Preface

67
On issue (b) whether the claim has satisfied the requirement of proof under
Islamic law? From the totality of the record of proceedings of the lower court
placed before this panel, there is no evidence from which the lower court could be
said to have based its conclusion that Plot No. 2 Mantel Street Banjul was an
inheritable property left by the deceased talk less of sharing same between the
appellant and the respondent. The lower court should have extracted evidence from
two witnesses to prove the facts contained in the plaintiff’s statement of claim
since under Islamic law such statements however strong and convincing cannot
constitute evidence and must need evidence to support it. It’s akin to pleadings in
common law system where same is deemed abandoned if no evidence is led on it.
A party hardly succeeds on the facts pleaded without evidence to support it. In the
case of Muhammad A. Aidami Vs Bukar Kusumi (2007) 3 S.L.R. PT IV P. 208 it
was held by the Court of Appeal of Nigeria that under Islamic law, as opposed to
common law, parties are not competent witnesses. They can only state the facts of
their respective cases and prove same by credible evidence duly adduced by
witnesses. The plaintiff should have therefore called witnesses to prove the
following facts, namely:
1. That there was a demise of Mbaye Gaye; the mother of the appellant and the
respondents;
2. That the said deceased left behind the appellant and the respondents as the
only surviving heirs,
3. That the deceased left behind, inter alia, an inheritable property i.e. Plot No.
2 Mantel Street, Banjul which constituted the claim before the lower court
and the subject matter of appeal before this panel.
4. That the deceased's parents predeceased her.