OSAE AND OTHERS vs. APENTENG [1961]DLHC5498

Date	1961-10-27
Suit No.
Citation No.	[1961]DLHC5498

OLLENNU J.

E. G. TANOH FOR THE PLAINTIFFS.

G. KORANTENG-ADDOW FOR THE DEFENDANT.

[1961]DLHC5498
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">OSAE AND OTHERS<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">APENTENG<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">[1961] GLR 615&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 27TH OCTOBER, 1961.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

E.
G. TANOH FOR THE PLAINTIFFS.<o:p></o:p>

G.
KORANTENG-ADDOW FOR THE DEFENDANT.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
OLLENNU, J.<o:p></o:p>The main claim of the plaintiffs is an order for recovery of
possession of nine farms each of which is sufficiently described on the
schedule attached to the writ of summons. They claim in the capacity as
successors of their fathers Kwaku Sae, Kwabena Datrabi and Yaw Botchwe, all
deceased.<o:p></o:p><o:p>&nbsp;</o:p>There is no dispute that the properties the subject-matter of the
suit were originally self-acquired properties of one or other of the three
brothers, and that each brother having died intestate, his own self-acquired property
became family property and was succeeded to by a surviving brother. By
customary law the property of a person who succeeded to the property of another
member of the family becomes merged in the family property. Therefore the
estate of the last brother who succeeded to the joint estate of the two
brothers who predeceased him, became merged in the family property,
consequently the estate he died possessed of is not three separate estates, but
one estate vested in one family.<o:p></o:p><o:p>&nbsp;</o:p>The plaintiffs and the defendant each claims the properties to be
family properties which have descended from the said three brothels, and each
group claims to be the present successor to the said three brothers together.
In other words the plaintiffs claim to be joint heads of the family of the said
three brothers, while the defendant claims to be the head of the family of the
same three brothers. But although each side claims ownership of the properties
by right of succession to one and the same people, the suit is not a succession
suit because the plaintiffs pleaded that the issue of succession is res
judicata by reason of the award of an arbitration which declared them, the
children of the said three deceased brothers, to be the successors to the three
brothers, as against the defendant, a uterine nephew of the said three
brothers. The contention of the plaintiffs, therefore, is that the arbitration
award declared that the family which now owns the properties is the paternal,
and not the maternal family of the deceased brothers, The defendant pleaded
that no valid arbitration was ever held and no valid award has ever been made
on the issue of succession to the deceased persons, and further, that even if
there was an arbitration, the subject-matter and the award made thereon was not
on succession to the said three deceased brothers.<o:p></o:p><o:p>&nbsp;</o:p>Upon the pleadings therefore the issues for determination are: (1)
was there a valid arbitration; and (2) if there was, did the award thereof
decide that the plaintiffs and not the defendant are the successors to the
three deceased brothers?<o:p></o:p>The evidence given by the parties and each of their witnesses make
it conclusive that there was a suit pending between the parties in the Akwapim
Local Court, Akropong, and that upon intervention of the Omanhene of Akwapim,
each of the parties voluntarily submitted the dispute between them to a board
of arbitrators presided over by the Omanhene, to be decided informally on the
merits. Each side voluntarily appeared before the arbitration and made his
case, and paid the customary fees for the publication of the award, thereby
further indicating that he was willing to accept the award which might be
published. After hearing each side fully, the arbitrators went into
consultation and upon their return, published their award on the dispute openly
in the presence of the parties. What took place therefore had all the essential
characteristics of an arbitration valid by customary law: see Ankrah v. Debra
&amp; Olaga.[1]<o:p></o:p><o:p>&nbsp;</o:p>