Fynn-Sackey v Fynn-Sackey and Another (J4/37/2026) [2026] GHASC 53 (29 July 2026)

1 IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – A. D. 2026 CORAM: AMADU JSC (PRESIDING) ASIEDU JSC DARKO ASARE JSC ADJEI JSC ACKAAH-BOAFO JSC CIVIL APPEAL NO. J4/37/2026 29TH JULY, 2026 EDWARD FYNN-SACKEY ………. PLAINTIFF/APPELLANT/RESPONDENT VRS 1. IRENE FYNN-SACKEY ………. DEFENDANTS/RESPONDENTS/ 2. RAPHAEL FYNN-SACKEY APPELLANTS (ADMINISTRATORS OF THE ESTATE OF THE LATE EMMANUEL FYNN-SACKEY) 2 JUDGMENT ADJEI, JSC: The Plaintiff/Appellant/ Respondent shall be referred to as the Plaintiff, and the Defendants/Respondents/Appellants as Defendants for this appeal. The Plaintiff sought only one relief from the High Court, Accra , for a declaration that his late father, Emmanuel Fynn-Sackey, who died intestate on 2nd August, 2016, in his lifetime acquired H/No. J81, Buade, Nungua , Accra, in the name of the Plaintiff, and amounted to an advancement and should not form part of his intestate estate. The Defendants are also some of the children of the deceased and the administrators of the intestate estate of the deceased. The trial High Court took evidence and held that even though the deceased acquired the property in the name of the Plaintiff, one of the eight children of the deceased, it did not constitute advancem ent due to the rights exercised by the deceased over the property during his lifetime. The Plaintiff was dissatisfied with the High Court's decision and appealed to the Court of Appeal. The Court of Appeal, in its decision delivered on 19th January, 2023, reversed the decision of the High Court and held that the disputed property was advanced to the Plaintiff. The Defendants, being dissatisfied and aggrieved by the judgment of the Court of Appeal, filed an appeal against the same on 18th June, 2024, pursuant to leave granted by the Court of Appeal in respect of an application filed for extension of time within the time prescribed by law to file an appeal out of time. The judgment of the High Court was premised on the fact that the deceased acquired the property in the name of the Plaintiff, his son, who at the time of the acquisition of the property was an infant and continued to put up six bedrooms with stores on the plot with his own money and rented some of the rooms to raise money to support his wife and 3 children. The evidence persuaded the High Court Judge of the Defendants , who, according to him, proved that apart from the fact that the property was acquired by the deceased in the name of the Plaintiff, the deceased exercised all the ownership rights of the property and enjoyed the same to the exclusion of the Plaintiff, and that constituted rebuttal of advancement. He concluded by stating that on the preponderance of probabilities, the defendant’s case was more probable and accordingly entered judgment for the defendants on their counterclaim. He dismissed the Plaintiff’s claim and granted the counterclaim, namely a declaration that H/No J81 was acquired by the deceased during his lifetime, and a declaration that all other properties acquired by the deceased in his lifetime, in his name or in the name of any of his children, form part of his estate. The Court further awarded costs of GH¢ 15,000.00 in favour of the Defendants against the Plaintiff. The Plaintiff, dissatisfied with the judgment of the High Court , which misapplied the principles of advancement as an aspect of trust in common law and provides only two modes of advancement , applied the standard burden of proof as a mere ownership of title to land, appealed to the Court of Appeal to reverse the decision of the High Court, Tema. The four grounds of appeal filed by the Plaintiff were as follows: “(a) The judgment is against the weight of evidence adduced at the trial. (b) The learned trial Judge erred in concluding that the evidence on record adequately rebutted the presumption of advancement. (c) The learned trial judge erred in concluding that the signature on Exhibit C2 was not that of the Plaintiff/ Appellant. 4 (d) The learned trial Judge erred in concluding that because exhibit C2 was signed by the father of the Plaintiff/Appellant the presumption of advancement had been rebutted.” The Court of Appeal discussed all the relevant cases on advancement in Ghana including Juliana Richards v Jimmy Nkrumah [2013 -2014] SCGLR 1577 , Sasu - Twum v Twum [1976] 1 GLR 23, and the Canadian case of Northern Canadian Trust Co. v Smith [1947] 3 DLR 135, CA which followed the principles of advancement as a common law doctrine, and the recent Supreme Court Case of Hanna Kwarteng v Adwoa Tiwa & Adwoa Fosuaa [2017-2018] 1 SCGLR 595 which the Court did not comply with the common law principles of advancement but did not state that it was departing from the established jurisprudence on advancement and introduced other principles to rebut advancement. The Court of Appeal followed the established jurisprudence on advancement as a common law principle. It did not follow the recent decision in Hanna Kwarteng v Adwoa Tiwaa & Adwoa Fosuaa, supra, which was given contrary to the earlier decision of the Supreme Court in Juliana Richards v Jimmy Nkrumah, supra. It held that the Defendants failed to rebut the principle of advancement which limits the class of people who can raise the presumption in their favour. There are only two grounds upon which a rebuttal can be made. The Court of Appeal adopted the established grounds for rebutting the presumption and held that the property belonged to the Plaintiff. The Defendants are dissatisfied with the judgment of the Court of Appeal and have appealed to this Court for reversal. The sole ground of appeal filed by the Defendants is as follows: “(A) The learned Court of Appeal Justices erred in law when they held that acts subsequent to a conveyance are not of probative value in rebutting a presumption of advancement. 