A SURVEY OF THE SUDAN LEGAL SYSTEM
It has been suggested elsewhere’ that in the Sudan the
reception of the common law of England occurred on the basis of the factor of
the unexpressed consciousness of legal training and affinity”. Yet this
was not a reception of a mere code of rules nor of an art, it was the reception
of a legal logic and of a constantly improving science. Thus the Sudan Courts
have considered themselves to be guided but not bound by English common and
statute law. A common law of the Sudan
will have to develop as an integral part of the society now emerging in the Sudan.
It may well be that this may result in such common law deviating in particulars
from the common law of England
whence its basic rules stem. This has happened in those of the American States
which have accepted the common law and will, no doubt, happen in the Sudan
as well.
In forming this truly Sudanese common
law, i.e. a ‘common. law not based upon religious adherence but upon the
social customs and ethics of the Sudan as a whole, the publication of the “Law
Journal and Reports will, I hope, play a prominent part Without such
publication it will not be possible for lawyers and other members of society to
participate in the developmen of a Sudan common law.
Also
the publication of such reports will enable the law to be known and will assist
in the preservation of those legal principles on which the Law of the Sudan
is built.
There
can be no doubt that the publication of decided cases has led to the develop of
the doctrine of stare decisis in the vatious
(i) see the writer’s article “The Reception of the Common Law in
the Sudan” 6
int. & Comp. L.Q. 401.
(2)
Compare James J. in Morgan v. King (1860) 30 Batber N.Y. 9 (New
York).
(3) Owen
J. Heirs of Ibrahim Khallil v. Abdel Moneim AC-App-6-1926.
(4)
Prof. Roscoe Pound “ Development of American Law and its Deviation from English
Law” 67 L.Q.R 49.
(5) For
the history of law reporting in the Sudan
see the writer’s article “Law Reporting in the Sudan”
6 int. & Comp. L.Q.
common law legal systems. lready in the reign of Henry IV,
the Year Books’ contain references to “the books”, in support of a decision,
and later, during the reign,of Henry VII, Tremayle J. stated : “We cannot order
the law otherwise than it has been in times past, and in all my life, nor
in any books that I have seen, have I seen other The increase in citation of
precedents brought with it its own difficulties. In the preface to the tenth
volume of Coke’s “Reports” a reference is made to the position as it used to
exist - “In those days few cases,in law were cited but very pithily ... and now
... such a farrago of authorities it cannot be but there is much refuse”. This
led to the attempt to seek the reason or principle behind a decision and citing
only such reason or principle as an authority. The importance of the ratio
decidendi was, however, not appreciated until the middle of the eighteenth
century. But the attempt to confine the authority of cases to the ratio decidendi
may not be sufficient to stem the flood of precedents which may result. This
can be seen from the position which exists in the United Statc of America’ and
which led to a modification of the doctrine of stare decisis by the Court of
America.
No such difficulty exists in the Sudan Due to the lack
fpublication of decided cases, it is still uncertain how far the doctrine of
stare decisis really applies in the Sudan; e.g. various attempts to interpret
Section 5 of the Civil Justice Ordinance have been made by he Court of
(1)
Y.B. 3 Hen. IV H., f 13, pl 21
(2) Y.B
21 Hen. vii. H., f. 19. p1. 30.
(3) 10
Co. Rep Pref. p. xii.
(4) See
Bole v. Horton (1670) Vaughan 360.
(5) Lord Mansfield in Jones v. Randall (1774) 1. Cowp. 7.
Also the Preface to Douglas. Reports (1774-1776)
‘Deductions thus formed, and estab1ish in the adjudication of particular
causes, become, in a manner, part of the text of the law. Succeeding Judges
receive them as such, and, in general, consider themselves as bound to adhere
to them no less strictly than to the express dictates of the legislature.
(6)
Report of the Cincinnati Conference on the status of Precedents 54 Univ. of
Cincinnati
L.Q
203.
(7)
Prof. Paton writes in a note ‘‘Will the lawyer of the future operate with
microfilm and electronic devices ?“ Textbook of Jurisprudence p. 163 note 57.
(8)
Section 5 C.J.O. : — ‘Where in any suit or other proceedings in a Civil Court
any question arises regarding succession, inheritance,wills, legacies, gifts,
marriage, divorce, family relations or the constitution of wakes, the rule of
decision shall be —
a) any
custom applicable to the parties concerned, which is not contrary to justice,
equity or good conscience, and has not been by this or any other enactment
altered or abolished and has not been declared void by the decision
a
competent Court;.
Appeal.’ An attempt to resolve these interpretations has
recently been criticised by the Court of Appeal with the result that further
uncertainty has been introduced into these questions. This difficulty is
enhanced by the fact that many decisions still proceed on the basis of a
judgment remembered by a member of the Court, though generally unknown to the
profession. The publication of law reports should alleviate the uncertainty of
the law and should result in the clarification of the stand taken by the courts
of the Sudan on
the quesion of stare decisis. Lower courts have often held themselves bound by
the decisions of superior courts and the.Court of Appeal has paid lip service
to the rule that it is bound by I's previous decisions though it has power to
review its own decisions in a particular case.’ To hold other would only add to
the general confusion and uncertainty But the courts
have not been
b) the Mohammedan
Law, in cases where the parties are Mohammedans,except in so far as that law
has been modified by such custom as is above referred to.”
(i)
Two conflicting interpretations of the term “custom’.’ in Section 5 C J.O.
exist In Abdulla Cherchaftia v. Marie Balyarellis AC-App-12-1934 Gorman J. held
that the term referred to the lex domicilii where the parties are not domiciled
in the Sudan.
Lindsay,
CJ. in Bamboulis v. Bansboulis, AC-Rev58-53 (Cases in the Court of Appeal and
the High Court page 76 at page 82) held, however, that “custom” in this context
refers to local custom originating by usage in the Sudan, and is not applicable
to the personal law of foreigners”, to whom Section 9 of the Civil
Justice Ordinance applies. The reasons advanced
by Lindsay CJ. are, in my submission irrefutable, although I agree with
the criticism that Section 9 does not automatically admit English statute law
as a result of rejecting the application of the personal law under Section 5.
(2)
Babiker Awadalla J. in Kattan v. Kattan, AC-Rev-47- 1957 Th learned Judge
referred to a statement made by a former Chief Justice, Bennett, in a Judges
meeting. Of what authority such statement can be against a dictum in the
Court of Appeal is difficult to see. The other arguments advanced by the
learned Judge are more cogent.
(3)
i.e. the question of the interpretation of the term custom in Section 5 C.J.O.
and the question whether the doctrine of stare decisis applies in the Sudan
so as to bind the Court of Appeal.
(4)
e.g. in Kattan v. Kattan (supra) neither the Judge of first instance, nor the
High Court Judge on Revision, nor the advocates knew of the existence of O.A.
vs. . The Anba Bela Convent, AC-App-20-1931 in which
the Court of Appeal held that the Wills & Administration Ordinance “has no
application save in respect of persons
dying domiciled in the Sudan.”
(5)
e.g. Watson J. in Habib Ghofril v. G. Andrew and the Sudan Government, HC-Ktm
CS-62-1952(Cases in the Court of Appeal etc.page 84) followed Bennett J. in
Manios v. Boxall, AC App 14-1936 on the interpretation of Section 9 of the
Civil Justice Ordinance.
(6)
Section 184 Civil Justice Ordinance infra.
slow in
distinguishing decisions felt to lead to undesired results.
Clearly then, arguments in support of the doctrine of
binding precedent exist as regards the general common law of the Sudan by which
effect is given to Section 9 of the Civil Justice Ordinance. But can such
arguments also apply to the Criminal Law, the main provisions of which are
contained in the Penal Code and in the Code of Criminal Procedure It would
appear that by adopting the legal logic of the common law, the courts of the
Sudan have also adopted the rule that decisions on such Ordinances — even
though they be called Codes — create binding precedents as to the
interpretation of ‘the provisions of these enactments.
It is thus necessary to understand how the hierarchy of the
courts of the Sudan
is regulated and the methods by which review of decisions can be obtained. The
provision of such a guide will enhance the value of the “Reports” and the
relative authority of the decisions reported will be more easily ascertainable.
II.
The Transitional Constitution of the Sudan
created an independent .Judiciary, whose general administration and control is
vested in the Chief Justice. This Constitution provides for two divisions of
the Judiciary, “the Civil division’ and the Sharia division, of which the Chief
Justice and the Grand Kadi” are the respective Presidents and judicial heads7.
(i) see
Hassib J. in Kattan v. Kattan, HC-Est-64-1954 distinguishing Gorman J in
Abdulla Cherchaflia v. Marie Bazyarellis (supra).
(2)
Section 9 C.J.O. : — ‘In cases not provided for by this or any other enactment
for the time being in force the Court shall act according to justice, equity
and good conscience.” See also as to application of the common law 6 int. &
Comp. L.Q. 401 supra..
(3)
Other Ordinances exist which also create criminal offences and provide for
punishment; eg. the Custom Ordinance, the Residual Controls Ordinance, 1950,
the Road Traffic Ordinance, 1942, etc.
(4) e
g. Abu Rannat, C.J. Sudan Government v. Mahmoud Dantata AC-CCA-1-1957
(5)
Article 92, reenacting Self-Government Statute, 1953, Article 76.
(6) A
difficulty is caused here by the use of the word “Civil” which is here used as
opposed to “Sharia”. A further subdivision of the Civil Division of the
Judiciary into Criminal Courts and other Courts, once more leads to the use of
the appellation “Civil”, though this time in contrast to “Criminal”.
(7)
Article 93, Transitional Constitution, 1956, (reenacting Self Government
Statute,
(a)
Civil division of the judiciary1 - Here we find (i)
Courts having criminal jurisdiction; (ii). Ccurts having jurisdiction in non-criminal
causes, generally referred to as “Civil Courts2 and (iii) Courts
having both criminal and non-criminal jursidiction.
(i)
Courts having Criminal Jurisdiction There are six classes of Criminal Courts of
first instance in the Sudan3
a)
Major Courts -- Major Courts are constituted by three Magistrates4
one of whom must be a Magistrate of the first class5. It is usual
for a Judge of the High Court to preside over such courts in his capacity
of Magistrate of the first class6. A Major Court has unlimited
criminal jurisdiction and has power to pass any sentence authorised by law7.
Thus it can try any offence referred to it after a Magisterial Inquiry8.
1953,
Article 77) see also Article 100 Transitional Constitution, 1956 as to powers
which the Chief Justice may delegate.
(1) see
Article 94 Transitional Constitution of Sudan
(2) see
Civil Justice Ordinance Section 4 (2) and (3)
(3)
Section 8 Code of Criminal Proce4ure (C.C.P.)
(4) In
exceptional circumstances there need be only two Magistrates Section. 9 C.C.P
Where there is a difference of opinion, that of the majority prevails.
Dissenting judgments are reduced to writing but are not part of the record only
the majority judgment appears. see Section 187 and 190 C.C.P. and C.C.C. No.
l0.
(5)
There arc, three classes of Magistrate under the C.C.P By virtue of his office
every Governor, Deputy Governor, Judge of the High Court, Province Judge and
District Judge of the First Grade, is a Magistrate of the first class. See
Section 10 C.C.P. Note it is no longer usual for a member of the
.Administration to be a member of a court, though they are sometimes called
upon to conduct Magisterial Inquiries.
