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78 On this note, we hereby declared that Appeal Number this appeal succeeds in part and failed on the other part. ………..…………………….. (Signed): Justice Omar A. Secka …………………………… (Signed): Justice Aminu Sa’adu ……………..……….……….. (Signed) Alh. Ousman Jah ………………………………… (Signed): Alh. Masohna Kah
79 UIN THE HIGH COURT OF THE GAMBIA UIN THE CADI APPEALS PANE UHOLDEN AT BANJUL APPEAL NO. AP/13/2010 BETWEEN: ASSAN SARR…………………..………………..…….……….....APPELLANT AND: NENE SARR…………………….…………………….…….….RESPONDENT {Before: Justice Omar A. Secka Chairman, Alh. Essa Dabo Panelish and Alh. Seringe M. Kah Panelish at Banjul on Thursday, March 24, 2011} UPRINCIPLES: 1. A mere allegation of illegitimacy cannot in Sharia deprive the person, against whom the allegation is made, from inheriting his deceased father. Such allegation is nothing but a mere assertion which must be proved by credible evidence as required by Islamic law in line with the principle of “he who asserts must prove”. 2. In any inheritance case before a Cadi Court, evidence to prove the death of the deceased, the estate and the beneficiaries left by such deceased is indispensable in line with the provisions of Order XIII Sub-Rule (2) of the Cadi Courts (Civil Procedure) Rules 2010. 3. Where the above procedure is not adopted by a Cadi Court, as in the instant case, the Appeal Panel will have no better option than to interfere with its findings.
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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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18 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
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 48 and 49: 48 UIN THE HIGH COURT OF THE GAMBIA
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 74 and 75: 74 2. That the change of name was w
Page 76 and 77: 76 she confirmed what the appellant
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
Page 118 and 119: 118 4. The appellant being pregnant
Page 120 and 121: 120 that she was not given the oppo
Page 122 and 123: 122 their marriage was done by the
Page 124 and 125: 124 (c) That when the appellant was
Page 126 and 127: 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
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
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148 3. The applicants violated the
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150 ……….……..…..……
Page 152 and 153:
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 172 and 173:
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
Page 178 and 179:
178 1. Whether it took place on 22
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180 Meaning: reconciliation is perm
Page 182 and 183:
182 3. Those who have no course yet
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184 ……….……..…..……
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