mariama bah

1BETWEEN:IN THE HIGH COURT OF THE GAMBIAIN THE CADI APPEALS PANELHOLDEN AT BANJULAPPEAL NO. AP 24/ 2011MARIAMA BAH ……………………………………….. 1 ST APPELLANTFATOUMATA Bah ……………………………………..2 nd APPELLANTAND:WORRY BELLA BAH ……………………………………..RESPONDENT{Before: Justice Omar A. Secka……………………………………. the chairman.Ulama Essa Dabor…………………………………………….. Member.Ulama Sering Kah…………………………………………….. Member.At Banjul on Thursday 17 – of November 2011}JUDGMENTWritten and delivered by Justice Omar A.SeckaThis is an appeal against the decision of Brikama Cadi Court (hearin called” thelower Court” ) in the matter of dispute on patanity and distribution of property oflate Mamadou Slieu Bah of Sinchu Sorry at west cast region.The appellants / plaintiffs sued the respondent/ defendant before lower Court on22 nd December 2010 to make the following claims:The reason of my being hear is that Worry Bella Bah the defendant was the onecall us to the curator that she want her share from the property of our father Mr.Mamadou Slieu Bah, while the general fact that Worry Bella Bah is not the lawfulchild to our father. Our father has left only one wife: Mariama Jallow and hedivorced our Mother Halima Sowe before his dead our father has never told usthat Worry Bella Bah is his daughter. We want from the Court to Judge between usand Worry Bella Bah to distribute the state of our father which is about twocompounds at Sinchu Sorry in the Gambia and an other one in Guinea Conakry butthe documents of this compounds are in the hands of our step father Mr. SheriffBah they called one witness to proof their claim. Alhaji Sheriff Bah ofNewjeswang to testify for them

2The defendant / respondent denied the claim and made a counter claim as follow:My answer is that my father has married my mother in according to the Islamic lawof marriage and survived with three children tow boys and one girl that is myselfbut the two boys died, that is why I am named Worry which means in Fulanilanguage: ( life). My mother is in Conakry her name is Mariama Kaba.She called three witnesses to proof her claim:1. Babucarr Bah2. Salif Juldeh bah.3. Alhaji Mamadou Sereh JallowAlso she called her mother from Guinea to witness.The lower Court passed its Judgment in favor of the respondent as follow:That the defendants worry Bella Bah is a lawful daughter to the late MamadouSaluie Bah. That the court has no jurisdiction to overall the estate of the late atConakry.That the estates of the late in the Gambia which are two compounds in SinchuSorry are belong to his beneficiaries who are:a. Mariama jallow the widow.b. Mariama Bah daughter.c. Fatoumata Bah daughter.d. Worry Bella Bah daughter.e. Alhaji Sheriff Bah full brother.Being dissatisfied with the decision of the lower Court the appellants filed anappeal against it with the four grounds:1. That the Cadi was wrong in law when he fail to allow the appellants to saytheir side of story.2. That the Cadi was wrong in law when he indulged unlawful child in theinheritance of our father who is not a biological daughter to our father.3. That the Cadi was wrong in law when he rejected all kinds of witnesses ofthe appellants

34. While the witnesses of the respondent who was given the floor to testifytotally fail to do so but Cadi considered her witnesses as chief evidence andthey prayed from the appeals panel to set aside the judgment of the lowerCourt and any further or order that the Court deems fit.The appeal came up for hearing on 3 rd November 2011. On which day all partieswere present at the hearing the appellants argued their case in person.On the first ground the appellants submitted that the lower Court did not give usenough time to explain our story because whenever we intended to do so theystopped us saying that there is no time. The witnesses that were brought by therespondent were relatives to her husband, also mother of the respondent wasbrought to testify for her but what she said we believed that was not true, and theone who was translating there is called Doudou Barry one of the Cadis when evershe said something not true he translated it and where ever we want to rectify it theCadi tells us to sit, in the beginning the case was going on nicely but since theinterfering of Cadi Doudou Barry the direction of our case changed.On the second ground they argued that the respondent was born in Guinea Conakryand came to Gambia in the year 1998 with her husband together we did not knowher and our late father has never told us anything about her anything concerningthat he has got an other child in Guinea Conakry.For the third ground they submitted that our step father was called to lower Courtfor testify and testified that he himself was born in Guinea Conakry but neverknew the respondent, also he said that our father came from Guinea Conakry to theGambia in 1952 when he was ten years old while the said step father was sevenyears old. And we were asked to bring another witness but unfortunately all of ourwitnesses were four but all of them passed away. They were three male and onefemale, we called the Alkalo of Sinchu Sorry village whose father and our fatherestablish the village but he could not come to the Court but he wrote a letter but theCourt did not read it and not conceder it. Also we went to the paramount chief healso wrote a letter to the Court but it has no avail as the lower Court rejected outstep father and disqualified him as a tangible witness four us.For the fourth ground they submitted that the witnesses that the respondent broughtbefore lower Court they have no blood relation ship with us and they are related toher husband. And also when they were asked they used to say that their father who