(6) See
Section 9 (i) C.C.P. and note Section 12A (4) C.C.P.. that where a Province
Judge has been appointed to a circuit, he exercises the functions
of ajudge of the High Court. In Khartoum it is normally a District Judge
of the First Grade attached to the High Court who presides.
(7) See
Section 16 C.C.P The following sentences may be imposed subject to the provisions
of the enactment relevant to the offence: (I) death penalty (by hanging)
Section
64 Penal Code (P.C). and Sect 245. C.C.P.; (ii) forfeiture of property—— Sect.
64 P.C.; (iii) imprisonment — Sect. 65 P.C.; (iv), detention in a reformatory
in the case of juveniles between the ages of 7 and. 21 years — Sect. 67 P.C.;
(v) fine — Sect. 68-73 P.C.. see also C.C.P.; (vi) flogging — Sect. 76 P.C.;
(vii) whipping —— Sect. 77 P.C.; (viii) preventive detention — Sect. 77A P.C.;
(ix) an order to compensate Sect. 77B. P.C.; (x) probation — Sect. 24
C.C.P.(xi) an order to give security to be of good behaviour—Section. 80
C.C.P.;(xii) police supervision — Sect. 92A C.C.P. It is to be
regretted that the Sudan still applies the archaic punishments of whipping and
flogging. See the writer Crime, Cause an treatment, p. 44.
(8)
Section 156 and 173 C.C.P. Such committal can only be by Magistrate of the
first or of the second class. Sect. 156 C.C.P.
(b)
Minor Courts --- Minor Courts are also constituted by three
Magistrates.1 At least one of these Magistrates must be a Magistrate
of the second class2. A Minor Court has jurisdiction3
to try any case set out in the First Schedule of the Code of Criminal Procedure
as triable by a Minor Court, or by any court of lesser’ jurisdiction, provided
that such case has been referred to the Minor Court after a Magisterial Inquiry4.
Where an offence has been created by an enactment which does not specify the
court which is to try such an offence, a Minor Court has jurisdiction provided
the offence is not punishable with death5 nor with imprisonment
exceeding ten years nor with a fine exceeding two hundred Pounds.’ But although
a Minor Court can impose a fine of up to five hundred Pounds6, it
cannot pass a sentence of more than seven years imprisomnent on any one charge7.
If a Minor Court were to try more than one offence against the same accused8
and wishes to impose consecutive sentences9 it is illogically unable
to impose in the aggregate more than ten years imprisonment nor a fine of more
than two hundred Pounds10.
The
only explanation which can be given for this confused legislation is that when
recently the powers of a Minor Court were amended, only the Section11
dealing with the normal powers of the court were dealt with and no regard was
had to any possible confusion caused by powers set out in other Sections of the
Code of Criminal Procedure As the
(1) In
exceptional cirmcumstances there need he only two Magistrates Section 9 C.C.P.
Where there is a difference of opinion, that of the majority prevails.
Dissenting judgments are reduced to writing but are not part of the record.
Only the majority judgement appears. See section 187 and 190 C.C.P.
(2)
Although a Magistrate of the first class may be called upon to preside, it would
normally not be a Judge of the High Court or Province Judge — Section 9 (2)
C.C.P Note District Commissioners and Assistant District Commissioners are ex
officio Magistrates of the second class Sect. 10 and Sect 5 (i) (d)
C.C.P. It is however unusual for them to sit as members of a Court.
(3)
Section 13 C.C.P.
(4)
Section 156 and 173 C.C.P. Such committal can only be by a Magistrate of the
first or of the second class. Sect. 156 C.C.P.
(5)
Section 14 (2) (iv) C.C.P.
(6)
Section 14 (2) (i) C.C.P.
(7) Sect.
17 C.C.P. amended 1949 Ordinance No. 23.
(8)
Section Penal Code.
(9)Section
23 (i) C.C.P.
(10)
Section 23 (2) Proviso C.C.P.
(11)
Section 17 C.C.P. amended 1949 Ordinance No. 23.
position is at present, an accused would be well advised to
have an offence punishable with up to ten years imprisonment tried by a Minor
Court and to have other offences tried at the same
time rather than to insist on separate trials for each of them. This part of
the Code of Criminal Procedure is thus in urgent need of amendment. A
provision, such as Section 29 of the English Criminal Justice Act, 1948,
whereby a Court of Petty - Session can refer a case to Quarter Sessions for
sentence should it consider its sentencing ,power inadequate, does not exist in
the Sudan1.
(c) Courts
of Magistrates of the First Class — In such courts a Magistrate of the first
class sits on his own as a single judge when trying offences or when holding an
Inquiry prior to committal to Major or a Minor Court2. A Magistrate
of the first class has power to try those offences referred to him by the First
Schedule of the C.C.P. and he may try offences which would be within the
jurisdiction of courts having lesser powers3. Where an enactment
creates an offence without specifying the court which is to have jurisdiction
to try such offence, a Magistrate of the first class may do so unless the
offence is punishable with more than five years imprisonment or more than one
hundred Pounds fine4. Where a Magistrate realises that he has no
jursidiction to try a case he will turn his trial into a Magisterial Inquiry
and commit the accused to a Major or Minor Court5.
A Magistrate of the first class can try an offence either
non-sum marily or summarily, if it be an offence set out in the Second Schedule
of the Code of Criminal Procedure or expressly made triable in that form by the
enactment creating the offence6.’ Where he tries an offence
non-summarily, a Magistrate of the First class can impose a fine of up to two
hundred Pounds but imprisonment up to two years only7, even though
he has power to try offences which are punishable with imprison
(1) A
Minor Court can impose the following other punishments :— whipping — Sect. 77
P.C.; detention under Sect. 67 P.C.; preventive detention — Sect. 77A P.C.;
compensation — Sect 77B P.C., probation — Sect. 24 C.C.P., security to
keep the peace — Sect. 80 C.C.P. and police supervision — Sect. 92A-C. C.C.P.
(2) See
Chapter XVIII C.C.P.
(3)
Section 13 C.C.P.
(4)
Section 14 (2) (ii) C.C.P.
(c)
Section 149 (2) C.C.P.
(6)
Note here Sect. 14 (1) & (2) C.C.P. as to the position where no court is
mentioned in Use enactment creating the offence.
(7)
Section 18 C.C.P.
ment up
to five years1 Such provision seems to have little logic to
recommend itself2.
In those cases where a Magistrate of the Frist class
exercises his discretion to try an offence summarily, his sentencing powers are
somewhat reduced3. In all cases where he tries more than one offence
against an accused4 he may impose in the aggregate up to twice his
normal powers of punishment5.
(d) Courts of Magistrates of the Second Class — A court of
a Magistrate of the Second Class is constituted by such Magistrate sitting on
his own to hear and determine cases. The offences which uch Magistrate
can deal with are (i) those set out in the First Schedule to the C.C.P6.
and (ii) any offence created by an enactment which does not indicate the court
which is to try such offence, provided that the offence is not punishable with
imprisonment for more than two years or with a fine exceeding twenty-five
Pounds. If such an offence is only punishable with imprisonment for up to six
months then, even though there be no express provision to this effect, such an
offence can be tried summarily7 The offences set out in Part I
and II of the Second Schedule to the C.C.P. can also be tried summarily.
The punishment which a Magistrate of the Second class can
impose varies with the nature of the trial i.e. whether it be a summary or a
non-summary trial8. In any case he cannot in the aggregate
impose more than twice the normal punishment where he tries more than one
offence against an accused and desires to impose sentences which are
(1)
Section 14 (2) (II) C.C.P.
(2) A
Magistrate of the first class trying a case non-summarily can impose the
following other punishments — whipping, detention in a reformatory, preventive
detention, probation, compensation, security to keep the peace and police
supervision.
(3)
Sect. 18 C.C.P. imprisonment up to three calendar months, fine up to twenty Pounds,
flogging, whipping, probation, security to keep the peace and police
supervision. Note a Magistrate of the first class can make a ‘Residence Order”
Sect. 92D. C.C.P. in the case of a person whose presence is a danger to public
Sccurity.
(4)
Sect. 74 P.C. and Sect. 23 (1) C.C.P
(5)
Sect. 23 (2) Proviso C.C.P.
(6)
Sect. 13 C.C.P.
(7)
Sect. 14 (1).and (2) C.C.P.
(8) A
Magistrate of the second class can impose the following punishments if
sitting non-summarily — imprisonment up to six calendar months, fine up to
fifty Pounds, whipping, detention in a reformatory, probation,
compensation. If sitting summarily — imprisonment up to one calendar month,
fine up to five pounds, flogging, whipping, probation and compensation.
to run consecutively.
If a Magistrate of the second class commences upon a trial
and finds that the offence is one which he has no jurisdiction to try
then, if it be an offence triable only by a Major or a Minor Court, he would
continue the hearing as a Magisterial Inquiry2. Should it appear,
however, that the offence is one which a Magistrate of the first class could
have tried, he should stay the proceedings and refer the case to such senior
Magistrate3.
(e) courts of Magistrates of the Third class — Such a court
is constituted by a Magistrate of the third class4 sitting alone to
determine the case before him, which he can only do summarily5. His
jurisdiction is confined to cases set out in Part I of the First Schedule to
the C.C.P6. Where an enactment creates an offence without specifying
the court which is to try it, such offence may be tried summarily if the
imprisonment which can be imposed is limited to six months7
From this it would appear that such an offence can be tried by a Magistrate of
the third class. if after he commences a hearing, a Magistrate of the third
class realises that he has no jurisdiction to try the case, he must stay the
proceedings and submit the case to a Magistrate of the first or second class
under whom he is acting8.
(f)
Benches of Magistrates — Benches of Magistrates are set up by the Chief Justice
who may confer upon three Magistrates of the third class the powers of a Court
of a Magistrate of the first class or of the second class sitting either summarily
or non-summarily9.
(i)
Sect. 23 C.C.P.
(2)
Sect. 149 (2) C.C.P.
( Sect.
237 (1) C.C.P.
(4)
Note a Mamur, sub-Mamur or muawin performing the duties of a mamur or
sub-mamur, has the powers of a Magistrate of the third class. It is, however,
unusual for such administrative officers to determine cases. Sect. 10 and
Sect.5 (1) (h) C.C.P.
( Sect
20 C.C,P.
(6)
Sect 13 C.C.P.
( Sect.
I 4 (2) C.C.P. Note, a Magistrate of the third class can only impose
imprisonment op to seven days and fine up to fifty piasters. It is,-however,
possible for these powers to be extended up to twice these amounts. See Sect.
20 C.C.P. But if more than one offence is tried and the sentences are to run
concurrently the aggregate of the punishments must not exceed twice the normal
powers of such Magistrate. See Sect. 23 (2) C.C.P. I has no power to try
juveniles SecL 15
C.C.P.
(8)
Sect 237 (1) C.C.P.
( Sect.
10A C.C.P.
Although
the jurisdiction of these six criminal courts of first instance has been given in
descending order, it would be wrong to assume the existence of a hierarchy
subordinating these courts in any way. Within their respective spheres these
courts are of coordinate jurisdiction.
