Preface

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68 The above issues were not proved by credible evidence. It is a trite law that a trial court must decide a case on the strength of legal evidence adduced before it and where it has failed to follow this course, as it is in the instant case, an appeal court will have no option than to interfere with its decision. In Ihkamul Ahkam Chapter 4 (which deals with issues relating to Judicial Proceedings) page 16 it is provided: Meaning it is unanimously agreed by the jurists that a judge can pass judgment only on a piece of evidence duly extracted from the witnesses. On cases other than that, Imam Malik has strictly forbidden judgments which are not based upon evidence of witnesses. The burden of proof under Islamic law is on the plaintiff. Where the plaintiff fails to discharge that burden, then the defendant is asked to subscribe to what is called "Judicial/Exculpatory Oath" to entitle him to judgment where the claim is pecuniary in nature or same is based on claim of a disputed property of monetary value. This is based on the authority of a prophetic tradition in which the prophet (PBUH) told a plaintiff: "your two witnesses or his oath no more no less ". The procedure for conducting a trial under Islamic law succinctly stated is as follows: (f) The plaintiff shall state his case or claim before the court which claim must be a valid one satisfying all its prerequisites,
69 (g) The defendant is then asked to respond to same by either admitting the claim or denying same, (h) Where the defendant admits the claim the case ends there and judgment is entered for the plaintiff based on the admission, (i) Where the defendant denies the claim, the plaintiff is asked to produce his witnesses which, in pecuniary claims or actions based on claim of properties of monetary value, must be: (a) Two male witnesses or; (b) One male witness and two female witnesses or; (c) One male accompanied with the claimant's oath or; (d) Two female witnesses and claimant's oath, The claimant’s oath in (c) and (d) above complements the second witness which cannot be found by the plaintiff to establish his claim before the court. 5. Where the plaintiff has proved his case as outlined above, the defendant is asked to defend the case by calling witnesses to disprove or dislodge the plaintiff's claim in line with the procedure for proof adopted by the plaintiff above. 6. After this the court then analyses the totality of the evidence adduced by the two sides and passes its judgment accordingly. See on this the case of Dahiru Gaya Vs Uwani (2007) 3 S. L. R. PT IV page 138. What distinguishes a Cadi from other stakeholders in the arena of dispute settlement is the evidence upon which his decisions are based and founded. Where this distinctive feature of proof is lacking from a court proceedings, the proceedings of that court, cannot be called a judicial proceedings, and no matter
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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
Page 18 and 19: 18 UIN THE HIGH COURT OF THE GAMBIA
Page 20 and 21: 20 according to the principles of S
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 70 and 71: 70 how well conducted. The non-comp
Page 74 and 75: 74 2. That the change of name was w
Page 76 and 77: 76 she confirmed what the appellant
Page 78 and 79: 78 On this note, we hereby declared
Page 80 and 81: 80 JUDGMENT Written & delivered by
Page 82 and 83: 82 2- That the exclusion of Assan S
Page 84 and 85: 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
Page 90 and 91: 90 stripes, and reject their testim
Page 92 and 93: 92 allegation as stated in the Hadi
Page 94 and 95: 94 guided by their provisions with
Page 96 and 97: 96 properties one in Allen street o
Page 98 and 99: 98 the appellant. As such the appli
Page 100 and 101: 100 I find no difficulty in resolvi
Page 102 and 103: 102 same way other cases are commen
Page 104 and 105: 104 '' Under Islamic Law, the subje
Page 106 and 107: 106 R. 77 (4) Any distribution of a
Page 108 and 109: 108 single witness was called in th
Page 110 and 111: 110 before judgment is entered agai
Page 112 and 113: 112 A judge shall on no account rel
Page 114 and 115: 114 these primary sources of Islami
Page 116 and 117: 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
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148 3. The applicants violated the
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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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172 This is an appeal against the j
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174 For the second witness Mr. Lami
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176 built up together there is a th
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178 1. Whether it took place on 22
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180 Meaning: reconciliation is perm
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182 3. Those who have no course yet
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184 ……….……..…..……
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