IN THE HIGH COURT OF THE GAMBIA IN THE CADI APPEALS ...

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IN THE HIGH COURT OF THE GAMBIA
IN THE CADI APPEALS PANEL
HOLDEN AT BANJUL
APPEAL NO. AP/003/2012
BETWEEN:
EBRIMA JAWARA & ORS……………..……………………….APPELLANT
AND:
ISATOU & FATIMATA JAWARA……………………….….RESPONDENTS
{Before: Justice A. S. Usman, Alh. Ousman Jah Panelist and Alh. Masohna Kah
Panelist at Banjul on Thursday, February 2, 2012}
Written and delivered by A. S. Usman
JUDGMENT
On 10/1/12 the appellants herein filed a Notice of Appeal before this court
against the judgment of the Cadi Court of Banjul in Suit No. B0121/1/10. The suit
was filed by the appellants (then as plaintiffs) for distribution of estate of late
Muhamadou Jawara as presided over by Principal Cadi Lamin Khan. Being
dissatisfied with the judgment of the court which was said to have been delivered
in September 2011, the appellants appealed to this Panel upon the following
grounds:
1. That the Cadi was wrong in law when he decided the final judgment for
sharing the estates of our late Father in the absence of the appellants and
they were not notified for the Judgment day and notice that the appellants
are the plaintiffs for this Matter.
2. The Cadi was wrong in law when he fail to put in the consideration that the
vehicle No: BJL 1867 C being use by the appellant is their late father‟s

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belonging (estate) and the Cadi allowed to seized the vehicle from the
appellant and give the respondents without reason known.
It is really unfortunate that this case was badly handled by the lower court.
The case has no any record in form of proceedings which can assist this panel in
deciding the appeal on its merit. One will be astonished to hear that a case that has
gone to the stage of execution could not produce a valid judgment in its case file
talk less of any comprehensive proceedings which might have led to that judgment.
The bad handling by the lower court has adversely affected the parties by putting
them in a sympathetic situation and subjecting them to an endless litigation without
any success of having the issues in controversy between them (i.e. a simple case of
distribution of estate) resolved and settled once and for all.
In an inheritance case such as this, as well as any other civil matter over
which a Cadi Court can assume jurisdiction in the Gambia there ought to be a
record of proceedings of what transpired in the case right from its inception when
the complaint is lodged by a complainant, through the hearing and up to its logical
conclusion by delivering judgment in the matter. The provisions of Order 7 Rules
41and 42 and Order XIII Rule 77 of the Cadi Court (Civil Procedure) Rules 2010
and Rules 4 and 5 of the Mohammedan (Banjul) Rules, a subsidiary legislation
made under the Mohammedan Law Recognition Act Cap. 6:04 Laws of the
Gambia should have served as a guide to the court in handling the instant case.
Order 7 Rule 41 and 42 of the Cadi Court (Civil Procedure) Rules 2010 provides:
“41. (1) The Cadi shall have overall conduct of the proceedings of the
court and shall record same.”
“42. The record of proceedings of each case the court proceeded with
shall be signed by the Cadi and the members.”
Rules 4 and 5 of the Mohammedan Court (Banjul) Rules also provides:
“ 4. Minutes of the proceedings of the court shall be drawn up in the
Arabic language or in the English language by such clerk or clerks.”
“5. A record, to be called “The Mohammedan Court Record Book”
shall be kept in Arabic or in English and all minutes shall be entered
therein.”