Before a court commences upon a case it has to decide the
question of jurisdiction. Two problems arise here - first, the question of
competence, already dealt with above, in connection with which it should be
noted that certain prosecutions can only be commenced if a prior sanction has
been obtained1. Secondly, there has to be some local
territorial connection between the offences and the local limits of the
jurisdiction of the court about to consider the case2.
At common law a crime is by nature local and thus the
jurisdiction of crimes is local3. This rule extends not only to
juridical limitations i.e.only in exceptional cases can a crime be prosecuted
outside the legal system wherein it has been committed4, but also it
prevents a crime being prosecuted in an area which has no connection with the
crime. The basis of this rule appears to be the close connection which existed
between a vill or township5 and the administration of the criminal
law. During the reign of Henry II “if a person was slain within its boundaries
during the daytime and the slayer was not arrested, it was liable to an
amercement ... Again, from of old it was the duty of the township to raise the
hue and cry and follow the trail of stolen cattle6”.’ This common
law rule was later rationalised in that the local inhabitants would have
greater knowledge of events and in that it would be more convenient to the
court, which might have to inspect the locus in quo and to witnesses who may be
called to attend the court, that a case be tried within the area where the
factual events, comprising the offence, occurred. In its new “dress” the
convenience of the common law rule has been accepted even in those communities
whose origin does not lie in the social peculiarities of early Norman times7.
(1)
Chapter XIV, C.C.P.
(2)
Sections 123 and 124 C.C.P. Note in case of doubt the Judge of the High Court
attached to a circuit (or a Province Judge where such has been appointed) will
determine the venue. Section 126 C.C.P.
(3)
Rafael v. VereLst (1776) 2 Wm. Bl. 1055.
(4) See
Section Penal Code.
(5)
i.e. a cluster of houses whose inhabitants exercise a certain amount of
agricultural co-operation.
(6)
Pollock & Maidand page 564.
(7) e.g
India.
But
although the Sudan Code of Criminal Procedure adopted this rule of local venue1
a failure to comply with these requirements will not invalidate proceedings2
Also where it would not be in the interest of justice or public tranquility
that a case should be tried in the local area where the crime has been
committed,a transfer to another court can be obtained3.
Such transfer may even be to a court in a different Province4.
Should it become necessary to determine an issue of law in
the course of a criminal trial, a Major Court has power to refer such issue to
the Chief Justice. In the case of other courts such reference would be 1n the
Judge Of the High Court5 of the circuit.
There are four methods by which the judgment of criminal
courts can be reviewed in the Sudan - (1) Appeal, (2) Confirmation (3)
Revision, and (4) The Court of Criminal Appeal.
(1) Appeal : - Only a very limited right of appeal exists
in the Sudan. Within seven days of sentence being passed, a convicted person
can appeal from the judgment of a court of a Magistrate of the first class or
of the second class provided the sentence imposed by such court exceeded the penalty
which such a court could have imposed where it tries cases summarily. An order
to give security to keep the peace6, a residence order7,
an order to abate a nuisance which order has been made absolute8 and
an order forfeiting a bond taken by a court9 can also be appealed
against10.
Appeals
are to the Judge of the High Court11 by written petition.
(i)
Chapter XIII C.C.P.
(2)
Section 129 C.C.P.
(
Section 127 (1) C.C.F.
(4)
Section 127 (2) C.C.P. Note also that cases tried under the extended territorial
jurisdiction claiimed by the Sudan Penal Code Section 4 can be tried wherever
the accused can be apprehended.
(5)
Province Judge, where such has been appointed, Section 12A C.C.P.
(6)
Sections 8o and 86 C.C.P.
(7)
Section 92D C.C.P.
(8) Sections
99— 103 C.C.P.
(9)
Section 299 C.C.P.
(io)
Section 253 C.C.P. Note this right of appeal does not exist where the Judge of
the High Court (or Province Judge) sat as a court of a Magistrate of the first
class.
(ii) or
to the Province judge, where such has been appointed to a circuit. The Judge of
the High Court may delegate his powers to a Magistrate of the first class,
provided that in cases of appeals from a Bench of Magistrates the penalties do
not exceed those which a Court of a Magistrate of the second class could have
imposed.
The
convicted person has no right to be heard in person nor
through an advocate1.’ There is no right of appeal from a verdict of
not gui1ty nor from a refusal to make an order demanding security to keep the
peace or to abate a nuisance, nor from a decision of a
Court. of a Magistrate of the third class nor from the decision of Judge
of the High Court2 sitting as a Court of a Magistrate of the first
class.
2. Confirmation: - Although there is no appeal from the
judgment of Major Courts or of Minor Courts, such judgments3 require
to be confirmed by the Chief Justice or the judge of the High Court
respectively4.,, The convicted person may submit a written petition
of appeal indicating why the judgment should not be confirmed5, but
there is no right to be heard in person or through an advocate6.’
3. Revision : - In all criminal cases, not only where there
is no right of appeal, the Chief Justice may call for and examine the records
of any proceedings for the purpose of satisfying himself as to the
correctness legality or propriety of any finding, Scntence or order
recorded or passed and as to the regularity of the proceedings of the Court7”.
A Judge of the High Court8 has the same powers within his circuit,
except that he cannot revise the proceedings of a Major Court. His decision
however, may be subjected to a further revision by the Justice.
Appeals
from the judgment of such Magistrate, sitting as a Court of a Magistrate of the
first class, go to the Chief Justice. See Section 262A C.C.P.
(1)
Section 260 C.C.P.
(2) or
Province Judge.
(3)
including an order to execute a bond to of good behaviour under Section
80 C.C.P.
(4)
Sections 250, 255 C.C.P.Where the Judge of the High Court under Section 262A
has delcgated his powers to hear appeals or to revise to a Magistrate of the
first class who was a member of the Minor Court, the confirming authority .is
the Chief Justice. Section 263 C.C.P.
(5)
Section 252 C.C.P.
(6)
Section 260 C.C.P.
(7)
Section 257 (1) C.C.P.
(8) or
the Province Judge, where such has been appointed to a circuit. The Judge of
the High Court may delegate his powers to a Magistrate of the first class,
provided that in cases of revisions from a Bench of Magistrates the penalties
do not exceed those which a Court of a Magistrate of the second class could
have imposed. Revisions from the judgment of such Magistrate sitting as a Court
of a Magistrate of the first class, go to the Chief Justice. See Section 262A
C.C.P.
4. The
Court of Criminal Appeal : - In all cases in which the
Chief Justice acts as an appellate, confirming or revising authority, he has
powers to constitute a Court of Criminal Appeal composed of himsself and two
Magistrates of the first class one of whom must be a High Court1
Judge. The accused, the complainant or the prosecutor are entitled to be heard
in person or through an advocate2. Such Court would have all the
powers of the Chief Justice were he to deal with the case himself, and in
addition, such Court would have the power to increase a sentence3.
The powers of the appellate or confirming authority extends
to both the finding and the sentence — if any. There will be no interference,
however, merely on the ground that evidence has been wrongly admitted, or
because of some technical irregularity, if the accused has not been prejudiced
thereby4. As to findings, a finding may be confirmed, altered or
there could be a refusal to confirm. Thus a finding of not guilty could be
substituted for a finding of guilty5 and a finding of guilty of one
offence could be altered to one of guilty of another offence, provided that the
Court could have reached such a finding on the charge and on the evidence
before it; such substituted finding not being of guilty of an offence
punishable with any greater penalty than that applicable to the offence to
which the original finding related6.’ Where the appellate or
confirming authority refuses to confirm a finding, whether of guilty or of not
guilty this could take one of two forms. The finding can be sent back for
revision, once only, to the Court of first instance, which can then revise the
finding itself7, or there can be a definite refusal to confirm a
finding, in which case the proceedings, in so far as they relate to the
finding, are annulled. A refusal so to confirm the finding does not prevent a
new trial being brought and the appellate or confirming authority may itself
order a new trial on the same or fresh charges or order a resumption of the
trial to hear fresh evidence8.
The appellate or confirming authority has similar powers
regarding
(i)
Section 261A (1) C.C.P. Only one judgment appears on the records, that of the
majority, in case of dissent among the members of the Court of Criminal Appeal.
See Sections 187 and 190 C.C.P.
(2)
Section 261A (3) C.C.P.
(3) Section
261A (2) C.C.P.
(4)
Section 261 C.C.P.
(5)
Section 256 (i) (f) C.C.P.
(6)
Section 256 (I) (c) C.C.P.
(
Section 256 (i) (d) C.C.P. but the court of first instance may refuse to do so.
See Sudan Governm’nt vs. Mikashfi (1956) S.L.J. & R.49
(8) Section
256 (i) (d) and (e) C.C.P.
the sentence, if any. Thus it can confirm the sentence or
alter it, e.g. by ordering probation instead of imprisonment etc. Especially
where there is an alteration of the finding could the sentence be altered so as
to conform with the new finding. There is however no power to increase the
sentence2. An increase of sentence is only possible where the
finding is referred back to the Court of first instance for reconsideration3,
in which case such court may vary the sentence and /or increase it in
accordance with any new finding4.
Where the Chief Justice or the Judge of the High Court5
exercise their powers as revising authority, they have the same powers as an
appellate or confirming authority, provided that a sentence of not guilty
cannot be revised after three months nor can a retrial or a resumption of a
trial be ordered after the passing of three months, if the purpose of such an
order is to have a sentence increased or an acquittal revoked6.’ The
position is the same where the Chief Justice deals with a case which has
previously been considered by the Judge of the High Court5, though
he does so as if he were a confirming authority7.
The above analysis of the, powers of review indicates that
some hierarchy can be detected. I would appear that the powers of the Chief
Justice to intervene by revision, even where a case has already been considered
by the Judge of the High Court5 indicates the superior powers and
position of the Chief Justice in an hierarchy and subordinates the decisions of
the Judge of the High Court5 to those of the Chief Justice.’ The
possibility of a reference to the Court of Criminal Appeal, with its wider
power8 also appears to indicate that such Court should be placed
higher than the Chief Justice in any hierarchy which it might be possible to
outline. A difficulty is caused by decision5 of the Chief Justice or
of the Judge of the High Court5 acting as confirming authority.
(1)
Section 256 (1) (b) C.C.P.
(2)
Note similar powers exist as to orders coming up for confirmation under Section
250 and 251 C.C.P. See Section 256 (2) C.C.P.
(3) or
where the case is referred to the Court of Criminal Appeal.
(4)
Section 256 (1) (d) C.C.P. /
(5) or
a Province judge, where such has been appointed to the circuit. Section 12A (a)
C.C.P. Also note here Section 262A and Section 263 C.C.P.
(6)
Section 257 (2) C.C.P. Note the revising authority may revise any order not
just one made under Sections 80, 86, 92D, 299 C.C.P. or made absolute under
Section 102 or 103 C.C.P. See Section 257 (2A) C.C.P.
(7)
Section 57 (3) C.C.P. Note the position regarding pardons under Section 232-234
C.C.P. and Article 17 Transitional Constitution 1956.
(8)
i.e. power to increase the sentence.
No
judgment of a Major Court
or of the Minor Court takes
effect unless such judgment has been confirmed. The question thus arises; is it
the judgment of the Major Court or of the Minor Court, or is it the judgment of
the Chief Justice or of the Judge of the High Court is the effective decision?
