OSAE AND OTHERS v. APENTENG

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 d