embraced the analytical perspective of Sir Jack Jacob, who defines inherent jurisdiction, rather than inherent powers, as follows: “[a] residual source of powers, upon which a Court may rely in case of necessity, whenever it is just or equitable to do so, in particular to ensure respect for the due process of law, to prevent improper annoyance or oppression, to serve justice between the parties and to secure a fair trial between them”.Footnote ³⁸ According to Jacob, a parallel conclusion can be drawn from the language structure of section 151 of the Indian Civil Procedure Code, which reads as follows: “Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”Footnote ³⁹ An identical section was imported from the Indian Code into the Sudanese Civil Justice Ordinance, remaining unchanged through successive amendments until the implementation of the current Civil Procedure Code (1983), which re-enacted the inherent powers of the court using the same wording as its Indian counterpart. Consequently, the doctrine retained its original characteristics and was re-enacted as follows:

1. 1) “The court may, at any time and on such terms as it deems appropriate, amend any defect or error in any proceeding in a suit; and all essential amendments shall be carried out to determine the actual question or issue raised by or dependent on such proceeding.”Footnote ⁴⁰

2. 2) “Nothing in this Code shall be construed to restrict or otherwise impede the inherent power of the court to issue orders as may be required to achieve the ends of justice or to prevent the abuse of the court's process.”Footnote ⁴¹

The language structure of these articles clearly indicates that the doctrine of inherent powers was originally conceived and established as a legitimate creation of the common law. From its inception to the present day, it has remained unaffected by the successive changes in the Sudanese legal landscape.

Considering the perspectives of Jacob and Alderson, it becomes evident that their efforts aimed to clarify the essence of inherent “powers” or the so-called inherent “jurisdiction”. In this context, they acknowledge that the essence of the doctrine is to empower the court to prevent malicious litigation; therefore it may seem that they have effectively addressed the ambiguity of the concept. However, an examination of both viewpoints reveals that neither provides a definitive meaning or a conclusive end to the use of the term. To put it more accurately, the concept of inherent powers may appear straightforward on the surface, but this simplicity is deceptive.Footnote ⁴²

In Sudan, inherent powers and inherent jurisdiction were often used interchangeably within the legal context. For example, in Mohammed Hassanein Abullea v Joseph Tabet, the Court of Appeal ruled that, given the circumstances of the case, the Court should exercise its inherent jurisdiction and order the partnership to be dissolved, as the parties appeared to have reached an impasse.Footnote ⁴³ Conversely, in Building Authority of Khartoum v Evangelos Evanguides, the High Court of Appeal used the term “inherent power” rather than “inherent jurisdiction”, stating: “The second contention is that this court is bound by two of its own precedents, in which the ratio decidendi is that once there is no right of appeal under an Ordinance, then it is not possible for the High Court, invoking its inherent power, to intervene through a review.”Footnote ⁴⁴ The terms “inherent powers” and “inherent jurisdiction” are thus being employed interchangeably by Sudanese courts due to the confusion surrounding the precise meaning of the term. This confusion can be assumed to arise more from the interpretations of these concepts in judicial rulings than from provisions of the law. This view is reinforced by the language structure of article 285 of the CPC (1983), which does not include any specific reference to the term “inherent jurisdiction”; instead, it empowers the courts to create and design solutions within the scope of their inherent powers. For these reasons, and to mitigate such confusion, it may be appropriate for Sudanese courts to utilize “inherent powers” to denote the authority they possess to fulfil their duties and functions. In this context, the term would primarily refer to a court's capacity to exercise discretion in managing and controlling its own proceedings, as well as to take any necessary actions to serve the interests of justice, including the power to regulate the conduct of parties, admit or exclude evidence, grant interim injunctions and impose penalties for contempt of court. On the other hand, it should be noted that the term “inherent jurisdiction” is widely used in legal practice to describe a court's inherent authority to hear and adjudicate certain types of cases. However, it is evident that Sudanese courts may still use the term “inherent jurisdiction” to describe the court's broader authority, which encompasses inherent powers.

