Preface

90
stripes, and reject their testimony forever.) That lower Court should have asked
Mr. Ousman Sarr to produce the required witnesses before recording anything on
the record of the court. This is where the mistake of the lower Court came from as
tasted on page 12 of Ihkamul Ahkam Commentary on Tuhfa: ‘The plaintiff f is
requested to prove his claim’.
So the issue raised by the step father (Ousman Sarr) was a mere claim and
the issue which lawyer Sisoho raised whether there is a legal evidence for the
lower Court to exclude some and include others? The answer to that question is
since the lower Court did not follow the proper procedure to exclude the said child,
the judgment cannot be supported by any authority in the Quran or Sunnah.
On what lawyer Sisoho said concerning the gift whether that type of gift is a
valid gift in Sharia or not? We may say before any inquiry into the gift we are to
look first into whether the appellant is entitled to a gift or not? We must inquire
whether the child is part of the hairs or not? Since this is not stated then the gift is
not in its original position. In fact the respondent has once stated before the Court
that the lower Court has once given the cash money as the share of Assan Sarr
and again came back to say that the money was a gift and this was witnessed by
lawyer Touray before the panel. This shows the invalidity of the gift. The
respondent through her lawyer from the look of things is not opposed to the
submission of the appellant since they both confirmed that before the panel.
Based on that, it is incumbent on both the respondent and her lawyer to
ascertain the status of Assan Sarr by calling witnesses on that matter. This Court
called Mr. Ousman Sarr to appear before it to testify in the sitting dated 10 th / 3/
2011 but he failed to appear. In fact he sent us an undated written letter in which
he was saying that Assan Sarr was born out of wed lock, but he has hidden that