The legal status of properties purchased for or in the name of a “Slay Queen/Side Chick”, or “Side Guy”.
One cannot help but notice that we are
currently in an era of the booming "slay queen" business.
There is also the growing trend of "side chick" and "side
guy" relationships. In these trends, it is not unusual for properties
to be acquired for or in the name of the “side chick”, or “side guy”. Most
often when there is a fallout in these amorous relationships there is the issue
of one party attempting to retrieve all properties purchased for or in the name
of the other party. This is usually met with fierce resistance from the other
party whom the said property was purchased for or in whose name it was
purchased. The question is, will the purchaser of the said property be able to
legally recover the said property from the person the property was purchased
for or in whose name it was purchased.
Generally, a person
who has legal title to a property is presumed to be the absolute owner of the property
unless some other person can establish a beneficial interest in the said
property in equity. Thus Section 35 of the Evidence Act, 1975 (NRCD 323) states that “the
owner of the legal title to the property is presumed to be the owner of the
full beneficial title”. On the contrary a person who is in possession of a
property and exercises acts of ownership over same, although does not have
legal title to the said property may be presumed to be the absolute owner of
the said property. In this context
Section 48 of the Evidence Act provides “(1) The
things which a person possesses are presumed to be owned by that person. (2) A
person who exercises acts of ownership over property is presumed to be the
owner of it.”
Except
in marital relationships, if a person purchases a property in his name out of his personal funds for the use of
another person at his pleasure there is usually no legal contention as to the
absolute legal ownership of the purchaser. The case is different when the
property is purchased for or in the name of another person. Usually when a
property is purchased for a “side chick” or “side guy” and the purchaser does
not exercise any right of ownership over the said property it may be deemed as
an absolute gift to the “side chick” or “side guy”. The “side chick’’ or “side guy”
can establish the existence of an absolute gift of the property to him or her
in two ways.
First, he or she will have to establish
a common law gift of the said property to him or her. This is usually evidenced
by a “Deed of Gift” of the said property executed in name of “side chick” or
“side guy”.
Second, the “side chick” or “side guy”
can establish absolute gift of the property by way of a customary law gift of
the property to him or her. The Supreme Court affirmed these two ways of making
a valid gift of a property in Asare v Kumoji
(2000) SCGLR 298 at 302 per Akins JSC: “There
are two ways of making such valid gift, either by a conveyance where a deed of gift is granted to evidence the transaction,
or orally where it is governed by customary law.”
For the “side chick” or “side guy” to
establish her ownership of the property by way of a customary gift there must be
some key elements. The standard of ascertaining a
customary gift was applied by the Court of Appeal in Yaa Amponsah & Mr. Enock Edusei v. Akwasi Assuming
Civil Appeal No H1/52/2019 (25th March,
2021) per Omakyaareh
(MRS.) JA.
1. The Donor (purchaser)
must be the owner of the property
2. . There must be a clear intention to make a gift of the
specified property to the Donee (“side chick” or “side guy”)
3. The property must actually be gifted to the Donee (“side
chick” or “side guy”) by the Donor (purchaser)
4. There must be an acceptance of the gift by the giving of
‘Aseda’ (formal act(s) of thanksgiving to the purchaser by the “side chick” or
“side guy”)
5. Publicity (there must be
witnesses to the gift of the property to the “side chick” or “side guy” by the
purchaser)” (Emphasis mine)
The “side chick”
or “side guy” must therefore prove the above essential requirements of a valid
gift in accordance with customary law in other to claim absolute ownership of a
property purchased for him or her in the absence of a deed of gift.
There are also scenarios where a property is purchased in the name of a
“side chick” or “side guy”. The purchaser may exercise some ownership rights
although the “side chick” or “side guy” uses and make daily decisions
concerning the said property. In such cases, there will be a contention between
the legal titleholder and the beneficial ownership. Depending on the
surrounding circumstances of the case a court that is confronted with such
facts may conclude that a resulting trust has been created in favour of the
purchaser. However, this largely depends on the level of the right of use and
management of the said property between the purchaser and the “side chick” or
“side guy”.
In the case of Ussher vs. Darko [1977] 1 GLR 476, a married man purchased a piece of land in the name of
his mistress with whom he had six children. He built on the land and let it out
to tenants who paid rent to him directly. The mistress who had legal title to
the property relied on the conveyance in her name and attempted to sell it to a
third party. In an action for the declaration of title by the third party, it
was held that although the mistress had the legal title, she held the property
as a bare trustee, i.e. on a resulting trust for the purchaser of the said
property which is the married man. The court was of the view that the
presumption of advancement of a gift could not operate in favour of the mistress.
The Court
of Appeal in its ruling held per Apaloo JA (as he then was) as follows: “On the
mistress’ own evidence, and on the application of the equitable presumption of
resulting trust, the purchaser clearly had the beneficial interest in the
absence of an intention on his part to make a gift to the mistress ”
His Lordship went further to say that: “The position
is that the mistress was, on the facts of this case, a mere repository of the
legal title. The beneficial owner of the property was the purchaser. As the
latter was sui juris and absolutely entitled, he was entitled to compel the
mistress his trustee, to convey the legal estate as he directed. If she
refused, the purchaser might have applied to the court to constrain her to do this,
and the mistress would have to pay the costs of the application unless she
could show reasonable grounds for her refusal.” (Emphasis mine).