The debate regarding the terminological conundrum emerged long ago, when Jacob wisely proposed that the terms “inherent jurisdiction” and “general jurisdiction” of the court are not identical and should not be conflated; he contended that inherent jurisdiction is merely an expression of the court's extensive general jurisdiction.Footnote ⁴⁵ According to this explanation, the inherent jurisdiction of the court can be invoked when it is deemed “equitable and just” to do so.Footnote ⁴⁶ Jacob describes the doctrine in a comprehensive manner as a reserve of powers that the court may employ whenever it is fair and equitable; these powers are utilized to prevent undue prejudice to the opposing party, to thwart abuse of the legal process and to preserve the smooth and intact progression of legal proceedings. In summary, these powers serve the purpose of delivering justice and ensuring impartial litigation between parties.Footnote ⁴⁷

In Jacob's view, inherent jurisdiction is a privilege granted exclusively to superior courts to uphold their status as courts of law. He similarly contends that the inherent jurisdiction of superior courts did not originate from statutory provisions but was inherited from the concept of royal supremacy.Footnote ⁴⁸ Furthermore, he emphasizes that the inherent jurisdiction of superior courts remained unaffected by the codification movement. In summary, he believes that the term “inherent jurisdiction” is broader in scope than the term “inherent powers”. In supporting his viewpoint, Jacob proposes that inherent jurisdiction encompasses all the powers necessary for the court to “fulfil itself as a court of law” and “to uphold, protect, and fulfil the judicial function of administering justice according to law in a regular, orderly, and effective manner”.Footnote ⁴⁹ Therefore the concept of inherent powers falls within the purview of what he contends to be inherent jurisdiction: according to the earlier argument, the inherent powers of the court stem from the inherent jurisdiction.Footnote ⁵⁰ While Jacob acknowledges that inherent powers are a component of inherent jurisdiction, he emphasizes that they complement the powers conferred upon the court by statutory rules. Furthermore, he concludes that each of these sets of powers substitutes for and reinforces the other.

No further illumination can be provided regarding inherent powers or so-called inherent jurisdiction due to a lack of consensus on the foundation of such authority. In this context, some commentators contend that a court's inherent powers stem exclusively from its status as a judicial institution and are not bestowed upon the court by any regulatory rules.Footnote ⁵¹ This approach aligns with the “innate theory” of inherent jurisdiction, which posits that the court's inherent jurisdiction is derived from the very nature and existence of the court itself. In other words, the court possesses inherent jurisdiction simply because it is deemed necessary to oversee its proceedings and prevent the abuse of the process. An example illustrating the innate theory can be found in Ogwuegbu v Agomuo and Others in the Nigerian Court of Appeal,Footnote ⁵² where it was held that

Likewise, in Manohar Lal Chopra v Rai Bahadur Rao Raja Seth Hiralal, the Supreme Court of India observed that inherent power was not bestowed upon the Court but that it is an intrinsic power inherent in the Court by virtue of its duty to dispense justice.Footnote ⁵⁴ The Andhra Pradesh High Court of India revisited the same concept in P Srinivasa Rao v P Indira and Another, where it was established that the power under section 151 of the Indian CPC is not a power bestowed upon the Court; rather, it is an inherent power intrinsic to the Court itself, stemming from its duty to administer justice between the parties.Footnote ⁵⁵

Conversely, certain commentators have arrived at a contrary conclusion, contending that inherent powers were indeed granted to courts by the English Judicature Act of 1873.Footnote ⁵⁶ In essence, the inherent powers are not exclusively generated by a court itself but are granted to it by the legislature. This perspective aligns with the vesting theory of inherent jurisdiction; therefore it could be argued that in practice, the doctrine of inherent powers is often perceived as a combination of both the innate theory and the vesting theory. While a court may possess certain inherent powers derived from its status as a judicial institution, it may also hold powers conferred by law.Footnote ⁵⁷

Limitations and challenges of inherent powers

In the diverse landscape of global legal systems, courts frequently confront situations where specific legislation or committee-enacted rules are absent, especially in civil and criminal proceedings. Some jurisdictions address this challenge by focusing on the court's inherent powers and the practice of judicial law-making. The jurisdictions under consideration here include continental European countries (with a focus on Ukraine and Germany), as well as common law jurisdictions like New Zealand, the United Kingdom, South Africa and India. In continental and common law jurisdictions, courts have evolved a sophisticated approach to judicial law-making, particularly in civil justice. Timchenko and Kotvyakovsky offer an insightful overview of this practice, emphasizing how European nations such as Ukraine and Germany authorize their courts to engage in legislative activities to fill legal voids. This form of judicial activism, while proactive, is carefully regulated to prevent overstepping into legislative domains, thereby ensuring that justice prevails despite the lack of explicit legal rules.Footnote ⁵⁸