Thus is the Chief Justice or the Judge of the High Court1’ acting as
an appellate authority, or is their judgment that of the court of first
instance ? In my submission it is the Court of first instance whose decision is
effective, subject to the powers on confirmation. Thus a judgment on
confirmation, though it be termed “Note on confirmation’ is in effect an
appellate judgment especially as there exists the possibility of submitting a
petition of appeal indicating why such judgment should not be confirmed. On
this approach, the decisions of a Major Court or of a Minor Court take the
position of a judgment which is subject to appeal, with the exception that
there is an automative appeal from the judgments of these courts.
Any doctrine of stare decisis would thus be based upon the
following hierarchy : - judgments øf the Court of Criminal Appeal will
be binding on all revising, appellate and confirming authorities and on all
courts of first instance. Judgments of the Chief Justice acting as revising,
confirming or appellate authority will be binding on a Judge of the High Court
and on all courts of first instance, who will also be bound by the decisions of
a Judge of the High Court within the circuit. Whether each of these courts is
itself bound by its previous decisions or by decisions of courts of coordinate
jurisdiction, is not clear. It may be found undesirable to adopt this approach
in view of the social developments taking place in the Sudan and especially in
view of the fact that the liberty of the subject is here involved2.
Any definite answer to this problem still awaits the formulation of a policy,
which only the reporting of decisions can produce.
(ii) Courts having jurisdiction in non-criminal causes -
Jurisdiction in non-criminal causes is vested in three classes of Courts”, the
High Court of Justice, Province Courts and Town Courts3.
The High Court of Justice has both original and appellat
jurisdiction4. Original jurisdiction is exercised by a High Court
judge sitting on his own5 or with assessors6 when
determining an issue. Such sittings
(1) or
Province judge where such has been appointed to the circuit. Section 12 A
C.C.P.
(2) R.
vs. Taylor [1950] All E.R. 170.
(3)
Section 10 Civil justice Ordinance (C.J.O.)
(4) Section
ii. C.J.O. see infra as to appellate jurisdiction.
(5)
Section 33 C.J.O.
(6)
Section 218 C.J.O. Assessors are nominated by the Court, at its disretion
Order
normally
take place in Khartoum, but can be held anywhere in the Sudan1. The High
Court is thus not limited by any local limitations2 nor is it
limited as regards the value or nature of a suit it may hear and determine3.
Province Courts are subordinate to the High Court4.
They are set up in each Province5 and are presided over by a
Province Judge6 unless there be a Judge or the High Court stationed
in the Province7. The judges of the Province Court are the Province
judge and the District Judges of the first, of the second and of the third
grade. In the exercise of their jurisdiction8 these judges sit
singly, though the Province judge and District judges of the first grade and of
the second grade may sit with assessors9. The Province judge and
District Judges of the first grade have unlimited jurisdiction within the local
limits of their respective circuit or District, but cannot try questions
concerning “Fundamental Rights” arising out of the Transitional Constitution10.
A District Judge of the second grade has jurisdiction in suits of value up to
one hundred Pounds,11 while a District Judge of the third grade may
try defended cases of value up to thirty Pounds and undefended cases provided
the value of the relief claimed does not exceed fifty Pounds12. A
District Judge of the third grade has no power to determine an issue in which
the Government is a defendant, nor where a Public Servant13 is sued
on acts arising out of the exercise of his duties. He is also precluded
IX Rule
2 (1). Although assessors cannot interfere with a decision of the judge, they
can make a written statement giving their reasons for dissenting from such
decision. Such statement will form part of the record of the case. Order IX
Rule 3 (2).
(1)
Section 18 C.J.O.
(2)
Suits regarding immovables should however be instituted in the Province within
which the property, or part thereof, is situated. Section 46 C.J.O.
(3)
Section 33 C
(4)
Section 20 C.J.O.
(5)
Each Province constituting a circuit, except that the three Southern Provinces
together form one circuit.
(6)
Section 26 C.J.O.
(7)
Section 21 (2) C.J.O. there is always a Judge of the High Court stationed
in Khartoum.
(8)
Apart from the Province judge, these judges can only exercise original
jurisdiction
(9) See
Section 218 C.J.O. and order IX.
(10)
Sections 34 and 35 C.J.O. and Article 8 Transitional Constitution.
(11)
Miscellaneous Amendments Ordinance, 1954 No. 1 amending Sect.35 C.J.O.
(12)
Section 35 C.J.O. as amended by Miscellaneous Amendments Ord. 1954, No. 1.
(13)
See Section 4 (18) C.J.O.
from
deciding on the title to immovables1. Since the powers of a District
Judge of the third grade are limited, e.g. he cannot commit to prison a witness
who refuses to appear, he can refer such matters to a higher Court which may
deal with them as it deems necessary2
A Town Court is established by the chief Justice3
and composed of three to five lay members sitting together4. Such
Court is subsordinate to the Province Court, the Province Judge having the
general control over such Court5. The jurisdiction of a Town Court
only extends to the trial of questions of fact referred to it by any court
before which a suit is pending the outcome of which is dependent upon such
question of fact6. Such reference is, however, not possible where
the Government is a party to the suit nor is such reference possible to determine
tille to immovables7. In the absence of agreement between the
members of a Town Court, the decision of the majority prevails8.
A suit should in all cases be instituted in the Court of
the lowest grade being competent to try the issue9. The question of
venue is not of as great an importance here as it is in criminal actions. Thus
in non criminal cases the basis of venue is the convenience of the parties and
of the witnesses bearing in mind the nature of the subject-matter in issue. For
this reason a suit concerning immovables must be instituted in a court within
whose local limits the land or part thereof is situated10. (In all
other suits some connection with the local limits of the court
(1)
Section 35 C.J.O.
(2)
Section 221 C.J.O.
(3) See
Transitional Constitution Articles 9; 92-94, on the basis of which it is
submitted that the powers of the Governor are now vested in the Chief Justice.
I would submit further that any references to administrative officials e.g.
District Commissioners in Section 32 C.J.O. are no longer effective.
(4)
Section 39 (1) C.J.O. There have been two such courts set up, neither of which
has ever sat.
(5)
Section 32 C.J.O.
(6)
Section 36 C.J.O.
(7)
Questions of fact concerning immovables can only be referred to the Town Court
subject to rules which are to be made to govern such reference. No such rules
having been made so far, I would submit, a reference is not possible. Note that
Sheikh’s Courts established under the Native Courts Ordinance (infra) may have
questions of fact concerning registered land or date trees referred to them. In
such instances the Sheikh’s Court would have the powers of a Town Court.
Section 31 C.J.O.
(8)
Section 87 (2) C.J.O.
(9)
Section 45 C.J.O.
(10)
Section 46 C.J.O.
should
be shown1. Thus if the defendant resides within the local limits of
a court or the cause of action wholly or partially arose therein so that it
would be more convenient to obtain the evidence of witnesses there, recourse is
had to such court2. Wherever instituted, a suit can always be
transfered to a more convenient court3.
The High Court exercises appellate jurisdiction as well The
court of Appeal, which is part of the High Court of Justice4, is
composed of the Chief Justice, the Judges of the High Court, Province Judges
and any other fit and proper person of sufficient legal experience appointed by
the Chief Justice5. It is constituted by three or more Judges
sitting together under the Presidency of the Chief Justice or of a Judge of the
High Court.’ In addition Judges of the High Court6 may exercise
power revision over the decisions of District Judges7.
Where the value of the relief claimed, or the value of the
suit exceeds
(1)
Note the possibility of extra_territorial issues being tried on the basis of
the rules of Private International Law inroduced by Section 9 C.J.O. (This will
be the subject matter of a later paper).
(2)
Section 47-48 C.J.O. Note that if only some of the defendants reside within
such local limits, leave of the court to institute proceedings should be
obtained. Note also Section 216 C.J.O. as to evidence being taken on commission
where a party or a witness is excused personal attendancc e.g. because of non
within the local limits of a court.
(3)
Section 49-50 C.J.O.
(4)
Section 11 C.J.O.
(5)
Section 15 C.J.O. In so far as this section and section 16 C.J.O. refer to the
Advocate general such provisions must now be deemed repealed. The powers of the
Advocate general are now exercised by the Attorney general who is
expressly named in section 109 C.J.O. (see Miscetlaneous Amendments Ordinance,
1954). It would appear that there was no intention ,to continue these powers in
the Attorney general as they are inconsistent with the ideal of an
independent Judiciary and the theory of “separation of powers” to which
some effect was givcn by the Self Government Statute, 1953, and by the
Transitional Constitution of’ 1956
(6)
Section 16 C.J.O. Only one judge is required to determine the title to
unregistered land or, if the land is registered, if its value is less than LS.
100 .Order XIII Rule 2. Note also that the Court of Appeal can summarily
dismiss an appeal (Order XI Rule 13A) or hear a revision, when
constituted by only two judges. Order XIII Rule 1.
(7)
This power of revision is exercised by a Judge of the High Court when stationed
in a Province and at all times by the Judge of the High Court Khartoum.
Sections 168 and 170 C.J.O. A province Judge can tiansfer powers to revise to a
Judge of the High Court prepared to undertake this task. He may also transfer
this power, generally or in a limited manner, to a District Judge of the first
grade attached to his Court. Section 181 C.J.O.
LS.200,
an appeal to the Court of Appeal lies as of right2 and is by hearing
in open court. Such right of appeal also exists in respect of certain orders
e.g. a refusal to refer matters to arbitration, or an order imposing a fine or
directing imprisonment otherwise than in execution of a decree3. The
decision of the majority of the Court of Appeal prevails. Where the Judges are
equally divided, this results in a dismissal of the appeal unless the Chief
Justice consents to the question in issue being referred to one or more judges
of the High Court for consideration, in which case the majority so established
will determine the appeal4. The Court of Appeal has powers to
determine a case finally or to send it back for a retrial5. It can
frame issues and refer these for trial, or it can itself detertnine the issues
so framed If necessary the Court of Appeal can make provisions for the
admission of fresh evidence6.
In addition to hearing appeals the Court of Appeal has
powers to revise the decrees or orders of a Judge of the High Court or of a
Province Judge in those cases in which no right to appeal exists7. Where
an application for revision is not summarily dismissed, such revision will
proceed upon the written submissions of the parties. A hearing in open court is
only possible by permission of the Court of Appea8. When revising a
decision, the Court of Appeal may confirm such decision or order a retrial
before a competent court or itself give a judgment on the merits of th case. A
decree or order will not be revised or substantially varied on the ground of
some technical defect, provided such defect did not affect the merits of the
case or the jurisdiction of the court9.
(1)
Miscellaneous Amendments ordinance, 1954.
(2)
Appeals must be presented within one month of the decree appealed from Order
XII Rule 2, and must be by written memorandum setting out all the grounds
relied upon. Order XI Rule 1. Cross-Appeals must be presented in the same way
within fifteen days of the appeal. Order XI Rule II.
(3)
e.g. under Section 76 (4) C.J.O. see generally Section 170 C.J.O. as to orders
from which appeals lie.
(4) Se,tion
171 C.J.O.
(5)
Order XI Rule 19
(6)
Section 172 C.J.O.
(7)
Application for revision.must be made by petition within fifteen days of the
decree or of the order. Order XII Rule . They are examined by the Chief
Justice or by a Judge of the High Court to whom this power has been delegated
and may be dismissed summarily or referred to the Court of Appeal. Section 176
C.J.O.
