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Property - Ownership -
Rebuttable presumption - Trust -
Gift - Article 11(1)(e) and
(2)of the 1992 Constitution -
Sections 20 and 21 of the
Evidence Act, NRCD 323 - Whether
silence might be construed to be
an admission of the ownership
rights -
HEADNOTES
The
disputed property was purchased
by Kwadwo Oppong (deceased) in
the name of his nephew, Frank
Oppong Bediako also known as
Kweku Forkuo, (deceased) who was
the husband of the original
plaintiff. Kweku Forkuo
exclusively dealt with the
property in the life time of his
uncle and in his own life by
renting it out and receiving the
rental incomes accruing
therefrom and interestingly
exercised acts in respect of the
property including in
particular, ejecting the head of
family from stores located
within the property. He also
allowed a person not being a
member of the family to utilize
the disputed property as a
collateral for a contract of
debt from a bank -
HELD :-
My Lords, for the reasons
above, I have reached the
conclusion that the version of
the matter accepted by the
majority of the Court of Appeal
is derived from a reasonable
consideration of the evidence
contained in the record of
appeal and accordingly I am
unable to yield to the demand
contained in the appeal before
us by which a reversal of the
said decision is sought. The
appeal is dismissed and the
decision of the Court of Appeal
is hereby affirmed. The result
is that the decision of the
trial High Court in the matter
herein is set aside and in place
thereof is substituted a
decision allowing the claim of
the plaintiff to the disputed
property.
DESSENTING :-
It is also the opinion of the
majority that the said Opanin
Kwadwo Oppong did not devise the
said property in his Will, he
having died testate. The Will
which was not contentious
provided for residuary clause.
In law residuary clause can take
care of any property which the
testator owned or would be
entitled after his death. I do
not, with due respect think that
this should be applied against
the estate of the testator.
It is for the above reasons
that I find myself in dissent as
the reasons for affirming the
judgment are not in my
respectful opinion convincing
enough. I will therefore allow
the appeal and restore the
learned High Court judge’s
judgment.
STATUTES REFERRED TO IN JUDGMENT
Evidence Act, NRCD 323. 20 and
21
1992 Constitution article
11(1)(e) and (2),
High Court Civil Procedure Rules
CI 47,16 rule 3
CASES REFERRED TO IN JUDGMENT
Tuakwa v Bosom [2001-2002]
SCGLR 61
Pecore v Pecore [2007] SCC No
17 (Supreme Court of Canada)
Hammond v Odoi [1982-83] GLR
1215 at 1235
ARMAH v ADDOQUAYE [1972] IGLR
109 CA
AKOTO v KAVEGE [1984-86] 2 GLR
365 CA,
TETTEH v HAYFORD [2012] ISCGLR
417.
BENNEH v THE REPUBLIC [1974] 2
GLR 47 CA [Full Bench]
OLOTO v WILLIAMS [1944] 10 WACA
23;
DAM v ADDO [1962] 2 GLR 200 SC;
ODOI v HAMMOND [1971] 2GLR 132
CA
ESSO PETROLEUM CO. LTD v
SOUTHPOST CORPORATION [1956 AC
218 HL
BISI & ORS v TABIRIalias ASARE
[1984-86] 2 GLR 282
Dam v Addo [1962] 2 GLR 200 at
203, SC
CAVIELER v CAVIELER [1971] 19
F.L.R.199
EYKYN’S TRUST [1877] 6 ch D 115,
RE PARADISE MOTOR Co. [1968]
IWLR 1125,
REINDORF alia SARCKER v
REINDORF [1974] 2GLR 36,
USHER v DARKO [1977] IGLR 476,
IN RE FIANKO AKOTUAH (D’CED)
FIANKO & OR v DJAN &
ORS[2007-08] SCGLR 165,
QUIST v GEORGE [1974] IGLRI
SOAR V FORSTER [1858] 4 K&J in
152 at pages 160-161 by PAGEWOOD
V-C
RICHARDS (JULIANA) v
NKRUMAH [2013-14] 2SCGLR 1577.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
GBADEGBE, JSC:-
DESSENTING :-
YEBOAH, JSC
COUNSEL.