The role of courts in managing procedural gaps is highlighted in the context of administrative offences. Zhukova examines how courts of general jurisdiction and arbitration courts in unspecified jurisdictions tackle cases lacking specific procedural legislation, particularly focusing on the submission and management of electronic documents. This scenario underscores the flexibility and adaptability of judicial systems in upholding procedural integrity in the absence of clear guidelines.Footnote ⁵⁹ The interplay between domestic mandatory rules and international contracts offers another perspective on judicial discretion: Merwe explores how courts in New Zealand, the United Kingdom and South Africa address the complexities inherent in international employment contracts when legislative directives are unclear. This involves balancing respect for party autonomy in contract law against the enforcement of mandatory domestic legal principles.Footnote ⁶⁰ In the domain of cyberspace, the absence of specific legislation or court rules introduces unique challenges; Singh discusses the Indian judiciary's approach to establishing jurisdiction in the digital realm. This reflects a broader global issue where courts are tasked with developing jurisprudential principles in areas not explicitly covered by existing legislation.Footnote ⁶¹

As we go deeper into the dynamics of inherent powers within various judicial systems, it becomes imperative to acknowledge their intrinsic limitations. These constraints are crucial in ensuring that the exercise of such powers remains within the ambit of legal propriety and does not overstep the boundaries set by statutory rules and constitutional principles. Mendelson's analysis offers a foundational perspective on this aspect; his work delves into the interplay between liberty and authority in federal systems, highlighting how inherent powers, while broad, are circumscribed by due-process limitations. This is particularly relevant in scenarios where courts are required to navigate the absence of specific legislation, ensuring that their interventions do not infringe upon individual rights or constitutional mandates.Footnote ⁶² Further insight into these limitations is provided by Mullenix's exploration of US federal courts’ powers in sanctioning parties through attorney fees. This discussion brings to light the nuanced boundaries of inherent powers, especially in the context of federal courts and their ability to impose sanctions in the absence of explicit statutory guidance. The case study presented by Mullenix serves as a critical example of how inherent powers, though significant in filling legislative gaps, are not unfettered and must align with established legal norms.Footnote ⁶³

Campagnolo's examination of cabinet immunity in Canada further underscores the limitations imposed on judicial powers by statutory provisions. By revisiting key rulings of the Supreme Court of Canada, Campagnolo argues that certain legislative sections can significantly limit the inherent jurisdiction and powers of provincial superior courts. This analysis is particularly illuminating in understanding how statutory rules can act as a check on a court's authority, especially in matters of evidence admissibility and the legality of executive action.Footnote ⁶⁴ Lastly, Piotrowski's discussion of the Polish legal system provides a broader perspective on the constraints of inherent powers within a democratic framework. The Polish Constitution's emphasis on protecting individual rights serves as a boundary for the exercise of judicial discretion, highlighting the importance of maintaining a balance between judicial authority and the principles of inherent and inalienable human dignity.Footnote ⁶⁵

A critical perspective on the inherent problems associated with the use of equity in judicial decisions is provided by Schroeder. The Supreme Court's approach, discussed in the context of the Wheaton injunction, illustrates the tension between positivism and equitable considerations. This tension underscores the ambiguity inherent in equity, where the application of laws and treaties without equitable limitation can lead to a bifurcation of precedent and a reworking of fundamental principles such as stare decisis and the rule of law. This case exemplifies how the application of equity can vary significantly, leading to different judicial outcomes based on the same set of facts.Footnote ⁶⁶ The case of eBay v MercExchange, as discussed by Robert I. Reis, highlights the inherent requirements of discretionary equitable relief in the context of injunctive remedies. The court's focus on the discretionary elements and requirements of judicial relief, particularly in the absence of categorical presumptions based on property rights, illustrates the challenges in applying equity in a consistent manner. This case raises important questions about the adequacy of compensation, the measurement of value and the determination of relative harms, all of which are central to the equitable process but subject to varying interpretations.Footnote ⁶⁷

