Preface

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158 contradict the provision of Sharia. If the mother said the property should not be sold and beneficiaries disputed that the idea of not selling cannot hold. On section 33 of the constitution cited by the counsel of the appellant the learned counsel dispelled his submission as a mare misconception. He said there is no evidence suggesting discrimination against the appellant. There is nothing in the judgment discriminating any of the heirs. On the submission of the counsel of the appellant that the Cadi should have determined the shares of the parties the learned counsel said that determination of shares is Qur'anic injunction the Cadi has no business there, what he can only do is to give declaratory decision on that. On a sketch plan submitted by the counsel of the appellant to this court the learned counsel said that the plan does not show the share of each heir. The learned counsel further conceded to the idea of showing the appellant's own share but to insist on his physical share is ridiculous. The effect of plotting out appellant's physical share on the ground will only result in causing harm to other beneficiaries which injunction of a prophetic tradition says should be avoided. Finally, the learned counsel rounded up by saying that the reasoning of the lower court is sound enough to warrant confirming its judgment. At this juncture and under the impression of a reply on point of law the appellants counsel chipped in and said that to say plotting of physical share of the appellant will harm other heirs is a professional idea which can only be proved by a surveyor. Having carefully and meticulously gone through the record of proceedings of the lower court and submissions of the learned counsel to the parties before us I find it pertinent and desirable for easy and just determination of this case to
159 formulate the following issues for determination. This may, even be necessary, in view of the fact that none of the counsel has ever thought of proposing any issue for determination at the end of their respective addresses, despite the fact that the addresses hammer on vital and fundamental issues which require careful considerations and determination. The issues are as follows: ISSUES FOR DETERMINATION: 1. Whether or not the lower court had jurisdiction to hear and determine the instant case. 2. Whether or not the decision of the lower court to sell the house No. 14 Gloster street Banjul was predicated on and preceded by a due observance of proper steps and procedure. 3. Whether or not the heirs and appellant in particular have right of pre emption over the estate. 4. Whether or not there was a substantial compliance with the rules of procedure by the lower court. However, before embarking on determination of these issues it should be borne in mind that as an appellate court it is not our business to abdicate our responsibility to justifying the errors of the lower court. Conversely our major function is to bring into conformity with reality and consistency with provisions of law all actions of the lower court that are out of tune. To this end, we are to make sure that the lower courts confine their actions within their constitutional and statutory powers. With this at the back of our minds we will go to the 1st issue for determination.
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2 PREFACE In the name of God, the M
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4 CONTENTS S/No. Contents Pages 1.
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6 7. Yorro Fatty Vs Lama Bah AP/17/
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8 orders. Sheikh Hydara Vs Yandeh N
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10 18. PRACTICE & PROCEDURE: Burden
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12 10. Almustasfa Min Ilmil Usul By
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14 4. Mafolatu Vs Usain Akanbi Ita
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16 UIN THE HIGH COURT OF THE GAMBIA
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20 according to the principles of S
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22 4. The residue of an estate alwa
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24 and she was very small so she wa
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26 Secondly, we accepted the decisi
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28 Musa Sabily shall have D112962.5
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30 5. Evidence is invalidated if sh
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32 disputing the right of these peo
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34 estate among his heirs, this pro
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36 This Panel has gone through the
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38 Shares: Share: 1. 10 7 27 D175,0
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40 …………………………
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42 at Street 45 Stanley Banjul belo
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44 “I was called there in the cou
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46 About the submission by the appe
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50 house of one Kebba Kebbeh at San
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52 a while and satisfy itself on wh
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54 From the totality of the foregoi
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56 for joinder as an interested par
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58 the rate of D8,250.00 and D25.00
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62 The claimant’s oath in (c) and
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64 Islam to exclude her from the va
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66 of the subject matter of the cla
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68 The above issues were not proved
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70 how well conducted. The non-comp
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74 2. That the change of name was w
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76 she confirmed what the appellant
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78 On this note, we hereby declared
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80 JUDGMENT Written & delivered by
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82 2- That the exclusion of Assan S
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84 4- That if the appeals Court wil
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86 Mr. Ousman Sarr (paternal brothe
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88 Rules 2010 which states that: Su
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90 stripes, and reject their testim
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92 allegation as stated in the Hadi
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94 guided by their provisions with
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96 properties one in Allen street o
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98 the appellant. As such the appli
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100 I find no difficulty in resolvi
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102 same way other cases are commen
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104 '' Under Islamic Law, the subje
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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 124 and 125: 124 (c) That when the appellant was
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 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 172 and 173: 172 This is an appeal against the j
Page 174 and 175: 174 For the second witness Mr. Lami
Page 176 and 177: 176 built up together there is a th
Page 178 and 179: 178 1. Whether it took place on 22
Page 180 and 181: 180 Meaning: reconciliation is perm
Page 182 and 183: 182 3. Those who have no course yet
Page 184: 184 ……….……..…..……
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