NII AYEH BOTCHWAY v. ASANA MOHAMMED & ORS

Baffour J.A:

This is an appeal by the Plaintiff/Appellant against the judgment of the High Court, Accra delivered on the 27th of January, 2017. The trial court dismissed all the reliefs of the Plaintiff and upheld the counter claim of the Defendants. The parties would be referred to by their original designations at the trial court. Plaintiff, claiming to be the administrator of the estate of his late father, Fred Boafo Botchway, sought the following reliefs:

1. Declaration of title to all that piece or parcel of land described in the schedule attached to the statement of claim.

2. An order directed at the Defendants to remove their kiosks and containers from Plaintiff’s land.

3. Recovery of possession.

4. Damages.

The brief facts as related by the Plaintiff in his statement of claim was that his father, who died in 1955 was the owner of a parcel of land at Kotobabi. He described the dimensions of the land in paragraph 10 of the statement of claim. He claims that his late father became the owner of the land by virtue of a deed of gift dated the 10th of July, 1954 from Nii Yebuah Nortey of Nii We family of Osu Ashanti Blohum and same was caused to be registered at the Deed Registry in 1955. Plaintiff further asserted that he only applied for letters of Administration in 1990 and leased part of the land to one Augustine Addai with the consent of his siblings. He described the Defendants as trespassers who have refused to heed to warning to vacate the land.

Defendants denied the claims of Plaintiff and alleged fraud against Plaintiff in the procurement of the land title certificate covering the land as Plaintiff’s father was dead at the time the certificate was issued in 1989 but same was not brought to the attention of the Land Title Registry, among others. 1st Defendant further alleged that the land was acquired by her late father, Alhaji Mama Issaka in 1972 and upon his death in 1976, the property passed on to his children. It was the claim of the 1st Defendant that they have been in possession of the land since 1972 with her father having erected structures on the land which served initially as stores for spare parts and rooms for drivers’ mates of her father. That an initial attempt made by Plaintiff in 2004 to take possession of the land was resisted as their search revealed that the judgment obtained was fraudulent. Defendants, in the alternative contended that even if the land belonged to the father of the Plaintiff, the action had long bee