Rees's examination of “court substitute” tribunals sheds light on the procedural implications of equity and good conscience clauses. These tribunals, which are directed to act according to equity, good conscience and the substantial merits of the case, demonstrate the procedural flexibility and evidentiary freedom granted to judicial bodies. However, this also highlights the difficulty in complying with the rules of natural justice in the absence of detailed rules of procedure and evidence, thereby adding to the ambiguity and the potential for inconsistent application of these principles.Footnote ⁶⁸ Emilian Ciongaru's conference paper “Equity: Connotations in the current Romanian legal system” provides an insight into how equity is integrated into the judicial development of law, serving a hermeneutic function in making interpretations. The special powers granted to judges in the Romanian legal system to offer resolutions they consider fair, grounded on facts rather than positive law, underscore the subjective nature of equity. This subjectivity, while allowing for flexibility and adaptability, also poses challenges in ensuring consistent and fair application across different cases.Footnote ⁶⁹

The reliance on the principles of equity and good conscience in the invocation of inherent powers by judges presents a complex landscape. While these principles allow for judicial flexibility and adaptability, they also introduce a level of subjectivity that can lead to varying interpretations and applications. This variability poses significant challenges in ensuring consistency and fairness in the application of inherent powers, highlighting the need for a careful and nuanced approach in their use.

Understanding the nature and scope of inherent powers

In light of Jacob's perspective, inherent powers stemming from the expansive concept of inherent jurisdiction pose significant challenges; however, the character of this power persists as an element of procedural rather than substantive law.Footnote ⁷⁰ This viewpoint aligns with judicial practice, where courts depend on their inherent powers to dispense justice and deter vexatious litigation processes.Footnote ⁷¹ To explore the nature of the doctrine within the domain of Sudanese law, it is useful in this context to refer to an illustrative case that demonstrates the practical application of inherent powers in the pursuit of justice, Hameeda Abdullah Kanoan v Fathi Hamid. In this case, the Supreme Court and appellate courts in the country emphasized the principle that procedural rules should not restrict the achievement of justice. The Supreme Court clearly stated that procedure should not be used as a tool of injustice or to cause harm to any party; instead, there should be a liberal and open-minded approach to achieving justice, adapting procedures to this end. This stance is particularly evident in the Court's interpretation of the Civil Procedure Code 1974, specifically section 303, which empowers a court to extend time limits if it deems this necessary for the achievement of justice. The Court's decision in this case reflects a commitment to ensuring that procedural rules serve justice rather than hinder it, demonstrating the vital role of inherent powers in bridging gaps where procedural rules fall short.Footnote ⁷² Similarly, in Yusuf Salih F v Saadia Mustafa, the Supreme Court held that the court's inherent powers under article 303(2) of the CPC 1983 should only be invoked for clear and compelling reasons, namely to prevent the abuse of court procedures and to ensure the attainment of justice between the parties.Footnote ⁷³ Omar Ali Osman v Hamad Ahmed Dar Qil further exemplifies the practical application of inherent powers by courts in ensuring justice. In this case, the Supreme Court also focused on article 303(2) of the CPC 1983, which outlines the court's jurisdiction in monitoring the application of procedural rules. The court's decision highlighted its role in guarding against any potential wrongdoing that could skew the scales of justice. This case underscores the court's proactive stance in using its inherent powers to oversee procedural fairness and prevent any form of judicial misstep that could lead to an unjust outcome. The Supreme Court's intervention in this matter illustrates the critical function of inherent powers in maintaining the integrity of the judicial process and ensuring that procedural rules are applied in a manner that upholds justice and fairness.Footnote ⁷⁴

In illustrating the practical application of inherent powers by courts, a noteworthy example is found in Hassan Mudawee Abdel-Jalil v Morgos Trading Co.Footnote ⁷⁵ In this case, the appeal court faced a situation where a default decree was issued improperly, not aligning with the stipulated requirements of the CJO 1929, section 64(1)(a). The court's decision to set aside the default decree was not based on the grounds mentioned in section 69 of the Ordinance but rather on the recognition of a “just and sufficient cause” for its annulment. This decision underscores the court's ability to exercise its inherent powers to correct procedural errors and ensure justice. The court's intervention in this case highlights the dynamic role of inherent powers in addressing legal gaps and rectifying judicial processes, thereby upholding the principles of fairness and justice in the legal system.

An examination of Jacob's views reveals that he distinguishes between two types of inherent powers: the first pertains to those granted to higher as opposed to lower courts. According to Jacob, these powers stem from the inherent jurisdiction of the court and are not conferred by the rule of law. Consequently, defining such powers can be challenging. On the contrary, both superior and inferior courts may exercise a range of powers vested in them by legal provisions. It is therefore worth noting that the primary distinction between these two categories is that the first set of powers is circumscribed and bound by regulations, while the other is not specifically enumerated and operates without regulatory constraints.

