(CRIMINAL REVISION)

SUDAN GOVERNMENT v. BAZZOU GAMRA EL HABASHI

AC-CR.REV-155-1968

Principles

Criminal Procedure—Inherent power of court—Must not conflict or prevail over specific provisions of statutory law

Court has inherent power to pass such order as is necessary for ends of justice. But such power must not be exercised so far as to conflict or prevail over the specific provisions of the statutory law.

Judgment

Abdel Magid Imam J. July 14, 1968:—The accused Bazzou Gamra Beri, an Abyssinian, was convicted under Passports Ordinance, s. 11/42, and sentenced to pay £S.15.000m/ms fine and in case of default to be imprisoned for 15 days. The court also ordered his deportation but suspended it upon his obtaining a permit within two months.

Upon application to the Province Judge, Blue Nile, both finding of guilty and sentence of fine were confirmed, but he cancelled the suspension order and ordered that the accused be deported forthwith.

Both finding and sentence are correct and I think they should be confirmed. But as for the order of deportation I think it should be cancelled. It is true that the Passports and Immigration (Amendment) Act 1961, S. 30 (2), is obligatory. But I think this does not deprive the court of its inherent equitable jurisdiction to be exercised in a fit and proper case.

In this case the accused entered about 15 years ago. He is now married and has children. I think it is inequitable to separate father from son and to compel a wife to choose between accompanying her husband or staying in her mother-land. I therefore think that the deportation order should be cancelled.

If my learned colleagues agree then the order will be:

We confirm both finding and sentence but cancel the order of deportation.

M. E. Mobarak 1. July 17,1968:- The Passports and Immigration Act as amended by 1961 Act No. 31), S. 30 (2) reads:—

“30 (2) Any alien who

a. enters the Sudan without permission, or

b. remains in the Sudan after such permission, has expired or has been cancelled shall on conviction arising therefrom, may in addition to any other penalty to which he may be liable under this Act, be ordered to be deported from the Sudan by the court trying him.”

As I see it the courts are bound under the circumstances stated above to order deportation in accordance with law and I entirely agree to the Note dated June 3, 1968, by the Province Judge, Blue Nile (Abdel Rahman Abdu). The law, I think, is very clear on this matter and in such a case I do not think that the question of the inherent powers of the court arises. In support of my view in this respect, I quote the following paragraph from Vol. 1, Sohoni’s Code of Criminal Procedure (15) ed. (1960) pp. 3—4):

“Criminal Courts have an inherent power to make such orders as may be necessary for the ends of justice. But this inherent power is not capriciously or arbitrarily exercised; it is exercised ex debito justitiae to do that real and substantial justice for the administration of which alone a court exists; but the court in the exercise of such inherent power must be careful to see that its decision is based on sound general principles and is not in conflict with them or with the intentions of the Legislature as indicated in statutory provisions. Inherent power cannot be exercised in matters for which the statute has made express provisions and in a manner calculated to defeat the statutory provisions.”

For the reasons stated above, I think that there is no ground for our intervention and the accused must be expelled.

Galal Ali Lutfi J. December 5 , 1968:- I agree that there are no reasons to justify our intervention.

M. E. Mobarak 1. December 9, 1968 :—We see no reason to intervene. The accused must be expelled.