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OSAE AND OTHERS v. APENTENG


  • New
  • 1961-10-27
  • HIGH COURT
  • GLR 615-618
  • Print

OLLENNU, J.


Summary

Customary law?-Family property.Practice?-Method of enforcing an arbitration award.

Headnotes

The three plaintiffs were children of three brothers who had successively died. The defendant was a nephew in the maternal line to the said brothers. The plaintiffs as the respective successors to their fathers, brought this action to recover possession of nine farms left by their fathers. The plaintiffs pleaded an arbitration award which, they contended, had decided that succession to the three deceased brothers was patrilineal and not matrilineal, and that they had been adjudged the proper successors to their fathers.

Judgement

ACTION by the three plaintiffs, children of three deceased brothers, to recover nine farms left by their fathers.

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.

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.

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.

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? [p.617]

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 Olaga.[1]

As to what the subject-matter of the arbitration was, the evidence led on both sides, oral and documentary, shows clearly that it was exactly the same as is contained in the writ of summons which the plaintiffs took against the defendant in the local court, i.e. a claim for a declaration that the plaintiffs and not the defendant are the successors to the three deceased brothers, and consequently that the plaintiffs are the proper persons entitled to have possession and control of the properties of the said three brothers which have together become family property.

Part of the facts which the plaintiffs relied upon to establish their claim at the arbitration is an admission which they alleged the defendant had made on the occasion of the appointment of a successor to his deceased mother, that his said mother and her brothers, the three brothers successors to the estate in dispute, were Ewes from Peki, and that succession to his mother was therefore in the paternal line and not the maternal line. To establish that fact, the plaintiffs called as a witness at the arbitration, one Mr. John Mullings, a Presbyter of the Presbyterian Church at Akropong. He gave evidence of the said admission, and produced to the arbitrators, as corroboration of his said evidence, the record he took on the occasion.

The defendant and his witnesses made capital of evidence led before the arbitrators in respect of this admission, and tried to make it appear that the only issue the arbitrators tried and made award upon is whether or not the defendant made the said statement. When the evidence on this point is taken together with other evidence given by the defendant himself and his witnesses, it becomes clear that the evidence as to the statement attributed to the defendant was only a collateral matter introduced as part of the evidence to establish the claim which the plaintiffs had made and which the arbitrators were enquiring into. Here are a few extracts from the evidence of the defendant and of his second witness. The defendant under cross-examination said among other things:

"Yes, the contents of the writ of summons were read and interpreted to me when it was served upon me. I understood from it that the plaintiffs were claiming their fathers' properties as successors. That was the dispute which the Omanhene took to the arbitration to settle. It is correct that that was the very dispute which [p.618] we met at the house of the Omanhene that Sunday to settle. It is true that all the evidence given was on this very matter. But I say that the award was not on succession that is why I object to it".

To the court he said:

"Yes, I have said that just before the arbitrators retired to consider their decision, the Omanhene read out the contents of the summons and explained it to the elders; he did so to remind them of the dispute which they were to give decision upon".

And in answer to the court, D.W. 2 closed his evidence in the following words:

"It was upon the claim as the plaintiff told us he had made in the writ of summons that we gave our decision. On that claim our award was against the defendant. The plaintiff said that he had sued the defendant claiming that they are entitled to succeed to the estate of their fathers."

I am satisfied upon the evidence led by both sides that the main dispute which the arbitrators heard is succession to the estate in question, and that the award on that dispute is that the plaintiffs are the present successors to their deceased fathers. The legal effect of that award is that since the last of the brothers who died succeeded to the estate of his two brothers who predeceased him, the estate he left was general family property, as distinct from property of his immediate branch of the main family, and that the main family which now owns the estate is the paternal family which originated from the father of the said three brothers; that is to say: descendants of all the three brothers having died, the principal members of the family at present are their children male and female. This suit therefore is a claim to enforce the award of the arbitration. There is no machinery by which arbitrators can enforce an award they make, the only process to enforce an award is an action in a court of competent jurisdiction. The estate, the subject-matter of the award is land the value of which is given as about G1,000; the suit is a land suit. Therefore this court is the only court in the land vested with competent jurisdiction to entertain it.

There will be judgment for the plaintiffs in the capacity in which they claim, for an order for recovery of possession of all the nine farms the subject-matter of the suit. In the hope that now that the main disputes in respect of the estate are settled the family will be able to resolve their differences and may come to some arrangement with the defendant who is a nephew of the family, I make no order on the claim for injunction, reserving liberty to the plaintiffs to bring a claim for one should the need arise. The plaintiffs will have their costs fixed at 50 guineas inclusive.

Decision

<P>Judgment for plaintiffs.</P>

Plaintiff / Appellant

E. G. Tanoh

Defendant / Respondent

G. Koranteng-Addow

Referals

Ankrah v. Debra and Olaga (1956) 1 W.A.L.R. 89

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