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Additionally, the lower court should have been guided by plethora of
authorities under Islamic law which stresses the importance and necessity of
recording of proceedings. It is because of the importance attached to
documentation of judicial proceedings that Maliki School of law made it almost
imperative for a judge to have a special scribe called „Katib‟ well learned in
Islamic law who shall be charged with the task of documenting the proceedings of
a case in the open court to enable the judge have full concentration on his judicial
functions. See Nizamul Qada Fil Islam being a Selections of Papers Presented To
The Conference On Islamic Jurisprudence Organized By The Islamic University Of
Imam Muhammad Ibn Sa’ud At Riyadh Saudi Arabia In 1984 page 62. See also
Tadwinul Murafa’at Al-Qadaiyya Fi Sharia Al-Islamiyyah by Sheikh Abdullahi
Hunayn page 84 and Bahjah Commentary on Tuhfa page 74. In the said Bahjah it
is provided:
Meaning a case has no any binding effect if its proceedings are ambiguous.
And it is imperative on a Judge to fully document his judgment and record same,
the authorities he relied on for arriving at such judgment based on the testimonies
of the witnesses that testified before him in the matter so that he can have a defense
and a legal backing if the judgment debtor ultimately challenges his decision (on
appeal).
This appeal came up for hearing on 26/1/2012 with the appellants Ebrima
Jawara and Mahmud Jawara in court while Isatou Jawara and Fatoumata Jawara
appeared as respondents. For the defect of non availability of any record of
proceedings pertaining to the case at our disposal as shown above, and in line with
Order III Rule 9 of the Cadi Appeals Panel Rules 2009, the Panel decided to resort
to questioning the parties to shade light on the proceedings for the purpose of
elucidating and amplifying the record of the lower court with a view to arriving at
the true facts of the case. The panel started with the date of judgment by the lower
court which neither the appellants nor the respondents could avail the court with.
The 2 nd respondent Fatoumata Jawara said the judgment was delivered in
September, 2011 but could not tell the court which date in September.

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It is interesting to note that prior to the filing of this suit, there was a similar
suit with Case No. B001/1809/06 which was filed in the same court by one Mama
Kabba Jawara one of the widows of the deceased person against Ebrima Jwara (the
1 st appellant herein) sometimes between April and June 2006 for distribution of
same estate but the case was not pursued to conclusion by the said Mama Kabba
due to her demise. The appellants as well as the respondents stated before the court
that their late father Muhamadou Jawara, who passed away in October 2004, left
the following estate and beneficiaries, to wit:
The Estate:
1. Property at Tabokoto,
2. Property at Churchill Town Serekunda,
3. Property at Kanifing South,
4. Property at 7 Louvell Square Banjul,
5. Property at 16 Fitzerald Street Banjul and
6. A Toyota 4 Wheel Drive
The Beneficiaries:
(a) Mama Kabba Jawara – 1 st Widow
(i) Musa Jawara
(ii) Idrisa Jawara
(iii) Ceesay Jawara
(iv) Jainaba Jawara
(v) Isatou Jawara
(vi) Fatimata Jawara and
(vii) Mohammed Jawara (alis Bature).
This last one, according to them predeceased their late father in September 11,
2001 bombing of the World Trade Centre (WTC) in the USA.
(b) Fatiamata Jawara – 2 nd widow
(i) Ebrima Jawara
(ii) Fatimata Jawara
(iii) Mahmud Jawara
(iv) Ali Jawara
(v) Maryama Jawara
(vi) Jatou Jawara
(vii) Fatimata Jawara

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(viii) Amara Jawara
(ix) Abubakar Jawara and
(x) Amie Jawara
They also informed the court that there is another beneficiary from the late‟s
divorced wife called Majigi Tunkara by name:
(xi) Safi Jawara
The 1 st appellant in line with ground 1 of the grounds of appeal argued that
he was not notified of any date of judgment despite the fact that he was the
plaintiff before the lower court. That he got to know that judgment was delivered
when some policemen came to seize and in fact seized from him the Toyota 4
wheel drive left by the deceased which he was using in solving the domestic
problems of the beneficiaries. The appellant argued further that even the two
properties in Tabokoto and Churchill Town; it was through KMC that he got to
know that they were allocated to the respondents. He submitted further that all
attempts to redress the lapses by convincing the lower court to have a second look
at the irregularities were treated with contempt. This, he lamented further,
informed his decision to appeal against the findings of the lower court to this panel.
The 1 st appellant lastly submitted before us that he used to share the rents
accruing from the landed properties of the deceased between all the beneficiaries
after taking out what would suffice in solving the domestic problems of the
household until in the last three years when the respondents herein refused to take
their respective shares. That the respondents‟ shares so rejected were further
expended on maintenance of the household. That within the three years that the
respondents refused to take their respective shares, they personally collected rents
totaling D72,000.00 from tenants in respect of two properties at Serekunda. He
argued that some of his expenses were receipted for while others were not. The 2 nd
appellant Mahmud Jawara adopted the arguments of the 1 st appellant and added
that he used to be the intermediary through whom the respondents‟ shares were
paid to them by the 1 st appellant except for the past three years when they refused
to take it.
The 2 nd respondent in her reaction to this ground of appeal, which argument
the 1 st respondent equally adopted, maintained that the 1 st appellant, who was the
plaintiff in the lower court has constantly refused to take service of the lower

