Preface
Preface Preface
124 (c) That when the appellant was divorced she was pregnant, (d) That the respondent’s iddah terminated on delivery of her child. It was after satisfying itself with items (a) - (d) above that the lower court deemed it necessary and expedient to entertain the matter since what constituted the basis for the appellant’s stay in the respondent’s house and occupation of same by her was the marriage. This marriage, which entitled the appellant to be accommodated by the respondent, was terminated by the respondent himself on 27/4/2010. Despite this extinction of the marital tie, the appellant decided to stay put in the house and all efforts to prevail on her to amicably move out of it failed. Presumably, the divorce took place when the relationship between the appellant and the respondent has broken down irretrievably. The continued stay of the appellant in the respondent’s house therefore may further aggravate the situation and lead to more anarchy and rancor in the house which the lower court had a duty to forestall. The pendency of a criminal case before the Kanifing Magistrate Court clearly denotes this. Since there is a duty to maintain peace and order, the lower court equally had a corresponding duty to guard and ensure the maintenance of same through whatever means including the steps it took in the instant case. It was on this premise that the lower court assumed jurisdiction in the matter even though the trial Judge did not cite any authority from Sharia to back up his stand. The matter before the lower court was therefore a follow-up to divorce over which it had jurisdiction and the lower court rightly intervened in the matter, even though same was not squarely founded on marriage, divorce or inheritance within the purview of section 137 (4) of the 1997 Constitution of the Gambia. In a similar vein, the lower court would have equally been justified in assuming jurisdiction if the appellant, after her said divorce, was denied accommodation by the respondent
125 to observe her iddah period. The right to accommodation is conferred by marriage and extinguished by divorce. In between the two (marriage and divorce) there are rights and obligations the court, under its inherent jurisdiction, should enquire into with a view to protecting and enforcing same. All these are ancillary issues that are dependent on the marriage or divorce over which Cadi Courts in the Gambia have jurisdiction. It is an established principle in Islamic jurisprudence that “whatever is necessary and indispensable for the fulfillment of an obligation, that thing is equally necessary and indispensable”. The above authority is in support of the judicial functions assumed by the trial Judge and on the strength of that, the lower court was right to have assumed jurisdiction in entertaining the case within the purview of Order XXIII Rule 111 of the Cadi Courts (Civil Procedure) Rules 2010 which provides that the practice and procedure of the Cadi Courts shall be conducted in accordance with the rules of Islamic Law. Issue No. 1 having been resolved in favour of the appellant, I will now proceed to determination of the 2nd issue and which is whether the appellant is entitled in law to stay in the respondent’s house after her divorce and completion of her iddah (waiting period)? It’s trite in Maliki School of law that a divorced woman whose marriage has been consummated is entitled to UaccommodationU from her husband until she finishes her iddah. In the case of a pregnant woman, she is additionally entitled to Ufeeding and clothingU until she delivers. The fact that the appellant was conceived at the time of the divorce imposes further obligation on the appellant not only to accommodate the appellant but also to feed and clothe her during the subsistence of her iddah. See on this Ihkamul Ahkam page 117.
