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

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Page 2 of 8 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.”
Page 3 of 8 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.
Page 1: Page 1 of 8 IN THE HIGH COURT OF TH
Page 5 and 6: Page 5 of 8 (viii) Amara Jawara (ix
Page 7 and 8: Page 7 of 8 We have carefully gone

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

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