By: Isatou Sarr
Justice Sonia Akinbiyi of the High Court Annex in Banjul has set aside a child custody order issued by the Brikama Children’s Court, ruling that the suit brought by the parties amounted to an abuse of the court’s process.
Justice Akinbiyi delivered her judgment that the Children’s Court lacked jurisdiction to revisit a matter already conclusively determined by the Bundung Cadi Court and affirmed by the Cadi Appeals Panel.
The case originates from a long-standing custody dispute between Musa Jatta (applicant) and his former spouse, Majula Samura (respondent). The parties initially litigated the matter in the Bundung Cadi Court, where, in January 2019, Samura filed for clarification of her marital status. The court subsequently issued a decree of divorce after reconciliation efforts failed.
The Cadi Court granted Jatta weekend access to the child until the child reached the age of seven, ordered him to settle D6,000 in arrears, and adjusted the monthly maintenance from D750 to D1,000. These orders were upheld on appeal by the Cadi Appeals Panel, and the applicant fully complied.
Following the child’s seventh birthday, the applicant alleged that the respondent absconded with the child in September 2020, effectively denying him access. He sought enforcement in May 2024, which led to the Sheriff executing the custody order in his favor.
Despite the prior judgments, the respondent initiated fresh proceedings before the Brikama Children’s Court in December 2024, which culminated in an order granting her access every alternate weekend. The applicant moved the High Court to set aside the Children’s Court ruling, arguing that it lacked jurisdiction to reopen or vary a decision from a superior tribunal.
Justice Akinbiyi concurred, noting that under Section 120 of the 1997 Constitution, the judicial structure prohibits a lower court from exercising appellate or supervisory authority over a superior court. She emphasized that the proper remedy for an aggrieved party is to appeal upwards, not to re-litigate before a subordinate court.
“The suit filed before the Brikama Children’s Court, together with the orders emanating therefrom, is null and void and of no legal effect, given the subsisting judgment of the Cadi Appeals Panel,” the court held. “It constitutes an abuse of the court’s process.”
The court also highlighted the impropriety of forum shopping, particularly given that both parties had originally submitted to the Islamic jurisdiction of the Cadi Courts. The High Court found it procedurally and substantively irregular for the same matter to be brought before a secular juvenile court of lower standing.
In her submissions, the respondent invoked the Children’s Act 2025 and the Women’s Act 2010, arguing for joint custody and a structured visitation schedule on grounds relating to the child’s welfare and education. However, the High Court determined that such considerations should have been raised through an appellate mechanism, not a fresh suit.
The court awarded costs of D5,000 to the applicant and permanently restrained the Brikama Children’s Court from entertaining further proceedings on the matter.
With this ruling, custody remains vested in the applicant unless the respondent seeks redress through the appropriate appellate channels.