The Supreme Court has reaffirmed the common law doctrine of advancement, holding that where a father acquires property in the name of his child, the law presumes that the property was intended as a gift to the child.
The decision was delivered on 29 July 2026 in Edward Fynn-Sackey v Irene Fynn-Sackey & Another, Civil Appeal No. J4/37/2026. The five-member panel, presided over by Amadu JSC, unanimously dismissed the appeal and affirmed the earlier decision of the Court of Appeal.
Background
The dispute concerned House No. J81, Buade, Nungua, Accra, which the late Emmanuel Fynn-Sackey acquired with his own resources in the name of his son, Edward Fynn-Sackey, who was then a child.
The deceased subsequently developed the property by constructing six rooms and stores and managed the property during his lifetime, including receiving rental proceeds. After his death intestate in 2016, his other children, who were administrators of his estate, treated the property as part of the estate.
Edward Fynn-Sackey consequently sought a declaration that the property had been acquired by his father as an advancement to him and therefore did not form part of the deceased’s intestate estate.
The High Court rejected his claim. It considered the deceased’s continued exercise of ownership over the property as sufficient to rebut the presumption of advancement and entered judgment for the defendants.
The Court of Appeal, however, reversed that decision and held that the property had been advanced to Edward. The defendants subsequently appealed to the Supreme Court.
What is advancement?
The Supreme Court explained that advancement is a common law gift arising principally where a father, a person standing in loco parentis (in the place of a parent ), or a husband acquires property in the name of a child or wife.
The Court distinguished advancement from a customary law gift. Unlike a customary gift, advancement does not require the beneficiary to acknowledge the gift through the customary presentation of drinks or other articles.
Where a father purchases property in the name of his child, a rebuttable presumption of advancement arises.
The burden therefore shifts to the party seeking to displace the presumption to establish that the property was not intended as a gift.
Only limited evidence can rebut the presumption
Parts of the judgment concerns what evidence may properly be relied upon to rebut advancement.
The Supreme Court held that the presumption may be rebutted by evidence of a contrary intention contained in the acts or declarations of the donor made before or at the time of the transaction.
The Court rejected the proposition that the donor’s subsequent conduct could be used in his favour to establish that the property was never intended as an advancement.
Although the deceased had developed and managed the property and enjoyed its rental proceeds throughout his lifetime, those subsequent acts did not, by themselves, rebut the presumption arising from the acquisition of the property in his son’s name.
Indeed, the Court observed that the defendants had failed to produce evidence of any declaration or conduct before or at the time of acquisition showing that the deceased intended to retain ownership of the property rather than make an advancement to his son.
The Evidence Act and the burden of proof
The Court also relied on section 21(a) of the Evidence Act, 1975 (NRCD 323), which provides that where a rebuttable presumption operates, the party against whom it operates must prove that the presumed fact is more probably false than true.
Accordingly, once the acquisition of the property in the child’s name was established, the defendants had the burden of showing that the presumed advancement was more probably non-existent. The Supreme Court found that they had not discharged that burden.
Supreme Court rejects the broader approach in Hanna Kwarteng
Another interesting aspect of the decision was the Court’s treatment of Hanna Kwarteng v Adwoa Tiwa & Adwoa Fosuaa [2017-2018] 1 SCGLR 595.
The Supreme Court held that the approach adopted in Hanna Kwarteng, which allowed subsequent conduct to be considered in rebutting the presumption of advancement and extended the doctrine beyond its established scope, was inconsistent with the established jurisprudence.
The Court reaffirmed the position in Richards v Nkrumah and held that the principles introduced in Hanna Kwarteng should no longer be followed.
The Court further stressed that the established common law cannot ordinarily be altered simply through judicial decision where legislative intervention is required. Under Article 11(1) of the Constitution, the common law forms part of the laws of Ghana, while Article 129(3) permits the Supreme Court to depart from its previous decisions where it considers it just to do so, provided the departure is properly justified.
A closed category
The judgment also reaffirmed that the presumption of advancement is not available in every family relationship.
The recognised categories are essentially father to child, a person standing in loco parentis to a child, and husband to wife. Outside those relationships, the ordinary position is that a resulting trust arises in favour of the person who provided the purchase money.
The significance of the decision
The Fynn-Sackey decision provides important clarification for disputes involving property acquired by parents in the names of their children.
The key lesson is that the fact that a parent continued to manage, develop or benefit from property after acquiring it in a child’s name will not, standing alone, rebut the presumption of advancement. The crucial evidence is the intention of the donor before or at the time of the transaction.
The decision also highlights the importance of precedent. Where the law has been settled through established common law principles, a departure from those principles by a court must meet the constitutional requirements governing judicial departure from precedent.
The Supreme Court thus dismissed the defendants’ appeal and affirmed the Court of Appeal’s judgment that House No. J81, Buade, had been advanced to Edward Fynn-Sackey.