MATTHEW APPIAH FOR THE 2ND DEFENDANT/RESPONDENT/APPELLANT
CHRIS ADOMAKO KWAKYE FOR THE
PLAINTIFF/APPELLANT/ RESPONDENT
JUDGMENT
GBADEGBE, JSC:-
The question for our
decision in this appeal is which
of the two lower courts came to
the right conclusion on the
evidence placed before them in
the matter herein? For reasons
of convenience, the parties to
the appeal herein shall bear the
description which they bore in
the trial court. While the
learned trial High Court judge
accepted the case of the
defendants, the learned justices
of the Court of Appeal by a
split decision preferred the
version of the matter tendered
before them by the plaintiff. In
the circumstances, the
determination of our task in
this appeal is dependent on our
consideration of the record of
appeal in the nature of a
re-hearing by which we are
enabled to reach our own
conclusion on the evidence
tendered by the parties so
however, that in so acting we
can only interfere with the
decision of either of the two
lower courts when satisfied from
a consideration of all the
evidence that the verdict was
unreasonable or perverse.
Reference is made to the settled
attitude of appellate courts in
such matters as emphasised by
the decision of the Supreme
Court in Tuakwa v
Bosom [2001-2002] SCGLR 61.
From the decisions, a decision
is perverse or unreasonable when
it is reached without supportive
evidence as indeed, was the case
in the Tuakwa v Bosom
(supra) justifying the Supreme
Court in interfering to set
aside the decision of the two
lower courts in the matter.
Justifying the interference of
the Supreme Court, Sophia Akuffo
JSC (as she then was) said at
page 69.
“After reviewing
the record, it was therefore,
our conclusion that, on a
preponderance of probabilities,
the judgment of the trial judge
in favour of the defendant, i.e.
the respondent, was not
supported by the totality of the
evidence and the Court of Appeal
erred in confirming the same
without any scrutiny of the
record.”
Before proceeding any further, it is
useful to state that at the
trial of the action and indeed
at the first appellate court,
there was no dispute between the
parties on certain crucial
facts. These facts may be stated
shortly as follows. The disputed
property was purchased by Kwadwo
Oppong (deceased) in the name of
his nephew, Frank Oppong
Bediako also known as Kweku
Forkuo, (deceased) who was the
husband of the original
plaintiff. Kweku Forkuo
exclusively dealt with the
property in the life time of his
uncle and in his own life by
renting it out and receiving the
rental incomes accruing
therefrom and interestingly
exercised acts in respect of the
property including in
particular, ejecting the head of
family from stores located
within the property. He also
allowed a person not being a
member of the family to utilize
the disputed property as a
collateral for a contract of
debt from a bank. In my view,
from the uncontested facts, the
real issue for us to decide is
whether the facts proved at the
trial were such as to have
rebutted the presumption of
resulting trust in favor of
Kwadwo Oppong (deceased) who had
acquired the property with his
own funds in the name of his
nephew? Should the presumption
remain unrebutted at the end of
the trial then the property
remained that of the purchaser.
But if the acts performed by his
nephew were material and
sufficiently credible to
dislodge the presumption of a
resulting trust then, the
property belonged to the
plaintiff’ deceased husband and
cannot be regarded as falling
into the residual estate of the
purchaser.
It is important at this stage to
caution ourselves that the
allegation of the plaintiff that
the purchaser intended his
nephew to benefit from the
property having been made after
the death of the purchaser
should be by means of cogent and
credible corroborative evidence
that compels any reasonable
tribunal to the conclusion that
such an intention was proved by
the effect of the admitted
evidence as provided in sections
20 and 21 of the Evidence Act,
NRCD 323. It is beneficial for
the trier of fact to pause and
ask himself whether the effect
of the evidence led by the
plaintiff in support of her case
when considered in the light of
all the evidence renders the
existence of a gift more
probable than its non-existence.