Turning to Sudanese legislation, it can be asserted with confidence that the scope and limits of the doctrine have been clearly defined. An analytical examination of article 285 of the Sudanese Civil Procedure Code suggests that the court is granted authority, within the bounds of its inherent powers, not only to prevent the abuse of its proceedings but also to issue any orders that are necessary to achieve the objectives of justice. Consequently, the court is not bound by procedural rules if such rules conflict with the pursuit of justice; in other words, procedures must not and should not serve as a means to subvert the essence of justice. As previously mentioned, the Court of Appeal in Cairo Insurance Co v Bakhita Wada Allah and Others emphasized that inherent powers should be invoked to protect the interests of justice and should not allow procedural technicalities to supersede the demands of justice.Footnote ⁷⁶ Likewise, in Sudan Government v Pio Madibo, Babiker Awadalla J stated, “We have been able to circumvent the strict time limits established in the code through the utilization of the inherent powers conferred upon the court by the Civil Justice Ordinance, Section 214. When the circumstances of the case indicate that significant injustice has transpired, and the sole impediment to rectifying that injustice is the issue of time, these powers come into play.”Footnote ⁷⁷

These decisions demonstrate that judicial practice in Sudan has adopted the perspective that the court's extraordinary authority, under its inherent powers, should be employed solely to prevent injustice and to uphold the principles of justice. In other words, the principle of inherent powers empowers the court to take necessary actions in the pursuit of its duty in administering justice, even when the legislature falls short in this regard. However, courts do not possess the authority to set aside statutory rules through their inherent powers. To put it simply, the inherent powers of the court supplement and complement the powers expressly granted to it. However, the exercise of such power will not be upheld if it contradicts any of the powers expressly conferred upon the courts by the law.

The controversy over rule-making and the limits of inherent powers

Under article 285(2) of the Sudanese Civil Procedure Code, a court is endowed with a range of implied inherent powers, which are nevertheless meant to supplement and complement the powers expressly granted to it. In this context, the court is granted the authority to ensure equitable litigation and preserve the flow of justice. However, it would not be permissible for the court to invoke its implied inherent powers to override or disregard the explicit provisions of the law: the court may only invoke its inherent powers when the statutory rules fail to offer a solution, as Sudanese judicial practice has consistently clarified on numerous occasions. For instance, in Elser Adam Sable v Haowa Adam, the Supreme Court of Sudan noted that it is firmly established that the Court does not possess the authority to annul or disregard the explicit provisions stipulated by the law, even if the Court's objective is the administration of justice.Footnote ⁷⁸ Consequently, the exercise of inherent powers should be restricted to situations where there are no express provisions addressing the matter. In such cases, the court is entitled to act in a manner that serves justice and prevents the abuse of procedural rules.

An emphasis highlighted by the Supreme Court of Sudan is evident in Mustafa Mahmoud Jibreel v Heirs of Rashid Mahmoud Qabil. In this case, it was ruled that the Court could not rely on its inherent powers to refer the dispute to arbitration without the consent of the litigants or in contradiction to what is stipulated in article 149 of the Civil Procedure Code. In a similar vein, the Court declared that the inherent powers were not meant to supplant or supersede the explicit provisions of the law, but rather were intended to supplement and enhance those provisions. Consequently, if the legislature fails to establish the requisite provisions for a given situation, that situation may be addressed through the inherent powers of the Court.Footnote ⁷⁹ Consistently upholding its stance on inherent powers, in Ali El Bedawi El Mubarak v Abdel Rahman El Khazein, the Supreme Court affirmed that its inherent powers were employed solely to complement explicit legislation and not to substitute for it.Footnote ⁸⁰ In Gamal Mustafa Abu Samra v Abul Ela Engineering Co, the Court of Appeal held that the inherent power of the Court under CJO 1929, section 226, cannot be utilized to extend the period of limitation on grounds of equity and justice.Footnote ⁸¹ Likewise, in Hakeem Andrews and Others v Thuraya Muhammad Ahmed Ateeq, the Supreme Court of Appeal ruled that the Court is not authorized, under its inherent powers, to entertain an action to evict a tenant before the expiration of the notice period specified in article 11(e) of the Rent Restriction Law of 1953.Footnote ⁸² In a similar vein, in Sayed Abdullahi El Fadil El Mahdi v Arab Bank, Khartoum, the Supreme Court of Appeal held that no court has the authority to employ its inherent powers to grant itself jurisdiction that the law did not confer upon it.Footnote ⁸³