(8)
Section 177 C.J.O. The Court may admit additional evidence. Section 178 C.J.O.
(9)
Section 182 C.J.Q.
The
Province Judge1 has these powers of revision over the judgements of
District Judges attached to his Province Court, and the Court which referred a
question of fact to a Town Court has powers to revise the decision so reached2.
The power to set aside the decisions of the Town Court is limited to absence of
jurisdiction in the Town Court, corruption or misconduct by its members, fraud
by a party to the suit, adjudication against the weight of evidence, excessive
damages or discovery of fresh evidence3. In these circumstances the
revising authority may itself determine the issue.
In addition to appeals and revisions a power to review a
decision exists in all courts. The Court of Appeal may revew its decision at
any time, but an application to the court must be made in writing within three
months of the order or decree having been made4. If any other Court
wishes to review its decree or orders, otherwise than merely to correct a
clerical error, it must obtain permission to do so5. .Where a
substantial review is envisaged, the court must allow a party affected by such
review to be heard in support of the decree or order6.
This analysis of the courts having jurisdiction in
non-criminal matters appears to indicate the existence of a hieracrhy which is
given statutory recognition by the Civil Justice Ordinance. Thus the Province
Court is expressly stated to be subordinate to the High Court7 and
the Town Court to the Province Court8. Within the Province Court,
however, subordination is only to the Province Judge9 the Courts of
District Judges being of co-ordinate jurisdiction within their respective
spheres. This subordination is not a mere administrative one. The analysis of
appellate and revision authority indicated a hierarchy which influences the
powers by which one court can bind the discretion of another in the
determination of a legal issue. It is thus important in
(1) or
ajudge of the High Court where such is exercising the functions of the Province
Judge.
(2)
Section 575 C.J.O.
(3)
Section 180 C.J.O.
(4)
Order XIV Rules 1 and 2.
(5) A
Town Court requires the permission of the court which had referred the question
to it, a District Judge requires the permission of his Province Judge and a
Province Judge or a Judge of the High Court requires the permission of the
Chief Justice. Section 184 (2) C.J.O.
(6)
Sect 184 (3) C.J.O.
(7)
Secuon 20 C.J.O.
(8)
Section 27 (2) C.J.O.
(9)
Section 26 C.J.O.
the consideration of the application of the doctrine of
stare decisis to the Sudan.
In my submission the distinction between appeal and
revision is immaterial in so far as lower courts are concerned. Whether a Court
of Appeal gives its judgment on appeal or on revision will make no difference
to courts of first instance or to Province Judges1 exercising
revising powers. The only importance lies in the manner in which the Court of
Appeal reaches its decision. Clearly a decision sub silento cannot be
regarded as authoritative as one which has been reached after a full hearing
and deliberation of all the issues in open court2. The powers of the
Court of Appeal to revise the revisions of the Province Judge clearly
subordinates these decisions to those of the Court of Appeal.
A difficult arises, however, in connection with the
question whether courts are bound by their own previous decisions ? The power
to review would appear to undermine the certainly of the law, in that no court
is absolutely bound by its own decisions. In fact this uncertainly is of a mere
temporary nature. The Court of Appeal must be moved to review its decision
within three months of such decision being given3. Also the fact
that there can be no alteration unless a party affected thereby is given an
opportunity to be heard in support of the existing decree or order4
would prevent a subsequent Court from interfering and altering a decision which
has stood for some time. The fact that a decision may no longer be subject to
review does not, however, mean that such decision is binding on subsequent
courts. This question is one which remains to be determined5.
(iii) Courts having both criminal and non-criminal
jurisdiction - The courts with which we have dealt so far are the organs of
direct government from a central source. The administration of justice is,
however, not something new in a country which has a tribal structure. An
attempt to utilise this structure in the administration of the Sudan was
recommended in the Milner Report of 1920 “Having rcgard to vast
(1) or
of a Judge of the High Court.
(2) per
du Parq L.J. Yelland v Powell Duffryn Collieries (1941) All E.R. 278 at page
295.
(3)
Order XIV Rule 1 (2).
(4)
Section 184 (3) G.J.O.
(5) It
may be found to be undesireable that the Court of Appeal be bound by its own
decision. As the highest Court of appeal in the legal system some flexibility
may be desirable here. Note Lord Brougham In Birdwhistle v . Vardil
(1840) 7 Cl. & F. 895. pp. 921-922.
S.L.j.R.—
extent and the varied character of its inhabitants, the
administration of its different parts should be left, as far as possible, in
the hands of the Native Authorities wherever they exist, under British
supervision. It is on the basis of this policy that the administration
ofjustice through local participation was first considered. The various means
adopted to bring this about culminated in two Ordinances — The Chiefs’ Courts
Ordinance and the Native Courts Ordinance. The courts established under these
Ordinances regulate and control the administration of justice by local native
administrations applying native laws and customs, in both the criminal and
non-criminal spheres, in so far as such laws or customs are not contrary to
justice, morality and order, and applying also general Ordinances, where power
to administer such has been expressly conferred upon them.
The trend now appears to be somewhat in reverse. Through
the extension of the organs of the Judiciary set up under the Code of Criminal
Procedure and under the Civil Justice Ordinance, it is hoped to bring about an
end to the multiplicity of courts applying different laws. To have one law
common to all disputes and applicable to all parties, with the exception of
disputes concerning personal status, administered in one series of courts.
Chiefs’ Courts - Chiefs’ Courts are established in the
three Southern Provinces of the Sudan1 by warrant. of the Chief
Justice2, under the Chiefs’ Courts Ordinance, 1931. Such warrants
set out the persons3 who are to sit in the court and define the
jurisdiction of the Court4. Subject to the provisions set out in the
warrant, a Chiefs’ Court has jurisdiction in all non-criminal cases where the
parties are natives of Africa, other than Egypt, and are domiciled in or
ordinarily resident within the three Southen Provinces. If one of the parties
to a civil suit is not so domiciled or ordinarily resident, or is a Government
official5
() Bahr
el Ghazel, Equatoria and Upper Nile Province. Such courts have also been set up
in the area normally inhabited by the Ngork Dinka tribe of Kordofan Province.
Chiefs’ Courts Ordinance Application (No. 1) Order, 1944
(2) who
may also withdraw such warrant. Section 5 Chiefs’ Courts Ordinance, C.C.O. Note
the powers of the Governor under this Ordinance are now vested in the Chief
Justice. Self Government Statute; 1953 Article 76 (6) the povisions of which
are continued by the Transitional Constitution, 1956, Article 116 (2).
(3)
Appointments are by name and is personal to the appointee.
(4)
Sections 4 (2) and C.C.O.
(5) See
section 3 C.C.O. for definition of “Government official”.
his consent is required before the Chiefs court ( can
exercise jurisdiction. In criminal cases, the Chiefs1 Courts have
jurisdiction where the accused is a native of Africa, other than of Egypt,
provided the accused is not a Government official2 originating from
or domiciled outside the three Southern Provinces3. ‘Government
officials who are domiciled in or originate within the three Southern Provinces
can only be tried by a Chiefs' Court if the consent of the District
Commissioner has been obtained to such prosecution4. The law administered
by the Chiefs’ Court is any Ordinance indicated by the warrant establishing the
court and the native laws and customs prevailing in the area over which the
court exercises its jurisdiction, provided that, such laws or customs are not
contrary to justice, morality, and order5.
There are three classes of Chiefs’ Court. ACourt of a Chief6,
sittinig alone, a Court of a Chief sitting as President with other members and
a Special Court7, one member of which must be a President of a
Chiefs’ Court8. Special Courts are set up, when it appears that the
ends of justice will be better served thereby,. where the accused is a Chief,
or where the accused and the complainant are subject to the jurisdiction of
different Chiefs, or where the usual powers of a Chiefs Court are considered
inadequate to deal with the case9.
In both civil and criminal cases, appeals from the
decisions of a Chiefs Court10 are as of right and are to the Chief
Justice11, or to a
(1)
Section 6 (1) (a) C.C.O.
(2) See
section 3 C.C.O. for definition of “Government Official” (supra)
(3)
Section 6 (2) C.C.O.
(4)
Section 6 (1) (b) C.C.O. Note District Commissioner includes. Assistant
District Commissioner. Section 3 C.C.O. An accused who is not domiciled or
ordinarily resident in the three Southern Provinces can apply to have the case
transfered to another court having jurisdiction to determine the issue. Section
6 (1) (c) C.C.O.
(5)
Section 7 (1) C.C.O. Note Section 7 (2) — (4) C.C.O. as to the punishments
which, subject to the warrant establishing the court, can be imposed.
(6)
Section 3 C.C.O. “Chief includes tribal or village headman or any native
exercising with the approval of the Government tribal or customary powers over
a tribe or section of a tribe or over a village or district.”
(7)
Section 4 (1) C.C.O.
(8)
Section 8 (2) C.C.O. Note that if there is a tribal fight with persons subject
to the jurisdiction of a Native Court, some members of the Special Court should
be chosen from persons entitled, to sit in such Native Court.
(9)
Setion 8 (1) C.C.O. Sec Section 8 (4) C.C.O. as to the punishment which can be
imposed.
(10)
Not from a special Court in criminal which recuires that cofirmation of
the Chief justice before its dubisions can take effect. Section 8 (5)
(11) or
to the Judge of the High Court, Province Judge or Resident Magistrate i.e. a
Chiefs
Court thereinto authorised by him. In criminal appeals powers exist to increase
the sentence, provided that the accused is given a hearing and that such
increased sentence does not exceed the powers of the Chiefs’ Court from which
the appeal came. In addition to the powers to hear appeals, the Chief Justice1
has powers to revise the decision of any Chiefs’ Court, including a Special
Court2. But a sentence of not guilty cannot be revised. It however,
possible for the revising authority to cancel all proceedings and, within six
months of a Chiefs’ Court or Special Court having given a judgment, a rehearing
before a court established wider the Code of Criminal Procedure or the Civil
Justice Ordinance can be ordered3.
Native
Courts: - The Native Courts Ordinance, 1932, estab1ished local customary
courts in those areas of the Sudan not covered by the Chiefs’ Court Ordinance4.
Native Courts are established by the Chief Justice5 by warrant
setting out the composition6, powers and jurisdiction of such courts7.
The law administered in such courts is the provisions of any Ordinance
expressly mentioned as applicable in the warrant setting up the court and the
native law and custom prevailing within the local limits of such court, in so
far as these laws or customs are not contrary to justice, morality or order8.
There
are five classes of Native Courts (a) Sheikh’s Courts — being composed of a
Sheikh sitting as President together with members
District
Judge of the first grade and Magistrate of the first class with powers in a
particular district, or as regards revisions only, a Magistrate of the second
class to whom the Chief justice has delegated this power, or to a Governor to
whom this power has been delegated by the Chief Justice Article 76 (6) Self
Government Statute, 1953, and Article 100 Transitional Constitution, 1956,
linked with Section 12A C.C.P. and Sections 21 and 26 C.J.O. see also
Miscellaneous Amendment Act, 1956 (Act No. 3) Section 4.
(1)
Note poulvagination for Journal part.
(2) See
supra p. 28 notes 10 and 11.
(3)
Section 10 C.C.O
(4)
Section 3 Native Courts Ordinance (N.C.O.)
(5)
Section 6 (1) N.C.O.