5 Particulars of error (i) The conclusion reached by the Court of Appeal as regards acts subsequent to a conveyance is in p er incuriam the decision of the Supreme Court in the case of Hannah Kwarteng v Adwoa Fosuaa [2017-2018] 1 SCGLR 595. (ii) The conclusion reached by the Court of Appeal to the effect that the Supreme Court did not depart from i ts earlier decision in Richards ( Juliana) v Nkrumah [2013-2014] 2 SCGLR 1557 is not supported by the ratio in Hanna Kwart eng v Adwoa Tiwa & Adwoa Fosuaa (supra). (iii) The conclusion reached by the Court of Appeal was in disregard of the decision in Hanna Kwart eng v Adwoa Tiwa & Adwoa Fosuaa ( supra) which is binding on the Court of Appeal.” The facts pleaded by the parties , and the evidence adduced, do not admit of any ambiguity, as both parties agree that the late Emmanuel Fynn Sackey acquired the property with his own resources in the name of the Plaintiff, who was then a child. The late Emmanuel Kwasi Fynn built six rooms and stores on the plot and exclusively managed and benefited from the proceeds therefrom without any interference from anyone, particularly the Plaintiff. The relevant parts of the Plaintiff’s pleadings are found in paragraphs 5 to 8 of the Plaintiff’s statement of claim. They are as follows: “5. Plaintiff says that in his life time the deceased acquired a property in his hometown, Apam in the n ame “Emmanuel Fynn -Sackey and children as “Purchasers” and other property at Kasoa in his sole name. 6. Plaintiff further says that his late father acquired a third property, H/ No J81 Buade, Nungua in the name of the Plaintiff. 7. Plaintiff says that the Defendants as Co -Administrators of the estate of his father are treating the property as part of the estate of the deceased. 6 8. Plaintiff says that by the acquisition of that property in t the name of the Plaintiff the late father intended it to be his sole property.” The Defendants in paragraphs 7 to 10 of their statement of defence did not dispute that their late father acquired the property in the name of the Plaintiff and the Plaintiff did not know until the death of their father. The relevant paragraphs are as follows: “7. By the pleadings of the Plaintiff, he came to the knowledge of the site plan being in his name only recently and this is long after the said plan had been made and the property acquired by their deceased father. 8. The Defendants aver that the Plaintiff did not make any financial or other contribution towards the acquisition of the said property and therefore has no legal interest in the same apart from his interest as a son of the deceased. 9. In further answer, Defendants aver that all properties acquired by their deceased father form part of his estate. 10. The deceased during his lifetime never gifted any of his properties to any of his children.” The parties were ad idem that their late father acquired the property in dispute with his own resources in the name of the Plaintiff at the time that the Plaintiff was a child, and when he grew into an adult, his father did not involve him in the management of the property and exercised absolute ownership rights over same until his death. The Defendants, from their pleadings and submissions before the High Court, the Court of Appeal, and the Supreme Court, seem to confuse customary gift with advancement. A gift under customary law has been discussed in litany of cases including Akunsah v Botchway & Jei River Farm Ltd [2011] 1 SCGLR 288, Bonney v Bonney [1992 -93] GLR 779, and Yoguo v Agyekum [1966] GLR 482 where the Supreme Court has settled the law that it is an unequivocal transfer of ownership of a land by the donor to the donee, the 7 gift shall be made in public, the gift shall be acknowledged by the donee by the presentation of drink or other articles to the donor in the presence of witnesses. The doctrine of advancement is a common law gift where a man acquires property in the name of his wife or child, or a person who puts himself in loco parentis acquires property in the name of a child. The transaction for the acquisition of the property in the beneficiary's name may be known or unknown to the beneficiary, and the presentation of drinks or other articles to accept the gift is not required. Having clarified the confusion between customary law gift and advancement, I shall proceed to discuss advancement in detail and its application