As evidenced by these cases, it is clear that the explicit provisions of the law place constraints on the exercise of inherent power. A court cannot invoke its inherent authority to override specific legal rules if these rules are adequate to serve the objectives of justice. On the contrary, it can be argued that the legislature itself states that nothing in the CPC shall be construed as limiting or otherwise affecting the inherent power of the court to issue orders necessary for the ends of justice. Consequently, the court may rely on such delegation to set aside statutory rules in the interest of justice. However, it needs to be clarified from the outset that the inherent powers of the court are intended to bridge gaps and address the shortcomings and rigidity of the legislation; therefore the court may utilize its inherent powers solely to complement and enhance the provisions of the law but not to contravene them. For example, in Abu al-Qasim Hassan al-Qash v Fregerri Lamborelli, the Supreme Court of Sudan held that even though the Civil Procedure Code of 1974 lacks any provision that explicitly permits or prohibits the Court from restoring the status quo ante, the Court may issue an order to do so in accordance with its inherent powers under article 303 of the Civil Procedure Code 1974.Footnote ⁸⁴ Similarly, in Saleh Mohammed Saleh v Heirs of Aisha Ali Abdullah, the Court of Appeal concluded that there was nothing to prevent the trial court from invoking its inherent powers to issue a restraining order if it was necessary to achieve justice, even if the granting of such an order is not prescribed by law.Footnote ⁸⁵

The controversy surrounding rule-making within the inherent powers of the court raises the question of whether the court possesses the authority to establish procedural rules independently, without the need for legislative or executive approval. To address this question, proponents of inherent powers in England point to the fact that the inherent jurisdiction of the High Court empowers it to formulate such rules, as it is essential and necessary for the proper functioning of the judicial system. They argue that courts are inherently authorized to develop rules because they are well equipped to grasp the requirements of the legal system and adapt to changing circumstances.Footnote ⁸⁶ In simple terms, allowing courts to establish procedural rules will help ensure the flow of justice.Footnote ⁸⁷ It is noteworthy that such an argument is no longer valid in light of Sudan's constitutional amendments of 2005; in accordance with these amendments, the authority to enact rules of civil procedure is vested in a legislative committee.Footnote ⁸⁸

On the other hand, opponents of inherent powers argue that the authority to formulate procedural rules should be granted to the court by a legislative or executive body, contending that this approach is essential to preserve a separation between the legislative and judicial branches.Footnote ⁸⁹ Additionally, opponents argue that rule-making through inherent powers could potentially result in courts establishing rules that overly favour their own interests. In practice, it has been rightly observed that courts in many legal systems often depend on their inherent powers to formulate procedural guidelines. For instance, courts in the United States utilize inherent powers to innovate procedural rules outside the conventional rule-making process.Footnote ⁹⁰ Likewise, in Australia, the High Court possesses the authority to establish rules that oversee and govern the proceedings of the federal courts.Footnote ⁹¹ It is worth noting that superior courts consider the procedural guidelines devised through their inherent powers to be binding on lower courts.Footnote ⁹² However, inferior courts may have the ability to contest the validity of such rules if they believe that they are at odds with the provisions of the law or established principles.

It should be noted that the Indian Civil Procedure Code, under section 122, confers specific high courts (excluding the court of a judicial commissioner) with the authority to formulate rules governing their own procedures and the procedures of the civil courts under their supervision.Footnote ⁹³ They may, through these rules, nullify, modify or supplement any or all of the rules in the first schedule.Footnote ⁹⁴ Conversely, under section 125, high courts, excluding the courts specified in section 122, may wield the powers granted by that section in a manner and under conditions determined by the state government. Rules established under these sections must not conflict with the provisions of the Indian CPC. Consequently, it is evident that such rules may not supersede or invalidate the explicit statutory rules. From a different perspective, these rules are subject to prior approval from the government of the state in which the court whose procedures the rules govern is located. In cases where the court is not situated within a specific state, prior approval is granted by the central government.Footnote ⁹⁵ Crucially, the rules established and approved under sections 122 and 125 shall not take effect unless they are published in the official gazette.Footnote ⁹⁶ Concerning the publication of these rules, it has been proposed that such requirements guarantee that the rules are promulgated appropriately.