4passed away was the one told them that information this is why we feel that theyare not capable persons to witness on this matter.The respondent also called her mother to testify for her but she first time said shehas never married other person apart from our father but when our step father saidthat she got married and blessed with a child called Mokhtar Sowe she return tosay that she has married before our father this contradiction statement made us tonot trust her statement.The appellants in their conclusion prayed from this honorable Court to revealJustice between them and the respondent.The respondent in other hand disagreed with the appellants and responded thefollowing:I am hear by replying that on ground one they were given time to give their allevidences and then I was give opportunity to give my evidences. They were givenenough chance to narrate their full story before me. For the matter of interpreter Ito say that in our first citing the interpreter was Pa Doudou Barry but when hestopped coming the court brought another one.For the ground two I am to inform this honorable Court that my father came first tothe Gambia then he returned back to Guinea and married my mother and blessedwith her three Children: two male and a female child. But the said two malechildren passed away and the female child who is my self survived.Then when I was three years old my father married to the appellant’s mother inGuinea after that he came back to the Gambia with their mother. When I was innine years old he requested from my mother to send me to visit him hear inGambia so I will know him and his neboughs, I came with my uncle called AlphaMamadou and I spent here with him for good seven months but during my stayhere the appellants, Mother Alimatou Sow used to tell me that How a gust visitorlike you want to stay this long time?And I used to tell her that no one is a visitor in his or her father’s house. When Imarried and got my first child I came to Gambia with my husband and we werestaying in my father compound after a while we transferred to Taliding becauseaccording to our culture we do not stay with our in law in his house.For the ground three they were asked whether they have witnesses and theymentioned our father’s younger brother: Alhaji Sheriff Bah of new Jeshwang he

5came and took oath and testified. for their second witness they mentioned oneSheriff Hydara of Sinchu Sorry but he did not come. for their first witness thelower Court rejected him for the reason that he is our step father. Then they did nothave any witness.For the fourth ground: when I was asked for witness I told the lower Court thatthey are my father mate group who were born and grow up with him together inthe same place.They were: 1. Alhaji Mamadou Serreh Jallow2. Babucar Bah3. Salieu Juldeh BahFinally the respondent requested this honorable Court to intervene between herselfand her younger sisters to distribute the state of their late father.Having listened to the both side and going through the record of the lower Courtwe realized that the appellants are arguing the following issues1. Whether or not they were given enough time to say their story in lowerCourt?2. The rejection of their witnesses by the lower Court and not consider theletters send by the Alkalo of Sinchu Sorry, one Sheriff hydara andparamount Chief was correct or not?3. Whether or not that the witness of the respondent was qualified to testified inthis matter or not in other way round their testimony is reliable as enoughevidence in this case or not.4. Weather the matter of translation of Cadi Doudou Barry (one of themembers of the lower Court) has any impact in the direction of the case inlower Court.Coming back to discourse this points our views are as follows:For the first point concerning the enough time we disagree with the appellantsbased on page 1 of the record of the proceedings of lower Court they were asked :what is the reason brought you to the Court? And they replied as follows: “thereason of my being here is that wory Bella Bah the defendant was the one called usto the curator that she want her share from the property of our father Mr. MamadouSalieu Bah, while the general fact is that worry Bella Bah is not lawfully child ofour father” as equally many question were thrown to them and they answered see p1-2 of the record this is totally contradict with the ground one and based on thatthis ground fail.On the issue of rejecting Mr. Alhagi Sheriff Bah their step father and the fullbrother of the deceased also one of his beneficiaries to accept his testimony in this

