Preface

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20 according to the principles of Sharia. We therefore uphold the decision. However, we observed that: 1. The Cadi fails to mention the mode of maintenance for the children especially with regards to their education. 2. The appellant is not actually appealing against the Judgment of the Cadi but he is worried about their education, well being and care of the children of which the mother has already undertaken. 3. We also observed that the respondent is willing and ready to give the appellant access to the children. This is because during the holidays, she took the elder child to the appellant (father) on his request. In this regard, since the wife is divorced and the appellant wants the children to have proper care and good education he has to contribute financially by monthly payment of D600.00 (six hundred dalasi) for the two children for: a. Their feeding, b. Education and upbringing, Copy of this Judgment will be made available to the Bundung Cadi Court for their retention and execution in case of default by the appellant. ………………………………… (Signed): Hon. Justice A.S. Tahir ……. ……………………………… (Signed): Alh. Ousma Jah …………….…………………………… (Signed) Alh. Muhamad Jaiteh
21 UIN THE HIGH COURT OF THE GAMBIA UIN THE CADI APPEALS PANE UHOLDEN AT BANJUL APPEAL NO. AP/14/ 2005 BETWEEN: MUSA SABILY…….. ……………………………………….…… APPELLANT AND: HASSANA BAYE ……………………………………….…….…RESPONDENT {Before: Justice Omar A. Secka Chairman, Alh. Ousman Jah Panelist and Alh. Mashona Kah Panelist at Banjul on Tuesday, November 6, 2007} UPRINCIPLES: 1. The burden of proof lies on he who alleges, if not discharged, the burden of oath lies on a party against whom the allegation is made. See a prophetic tradition reported by Tabarani and Bayhaqi. 2. A valid distribution of estate is the one that was conducted by Cadi in the presence of all parties and his two assessors or assistants. This is based on the popular pronouncement of Sayyadina Umar where he was reported to have said “give equal treatment to all parties before you and in application of justice to them as well as on how and where they stand before you in such a way that an influential person will not be confident in his influence and the poor will not be in a state of despair”. 3. The share of a widow where the deceased leaves a child is 1/8. Qur’an 4:12
Page 2 and 3: 2 PREFACE In the name of God, the M
Page 4 and 5: 4 CONTENTS S/No. Contents Pages 1.
Page 6 and 7: 6 7. Yorro Fatty Vs Lama Bah AP/17/
Page 8 and 9: 8 orders. Sheikh Hydara Vs Yandeh N
Page 10 and 11: 10 18. PRACTICE & PROCEDURE: Burden
Page 12 and 13: 12 10. Almustasfa Min Ilmil Usul By
Page 14 and 15: 14 4. Mafolatu Vs Usain Akanbi Ita
Page 16 and 17: 16 UIN THE HIGH COURT OF THE GAMBIA
Page 22 and 23: 22 4. The residue of an estate alwa
Page 24 and 25: 24 and she was very small so she wa
Page 26 and 27: 26 Secondly, we accepted the decisi
Page 28 and 29: 28 Musa Sabily shall have D112962.5
Page 30 and 31: 30 5. Evidence is invalidated if sh
Page 32 and 33: 32 disputing the right of these peo
Page 34 and 35: 34 estate among his heirs, this pro
Page 36 and 37: 36 This Panel has gone through the
Page 38 and 39: 38 Shares: Share: 1. 10 7 27 D175,0
Page 40 and 41: 40 …………………………
Page 42 and 43: 42 at Street 45 Stanley Banjul belo
Page 44 and 45: 44 “I was called there in the cou
Page 46 and 47: 46 About the submission by the appe
Page 50 and 51: 50 house of one Kebba Kebbeh at San
Page 52 and 53: 52 a while and satisfy itself on wh
Page 54 and 55: 54 From the totality of the foregoi
Page 56 and 57: 56 for joinder as an interested par
Page 58 and 59: 58 the rate of D8,250.00 and D25.00
Page 62 and 63: 62 The claimant’s oath in (c) and
Page 64 and 65: 64 Islam to exclude her from the va
Page 66 and 67: 66 of the subject matter of the cla
Page 68 and 69: 68 The above issues were not proved
Page 70 and 71:
70 how well conducted. The non-comp
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72 UIN THE HIGH COURT OF THE GAMBIA
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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
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130 shall be filed within thirty da
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132 4. The fact that the appellant
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134 1. Fatou Dembajang- 4 years 2.
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136 1. Transfer the right of custod
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138 subsisting marriage between me
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140 At this juncture we requested t
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142 cover and having observed what
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144 reverted to Christianity, in th
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146 Pursuant to section 137A (6) of
Page 148 and 149:
148 3. The applicants violated the
Page 150 and 151:
150 ……….……..…..……
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152 clearly defined and limited the
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154 But at the same time if the sai
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156 Islamic Law. His interest in th
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158 contradict the provision of Sha
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160 ISSUE NO. 1 (Whether or not the
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162 before Banjul Cadi Court in the
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164 ''Two conditions are essential
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166 the court particularly the dist
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Page 170 and 171:
Page 172 and 173:
172 This is an appeal against the j
Page 174 and 175:
174 For the second witness Mr. Lami
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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
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182 3. Those who have no course yet
Page 184:
184 ……….……..…..……
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