Although the presumption of
resulting trust is a creation
of equity , which now is a
component part of the common law
by virtue of the sources of law
in Ghana as provided in article
11(1)(e) and (2)of the 1992
Constitution, I am of the
considered view that being a
rebuttable presumption arising
out of the undisputed fact of
the property having been
acquired by the uncle of the
plaintiff’s predecessor with his
own funds, we are to approach
the question in the same manner
as rebuttable presumptions
contained in the Evidence Act
(NRCD 323). When so considered,
the position is that the burden
of persuasion shifts to the
plaintiff to rebut the
presumption of a resulting trust
in favor of the purchaser. A
careful consideration of the
statutory position regarding
rebuttable presumptions
contained in sections 20 and 21
of the Evidence Act leaves
compels me to the view that it
has the same standard as that
which was observed by the
Supreme Court of Canada in the
case of Pecore v Pecore
[2007] SCC No 17 as follows:
“A rebuttable
presumption of law is a legal
assumption that a court will
make if insufficient evidence is
led to displace the presumption.
The presumption shifts the
burden of persuasion to the
opposing party who must rebut
the presumption.”
Reference to the Ghanaian position
contained in section 20 of the
Evidence Act makes the above
assertion tolerably clearer.
Section 20 of the Evidence Act
provides as follows:
“A rebuttable presumption
imposes upon the party against
whom it operates the burden of
producing evidence and the
burden of persuasion as to the
non-existence of the presumed
fact.”
Proof of a rebuttal presumption is
not limited to only acts which
accompany the purchase but may
extend to acts performed
subsequently such as the conduct
of the purchaser and the person
in whose name the legal title
resides although proof of an
intention that is sufficient to
displace the presumption that is
contemporaneous with the
purchase of the property has an
inherent probative quality.
Therefore, in approaching the
task with which we are faced in
these proceedings, we are not
limited to considering only the
evidence proximate to the
acquisition of the property by
the plaintiff’s uncle but all
acts done or omitted to be done
by either of them which are
sufficiently credible and
corroborative of the intention
of the purchaser regarding the
property. The said acts should
be unequivocally referable only
to the disputed property.
Observation is made of the fact that
at the trial, the plaintiff
placed reliance on a gift from
his uncle, which unfortunately
was unproved. The mere failure
of the plaintiff to prove the
allegation of a gift and its
accompanying provision of
“aseda” by her deceased husband
cannot in my opinion on account
of such failure only result in
invalidating her claim to the
property that is also based
primarily on the perceived
intention of his uncle in
acquiring the property in the
name of his nephew , then an
adult and acts and or conduct
that he subsequently exercised
in relation to the property that
are contended by the plaintiff
as explicable only in terms of
the uncle intending to make a
gift of the property to him.
The several acts of ownership
exercised during the life time
of the purchaser according to
the plaintiff to which reference
has been made earlier in the
course of these proceedings are
consistent with his uncle
assenting to her deceased
husband’s overt assertion of
such rights over the property.
It is necessary to remind
ourselves that in matrilineal
societies to which the parties
belong, the reality of social
life is that uncles tend to
provide for their nephews and
nieces being children of their
sisters as indeed, the
plaintiff’s husband was to the
purchaser. While such a reality
of social life cannot have the
effect of likening such persons
to children or wives of the
purchasers as to bring
gratuitous purchases to them
within the common law notion of
advancement, we are not
precluded from taking such a
relationship into account when
considering the totality of acts
rendered or performed in
relation to the property on
which this action turns for the
purpose of determining the issue
in controversy before us. It is
therefore quite surprising that
the learned trial judge merely
by virtue of the plaintiff’s
predecessor not being a child of
the purchaser failed to consider
the totality of the evidence
before him regarding acts that
were unequivocally in relation
to the property which were urged
before him by the plaintiff in
support of her claim that that
on a preponderance of
probabilities those acts tended
to show that the purchaser did
not intend to divest his nephew
of the legal title to the
property.
