Posted by Jaba Shadrack , Saturday, July 25, 2009
By Jaba Shadrack, 2009
The phrase Inherent Power (i.e. Inherent Authority) is defined in Black's Law Dictionary as;
"Powers over and beyond those explicitly granted in the Constitution or reasonably to be implied from express grant..."
It is broadly understood to cover powers thought essential to the existence, dignity, and functions of the court, or to ensure an orderly, efficient, and effective administration of justice.
The Speaker of the Parliament of the United Republic of Tanzania (hereinafter the Speaker) wish to know about the inherent power of the court. In that regard, I have prepared a reasoned opinion on the matter.
This essay will be striving to answer notable legal issues such as whether the court in Tanzania has inherent powers in dispensation of justice; whether courts can only exercise inherent powers where vested in them by statutes; and lastly, whether such inherent power interferes the legislative power of the parliament.
Generally, there are two doctrines that act as a basis of the inherent powers of the court, namely as the Separation of powers doctrine and, Courts' sheer existence doctrine.
In Separation of powers doctrine; the judiciary is under duty to perform its adjudicative functions effectively and efficiently. Inherent powers enable the judiciary to perform its constitutional functions and permit it to acquire crucial support and resources for realising these functions. Similarly, the judiciary has the power necessary to protect its independence from being encroached while adjudicating neither by the executive and legislative organs.
Under courts' sheer existence doctrine; inherent powers are perceived as ones derived from a court's existence as a court rather than from any constitutional provision. In this doctrine, courts must have the inherent powers to do those things that are reasonable and necessary for the dispensation of justice under the prescribed jurisdiction, in the absent of legislation or constitutional proviso.
Therefore, taking the aforementioned legal doctrines as the basis of my reasoning, I respond to the aforesaid issues as follows;
In a nutshell, the court in Tanzania has inherent powers (authority) to adjudicate on certain matters, even with or without express provision of the law. These powers of the court are provided under various Statutes or case laws, and may also be implied in the Common Law practice.
Starting with the first issue; in civil cases, the District, Resident Magistrate and High courts have inherent powers by virtue of the Civil Procedure code, 1966 [RE: 2002]. The section reads as, I quote;
"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court."
The essence of Section 95 is that, whenever it is necessary for the ends of justice or to prevent abuse of Court process, the powers of Court are not barred and even if there is no specific provision which permits the Court to do so (i.e. the Code is silent on that point) the Court can exercise its inherent power to do justice to parties. It is more often understood that where there is a prohibition express or implied in the statute, the Court cannot invoke section 95. However, in Adonia v. Mutekanga, Spry J.A was of the views that;
".....the position, as I understand it, is that the court will not normally exercise their inherent powers where a specific remedy is available and will rarely if ever do so where a specific remedy existed but, for some reason, such a limitation is no longer available. The High Court is a court of unlimited jurisdiction, except so far as it is limited by a statute, and the fact that a specific procedure is provided by rule cannot operate to restrict the courts".
In the case of Transport Equipment Ltd. V. Devram P. Valambhia,
a full bench of seven justices, considered the Courts power to review its decisions and held that the court has inherent jurisdiction (power) to review decisions and it will do so in any of the following circumstances to wit, where there is a manifest error on the face of the record which resulted in the miscarriage of justice, or where the decision was attained by fraud, or where a party was wrongly deprived of the opportunity to be heard. The Valambhia case (supra) was quoted approvingly in the case of African Marble Co. Ltd (AMC) v. Tanzania Saruji Corporation (TSC) where the Court of Appeal of Tanzania affirmed the inherent powers of the court. In the USA, the court has inherent even to after final judgment, to correct clerical errors or misunderstandings where it fails to conform to the terms of the settlement agreement at issue.
The position taken by the courts in Tanzania does not differ with that of the Indian. This is because section 95 (supra) is in pari materia with section 151 of the India Civil procedure Code, 1908. Justice Prafulla C. Pant says;
"Inherent powers can be exercised only if it is necessary so to do for the ends of justice or for preventing the abuse of process of Court. The expressions "ends of justice" and "abuse of process of the Court" should be interpreted in the light of other provisions of law".
In my findings, there are many circumstances in which the court can exercise its inherent powers both in Civil and Criminal cases. This includes; controlling trial behaviour generally, conducting a fair criminal trial, managing dockets and calendars, changing venue in criminal cases, regulating discovery, issuing protective orders, summoning witnesses and compelling attendance, presenting evidence, appointing court experts, excluding the public in criminal cases, appointing trustees, correcting records and judgments, Judge has inherent power to enlarge the time limitation set out in a statute, overseeing witness fees and expenses, maintaining courtroom decorum, suspending sentences and et cetera. Other areas includes, power to punish for contempt or perjury, power to make rules, power to govern and regulate the bar and practice of law, and the power to manage and regulate the court system.
Coming to the second issue, the court can invoke its inherent power, even, where there is no express provision in the statute. In situations, where statutes, decided cases, court rules, or other authorities fail to provide answers to issues that require resolution during the pre-trial, trial, and post-trial phases of a case, the trial courts have asserted authority to fill in the lacuna in various situations. The court has exercised its inherent power even where the statutes bear an ouster clause, for example, in Mtenga v. the University of Dar es Salaam. The court in its inherent power may strike out the statute, if is found to be unconstitutional. In Attorney General v. Lohay Akonaay and another, the court of Appeal asserted that;
"We are unable, on the authority of reason, to agree with him in the case of statutes found by a competent court to be null and void. In such a situation, we are satisfied that such court has inherent powers to make a consequential order striking out such invalid statute from the statute book". Refer, also the Anisminic case (infra).
Again, the court can correct error of law on the face of record, as it was laid in the case of Anisminic Ltd v. Foreign Compensation Commission. Further, the Court of Appeal of Tanzania had often resorted to its inherent powers to fill in the vacuum on the procedure and time limitation. This is because, there are no rules or statutes providing for the same. In the case of Marcky Mhango v. Tanzania Shoe Co. Ltd &Tanzania Leather Associated Industries Ltd, the Court observed that;
"It is correct that the Court of Appeal Rules do not prescribe any period for an application for review, indeed, the Rules make no provision for review, but it is an exercise deriving from the inherent powers of the Court."
Therefore, the court is not barred to exercise its inherent powers, even, in the absence of express provisions. In order to invoke inherent powers of the court one may apply for discretionary orders such as mandamus, declaratory judgment, contempt, certiorari, debt actions, and ex parte orders. However, in other instances the court has acted suo moto.
With regard to the third issue, in my view, the exercise of inherent power does not violate the legislative power of the Parliament. Since, as per Article 4 of the constitution which provides for separation of power, the same need to be exercised with check and balance.
Generally, it is not clear as to whether the Primary court has inherent power. But in my view, it has, since in proceedings before it, the magistrate may punish one for contempt of court or perjury. Primary, District, Resident Magistrate courts, High court and, the Court of Appeal possesses inherent powers to act "ex debito justitiae", i.e. to do real and substantial justice, since courts are only body, primarily, vested with adjudicative powers. All in all, the High Court in Tanzania has been given supervisory and regulatory powers over the conduct of the lower courts within their respective territorial jurisdiction. Impliedly, it includes inherent powers to intervene in any criminal or civil proceedings to prevent abuse of the process of the court and to secure the ends of justice.
Author: Jaba Shadrack
Jaba is a Law Lecturer at the University of Dar es Salaam, School of Law and a blogger based in Dar es Salaam, Tanzania. Read More →