(6)
Appointment is by name and personal to the appointee.
(7)
Sections 6 and 7 N.C.O.
(8)
Section 9 (i) N.C.O. Some Courts have jurisdiction in cases of personal status.
Here the Sharia will be applied, a trained AIim being attached to such courts,
who is under the supervision of the Sharia Courts.
(9)
Section 4 N.C.O. “Sheikh includes any tribal or territorial chief vested with
authority over a tribe or section of a tribe, or over any district or part of a
district, or over a village.”
(b) A
Court of a Sheikh sitting in Meglis i.e. sitting with elders; (c) A Village Court
— i.e. a court whose jurisdiction is confined to a village, or a group of
villages, composed of a group of villagers sitting under the Presidency of a
person appointed so to preside2 (d) A
Court of a Sheikh sitting alone and (c) a Special Court3. The warrants
establishing these courts have introduced a further classification applicable
to Sheikh’s Courts, which are divided into (i1 Main Courts, (2) Regional Courts
and (3) Branch Courts. Regional Courts being courts having powers intermediate
between Main and Branch Courts. It is also now usual to standardise the
regulations governing the courts and attached to the warrant4.
In civil, i.e. non-criminal, matters the parties before the
Native Court, other than a Special Court, must either be subject to the local
jurisdiction of the court or have consented to jurisdiction being exercised
over them. There is, however, no jurisdiction to adjudicate in any case
concerning the ownership of registered land owned by co-heirs in undivided
shares5, except in an action for partition6. A village
Court is further limited in civil matters to suits not exceeding LS.5 in value7.
In criminal cases a Native Court has no jurisdiction where the accused is a
Government official8; nor is it possible for serious offences such
as homicide, offences against the State or offences relating to slavery to be
tried by such caurts9. The powers of a Village Court are still
further confined to minor offences such as assault, hurt, criminal trespass etc10.
() It
is the policy to eliminate such courts. No new ones have been established.
(2)
Village Courts Ordinance, 1925, (repealed but referred to for composition and
meaning of terms).
(3)
Section5 N.C.O.
(4)
Sections 7 and 17 N.C.O.
(5)
Section 8 (1) (a)-(c) N.C,O. But note the provisions of Section 31 C.J.O. as to
a Sheikh’s Court being referred to in the determination of questions of fact
relating to registered land or date trees, by a court established under the
C.J.O., in which case such Sheikh’s Court has all the powers of a Town Court
under the C.J.O.
(6)
Section 8 (3) N.C.O. In such an action for partition of land, there is no need
for all the parties to be resident within the local jurisdiction of the court,
provided that the land is so situated.
(7)
Section 8 (1) (h) N.C.O.
(8)
Section 8 (1) (d) N.C.O. see Section 5 N.C.O. and Native Courts Ordinance
Application (No.1) Order, 1940 as to the definition of Government official.
(9)
Section 8 (1) (f) and First Schedule N.C.O. The warrant may further restrict
the powers of the court. Note, however, that a Special court may try cases of
culpable homicide not amounting to murder which arose out of a tribal fight.
(10)
Section 8 (1) (g) and Second Schedule N.C.O.
Local
Courts, i.e. Courts under the Chiefs’ Courts Ordinance and the Native Courts
Ordinance, usually direct that in criminal cases the Penal Code be applied. A
change to a centralised Judiciary in this case will not be insurmountable. It
is in the civil i.e. non-criminal sphere and especially in the sphere of
personal law that the main difficulties lie. The Penal Code provides for
adultery to be punished with imprisonment and/or fine1. In many
tribal societies, adultery by a wife is also a wrong for which the husband can
exact damages from the adulterer2. There would clearly be a feeling
of injustice if the husband does not obtain his remedy. Thus alongside the
criminal law the civil remedy will have to be allowed for. Whether or not such
offence is in fact a civil or a criminal one is not always clear3.
and depends in most instances upon the stage of development which the tribal
society has reached. The advance of education and the emergence of some
unifying idea may result in the disappearance of the various local native laws
and customs. In the meantime tribal feelings have to be catered for by the
provision of Local Courts alongside those provided by the central Judiciary4.
(b) Sharia Division of the Judiciary5 : For the
sake of completeness of this survey it is desirable to consider the structure
of the Sudan Mohammedan Law Courts6 which, subject to any directions
fiom the Grand Kadi, apply Sharia as expounded by the Hanafla school of jurists7.
In the exercise of their judicial functions the Kadis of the
(1) Sections
432-433 Penal Code.
(2) see
Nalder “A Tribal Survey of Mongalla Province”, Seligman “Pagan Tribes of the
Niotic Sudan” etc. Such approach to adultery is not confined to the Southern
Sudan but also exists in the Northern, islamised Sudan where the islamic
religion has in many cases been merely superimposed upon an existing social and
cultural setting. Thus the Native Courts of the Gawama’s in the Eastern
Kordofan Province are often called upon to entertain suits of this kind. There
is however no fixed sum laid down. Also of note is that the common law provides
for the recovery of damages for adultery Butterworth v. Butterworth [1920] P.
126.
(3)
Nalder .cupra indicates how, what would appear a purely criminal offence
acquired civil character by the change from punishment (generally death) to
compensation and fine.
(4) It
may be of interest to note here that when the separation of the functions of
administration and justice puts Chiefs and Sheikhs to their election, the over
whelming majority elect to continue their judicial functions.
(5)
Article 95 Transitional Constitution, 1956.
(6)
Sudan Mohammedan Law Courts Ordinance, 1902, and the Organisation and Procedure
Regulations, 1916, made thereunder, as amended by the Mohammedan Law Courts
Organisation and Procedure Regulations (Amendment) 1957, (1957 L.R.O. No. 40).
(
Regulation 53.
Mohammedan
Law Courts are independent of and in no way subordinate to the Civil Courts;
who have no right to interfere with them1.
The judges of the Sharia Division are the Grand Kadi, who
is the President and judicial head of the Division2, the Mufti, the
Inspector of Mohammedan Law Courts, High Court Kadis, Kadis of the first grade and
Kadis of the second grade. Original jurisdiction is exercised by Kadis of the
second grade, Kadis of the first grade and High Court Kadis who are all sitting
alone3. The jurisdiction of these courts depending in each case upon
the value of the suit4. -In exceptional circumstances the Grand Kadi
may exercise original jurisdiction5 and a member of Court of
Appeal may be called upon to rehear a case at the request of the Court of
Appeal6. The Court of Appeal is composed of the Grand Kadi, the
Mufti and the Inspectors of the Mohammedan Law Courts. The quorum is three
members, and the Grand Kadi or in his absence, the Mufti presides. If there are
insufficient members for any sitting of the Court, the Grand Kadi may appoint a
High Court Kadi or a Kadi of the first grade to make up the necessary number7.
Appellate
jurisdiction is exercised by Kadis of the frist grade8
over decisions of Kadis of the second grade and by High Court Kadis over
decisions of Kadis of the first grade or decisions of Kadis of the second grade
not appealable to a Kadi of the first grade9, while appeals from the
High Court Kadi go to the Court of Appea10 The Grand Kadi also has
powers to hear appeals from any Court of a Kadi sitting alone11.” In
addition to powers to hear appeals, the Court of Appeal has powers of revision
over the decisions of Kadis of the first grade, of
(1)
Regulation 52.
(2)
Article 93 Transitional Constitution, 1956.
(3)
Sections 4 and 5.
(4)
Regulations 22 - 24 as to Kadis of the second grade who in general are restricted
to Suits of value not exceeding fifty Pounds. Regulations 26 - 28 as to Kadis
of the first grade, who in general are restricted to suits of value not
exceeding five hundred Pounds. Regulation 29 as to a High Court Kadi whose
jurisdiction is unlimited in value. There is also a local territorial
limitation imposed by the Grand Kadi upon each court. Regulation ii.
(5)
Regulation 36 e.g. where there has been no previous adjudication on such matter
by any Mohammedan Law Court.
(6)
Regulations 31 and 32.
(7)
Section 3.
(8)
Regulation 25.
(9)
Regulation 29 (d). The High Court has also powers of revision. Regulation 35.
(so)
Regulation 30.
(is)
Regulation 36.
High
Court Kadis and of the Grand Kadi whether given in th
exercise of his original or appellate jurisdiction.
III.
A question which confronts an intending litigant is in
which Court he should commence his actions ? It is the nature of the subject
martter issue which will determine whether a court having crminal jurisdiction
or one having non-criminal jurisdiction should be resorted to, i.e. is the
subject matter of the action a crime or a civil wrong?2
The answer to this question and the nature of the crime, as well as the
status of the accused will determine further whether the courts established
under the Code of Criminal Procedure or a Local Court3 has
jurisdiction. A duality of jurisdiction may arise where a Local Court has been
given jurisdiction to try offences under the general penal law. Such a
duality is however, of miror importance and, wherever the prosecution is
in the hands of the police or other administrative authority, would be
decided in favour of Courts under the Code of Criminal Procedure. The choice in
these cases lies wth the prosecutor or complainant.
A more
important question and one of greater difficulty arises in connection with
civil, i.e. ron-criminal, cases. The question to be determined here is
whether the Civil Courts4 or the Sharia courts5
have jurisdiction. The jurisdiction6 of the Sharia Courts is clearly
delimited in that they are only competent to decide ‘ Any question regarding
marriage divorce, guardianship of minors or family relation
(,)
Regulations 31 and 34 Note the existence of a Committee cf Supervision
which has powers to inspect the judicial and administrative work of
kadis of the frist and of the second grade. Regulations 42 and 43.
(2) see
the author “ crime, Cause & Treatment” Chapter 1. The Meaning of Crime.
(3)
i.e. a court constituted under the Chiefs’ Courts Ordinance one set up under
the Native Courts Ordinance.
(4)
i.e. Courts constituted under the Civil Justice Ordinance the civil
division of the Judiciary.
(5)
i.e. Courts established under the Sudan Mohammedan Law Courts
Ordinance the Sharia Division of the judiciary
(6) All
references to Sharia have been taken from ‘Family Law’ by Mohamed Abu Zahra;
“Th Law of Wakf" Henry Cattan’and “Conflict of laws bye Shukri Cadahi;
collected essays in Laws in the Middle East. I a,m also indebted to my
colleague Sheikh Ahmed el Ghandour, Senior Lecturer in Sharia at the
University of Khartoum, for explaining some of the intricacies of sharia
to me
ship provided 1 llm rsiarri.age to which the rst reit a’as
cu iudeO in C( c’rdar. ooth )tluoa io Loss - e pat ties ate al Müiioti -
rneaans.
\r ‘ tfl1eSt3 rc a. hi ic ., : SUCCOSS1Ofl. as olscnter iC
tion or
gu ardm.a bin of an int- person. pso ided hia t I e endower, io’oos r tha
cieceasec i t ‘ m andictdd or lost pers a i fnFmarnrn Any q C ‘ u on 0 (So
(ilefltiOtft ill si e last two ssh sections pros iJed ‘ha z tue part i whctto r
heis g Moham:ri dana or not. makc a thr’ I ‘ and signed by dci i as t1 Cour to
ntertain the questio 1 ca rtatirg that they ag--cc to be i h. t’ic ruling of
Moharnm. dar. L
i\o
eqiisvt. exclusion of jirhdsc can be found in toe Civil Justico Ordinance.