The presumption of advancement of a gift has always been
applied in the narrow sense to a limited class of beneficiaries. However, the Supreme
Court appears to have expanded the scope of application of this presumption in
the case of Hannah Kwarteng (Substituted by
Kwadwo Oppong) v. Adwoa Tiwaa, Adwoa Fosuaa (Substituted By Diana Mensah) [(Civil
Appeal No. J4/01/2017 )14th November, 2017]. In this case, the majority in their
opinion resorted to the presumption of advancement to make a case that the purchaser
of a property intended to gift the property to the legal titleholder. This certainly
run counter to the settled law on the presumption of advancement. The question
is whether or not the said presumption of advancement of a gift can be extended
to a “side chick” or “side guy” when circumstances of the case so demand. Even
though there has not been a valid gift of the property under any of the two
modes of gift discussed earlier. In
contrast with the presumption of advancement is the presumption of a resulting
trust. As such where the purchaser of the property fails on the presumption of
a resulting trust the beneficiary of the said property may succeed on the presumption
of advancement of a gift of the said property to him or her.
The fact of the Hannah Kwarteng case is 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 lifetime of
his uncle and his own life by renting it out and receiving the rental incomes
accruing therefrom and interestingly exercised acts in respect of the property including,
ejecting the head of the 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.
The Supreme Court held per Gbadegbe, JSC
that:
“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.”
His Lordship
went on further to establish how the said burden of persuasion can be
discharged as follows “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.”
The
Supreme Court after considering all the surrounding circumstances of the case
came to the following conclusion “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.”
His Lordship Anin Yeboah JSC (as he then was) who was in the minority in
this case was of the opinion that the presumption of advancement and its
applicability by the established legal standard is limited to a class of
beneficiaries. This presumption of advancement 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
the absence of the above, the presumption of a resulting trust must be
applicable. In any case, a gift in
law is conceptually different from the intention to make a gift.
As mentioned, the purchaser of a property
may be able to plead a presumption of
resulting trust to recover a property purchased in the name of a “side chick”
or “side guy”. In the case of Ofei vrs Darko and Others
(J4 22 of 2017) [2018] GHASC 6 (31 January 2018) the Supreme Court applied the above presumption and relied on its
previous decision in the case of in Re Koranteng (Decd) [2004-2005] SCGLR
1039 at 1042, holding 3 thereof which states as follows:-“In
essence, a resulting trust was a legal presumption made by law to the effect
that where a person had purchased property in the name of another, that other
person will be deemed to hold the property in trust for the true purchaser. It
was a trust implied by equity in favour of the true purchaser or his estate
upon death. The trust was regarded as arising from the unexpressed or
implied intention of the true purchaser.”
The Supreme Court held in the above case that from the
available evidence, and the current state of the authorities on how a resulting
trust arises, it is clear that the transactions between the legal titleholder and
the purchaser of the property was nothing other than a resulting trust. This is
because, even though the legal title remained in another person, the equitable
title, from the conduct of the parties amounted to a resulting trust in favour
of the purchaser. In that respect therefore, there was no title left for the
legal titleholder in the disputed property to convey to a third party.
From the above analysis, two conclusions can be drawn in respect of a
property purchased for or in the name of a “side chick” or “side guy”.
First, the “side chick” or “side guy”
may be deemed the absolute owner of the said property by virtue of a valid gift
of same to him or her either by way of a deed of gift or a customary gift.
Arguably it can also be concluded that the presumption of advancement may be
applicable in the absence of a valid gift depending on the circumstances of the
case. A court is likely to consider the following factors before it comes to
the above conclusion; the purchaser surrendered the documents of title to the
property to the “side chick” or “side guy”.
The purchaser’s conduct in not interfering with acts of ownership
exercised by the “side chick” or “side guy” in relation to the said property. These
factors have the effect of leading one to the reasonable conclusion that the
purchaser must have intended to make a gift of the property to the “side chick’
or “side guy”.
In other to reverse this presumption of
a gift the purchaser must do acts that negate the effect of the exclusive acts
of ownership exercised in relation to the said property by the “side chick” or
“side guy” in whom legal title to the property resides. For instance, the
purchaser can make specific provisions for the devolution of the said property in
his or her Testamentary Will. The purchaser can also begin to exercise some
rights of ownership and use of the said property.
The second conclusion that can be drawn
from the above discussion is that a property that is purchased in the name of a
“side chick” or “side guy” is held on the presumption of resulting trust in
favour of the purchaser. In other for the purchaser to succeed in an action to
recover the said property the court may consider the following factors: whether
the facts of the case were such as to have rebutted the presumption of
resulting trust in favor of the purchaser who had acquired the property with
his or her funds in the name of the “side
chick” or “side guy”? Should the presumption remain unrebutted at the end of
the case then the property remained that of the purchaser. But if the acts
performed by the “side chick” or “side guy” were material and sufficiently
credible to dislodge the presumption of a resulting trust then, the property
belonged to the “side chick” or “side guy”.
In
light of the above discussion, before you purchase any property for or
in the name of a “side chick” or “side guy” consider if you want to make an
absolute gift of the said property to him or her. Whether you want the “side
chick” or “side guy” to use the said property at your pleasure in which case
you may be able to reclaim the said property at any time. Depending on what
your intentions are that should inform how you deal with the said property in order
to avoid giving away something you do not intend to give away absolutely.
Author:
Barnabas Abisa ESQ.
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