Also to be noted is that the
allegation of a gift by the
plaintiff was not inconsistent
with the other ground of claim
namely the purchase of the
property by his uncle in his
name and the subsequent acts
done by him in regard to the
property during the life time of
his uncle who from the evidence
acquired several properties in
his own name and that of his
sister’s children including the
predecessor in title of the
plaintiff. The evidence which
was not controverted in regard
to four such properties acquired
in the name of his nephew
(plaintiff’s deceased husband)
and nieces was that those in
whose name the legal titles
were, dealt exclusively with the
properties without any objection
from the purchaser during his
life time or by the family
thereafter. The purchaser’s
conduct in not interfering with
acts of ownership exercised in
relation to such properties in
my view is a significant piece
of evidence that has the effect
of leading one to the reasonable
conclusion that in all such
cases, the purchaser must have
intended to make a gift of the
properties to them. In the face
of such cogent evidence which
the defendants admit, one finds
it difficult to understand their
contention regarding the
disputed property that in
relation only to it, the
purchaser intended a different
result. That assertion which
runs contrary to the conduct of
the purchaser; to be a good
ground for rejecting the
plaintiff’s case that a gift of
the property was intended in
favour of the plaintiff’s
deceased husband must fall from
the lips of the purchaser
himself and cannot be urged by
the defendants long after he is
gone as the defendants would be
serving their own interests by
such a bare assertion. But then
there is also another piece of
evidence arising out of the
omission of the purchaser to
make provision in his will for
any of the properties purchased
by him in the name of his nephew
and nieces, which I need turn my
attention to.
In my opinion, when a person who
acquired several houses as was
done by the uncle of the
plaintiff’s deceased husband
also purchases properties in the
name of a nephew and nieces
allows them in his life time to
deal exclusively with the
property without any reference
to him seeks to retain ownership
of such properties then he
should in order to negate the
effect of the exclusive acts of
ownership exercised in relation
to the properties by those in
whom legal title to the
properties reside, make
specific provision for the
devolution of those properties
in his testamentary document.
Where he expressly fails to make
any such provision, I do not
think that we can reasonably
having regard to all the
evidence come to the conclusion
that he intended such properties
to belong to his residual estate
particularly when there is also
the evidence that his customary
successor, the 1st
defendant sometime after the
death of the purchaser
surrendered the documents of
title to the husband of the
plaintiff. It seems probable
that in surrendering the
documents of title on the
property to Kweku Forkuo, the
customary successor (1st
defendant herein) intended to
effectuate the intention of the
purchaser by facilitating Kweku
Forkuo’s enjoyment of the
property without any reference
at all to her. Her conduct which
was done before the action
herein looks more probable to be
true than the attitude that she
has manifested in the course of
these proceedings.
On all the evidence, the reasonable
inference that arises from the
purchaser allowing his nephew to
deal exclusively with the
property in his life time, as
well as the absence of any
provision in his last will
regarding the said property is
that it may be likened to the
situation in Browne v Dunne
(1893) 6 R. 67 where his silence
might be construed to be an
admission of the ownership
rights exercised by his nephew
in relation to the property. It
is observed that in construing
residual clauses in testamentary
documents, courts must look at
all the evidence on the record
and in any event, such a
construction to be a good
objection to the reasonable
inference from admitted facts
must be in the nature of a
pronouncement from a court on
the status of the residual
clause. I have no doubt that
from the available evidence,
such a construction of the
residual provision that the
defendants place great reliance
on might not find favor with a
court of law. In approaching our
task as judges, we need consider
every case on the basis of the
evidence tendered before us
instead of relying on general
principles which have been
displaced by the compelling
effect of the evidence before
us. The circumstances which
unfold before us as tribunals of
fact differ from case to case
and a better approach to
resolving disputes is to deal
with them on case by case basis
depending upon the evidence and
as said of circumstantial
evidence, it has a stronger and
more compelling effect in
discerning the intention of a
purchaser than even direct
evidence.
My Lords, for the reasons above, I
have reached the conclusion that
the version of the matter
accepted by the majority of the
Court of Appeal is derived from
a reasonable consideration of
the evidence contained in the
record of appeal and accordingly
I am unable to yield to the
demand contained in the appeal
before us by which a reversal of
the said decision is sought. The
appeal is dismissed and the
decision of the Court of Appeal
is hereby affirmed. The result
is that the decision of the
trial High Court in the matter
herein is set aside and in place
thereof is substituted a
decision allowing the claim of
the plaintiff to the disputed
property.
N. S. GBADEGBE
(JUSTICE OF
THE SUPREME COURT)
W. A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
A.