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court‟s processes and that even where the process server succeeded in serving him
with a hearing notice the 1 st appellant would not show up to attend the trial. That
the lower court was condoning the 1 st appellant on this until when it became fed up
with his attitude that it decided to proceed with the case in his absence.
On the issue of giving them their share of rent, the 1 st respondent as well as
the 2 nd respondent argued that that assertion is false. That since the demise of their
father about seven years ago, the 1 st appellant has never given them anything in
form of rents due to them and on their part, they have never collected the sum of
D72,000.00 as rent on any of the properties.
On the second ground of appeal, the two appellants argued that the Toyota 4
wheel drive No. BJL 1867 C formed part of the estate of their deceased father and
the car has been in possession of the 1 st appellant for the past 7 years but the lower
court ordered same to be seized and given to the respondents who in turn handed
over same to their respective husbands for sale and same was accordingly sold out
to an unknown buyer.
The 2nd respondent reacted to this by stating that it was because of the
persistent refusal of the 1 st appellant to appear before the lower court that the court
decided to proceed with the case in his absence by distributing the estate to the
beneficiaries. The appellants‟ side, according to the 2 nd respondent (Fatoumata
Jawara) was given two houses at Churchills Town Serekunda and No. 16 Fitzerald
Street Banjul while the respondents‟ side was given one house at Tabokoto plus the
Toyota 4 wheel drive which car was still in their possession and has not been sold
out as claimed. The 4 th house which is situated at 7 Louvell Square Banjul was to
be shared between the appellants jointly with Safi Jawara. The 5 th house, the 2 nd
respondent submitted further, was not shared but was left for their mother (Mama
Kabba) in settlement of her own share from the compensation paid to them
jointly(i.e. the deceased and Mama Kabba) by the US government on the death of
their son Mohammed Jawara (alias Bature) who died on September 11, 2001 and
which amount the deceased used all to the exclusion of the said Mama Kabba with
a promise to pay her back and which he did not up to the time he died. The 1 st
respondent (Isatou Jawara) adopted intoto the submissions of the 1 st respondent
and said she had nothing to add.

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We have carefully gone through the file of the case and the submissions of
the parties in this appeal. As pointed out earlier, due to lack of record of
proceedings there is no way the appeal can be decided on its merit. It is the record
of proceedings that will guide this panel on how and why a decision of the lower
court was arrived at and whether or not a proper investigation was conducted in the
trial before taking the decision. In the case of Sa’adatu Mala Baba Vs Mal. Baba
Mohammed (2007) 3 SLR PT IV P. 184 holding 8 the Court of Appeal in Nigeria
Jos Division Held that It is emphatic under the Sharia that no judge should give
judgment on a matter without investigating the complaint of both parties.
Because of the apparent defect of lack of record of proceedings as earlier
on indicated, we have no option than to disturb the findings (if any) of the lower
court. The entire proceeding and or any finding of the lower court is hereby set
aside. The Cadi Court of Bundung as presided over by Cadi Elman M. Nyang is
herby ordered to retry the case. The matter should be given an accelerated hearing
and concluded within the shortest possible period to curtail the hardship of the
parties. As a guide to the retrial proceedings, the court should include amongst
issues to be determined and in a well documented proceedings the following:
1. Establishment of the death of the deceased,
2. Establishment of the estate left by the deceased,
3. Establishment of the beneficiaries left by him,
4. Rents collected and any other proceeds accruing from the management of
the estate left by the deceased if any right from the date of his death, and
5. The issue of debt owed to late Mama Kabba by the deceased person being
her share from the proceeds of compensation of about $448,958.00 paid to
them jointly sometimes in or about May 29 th , 2003 by the US government
as compensation for the death of their son Mohammed Jawara (alias
Bature) who died in September 11, 2001 bombing of WTC.
………….…………………….
(Signed): Justice A. S. Usman
………………………………….
..………….……………………..

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(Signed): Alh. Ousman Jah
(Signed): Alh. Masohna Kah