Furthermore, section 129 of the Indian CPC bestows upon the high courts, excluding the court of the judicial commissioner, the authority to formulate rules pertaining to their original civil jurisdiction, irrespective of anything stated in the Code. According to this delegation, high courts are empowered to create rules, in accordance with the letters patent or any order or law that established them, to regulate their own procedures.Footnote ⁹⁷ Lastly, section 130 of the Indian CPC grants authority to the high court to establish rules concerning matters other than procedure, except for high courts specifically excluded by this section. However, such rule-making requires prior approval from the state government and must also be in accordance with article 227 of the Indian Constitution. It should be noted that rules created under sections 129 and 130 shall possess the force of law only when they are officially published in the gazette.Footnote ⁹⁸ A similar example of rule-making can be found in the United States, where the law grants the Supreme Court the authority to establish procedural rules.Footnote ⁹⁹ It is worth noting that the authority for rule-making is not solely conferred upon the Supreme Court but is also granted to federal courts.Footnote ¹⁰⁰ Hence, federal courts and district courts, guided by the Rule of Civil Procedure, may rely on their inherent powers to establish procedural rules that align with that Rule and the overall legislative intent.Footnote ¹⁰¹

The question that requires consideration here is whether rule-making falls within the purview of inherent powers under the Sudanese CPC. To address this question, it is necessary to examine the language and structure of the section that provides for the exercise of inherent powers; this examination may unequivocally establish that the law does not provide any basis for overturning or altering any clearly stated rules prescribed by the statute. This perspective is further supported by judicial practice in some instances, where it has been emphatically asserted that no court possesses the authority to challenge the explicit provisions of the legislation. For instance, in Sudan Government v Bazzou Gamra El Habashi, it was ruled that the inherent power of the court should not contradict or supersede specific provisions of statutory law.Footnote ¹⁰² Similarly, in Ali El Bedawi El Mubarak v Abdel Rahman El Khazein, the Court of Appeal held that the inherent powers of this court can only be utilized to complement, but not to replace, clear enactments.Footnote ¹⁰³

On the contrary, it can be argued that under section 285 of the current Sudanese CPC and its equivalent in the repealed CJO 1929, it is stipulated that inherent power can be invoked to serve the ends of justice. Furthermore, legal scholars assert that inherent power has been vested in a court due to its duty to administer justice between the parties, and there is nothing in the Code that diminishes the inherent powers of a court. For all these reasons, the court may exercise, among other things, the power conferred upon it to develop remedies, such as temporary injunctions, as long as it is necessary to achieve the ends of justice. This argument is bolstered by judicial practice on various occasions. As previously mentioned, in Abu al-Qasim Hassan al-Qash v Fregerri Lamborelli and Saleh Mohammed Saleh v Heirs of Aisha Ali Abdullah, it was determined that the court, under its inherent powers, may issue various orders such as interim injunctions and take whatever actions are necessary if they are just and equitable, particularly when the provisions of the law lack such remedies.Footnote ¹⁰⁴ Thus it can be observed that the court is not authorized to go beyond the legislation but is authorized to address grey areas when the law is silent.

Taking into account all of these cases, there is an argument for adopting a middle ground. In essence, inherent powers are a double-edged sword, which means they can be employed for the furtherance of justice or its miscarriage. The tone and wording of inherent powers under the Sudanese CPC provide leeway for a court to grant interim injunctions beyond those explicitly provided for by law. It is also my position that the inherent powers of the court are supplementary and complementary to the powers explicitly granted under the CPC. Therefore, when it is fair and just, a court may invoke its reserve power to address any gaps or deficiencies that exist. However, it is obliged to first consider whether such an exercise of power is prohibited by any other provisions of the CPC or conflicts with the overall legislative intent. On the other hand, the inherent powers enshrined under the CPC cannot be used to override or replace the explicitly stated statutory rules, especially if the consequence of such an exercise impacts the substantive rights of the parties. Overall, inherent powers are granted to a court in order to serve the ends of justice, and for all the reasons mentioned above, the court should not permit procedural rules to take precedence over substance; in other words, inherent powers should be invoked to prioritize a substantive outcome over the rigidity of procedural rules.