in the instant appeal. Advancement is a common law gift made by a father or a person who puts himself in loco parentis, where he buys a property in the name of his child or where a husband buys a property in the name of his wife. An advancement made to a child or a spouse creates a rebuttable presumption, but there are only two grounds upon which the gift may be rebutted. The first ground is that, before the man acquired the property in the name of his child or wife, he made a declaration that the property was not intended as an advancement and was an ordinary trust. The second ground is that at the time the property was being acquired, the man made a contemporaneous declaration that he was acquiring the property in the name of his child or wife but did not intend to make it a common law gift of advancement and that it shall constitute a trust. The subsequent acts and events of the donor in advancement are not admissible against the donee and are admissible against the donor. In a case where the property was in the name of a child or a wife, and the man used the property to secure a loan and that mortgage was signed by the donee, it would be admissible against the donor to prove that he was not the owner of the property. In all 8 other cases, where a man buys a property in the name of any other person including his fiancées, sisters, nephews, and nieces, trust is created. Halsbury’s Laws of England 201 (3d ed Butterworths 1956) pt 2, section 1, para. 447 discusses advancement as follows: “Where a father, or a person who has put himself in loco parentis, purchases either real or personal estate in the name of a child alone or in the joint names of the child and himself or a stranger, the father of the other person is presumed to have intended to make a gift to the child. The presu mption does not exist where the purchase is made by a mother, but sli ghter evidence is sufficient to prove an intention on her part to advance the child than would be required in case of a purchase by a stranger. The presumption of advancement may be rebutted by evidence of a contrary intention collected from the acts and declarati ons of the parties before or at the time of the transaction, subseq uent acts and events being only admissible as evidence against the party who did or made them and not in his favour. The presumption may exist even thou gh the parent has actually received the income during his life time and made leases of the property.” On the other hand, where a child acquires a property in the name of his father or a person who puts himself in loco parentis , it creates a trust and not an advancement. Where a woman acquires property in her husband's name, it creates a trust, not an advancement. The evidence on record shows that the late Emmanuel Fynn -Sackey acquired the property in dispute and therefore constitutes an advancement. Advancement may be rebutted by evidence of a contrary intention gathered from the acts and declarations of the parties before or at the time of the transaction by making it clear that the property is being acquired in the name of the child or spouse but was not meant to be a gift. Any subsequent acts and events after the transaction are admissible only against the donor, not in his favour, and shall not be used against the donor. 9 Section 21 (a) of the Evidence Act is relevant to the issue under consideration, and it provides as follows: “21. In an action where proof by a preponderance of probabilities is required, (a) a rebuttable presumption requires the tribunal of fact to assume the existence o f the presumed fact, unless the party against whom th e presumption operates proves that the non-existence of the presumed fact is more probable than its existence;.” From the totality of the evidence on record, the late Emmanuel Fynn-Sackey acquired the disputed property in the name of the Plaintiff, which automatically presumes a common law gift of advancement, and the Defendants are required to prove that the non-existence of the presumed fact is more probable than its existence. The only evidence adduced by the Defendants is that the property was acquired by their late father in the name of the Plaintiff when he was a minor, and the father used his own resources to develop the property and exercised exclusive ownership rights over the same, which rather supports advancement. The Defendants could not adduce any evidence from the acts and declarations of their father before or at the time of the transaction , which are the only grounds upon which advancement could be rebutted. The Supreme Court in the case of Richards v Nkrumah, supra, discussed the doctrine of advancement in accordance with the established jurisprudence of the English tradition where the principle developed and has been applied since it was introduced over centuries ago. The English who introduced advancement over centuries ago are seeking to abolish it, and the Official Explanatory Notes published with the Act for Section 199 of the Equality Act 2010 provide as follows: “Section 199: Abolition of Presumption advancement 10 1. Purpose Para 850: This section abolishes the presumption of advancement. The presumption of advancement is a rule of equity which presumes that certain transfers of property are intended as gifts rather than as resulting trusts. 