- Page 74 and 75: 74 2. That the change of name was w
- Page 76 and 77: 76 she confirmed what the appellant
- Page 78 and 79: 78 On this note, we hereby declared
- Page 80 and 81: 80 JUDGMENT Written & delivered by
- Page 82 and 83: 82 2- That the exclusion of Assan S
- Page 84 and 85: 84 4- That if the appeals Court wil
- Page 86 and 87: 86 Mr. Ousman Sarr (paternal brothe
- Page 88 and 89: 88 Rules 2010 which states that: Su
- Page 90 and 91: 90 stripes, and reject their testim
- Page 92 and 93: 92 allegation as stated in the Hadi
- Page 94 and 95: 94 guided by their provisions with
- Page 96 and 97: 96 properties one in Allen street o
- Page 98 and 99: 98 the appellant. As such the appli
- Page 100 and 101: 100 I find no difficulty in resolvi
- Page 102 and 103: 102 same way other cases are commen
- Page 104 and 105: 104 '' Under Islamic Law, the subje
- Page 106 and 107: 106 R. 77 (4) Any distribution of a
- Page 108 and 109: 108 single witness was called in th
- Page 110 and 111: 110 before judgment is entered agai
- Page 112 and 113: 112 A judge shall on no account rel
- Page 114 and 115: 114 these primary sources of Islami
- Page 116 and 117: 116 same lower court (Principal Cad
- Page 118 and 119: 118 4. The appellant being pregnant
- Page 120 and 121: 120 that she was not given the oppo
- Page 122 and 123: 122 their marriage was done by the
- Page 126 and 127: 126 This obligation is however deem
- Page 128 and 129: 128 UIN THE HIGH COURT OF THE GAMBI
- Page 130 and 131: 130 shall be filed within thirty da
- Page 132 and 133: 132 4. The fact that the appellant
- Page 134 and 135: 134 1. Fatou Dembajang- 4 years 2.
- Page 136 and 137: 136 1. Transfer the right of custod
- Page 138 and 139: 138 subsisting marriage between me
- Page 140 and 141: 140 At this juncture we requested t
- Page 142 and 143: 142 cover and having observed what
- Page 144 and 145: 144 reverted to Christianity, in th
- Page 146 and 147: 146 Pursuant to section 137A (6) of
- Page 148 and 149: 148 3. The applicants violated the
- Page 150 and 151: 150 ……….……..…..……
- Page 152 and 153: 152 clearly defined and limited the
- Page 154 and 155: 154 But at the same time if the sai
- Page 156 and 157: 156 Islamic Law. His interest in th
- Page 158 and 159: 158 contradict the provision of Sha
- Page 160 and 161: 160 ISSUE NO. 1 (Whether or not the
- Page 162 and 163: 162 before Banjul Cadi Court in the
- Page 164 and 165: 164 ''Two conditions are essential
- Page 166 and 167: 166 the court particularly the dist
- Page 168 and 169: 168 UIN THE HIGH COURT OF THE GAMBI
- Page 170 and 171: 170 UIN THE HIGH COURT OF THE GAMBI
- Page 172 and 173: 172 This is an appeal against the j
124<br />
(c) That when the appellant was divorced she was pregnant,<br />
(d) That the respondent’s iddah terminated on delivery of her child.<br />
It was after satisfying itself with items (a) - (d) above that the lower court<br />
deemed it necessary and expedient to entertain the matter since what constituted<br />
the basis for the appellant’s stay in the respondent’s house and occupation of same<br />
by her was the marriage. This marriage, which entitled the appellant to be<br />
accommodated by the respondent, was terminated by the respondent himself on<br />
27/4/2010. Despite this extinction of the marital tie, the appellant decided to stay<br />
put in the house and all efforts to prevail on her to amicably move out of it failed.<br />
Presumably, the divorce took place when the relationship between the appellant<br />
and the respondent has broken down irretrievably. The continued stay of the<br />
appellant in the respondent’s house therefore may further aggravate the situation<br />
and lead to more anarchy and rancor in the house which the lower court had a duty<br />
to forestall. The pendency of a criminal case before the Kanifing Magistrate Court<br />
clearly denotes this. Since there is a duty to maintain peace and order, the lower<br />
court equally had a corresponding duty to guard and ensure the maintenance of<br />
same through whatever means including the steps it took in the instant case. It was<br />
on this premise that the lower court assumed jurisdiction in the matter even though<br />
the trial Judge did not cite any authority from Sharia to back up his stand.<br />
The matter before the lower court was therefore a follow-up to divorce over<br />
which it had jurisdiction and the lower court rightly intervened in the matter, even<br />
though same was not squarely founded on marriage, divorce or inheritance within<br />
the purview of section 137 (4) of the 1997 Constitution of the Gambia. In a similar<br />
vein, the lower court would have equally been justified in assuming jurisdiction if<br />
the appellant, after her said divorce, was denied accommodation by the respondent
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