(COURT OF APPEAL)

GAMAL MUSTAFA ABU SAMRA v. ABUL ELA ENGINEERING CO.

AC-REV-584-1968

Principles

  Civil Procedure—Inherent power of court—Civil Justice Ordinance, S. 226— not to be exercised to extend the period of limitation

Inherent power of the court under Civil Justice Ordinance, s. 226, cannot be exercised to extend the period of limitation on any grounds of equity and Justice.

Advocate: Ahmed Suleiman for the applicant

Judgment

Mahdi Mohamed Ahmed J. August 26, 1969:- is an application for revision against the order of Province Judge, Khartoum, dated November 10, 1968, dismissing summarily an application to him to revise the order of District Judge, Khartoum, dismissing applicant’s suit on the ground that it is statute-barred.

In the present application applicant’s counsel urged two grounds for revision:

1. that applicant’s claim is only partially statute-barred.

2. The court could exercise its powers under the Civil Justice Ordinance s. 226, to allow the claim.

With regard to the first ground, applicant’s counsel contends that as the suit was allowed on March 24, 1968, applicant’s salary from that date is not barred as the cause of action arises when the salary becomes due at the end of the month. This contention is tenable if applicant is still in service. But applicant is claiming his salaries for the months from March to September as damages for breach of contract of service. The breach consists in the dismissal and the right to the damages accrues from the date of dismissal, i.e. February 16, 1967. If we upheld applicant’s contention and carried it to its logical conclusion, applicant’s suit will be premature and ought to be equally dismissed.

Applicant further contends that the circumstances of applicant are a classical case for the exercise of the court’s powers under the Civil Justice Ordinance, s. 226. Such contention cannot be conceded. It is settled that a court cannot resort to its inherent powers in defiance of the express provisions of the Code. In Mulla, Code of Civil Procedure (13th ed., 1965), p. 77, it is stated:

“Inherent jurisdiction must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case in question, such provisions should be followed and the inherent jurisdiction should not be involved. It is only when there are no clear provisions in the Civil Code that inherent jurisdiction can be invoked."

Again and in the same reference we find these statements about the law of limitation:

“Nor can the Court ignore the provisions of the law of limitation by appealing to this section".

page 576 and again at page 577:

“The Court cannot by the exercise of its inherent power extend the period of limitation on any grounds of equity and justice".

Therefore this application is summarily dismissed.