A. BENIN
(JUSTICE
OF THE SUPREME COURT)
YEBOAH, JSC:-
I have been privileged to read the
opinion of my worthy brother in
this appeal but after
considering the issues in
controversy I am unable to agree
with the opinion.
I, however,
prefer to offer my reasons for
the dissent.
My brother Gbadegbe JSC, in his usual
clarity has set out the facts in
this appeal and it would serve
no purpose for me to repeat
same, moreso when the facts
appear not to be contentious in
any way.
The case for the
plaintiff/appellant/respondent
who for sake of brevity shall be
referred to as the plaintiff was
in my respectful view based on a
gift allegedly made by the
original acquirer of the
property in dispute one Opanin
Kwadwo Oppong. It appears that
in the original statement of
claim filed together with the
writ of Summons the alleged gift
was not pleaded in any manner or
form. However, in the amended
statement of claim filed on
20/10/2008 pursuant to Order 16
rule 3 of CI 47, the plaintiff,
who under the rule was at
liberty to amend without leave
pleaded thus in paragraph 3:
“3. The plaintiff
avers that the property known
and called H/No. OTB 141 Adum
was acquired by the late Agya
Oppong who subsequently gifted
same to Frank Oppong Bediako @
Kwaku Fokuo absolutely”
In my respectful view, the alleged
gift by the original acquirer of
the property is the root of
title of the plaintiff and no
more. The plaintiff obtained
leave on 17/08/2012 to amend the
amended statement of claim. On
25/03/2013, the plaintiff after
obtaining the leave to amend
again filed yet another Amended
Statement of Claim and repeated
the alleged gift from Opanin
Kwadwo Oppong to Frank Oppong
Bediako.
In all the two amendments, the
plaintiff was very categoric
about the alleged gift from
Opanin Kwadwo Oppong to his
father.
The case was contested on the amended
statement of claim in so far as
the root of title of the
plaintiff was concerned. In
other words, the plaintiff
served notice on his amended
statement of claim that even
though Agya Oppong acquired the
property in dispute he gifted
same absolutely to Frank Oppong
Bediako.
In view of the repetition of the
alleged gift on the pleadings, I
prefer to deal with this issue
first.
It is an elementary rule of law that
in actions commenced by writ,
parties file their pleadings are
bound by their pleadings and
would not be permitted to set up
a case contrary to and
inconsistent with their
pleadings. I remind myself of
the observation made by Crabbe
JSC in the case of Hammond v
Odoi [1982-83] GLR 1215 at 1235
as follows:
“Pleadings are the
nucleus around which the case –
the whole case-resolves. Their
very nature and character thus
demonstrate their importance in
actions, for the benefit of the
court as well as for the
parties. A trial judge can only
consider the evidence of the
parties in the light of their
pleadings. The pleadings form
the basis of the respective case
of each of the contestants. The
pleadings bind and circumscribe
the parties and place fetters on
the evidence that they would
lead”. [emphasis mine]
See the case of ARMAH v ADDOQUAYE
[1972] IGLR 109 CA. Indeed,
pleadings bind not only the
parties but the court itself and
its influence on the case
prevails through the proceedings
from the trial court to the
final court. Like my sister in
dissent at the Court of Appeal,
I find it very simple to
determine this matter by
insisting that the plaintiff who
had pleaded the alleged gift as
his only root of title, be it
under customary law or otherwise
to have offered such evidence to
prove his root of title, which
was the alleged gift from Opanin
Oppong to Frank Oppong Bediako.
