Preface

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178 1. Whether it took place on 22 nd /8/2005 by letter given to the brother of the appellant? 2. And whether it was considered by the lower Court or not? Based on the judgment of the lower Court the divorce took place at the Court on the date 23 rd / 3/ 2011 because the respondent failed to prove before the lower Court the divorce neither by witnesses nor by a copy of the divorce letter. And when he was asked by the lower Court whether he has any interest in retaining the marriage? He answered negatively by saying that: “I prefer to go hell than to retain this woman in marriage” See p5 of the record. This according to Sharia means divorce by indirect speech. Which mean the words that are used for divorce are two types: the direct words and indirect words. The direct word is through using the word “divorce”: and the indirect words are any other words used to end a marriage. Based on this what the husband said before lower that “I prefer go hell than to retain this woman in marriage” automatically means divorce by indirect word of divorce according to Maliki school of thought. Having clarified this point I will come to the argument of the appellant counsel who raised the following issues: 1. Issue of conducting reconciliation before ending the marriage. 2. Issue of long term marriage between the appellant and respondent. 3. Issue of joint ownership of property between the appellant and respondent to build the house of respondent at Bakau
179 4. Whether the lower Court addressed the issue of ejectment property in judgment before taking decision on it. 5. The issue of second wife whether it has impact in the relation of the appellant and respondent or not. 6. The issue of ejecting the children of the respondent from his compound whether the lower Court took proper procedure and hearing for taking that decision? Coming back to the first issue in the record of the lower Court P1 the plaintiff / respondent said: “the reason of bringing the woman (my wife) before the Court is that, in the year 2005 I took her to the Court because of her refusal to share the bed with me” Also in the same page the Court said: “ in that year 2005 conflict you could have negotiates it to be the better if no real you can ask for the termination of marital contract” also the plaintiff answered the Court by saying: “ in that particular year we had a big talk on this issue but we reached on no result”. Also Mr. Keeba Manneh the witness of plaintiff testified before lower Court that: “this case started since 2005 during the time we come to the Court to summon the defendant ……… the Court advised us to go and negotiate among themselves and if that resulted negative then the husband can write the divorce letter to divorce his wife” All these are indicating that the lower Court has conducted reconciliation between spouses, long time ago before adopting the divorce, according to Sharia as stated by second Caliph, Omar bun Kattab in his letter to Abu Musa that:
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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
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108 single witness was called in th
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110 before judgment is entered agai
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112 A judge shall on no account rel
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114 these primary sources of Islami
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116 same lower court (Principal Cad
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118 4. The appellant being pregnant
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120 that she was not given the oppo
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122 their marriage was done by the
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124 (c) That when the appellant was
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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
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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 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 180 and 181: 180 Meaning: reconciliation is perm
Page 182 and 183: 182 3. Those who have no course yet
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