2. What the Presumption is Para 851: The presumption arises in three situations: 1. where a husband transfers property to his wife, or purchases property in her name; 2. where a father transfers property to his child, or purchases property in the child’s name; 3. where a person who stands in loco parentis to a child transfers property to the child, or purchases property in the child’s name . In these situations the law presumes that the transferor intended to make a gift to the transferee. The presumption can be rebutted by evidence to the contrary. 3. Why it is being abolished Para 852: The Government considered that the presumption discriminates on the grounds of sex and family status, and that it is inconsi stent with the United Kingdom’s obligations under Article 5 of Protocol 7 to the European Convention on Human Righ ts. Article 5 requires equality of rights and responsibilities between spouses. 11 4. How the section works Para 853 : Subsection (1) abolishes the presumption of advancement. Para 854 Subsection (2) provides that the abolition does not ap ply retrospectively. It will not affect anything done before the section comes into force, or anything done pursuant to an obligation incurred before commencement. Para 855 This section will be brought into force by an order made by the Lord Chancellor.” Section 199 itself provides thus: “199 Abolition of Presumption of Advancement (1) The Presu mption of advancement (by which, for example, a husband is presumed to be making a gift to his wife if he transfers property to her, or purchases property in her name) is abolished. (2) The abolition by subsection (1) of the presumption of advancement does not have the effect in relation to — (a) anything done before the commencement of this section, or (b) anything done pursuant to any obligation incurred before the commencement of this section.” The Lord Chancellor has not brought it into force by an order as provided by the Law, and advancement from a man to his wife still forms part of the laws of the United Kingdom. The explanatory notes to section 199 of the Equality Act 2010 define the persons who fall within the beneficiaries of the presumption of advancement, and it is limited to only children and wives. 12 The presumption of advancement cannot be abolished or modified by a decision without an Act of Parliament as this Court sought to do in the case of Hannah Kwarteng v Adwoa Tiwa & Adwoa Fosuaa, supra, where the Court extended presumption of advancement from a child to a nephew, and further extended the modes of rebuttal to include subsequent acts such as the conduct of the purchaser and the person in whose name the legal title resides without any statutory backing. The Court held thus: “The proof of otherwise of a rebuttable presumption is not limited to only acts which accompany the purchase of the property but subsequent acts such as the conduct of the purchaser and the person in whose name the legal title resides.” The above principle developed by the Court in Hanna Kwarteng v Adwoa Tiwa & Adwoa Fosuaa, supra, is contrary to the established jurisprudence on advancement which has been quoted with approval in the courts in Ghana including the Supreme Court, and cannot be said to have departed from the Supreme Court’s previous decisions on the subject, and was giv en per incuriam. Article 129 (3) of the Constitution provides that the Supreme Court is normally bound by its own previous decisions; it may depart when it deems it to be just. It provides thus: “(3) The Supreme Court may, while treating its own previous decision as normally binding, depart from a pr evious decision when it appears to it to do so; and all other courts shall b e bound to follow the decisions of the Supreme Court on questions of law.” The closed list for advancement was discussed by the English Court of Appeal in the celebrated case of Fowkes v Pascoe [1875] 10 Ch App 343, where a man known as Fowkes purchased land in the name of his niece, Pascoe. After the death of Fowkes, his executors argued that the deceased executor had bought the property in the name of his niece, and that the niece held on a resulting trust. The niece admitted that her late uncle had bought 13 the property in her name, and the intimate relationship between them made the transaction an advancement. Lord Selborne LC at page 345 of the report held thus: “I take it to be clear that the doctrine of presumed advancement applies only to the cases of fathers and children, and of husbands and wives; in all other cases the presumption is that a resulting trust arises in favour of the p erson who provides the purchase money.” The closed list for advancement is father to child, a man who stands in loco parentis to a child, and a husband to wife only; the default is resulting trust. The rationale for the limited scope for advancement is that legal duty, and natural love and affection, exist between father and child, a person who stands in loco parentis