Preface

156
Islamic Law. His interest in the property must be considered first before it is sold
to an outsider. This right still exists even after the disposal of the property to an
outsider. He referred us to page 341 of professor Doi's book supra and further said
that the right is as well recognized by all schools of law.
On how the landed property like the one at hand can be shared among the
heirs Mr. Joof the learned counsel for the appellant submitted that the best way of
dealing with the property is to partition it and give to the beneficiaries. To do this
the Cadi must ascertain the share of each heir on the ground and this should have
been done on another day at another sitting after conducting an enquiry by
conducting a locus at the affected property in person or by a trusted officer of his
court. The Cadi did not do any of these options but still arrived at a decision that
the house cannot be partitioned. While on the contrary the counsel further said that
the appellant had tendered before the lower court a sketch plan of the proposed
petitioning of the house prepared by an engineer. A copy of which is available in
the file of this court.
On the ground No. 3 Mr. Joof the learned counsel for the appellant said that
the decision of the lower court cannot be supported by the weight of evidence.
There was no locus visit. If the court cannot go it could have delegated a
competent person. 2ndly, the provision of Surat al-Nisa to ascertain the share of the
heirs was not there. To emphasize his position the learned counsel said that the
sentimental right of an African child has to be protected. He linked the refusal of
the appellant of endorsing the idea of selling the house to his compliance with his
late mother's wish, who said that the house should not be sold.
Finally, the learned counsel said that his client the appellant was
discriminated against to maintain his pre-emptive right and this is a violation of