By Cecilia E.L. Mendy
The High Court in Banjul has quashed the judgement made by Kanifing Islamic Court concerning the estate of late Dawda Jobe, holding that the lower court acted without constitutional jurisdiction.
Justice Ebrima Jaiteh delivered the decision in judicial review proceedings initiated by Mariama Suwareh, who was represented by Counsel N.M.C. Cham. The respondents – Diciar Joanna Jobe, Ya Awa Jobe and Momodou Jobe – were represented by lawyer B. Drammeh.
The applicant sought an order of certiorari to nullify the Islamic Court’s ruling delivered on 15 June 2023 and its subsequent judgment of 25 March 2024, arguing that the court exceeded its powers and proceeded despite a subsisting stay of proceedings issued by the High Court.
After reviewing affidavits and legal submissions from both parties, Justice Jaiteh consolidated the issues into a single determinative question: whether the Kanifing Islamic Court acted without or in excess of jurisdiction in assuming authority over the administration and distribution of the estate.
In his ruling, the judge held that under Sections 7(f) and 137(4) of the 1997 Constitution, the jurisdiction of Cadi and Islamic Courts is limited to matters relating to marriage, divorce and inheritance among Muslims, noting that such jurisdiction is personal and communal rather than territorial.
The court further found that evidence presented showed that the late Dawda Jobe had renounced his Gambian citizenship, acquired Norwegian citizenship and resided in Norway until his death. The principal beneficiaries were also said to be Norwegian nationals living abroad.
Justice Jaiteh observed that the Oslo District Court had already assumed jurisdiction over the estate, ordered a public settlement process and appointed an executor under Norwegian law prior to the commencement of proceedings before the Islamic Court.
He ruled that the Islamic Court’s assumption of parallel jurisdiction, despite notice of the on-going Norwegian probate process, constituted an error of law and an excess of jurisdiction. The judge also held that the delivery of judgment while a High Court stay was in force rendered the proceedings void.
The High Court consequently granted an order of certiorari quashing both the ruling and judgment of the Kanifing Islamic Court. It further issued an order of prohibition restraining the Islamic Court from taking any further steps in relation to the estate.