Preface

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180 Meaning: reconciliation is permissible between Muslims except a reconciliation that changes lawful to unlawful or changes unlawful to lawful “see Tabsiratul Hukkam Vol. 1 Page 25 Also there is a very important point to be clarified that to conduct reconciliation is not a mandatory to the Court according to the Cadi Courts Civil Procedure Rules 2010 Order XX Rule 100 sub rule(1) as stated: “At any time before Judgment is delivered the Court may refer any matter to mediation or negotiation ...” Based on the reason this ground failed. For the issue of long term marriage between the appellant and the respondent argued by appellant counsel that the lower Court should put that into consideration, we are here by declaring that divorce is permissible by Sharia as stated by prophet Muhammad (P.B.H.) Meaning: The most hated of all things which have been permitted by Allah is divorce. Professor Abdur Rahman 1. Doi said on his comment on this Hadith had this to say at page 169 of his book Shariah: The Islamic Law: “The aim of the Sharia is to establish a healthy family unit through marriage, but if for some reasons this purpose fails, there is no need to linger on under falls hopes as the practice among the adherents of some other religions where divorce is not permitted” This ground also fails based on afore-mentioned reason. For the issue no 3 which the appellant counsel raised concerning the joint ownership of property between the appellant and respondent, we believe that the lower Court was right not to have listened to the issue of joint ownership of property because that falls out of its Jurisdiction according to section 137 sub
181 section (4) of the 1997 Constitution of the Gambia which limits the jurisdiction of Cadi Courts to matters of marriage, divorce and inheritance were the parties or other persons interested are Muslims. Also see Edi Touray V Alhaji Malick Gaye and others Unreported Appeal No. 12/2011 of Cadi Appeals Panel. Based on this the lower Cadi Courts has no Jurisdiction to look into the matter of joint ownership of property. This ground also fails. Coming to the issue no 4 where the counsel argued that the lower Court did not address properly the issue of ejectment, as we said earlier that the divorce took place for the first time before the lower Court on 22rd / 3/ 2011 the date of Judgment. From that time the lower Court was to explain to them the type of Iddah (Waiting period) that should be observed because Iddah differs from woman to another as stated in suratu Talaq. Which means: such of your woman as have passed the age of monthly courses, for them the prescribed period, if ye have any doubts is three months, and for those who have no course For those who are pregnant their period is until they deliver their burdens. Also in Suratul Baqarah. Stated that Which means: divorced woman shall wait concerning themselves for three monthly periods these are stating clearly that the woman in terms of Iddah are four types: 1. The pregnant one and their period are until they deliver. 2. Those who have passed the age of monthly courses. And their period is three months.
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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
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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 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
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 182 and 183: 182 3. Those who have no course yet
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