(Court  OF APPEAL)*

 MUSTFAFA MAHMOUD GABIL AND OTHERS v. HEIRS OF RASHID MAHMOUD GABIL

AC-REV-409-1964

 Principles

·  Arbitration-consent of both parties is essential-civil justice Ordinance’s, 149

·  (1) Civil Procedure-Inherent power of Court-Civil Justice Ordinance, s, 226-Does not displace or prevail over specific provisions of the Code.

Held: (i) it is essential that both parties to the suit should consent to refer the dispute to arbitration under Civil justice Ordinance
,s,226, should be exercised subject to the specific provisions of the Code, but not to dispute or prevail over them.

Judgment

Advocates: Ibrahim El Mufti………………………….for applicants

                  Abdel Wahab El Khidir…………………..for respondent

Babiker Awadalla J. October 13.1964:- the question raised by this application is whether a Court can –refer the matter in controversy for arbitration.

In this cse, the contesting parties were parties were partners runing a business together for the making and sale for furniture.

On the death of one of the parties, the business was carried on for some time between the surviving partners and heirs of the deceased, initiated these proceedings before His Honour the Province Judge Omdurman claiming an account , etc.

Immediately after the framing of the issues, the learned advocate for plaintiffs applied for the dispute to be referred to arbitration. The learned advocate for defendants contends that his clients were unwilling to refer the matter to arbitration and that as their consent was essential under Civil Justice Ordinance, s, 149, reference to arbitration was impossible.

The learned advocate for plaintiffs in reply contended that the matter was within the matter was within the discretion of the Court under Civil Justice Ordinance, s, 226 . his Honour the Province judge accepted the argument for plaintiffs and ordered that the matter be referred to arbitration. hence this application.

Both parties are now reiterating the arguments made before His Honour the Provice Judge.
 

In my view, this application should be allowed. The arbitration chapter of the Civil Justice Ordinance was never meant to be a facile means whereby a Court can renounce its primacy duties ad assign them to a tribunal chosen by one of the partnership agreement appears to have been written, it is not at all contended that the learned advocate for plaintiffs was relying on any condition I that agreement justifying action under Civil Justice Ordinance,s, 149.

Section 226 cannot be interpreted I manner inconsistent with ay imperative provisions os the code. Inherent jurisdiction of the courts was ever neat to displace or prevail over the specific  provisions of the Code but is simply intended to supplement and amplify them because it is impossible for ay law-let alone a procedural enactment-to foresee and provide for all eventualities. Commenting on the corresponding Indian provisions, Mulla, Code of Civil Procedure (12th ed.1952) p. 477, says:

“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”

for the above reasons, this application is allowed with costs ad the order of His Honour the  Province Judge ordering reference to arbitration is hereby set aside.

 M. A. Abu Rannat C.J. October , 13.1964:-I concur.

* Court : M. A. Abu Rannat C.J. and Babiker Awadalla J.