Civil Courts are however, nt corn ‘:0 decide in iujtS to which all parto ace
Mohommedans, except wi h the c nrest o’ a the parties, a question regarding
succession, innerita ice, viills, legaties, gifts aarriage, divorce, family
relations, or ‘he ccnsdtc.tion of wakf.’ s ild such question arise incidental
to an issue efore a. Civil Coart. s .ch Court must adjourn the ease to er the
parties to obtain a sicn front a competent haiia Court or the Oourt may itself
stats ‘ c se o formulate an issue for trial by a competent Sharia Court.
No
difTicu can arise v Jaw ‘hr parties ag’ee to submit their case to a particular
Division of ii: Judiciar In such an instance the Di juan concerned will be
v-s:ed. asith j irisdiction to the exclusion of the other. There are, hew. v
arumbe of cases in which the jurisdic don of tfle ‘ Divisions c’ e i- mos :
obvious example is a questio regarding rtterdiction or g’ .rdianship o an
interdicted or lost Muslim Though such status is urk: sn to the coimon law,
some provision may have to ibund under he: on 9 of the Ctvii Justice Ordinance
if the Civil Conrts were to ext se jurisciciio .. Also as :wgards wakfs In a
(s)
Mchammedan Law l’ ris Ordinance, S ni )fl 6. So far only two cases have occurred
in which - iJ ,iave as ed that qoestions be determined by Sharia Courts. The ‘
were Copts, ‘ :ose law of succession at that time was the same as a’Iush law.
Note a Kadi o thr second grade cannot exerche this jurisdiction.
(2)
Section 38 Cvt. Justice O (CJ. ). no request has ever been received from a Musi
that this jurisdiction be n :rcse Note .Vmir ci Huda Abdel Chard v. Osman I-L
HC-l 1953.
(
Section 9 CJ 0.
(
subjecs to apç als in the ordinary wa 3ecti 39 (a) CJ.O.
( A
decis to btained may, on applicat :n to t’ae Chief Justice, be re-submitted to
the -Thara -ligF. Court for a final de isirn. Section 39 ( C.J.O.
wakf two questions arise the question of the constitution of
a wakf and that of control. Though the former is excluded from the jurisdiction
of a Civil Court, the latter is not.
The existence of mixed-marriages gives rise to most of the
difficulties not only as regards jurisdiction, but also as to the law to be
applied2. Such a marriage may have been entered into in accordance
with the Mohammedan Law, but if the wife is not a Muslim3, or if the
wife or both parties tosuch marriage subsequently ceased to be Muslims, the
Sharia Courts and the Civil Courts would have jurisdiction to determine
questions of marriage, divorce, guardianship of minors or family
relationship. The jurisdiction of the Civil Courts would then no longer be
excluded4. In connection with succession it must be noted that
although the Sharia provide that in an intestacy a non-Muslim cannot inherit
from a Muslim nor a Muslim from a non-Mulsim5, a Muslim
(i)
i.e. marriages between Muslim and non-Muslim.
(2) See
P.S. Atiyah : Some Problems of Family Law in the Sudan Sudan Notes &
Records, as to the difficulties concerning the law to be applied. This question
is especially fraught with difficulties in view of the provision of Sharia that
in relationships between Muslim and non-Muslim, the Sharia would have to be
applied by the Sharia Court (Qu’ran V.54-55 IV. 140) Such difficulty does not
confront the Civil Courts who are merely called upon to apply a rule complying
with justice, equity and good conscience” unless some provision or Ordinance
covers the issue. In Administrator-General v. Thoraya Ibrahim Salam
AC-App-41-1955 the Court of Appeal of the Civil High Court, was prepared to consider
a rule which also existed in Sharia as being contrary to “justice, equity
and good conscience” (The case concerned Coptic succession laws).
(3) If
the husband was a non-Muslim at the time of the. marriage, the marriage could
not have been concluded according to Mohammedan Law. Quare whether it could
have been concluded according to Civil law in view of lack of capacity. The
difficulty here is due to the dual conflict i.e. the internal conflict of laws
based upon religious laws, and the Private International Law Rules, generally
based upon domicile. Which would be applied in the case of a Muslim woman
domiciled in England wishing to marry a non-Muslim domiciled in New York, the
wedding to take place in Khartoum ? Would it make any difference if the prospective
husband were domiciled in Khartoum ? If the husband left Islam but the wife did
not, the marriage would be automatically dissolved according to Sharia. If the
marriage had been entered into according to Mohammedan Law both the Sharia
Courts and the Civil Courts would now have jurisdiction, e.g. as to
guardianship of minors. Would a Civil Court consider the marriage terminated ?
These and many other questions still await consideration by the Civil Courts.
(4)
Section 38 C.J.O. only excludes the jurisdiction of the Civil Courts if all the
Parties are Mohammedans.
(5) The
Muslim will not inherit from the unbeliever nor the unbeliever from the Muslim”
— Hadith.
can make a bequest, i.e. he can leave a legacy to a
non-Muslim e.g. to his non-Muslim or to non-Muslim parents etc1.
provided that his legacies do not exceed one third of his estate after payment
of debts2. Also, though a donor of a gift may be a Muslim, the donee
need not be one. Thus both the Sharia and the Civil Courts would have
jurisdiction in these cases as to the will, legacies or gift. The former Court
because the test or the donor was a Muslim and the latter on the basis that the
parties to the suit would in the non-Muslim widow, parents, donee, etc3.
In all those cases in which a duality of jurisdiction
exists or in which neither Division claims jurisdiction4, there will
have to be a reference to the Court . of Jurisdiction set up by the
Transitional Constitution5 This Court consists of the Chief Justice
as Preside the Grand Kadi, two judges of the Civil High Court and one judge of
the Sharia High Court. A conflict of jurisdiction which would involve recourse
to the Court of Jurisdiction could only arise if (a) proceedings have been
instituted in Courts of both Divisions of the Judiciary (b) an objection to the
jurisdiction of a Court has been raised and (c) both Courts have either claimed
or disclaimed jurisdiction. Each Court would have to hear evidence to determine
what are the issues involved before it can decide whether to claim or to
disclaim jurisdiction.
The Sudan Mohammedan Law Courts Organisation and Procedure
Regulations provide6 that in the event of a conflict arising the
proceedings should
(1) at
one time a non-Muslim wife or non-Muslim parents were the only non-Muslims to whom
a legacy could be left. This is now widened to any non-Muslim.
(2)
Note, a non-Muslim, the validity of whose legacies were to come before a Sharia
Court, would be similarly restricted.
(3) No
such difficulty would exist as to wakf, as a non-Muslim cannot be beneficiary
under a wakf settled by a Muslim.
(4)
e.g. a settlement made according to the rules of equity by a Muslim in favour
of his non-Muslim wife, in which he has appointed Muslim Trustees. If the
Sharia Courts are approached by the Trustees such Courts would either hold this
an invalid wakf or consider it not a wakf and thus outside their jurisdiction.
If the Civil Courts are approached by the Trustees, they would consider it
either a wakf by a Muslim the constitution of which is outside their jurisdiction
for the parties are Muslims, the wife being a non-Muslim not having any locus
standi, or a settlement in equity, in which case the Civil Courts would deal
with the issue. In both circumstances the position could arise that both Courts
either claim or disclaim jurisdiction.
(5)
Article 96. Section 37 C.J.O. must now be -read subject to Article 96 which
takes the place of the repealed Section 7 Sudan Mohammedan Law Courts
Ordinance.
(6)
Regulations 39-41.
S.L.J.R.---11
be stayed in both of the judiciary and the papers and
record
t case
re to b fcrwardeci to ta c irs ci jurisdiction. eact, C
nOvir !
>pimon why it skiould or snc ulu no cxcrcisc jurisd ir. ae No r ha o far
oetn mane cv t Kuins 1ornmittee
C ç
Ordinar.ct. iv generaistv 01 tne Nor ot r ie1atiois make them mien suitaoie tu
auopuon by me
.:(,urts,
e as any’ d in tile £ si 1 wostv univ isad to farthes conhi
‘tnct.
. LT ofJurisd tas ‘ mer c c preilic o .b conclusions I woutn subrni. riowev na
t tose ca
i the
partiel are Muslinhs ar.d the suL r ‘ in issuf is the es oi nterdircicn c-c
guardiasishm o an :ote o lost pe sor
iaria
Div s uld have urisdictim ucr ‘cat’cc is un Jic n law. .‘ there are provisions
S S or ‘Lb
a cur
cernulig wakf Althoi; ‘it th vi o’
‘
iurisdicsion as regards the cop.ro o wakf. tc -no’ n entire y under the 1 of
the Sh4rn Cc n.
- t:ie
.,Va of ( 4’akfwou3.a bc j o’ so -;- 4 enc!er the powers given to l’im av the
wakf Th conoerieflc
ije
uuear to hr the Sha’ir. ‘osct The f w’ccn urh’ :o he guide in these c is -jnve
and this rtii points to tf
c
Divisscoi here.
sim’
argument .s oo advarv.ed ‘ l on! nun \ius are involvad. A ef . a naria Court -J
invariably
ttte
ariruicati of Sharsa a u:h C arc irecluded by kiation e wi gives efiècr to mc
çu ono exttoi o ,i from
nç- Op
v otiler aw iii th crcumstao or. it is clear that such oec olav lea t to
injustice. On tkv n .. th inscroata of a Muslim itusb.nj ais noo-Mushm wtdow
cannot iii. .eoi fioni i under Moham ri-dari aw arid may thus be e1t Oestsluis,
or i. z Muinm husband. s to make adequate provisions io uS nor-Muslim wife,
were t leave the whole of his estate to his wif? and alte” her neath to th
See
sup- page 3 ncte (6). iC, i the . is a.Muslim
‘ toe
settlor oiis himself appoint - a i’ iC s the Wa
in a
civil suit between a Muslin. or>. a non t Muslim ‘ud ,va rtqui”ed it’ apply
nit own law, for o m n-nist aom>. - not be loninon
A I\ i
“see Shukr (‘L hc
Ca’O neralt egu
children of the marriage who comprise his family and are his
Sharia heirs, such disposition would be void in Sharia. Clearly the application
of Sharia to such cases would lead to injustice. In my submission in all cases
in which such conflict arises as a result of non-Muslims being involved, the
Civil Courts should have jurisdiction. This may still result in the application
of Sharia, but such application would be subject to the reservation that it
must lead to “justice and equity”1.’ In all these cases there is no
other “enactment for the time being in force” and the Civil Courts would be
left to reach a just conclusion2? This submission is made with even
stronger emphasis in those mixed relationaship here the Muslim is not domiciled
in the Sudan, but in a country which would not apply Sharia as his personal
law. In such case there would have to be a reference to the Rules of Private
International Law Sharia Courts do not apply such rules in the case of Muslims3.
It is not always th case that the issues are so clear. For
example, a civil Court may classify a document as a memorandum evidencing
a contract cf loan, while a Sharia Court may come to the conclusiotn that this
same document, having been made shortly before the signatory’s death, is an
attempted testamentary disposition. Where the claim to the rejection of jurisdiction
is based a different classification of the issue n the Court of Jurisdiction
will have to re-classify the issue in order to resolve a conflict of
jurisdiction. Although the Court of Jurisdiction will have access to the
pleadings and evidence before each Court, as as to the opinions of the Courts,
it may be necessary for further evidence to be adduced. In classifying
the issue the Court of
(i)
Section 9 C.J.O.