and child, and husband and wife only, and advancement does not extend to nieces and nephews whom a man is not under legal obligation to maintain. The Court of Appeal was right in following Richards v Nkrumah, supra, which discussed the presumption of advancement in accordance with the jurisprudence of the Court and established principles of common law. The position in the United Kingdom , as enunciated in Young v Bristol Aeroplane Co Ltd [1944] KB 718, is that the Court of Appeal is normally bound by its own previous decisions and may depart from them when it considers it just to do so. The above position of law has been codified under article 129(3) of the Constitution of Ghana , which empowers the Supreme Court to depart from its previous decisions with justification. The ratio in Tivoli Freeholders Ltd v Commissioner of Inland Revenue [1972] 1 All ER 728; [1972] 2 WLR 1269 is that the Court of Appeal is bound by the decisions of the House of Lords, but where the House of Lords has delivered two conflicting decisions, the Court of Appeal may choose which one to follow. The trite position of law which was given judicial blessing in the case of Tivoli Freeholders Ltd v Commissioner of Inland Revenue, supra, is that where there are two conflicting decisions of a higher court whose decisions 14 are binding on a court below, the courts below have the right to choose any one they consider to be the true position of the law. The Court of Appeal was right to prefer Richards v Nkrumah, supra, to Hanna Kwarteng v Adwoa Tiwa and Adwoa Fosuaa, supra. The particulars of the ground of appeal which sought to fault the Court of Appeal for not following the latter case on advancement decided by the Supreme Court are without merit, and the same is dismissed. The case of Hanna Kwarteng v Adwoa Tiwa & Adwoa Fosuaa, supra, purported to depart from the respectable position of the Court developed in accordance with common law when it was not just to do so, and there was no justification for the departure and the two principles it purported to introduce to the laws on advancement shall cease to be the position of the law and shall not be followed. The English who introduced the presumption of advancement several centuries ago and passed it on to Ghana through the Supreme Court of Judicature Acts of 1873 and 1875 could not change the established jurisprudence with a case law and decided to enact a law to repeal advancement from a husband to wife by section 199 of the Equality Act 2010. In 1976, New Zealand abolished the presumption of advancement between husband and wife by section 4 of the Property (Relationships) Act, 1976. Article 11 (1) (1) of the Constitution of Ghana makes the common law as one of the main sources of law in Ghana. An established common law position cannot be departed from or amended by a decision of a court without enacting an appropriate law to state the current position, except where social conditions have changed and strict adherence to precedent may lead to serious injustice in a particular case and also unduly restrict th e proper development of the law, or to bring common law in line with its modern principles of law. The 1966 Practice Statement, 1 WLR 1234, of England is the same as Article 129 (3) of the Constitution of Ghana. The House of Lords in the case of R v Shivpuri [1986] AC 1; 3 WLR 261; 2 All ER 334 invoked the 1966 Practice Statement and held that its previous decision 15 in Anderton v Ryan [1985] AC 473, 2 WLR 900; [1985] 1 All ER 355 was manifestly wrong, contradictory and a source of confusion and injustice and was delivered per incuriam. Per incuriam means a decision made by a court of law when it was made in ignorance of a relevant statute, or in ignorance of a binding decision that would have changed the decision, or without the court’s attention being drawn to a key authority, and when a court decides to depart from its previous decision, it shall give justifiable reasons to meet the threshold that the court deems it just to depart. The latter case on advancement, which the Defendants sought to persuade the Court in the instant appeal, was made in ignorance of a binding decision of the Court which could not be departed from without reasons. In the case of Kor v Attorney -General & Justice Douse [2015-2016] 1 SCGLR 114, the Supreme Court departed from its previous decisions, including Osei Boateng v National Media Commission [2012] 2 SCGLR 1038. It held that they were decided per incuriam. The ground of appeal fails in its entirety and same is dismissed as unmeritorious. The unanimous decision of the Court of Appeal delivered on 19th January, 2023 is hereby affirmed. (SGD.) D. ADJEI (JUSTICE OF THE SUPREME COURT) 16 (SGD.) I. O. TANKO AMADU (JUSTICE OF THE SUPREME COURT) (SGD.) S. K. A. ASIEDU (JUSTICE OF THE SUPREME COURT) (SGD.) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT) (SGD.) K. T. ACKAAH-BOAFO (JUSTICE OF THE SUPREME COURT) COUNSEL DANIEL KOFI AMELEY ESQ. FOR THE DEFENDANTS/RESPONDENTS/ APPELLANTS WITH ELORM ASHIAGBOR ESQ. 17 OSSEI AIDOH AKPOKAVIE ESQ. FOR THE PLAINTIFF/APPELLANT/ RESPONDENT WITH SOLOMON KOFI ADDO ESQ.