6matter by lower Court in the famous book of law called Athamaru Dani commenton Ressalah , he said thatMeans: it is not lawful witness the one who is pulling an interest for himself orpushing harm against it. See Athamaru Dani page 610 see alsoATALQEENv2.p210.Based on this Alhagi Sheriff Bah can not be a witness in this matter for any of theparties because that means dragging an in tress to himself or defending harm forhimself particularly he is one of the late inheritance based on this reason thisground also fail.For the issue No. 2 which focused on the capability of the witness of therespondents according to the record of the lower Court on page8 the first witnessMr. Babacarr Bah said:“what I know is that Worry Bella Bah is a daughter of the late because we areliving Side to Side in Conakry indeed she is legal daughter to the late they (the lateand mother of respondent) married in a place called parawal salla” also on page 9-10 of the recording the second witness Mamadou Sereh Jallow said: I am overeighty years old what I know is that Worry Bella Bah is lawful daughter to lateMamadou Salieu Bah, this is the one I was told that he married to the mother ofdefendant in Conakry …….. the marriage never took place in my present, that timeI was in Banjul “ also the similar statement was said by the third witness see p10- 11 of the record the question is that whether this witness are satisfied by sharialaw or not.? According to the Bahja V 1 p 212 stated thatMeans the hear say of witness is in the two types one of which states that anyhear say witness reached at the level of authenticity or in the stage of popularitywhich indicate the story believe as an enough evidence .As an example for that Nafeh was Maula of the son of Omar and Abdou Rahman isthe son of Quasim. As it was put to ibn Quasim that.Could some one who do not know your father can testify that you are the son ofQuasim based on heer saying?He answered: yes that evidence should be accepted in paternity ,inheritance andmarriage … no dispute in the matter because the information like this its

7popularity makes it stand and valid and whenever it is popular that Mr-X- hasmarried to miss F , that marriage is valid base on that popularity of sayingSee : Al. Bahja in the explanation of Tohfa v.1p.212.According to this tex the lower Court was right to depend on the witness ofrespondent and affiliate respondent among the beneficiary of the late MamadouSalieu Bah based on this reason the grounds 2,3, and 4 also failed.Coming up to the issue No 4 concerning the interpretation of Cadi Dodou Barrywhich was raised by the appellants before this honorable court. The respondentreply on that by saying that (in the first sitting Pa Doudou Barry was interpretingbut when he stopped coming the court brought another one, which means that CadiDoudou Barry did not translate the all case and if he did it that do not effect thefairness of proceeding because the requirements of qualified interpreter in IslamicLaw are fulfill to him) These requirements are;1. Honest 2. Understanding the language of the court 3.Understanding thelanguage of the litigants 4. He is not the enemy to the parties or relationship, seeTabsiratul Hukam V1 P29On the aforementioned criteria we believed that the translation of Cadi DoudouBarry in some citing has no effect in the direction of the case.Also the appellants did not object it before the lower court, as it was not amongthe grounds of appeal in the notice of the appeal.There is very important point that to claim a paternity to someone according toIslamic law it is based on three courses.Firstly is Iqrrarr (admission) which means if someone admit that another one ishis child and dealt with him or her as a son or daughter if that child traditionallycould be his child bay age that is accepted by sharia.Secondly is Al Firash (wed lock) which means if a marriage takes placebetween couples any child born within them is automatically considered a lawfulchild.The third one is a born child from doubtful marriage. This happen wherea man has sexual contact with a woman on a since that she is his wife and later onhe realized that she was not, any child caused by that contact is law full child seeAs-Shafi comment on Morocco Family law VI p 368.Also according to Islamic law the paternity is proven by one of the following:1. Admission 2.or two trusted withness.see the book mentioned (supra)p380-383Going back to the record page14 the withdow Mariama jallow testified when wasasked by lower court did the father of plaintiffs married the mother of the

8respondent. She answered as follow: yes he married her in Conakry. Also whenwas asked that did the lifetime of your husband the defendant use to come to hiscompound? She said: yes she use to come thereWhich mean that the late has admitted Worry Bella Bah dealing with her as adaughter to him; also the same meaning appeared in the statement of Madou SerrehJallow the second witness of the respondent see page9 of the records?While the appellants failed to proof their claim before the lower Court and therespondent able to proof her counter claim by calling four witnesses we are here byto uphold the decision of the low Court as follow:1. That Worry Bella Bah is a lawful daughter to the decease Mamadou SalieuBah and she was born through wed lock.2. That the decease inheritors are:a. Mariama jallow the withdow 1/8b. Mariama Bah a daughter]c. Fatoumata Bah a daughter ] 2/3d. Worry Bella Bah a daughter]e. Alhagie Sheriff Bah. Full brother {the residue}3. That the left behind three compounds which two of them are at Sinchu Sorrywest coast region in the Gambia.4. Based on this the appeal fail and dismissed .Hon: Justice Omar ASecka……………………………..Chairman Cadi appeals panelHon : Ulama Essa F Dabore Member Hon: Sering M.Kah Member………………………….………………………