(2)
Regulation. 53 of the Mohammedan Low Courts Organisation and Procedure Rcgulation
only applies if the Court exercises jurisdiction, thus would not apply if such
jurisdiction is not exercised. Section 6 Sudan Mohammedan Law Courts
Ordinance. Makes no provision as to the law to be applied except whcrc
the parties confer jurisdiction . on Sharia. Courts they must Consent to
the application of Sharia. this ordinance does, however, link up with the
Regulations (section 5 C.J.0 only applies if all the parties are Muslims
and this would in the normal case here Thus the Civil courts would
have to apply Section. 9 C.J.O. This would in the normal case refer to
the personal law of the deceased in cases of succession and may result in
a reference to Sharia. But would it be “justice, equity aud good
conscience” to exclude the non-Muslim widow from succession and (**) and her
destitute
(3) In
any case cven if the parts were not muslims, if there were a conflict
between sharia and the relevant foreign low Sharia would prevail
e.g. a sale of forbidden good such as wine.
Jurisdiction
may encounter: a number of difficulties; e.g. the legal concepts of Sharia and
of Civil Law are not always the same; what is evidence and the means of
adducing evidence vary between the two Divisions of the Judiciary. It will thus
be necessary for the Court to settle its rules of procedure. The distinction
between ascertaining what Court has jurisdiction and determining the issue
involved has to be kept in mind. The latter is not within the competence of the
Court2. But, by considering the problem as one of classification, no
difficulty should arise. Thus in the example given; the question before the
Court of Jurisdiction is not the validity of any loan nor even whether the
memorandum is a valid one nor whether it is a valid will, but .whether the
document purports to be evidence of a loan or purports to be awill The
determination of this question is essential to resolve the conflict of
jurisdiction.
Finally
we must consider how far decision in a criminal cause or evidence adduced
before a Criminal Court is binding on Civil Courts and vice versa3 ?
Section 40 of the Civil Justice Ordinance4 expressly excludes
criminal proceedings from creating a bar to civil proceedings on the basis of
res iudicata. Thus a civil action can be brought despite the prior adjudication
of the facts in connection with criminal proceedings. Watson J. in J.
Papathiodissiou v. Yousef Ahrned Gaafer5 drew a distinction between
res iudicata and “ouster of jurisdiction”. Referring to Section 45 of the
English “Offences against the Person Act”, 1861, which provides that the
expiation of the punishment imposed on a conviction for a simple assault shall
be a bar to civil proceedings based on such assault, the learned judge held
that this provision is applicable to the Sudan, for it is a provision of
principle and not just an artificial
(1)
e.g. the Sharia procedure which allows an assertion without oath, resulting in
the onus being thrown upon the Defendant to deny on oath an assertion as yet
not fully substantiated.
(2)
This is made clear by the repealed Section 7 of the Sudan Mohammedan Law Courts
Ordinance which contains an express prohibition to this effect. In any case the
Court is one of jurisdiction and thus cannot be called upon to act as an
appellate Court from Courts of the two Divisions.
(3) We
arc not concerned with Local Courts here as these are subject to different
rules of procedure based upon the customs of the particular people such courts
serve.
(4) see
explanation 3 Such explanations cause difficulty. Are they part of the legislation
and why Explanation?.
(5)
HC-Ktm-CS-75-1953. Cases in the Court of Appeal and the High Court 1-1-53-
30-6-54 pages 22.
qualification’’ grafted on a principle by a forcing statute.
Thus t’is ptovision could be applied by a Sudanese Court on the basis of
“justice, equity and good conscience” in the case of “ouster of jursidiction,..
The distinction drawn by the learned judge is a very fine one, but on the facts
of the case appears to be reasonable as it prevents the’ cotin uance of
litigation on matters barely outside the de minimis rule.
It
follows from the above that evidence adduced before a criminal court will not
be admissible to prove an issue before a civil court. The udan Civil Courts
have consistently applied the rule as stated in 1-lollinglon t’. F. Hewthsrn
& Co. to cases arising out of road accidents. In view of the different
purpos.es 6f criminal and civil proceedings and the different modes of proof,
it is clear that evidence adduced before a civil cotrrt and the decision of a
civil court cannot be binding upon a criminal court on the basis of res
iudicata.
Whether
questions of law decided by a criminal court would he binding precedents for a
civil court, or eke z’ersa, is doubtful and remains to be determined. In my
submission such extention of the doctrine of stare deci,is cannot be supported
by any argument. Should a conflicl occur and the two courts reach different
conclusions, such conflict could be resolved by the fact that the same judges
are the ultimate
(1 see
Bennett . Manios v. Boxal AC-App-1 and Watson J. Habib Ghofr Andrew an! Sadat
Gorernment 1-IC-CS-6s- Cases etc. page 84.
(2)
Section s C.J.O.
(3)
i.e. not Tea iudicata for that is governcd.hy a provision i.e. Sect. 40.
( Note
Sect 3t I (0 (b) and Sect. 3i2 C.C.P. applicable where damages ar substantial,
a case not covered by this ‘ -i
( (i t
1Z.B. see e.g. Sid A/timed Mohi.c.Sudan Mcrcantile& C. (1956 Rio, Toe case
is not reported an this point.
(6) see
the writer ‘hirime, Cause and Treatment’’.
( In the
Sudan criminal accusations must be proven by the prosecution s
leave
the Court without any degree of doubt as to the accused’s guile In \ cases,
however, the plaintiff need onty satisfy the Court on the basis of balance
probabilities in his favour.
(8)
Such a conflict occured in England as regards demanding money fron a
who had
broken a trade agreement. as an alternative to his being plac i a ‘stop list’S
and not supplied with further goods. The criminal courts se1d such demands to
amount to blackmatl while the cii courts hcld that such dernanos were oot
illegal if. made in furtherance of the legitimet’ interests of the irate .y.
See Re. D [ 2 KB. 258 and Hardip as,! Lane Ltd. ,.
am.’
.hers [ 2 K.B. 306. The House of Lords resolved iiie conflct in fasour of the
civil courts, see Thorne v. Motor Trade Association i Aci. 797.
juciges of appeal in boin i’iil artd Cr:rnu k LS and by the
fact
the
applicability Qf th cbctrine of st€we de :t. . t ultimate courts appeal of the
Sudan is ‘ c
Iv.
In Lhis
survey it has n y been possible o indicate the nurnei cifficulii which beset
the L of the Sudan not oniy .s regards substantive law, but also as regaids th
structure of the legal system There is, in my submission, an urgent need for
this ttructure to be over-hauled. A system set up when the judiciary was the
Legal Department of the Government is not always sui to an independent
Judiciary. In my submission, at present the Judi still savours of a Government
Department in which the superior C Servant exercises supervisory powers over
those employed under hint. This is especially emphasiseti in cri ninal
procedure, ssihere this rn ni itse’f iu the form of confir rratior. offindings
and sentence and in p vcrs of rcvis on th initiative o’ the revising authority
itself.
The
idea of a hearing behind closed c at which the :ccuse.t is not present and thus
not able to be heard, is ccn to the s of free and openjustice. Yet a revision
cart be m-sved by th prosecutjorL and the accused, who may have obtaineci a ven
in his favo may find such verdict quashed as well as th proceed ‘gs which
precee it. This could result in his beirL once me’r p’tt h. peril and a plea of
autrefois acquit will not be vailab to him -
Whether
appeals should e , r or orA 6 of court, is r controversy which has been raging
-t vario egai . for a considerable time. Various factors h to b’. borrL in m I
Sections
250 an 251 C.C.P.
Cti 257
C.C.P.
\it.:ough
tbe power is in the Chef “stice or Judge of the Higii Cr”rt, is not tn tsual
for a party to the suit to move the :‘sing tthority to call for the record.
Scru.
OS 257 (s and 257 (2A refcrring to Section a C.C P. eclc’n 6 (e, C.C.P. see
also z d; C.C.P.
I- i
.r. tiar e -es t point, not irast sth oeing the .. of
an a .tF - b ‘ing swamped by groun appeals.
L rtt
:s - leg I syste lete .5 orr control over the powe u appeal. I e . :his -ci ed
through the powers of summary
d - .s
J cf ap licat r to pcal r for revision in both c and no .tniriai x tatte 3ut
:nouEh there appears to be an argument in ‘ rt o. -ucri ci .r o,er aj oeais, no
support can be found for the v ii c pow rs cxc sa Ac on cc nfirmation anu
revision of criminal cases jor for lh po- er to :ieterriine non-criminal
revisions Without grantiag t.-i’ rarities t I aritgiri open court! To decide an
issue :uerelv on the )lead:r de or the cit .ei• statements in support therebf,
esoecially at mary pleadings leave much to be aesired, contravenes a bas.
tene’t of he common a” that justice must n.t on be done, but must ap/..ear to
be do,e. Ti.e Courts of the Sunan are open Courts — free to the pubiic to ttead
tind to see the administration of justice in action. This snoulo nest he
confined o the courts of fit ;t instance, but should so exLeua to any o,irt
about to interfere wizh an decision so obtained .
The
argument adv in favcur of tre present system is lack of experen’e ol r ers of
ttiejt-diciary, whici is further sgg ry si of staff. ete is also a further
elemen whici :ends to perpet iate the idea of t idic as a Civi Service hera
is the
fact tna the Suoat Judtci i; a prof ion who-c members h not yet thrown off toe
restrirting i:ifiierce cf thinking of ther,s as rnem of ser -ice with j )n ar
athancement no ac to ability h.st accor to seniort in the servce. o loor as it
will no be poss.iblr o r mem ers of th .ldic.ar) froto senir members of tfle
ar, so long as ‘he judiciary is a career ann isot the utlimate cro o a oa this
idra will contou mci cc perçetiated Shortage of staff and iack’ofex2erience are
b th e v’hich cai be r:-medied in firese, while in the meantime the temnocra
expedie -t of app )knting expertenced and qu persons l:om utside the lidan ma
nave
)Ij
eg.in England appea to tht Court of Crininal Appeal on nixed q.iest cns of ract
ant.
law or on the sentmce only are by leav. Dfthe Coun. l)rt qtsticns of aw
a right
of ap extsts. As to Civil i.e. non-en ninal ( ises appvals to
ti’-’
House of Lords requite leave from either the Court of ppeat or the -louse
L
(2)
0 ctio- s 6 C.C.P. Sects’3n 76 (i) C.i.(
,,
hecioe 25€ C.C.P.
(
Secii.m 17 fl
e\
i.e. I eei n -c-icerned bet-c with the case of a summar\’ ciismi of a a3pe
or of a
. - - o- .
to be resorted to. The first steps should be taken now to in
that the Judiciary is not an administrative service. In 1905 Sir E. Bonham
Carter wrote :-The time has in my opinion now arrived when a definite step
should be taken towards the separation of the judicial and executive. To this I
would—add “having now achieved a separation of the judicial from the executive,
the time has come to take definite steps to eliminate the administrative
element from the judicial.”
Egon
Guttman*
—
(i)
Report of His Majesty's Agent and Consul General on the Administration and
Condition of the Sudan, 1905, page 78.
(*)
Mr. Guttman. LL.M. is a Lecturer in Law at the University of
Khartoum,
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