Father’s control of house bought in son’s name does not rebut advancement — Supreme Court

The Supreme Court has held that a house bought by a father in his son’s name remains the son’s property despite the father later developing it, managing it and collecting rent throughout his lifetime.

The decision settles a dispute between siblings over whether house No. J81 at Buade, Nungua, Accra, formed part of the estate of their late father, Emmanuel Fynn-Sackey, who died without a will on 2 August 2016.

The court dismissed an appeal by the deceased’s children who were administering his estate and affirmed the Court of Appeal’s unanimous judgment delivered on 19 January 2023. The house was consequently excluded from the deceased’s intestate estate.

FACTS

The plaintiff had sought a declaration that his father’s purchase of the property in his name while he was a child amounted to an advancement—a gift presumed by law when a parent acquires property in a child’s name.

His siblings argued that all properties acquired by their father, including those registered in his children’s names, belonged to the estate.

Both sides agreed that the deceased had bought the disputed house with his own money in the plaintiff’s name. He subsequently used his own funds to develop it, exercised exclusive management over it and enjoyed the rental income.

CENTRAL QUESTION

The central question was whether that later conduct displaced the legal presumption that the purchase was a gift to the plaintiff.

SUPREME COURT

The Supreme Court held that it did not.

It explained that where a father purchases property in his child’s name, the law presumes that he intended a gift. A party seeking to rebut that presumption must establish a contrary intention through acts or declarations made before or at the time of the purchase.

The father’s subsequent conduct could not be relied on in his favour to defeat the presumed gift. His later development, management and receipt of rent therefore did not establish that the house remained his property.

The appeal also raised a dispute over which Supreme Court authority the Court of Appeal should have followed.

The defendants relied on Hanna Kwarteng v Adwoa Tiwa & Adwoa Fosuaa, arguing that the Court of Appeal had disregarded a binding decision when it held that subsequent conduct could not rebut the presumption of advancement in the donor’s favour.

The plaintiff maintained that the Court of Appeal had correctly applied Richards v Nkrumah, which reflected the established principles governing advancement.

The Supreme Court agreed with the plaintiff and upheld the Court of Appeal’s reliance on Richards v Nkrumah.

It held that Hanna Kwarteng departed from established law in two respects: by extending the recognised categories of beneficiaries of advancement and by allowing subsequent conduct to rebut the presumption in the donor’s favour.

The court treated the decision as per incuriam—made without proper regard to applicable law—on those points and directed that the two principles should no longer be followed.

Finding the defendants’ sole ground of appeal unmeritorious, the Supreme Court dismissed the appeal in its entirety.

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