At the trial court on 24/07/2012 the
plaintiff in his
evidence-in-chief stated thus on
oath:
“This house was
purchased by Opanin Kwadwo
Oppong and gifted to my father
Kwaku Fokuo”
He continued further and repeated the
alleged gift as follows:
“My father’s mother
Akua Amoah and Adwoa Nsiah are
aware of the gift made by Opanin
Oppong to my father”
The evidence was indeed rejected as
unconvincing by the learned
trial judge. At the Court of
Appeal, His Lordship AYEBI JA
who offered the lead opinion
held on the alleged gift as
follows:
“In the instant
case, although there is no
direct evidence of customary
gift of the house by Agya Oppong
to Kwaku Forkuo as pleaded by
the plaintiff, there are other
evidence on record to show that
Agya Oppong intended to gift the
house to Kwaku Forkuo when he
put the assignment in Forkuo’s
name as Exhibit “B”. The
assignment therefore created as
advancement in favour of Kwaku
Forkuo as the beneficial title
owner”
In my view, the case of the plaintiff
fell flat after he had woefully
failed to lead evidence to
convince the two lower courts
that the said property in
dispute was gifted to his
father. This finding made by
the learned Court of Appeal
judge in support of the finding
of lack of evidence to prove the
alleged gift should have
resulted in the dismissal of his
claim. In actions of this
nature the plaintiff must prove
his root of title. See the case
of AKOTO v KAVEGE [1984-86] 2
GLR 365 CA, TETTEH v HAYFORD
[2012] ISCGLR 417.
The other judges at the Court of
Appeal were also of the similar
opinion that the alleged gift,
proof of which was squarely on
the plaintiff had failed on the
evidence. In this court the fact
that the alleged gift was not
proved has not been disputed at
all.
The majority in their opinion resorted
to the presumption of
advancement to make a case which
had fallen flat. With due
respect to the majority, the
resort to the presumption of
advancement or the fact that the
said Agya Oppong intended to
gift the property to Frank
Oppong Bediako will certainly
run counter to the settled law
that a court ought not to accept
a case contrary to and
inconsistent with the one put
forward by the parties.
In any case, a gift in law is
conceptually different from
intention to make a gift. The
two are certainly different and
should be observed as such.
Indeed, Apaloo JA (as he then
was) made it clear in BENNEH v
THE REPUBLIC [1974] 2 GLR 47 CA
[Full Bench] when he said as
follows at page 94:
“for the court
itself to raise this issue and
found a conclusion on it, even
in part, would hardly conform to
out conception of the role of a
judge in our adversary system of
administering justice. Such
appellate decisions as OLOTO v
WILLIAMS [1944] 10 WACA 23; DAM
v ADDO [1962] 2 GLR 200 SC; ODOI
v HAMMOND [1971] 2GLR 132 CA and
the English decision of ESSO
PETROLEUM CO. LTD v SOUTHPOST
CORPORATION [1956 AC 218 HL,
counsel a court against founding
on an issue not raised or
canvassed by the parties or
pronouncing for a party on a
case inconsistent with the one
he put up [emphasis mine]
A more detailed pronouncement of the
law was stated by Adade JSC in
the case of BISI & ORS v TABIRI
alias ASARE [1984-86] 2 GLR 282
holding 4 thus:
“4. The principle
enunciated in Dam v Addo [1962]
2 GLR 200 at 203, SC, to the
effect that a court must not
substitute for a party a case
contrary to and inconsistent
with that which the party
himself had put forward by his
pleadings and evidence was clear
and unexceptionable. The
general principles guiding the
application of that principle
deducible from the cases were
that: (a) the new case was not
pleaded either expressly or by
necessary implication (b) the
new case was raised after
obvious difficulties with, or
failure of the old case, the
party clearly turning a complete
somersault (c) sufficient notice
of the new case was not given,
it was not contested. It was
raised either at the address
stage or an appeal or by the
court itself; (d) the new case
was irrelevant to the resolution
of the issues on hand; the new
case was not just a matter of
interpreting and giving effect
to a document relevant to the
issue and properly tendered in
evidence. (emphasis mine). It
should be observed that resort
to apply the presumption of
advancement is clearly against
the settled principles of law”.
I would have, on my part allowed the
appeal based on the lack of
evidence on the alleged gift,
but both the trial court and the
Court of Appeal indeed discussed
the presumption of advancement
with such zeal that this court
owes a duty to them to also
discuss it in this judgment as
the final appellate court.
At the end of the trial the learned
judge found that the alleged
gift was not proved. It appears
on record that the plaintiff
changed course and resorted to
rely on advancement made by the
said Opanin Kwadwo Oppong in
favour of Frank Oppong Bediako.
