Preface

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22 4. The residue of an estate always go to the children where they are male or a mixture of males and females and it shall be shared among them on the principle of a male carries the double share of a female. This is based on the provision of the holy Qur’an 4:9. 5. The right of custody of a child (male or female) is exclusively vested in the mother provided that she has satisfied the laid down conditions. This is as reported by Bin Qudama in the famous Islamic book of procedure (Al- Mugni). In the instant case the appeal Panel has affirmed the custody of Hauwa Sabily at the hand of her mother Hasana Baye the respondent and appointed her the guardian of the child who will have control over her estate. However the Respondent has no right to dispose of the house that has been given to Hauwa by sale or gift or mortgage without seeking and obtaining the approval of the Appeal Panel or that of Hauwa if she has attained the legal age of puberty. JUDGMENT Written and delivered by Justice Omar A. Secka On 8/11/2005 the Cadi Court of the Kanifing on 08/11/2005 announced its judgment in a this case to the effect that the estate of late Dimba Sabily which was a house at Birkama be shared among his heirs as follows: Hassana Baye (Wife) to receive 1/8. While the remaining properties to be distributed among the children of the deceased. They are: 1. Musa Sabily (son) and 2. Hauwa Sabily (daurgter) on the principle of the male takes the double share of a female. As the plaintiff was not satisfied with this judgment he filed his appeal before this panel on 10/11/2005 on the following grounds:
23 1. During the pendency of the instant case and before the judgment the Cadi had allowed the respondent alone to enter into his chambers. 2. The Cadi ordered for the detention of the appellant when he was making his statement of claim. 3. The distribution of the estate (house) was completed without the appellant or witnesses or his uncle or the Imam of the area in attendance. 4. The Cadi did not advert his mind to the allegation that the appellant has removed some properties from the house. Neither did the Cadi call for evidence in proof of the allegation. 5. The valuation of the house (estate) was done by an unknown estate valuer. 6. Initially the respondent did not support the idea of distributing the estate but he was of the view of leaving the whole properties for the children. The case was slated for hearing before the Panel on 07/06/2007. On that day both the appellant and respondent were before the court in person. The appellant made the submissions that the respondent presented a requested for her own share and that of her small daughter in the house before the lower court. But appellant objected to that on the ground that the daughter was too small and he doesn’t want part with her, he wants her share to be under his care up to the time she will be of age. He then appealed to the Panel to confer on him the right of custody of his sister (Hauwa Sabily) and to look after her share. At this juncture the respondent had made the same appeal she made before the lower court that she wants her own share of 1/8 and that of her daughter be given to her. And with regard to the appellant appeal for the custody of Hauwa Sabily she objected to that on the ground that he was yet to marry. She further said that the girl is her own daughter
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 20 and 21: 20 according to the principles of S
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
Page 72 and 73:
72 UIN THE HIGH COURT OF THE GAMBIA
Page 74 and 75:
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
Page 82 and 83:
82 2- That the exclusion of Assan S
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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
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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
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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
Page 138 and 139:
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
Page 158 and 159:
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
Page 164 and 165:
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
Page 182 and 183:
182 3. Those who have no course yet
Page 184:
184 ……….……..…..……
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