In the judgment at the trial
High Court, Kumasi, the learned
judge indeed went to town and
discussed the issue of
advancement in detail and cited
the well-known local and foreign
cases like: CAVIELER v CAVIELER
[1971] 19 F.L.R. 199 EYKYN’S
TRUST [1877] 6 ch D 115, RE
PARADISE MOTOR Co. [1968] IWLR
1125, REINDORF alia SARCKER v
REINDORF [1974] 2GLR 36, USHER v
DARKO [1977] IGLR 476, IN RE
FIANKO AKOTUAH (D’CED) FIANKO &
OR v DJAN & ORS [2007-08] SCGLR
165, QUIST v GEORGE [1974] IGLRI
and others.
On the presumption of advancement,
basic legal principle which runs
through all these cases on the
issue of advancement and its
applicability appears to have
been settled in the case of SOAR
V FORSTER [1858] 4 K&J in 152 at
pages 160-161 by PAGEWOOD V-C
where he limited the class of
beneficiaries in presumption of
advancement as follows:
“The rule which
raises a presumption that a
purchase in the name of another
was intended as an advancement
or provision for the latter, so
as to preclude a resulting trust
from arising for the purchase
until that presumption has been
rebutted, is applicable where
the purchase was made in the
name of a legitimate or
illegitimate child. Or in the
name of a grandchild whose
father is dead or in the name of
the wife of the purchaser. In
all these cases, the rule is
definite and clear that the
purchase is prima facie to be
taken as a provision or
advancement for the person in
whose name the purchase has been
made”.
From the evidence on record the said
Frank Oppong Bediako never fell
into the class of people who are
within the ambit of
advancement. The uncle Agya
Oppong did not stand in loco
parentis in any way whatsoever.
In my view, assuming that the
presumption of advancement was
properly applied at the stage of
the proceedings at all, its
applicability is clearly
erroneous. The common law which
under Article 11 of the
Constitution includes principles
of equity has never applied the
presumption of advancement under
such circumstances. It could
certainly be a sad day in our
jurisprudence if in applying a
basic principle of the common
law we expand its scope just for
convenience of the case under
consideration. The presumption
of advancement has stood for
close to two centuries and the
common law courts have been very
strict in limiting the class of
people who can raise the
presumption in their favour.
Another point which was raised was the
reliance on section 35 of the
Evidence Act, NRCD 323 of 1975
which states thus:
“35. The owner of
the legal title to the property
is presumed to be the owner of
the full beneficial title”
As pointed out earlier in this
dissenting opinion the plaintiff
pleaded and gave evidence of the
gift of the property to their
father by the acquirer, Opanin
Kwadwo Oppong. They never in
all the amendments ever pleaded
or in the evidence said that the
said Opanin Kwadwo Oppong
intended to gift the property as
it has been held by my very
respected colleagues. The
presumption under section 35 was
recently raised in this court in
the case of RICHARDS (JULIANA) v
NKRUMAH [2013-14] 2SCGLR 1577.
This court fully discussed it
through Akamba JSC in a case on
presumption of advancement which
a father took a lease in the
name of his son. In this case
the pleadings which is the
nucleus of the case never raised
any issue of presumption of
advancement in any manner or
form. It will therefore, in my
respectful opinion, be contrary
to the settled jurisprudence of
this court for us to apply it
after the plaintiff had woefully
failed to prove the gift which
was pleaded in the amended
statement of claim and the
evidence from the plaintiff
himself.
It is also the opinion of the majority
that the said Opanin Kwadwo
Oppong did not devise the said
property in his Will, he having
died testate. The Will which
was not contentious provided for
residuary clause. In law
residuary clause can take care
of any property which the
testator owned or would be
entitled after his death. I do
not, with due respect think that
this should be applied against
the estate of the testator.
It is for the above reasons that I
find myself in dissent as the
reasons for affirming the
judgment are not in my
respectful opinion convincing
enough. I will therefore allow
the appeal and restore the
learned High Court judge’s
judgment.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
COUNSEL
MATTHEW APPIAH FOR THE 2ND
DEFENDANT/RESPONDENT/APPELLANT
CHRIS ADOMAKO KWAKYE FOR
THE PLAINTIFF/APPELLANT/
RESPONDENT |
