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 an 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.
- The Donor (purchaser) must be the owner of the property
- There must be a clear intention to make a gift of the specified property to the Donee (“side chick” or “side guy”)
- The property must actually be gifted to the Donee (“side chick” or “side guy”) by the Donor (purchaser)
- 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”)
- 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 order 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 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  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 articles 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 favour 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 unproven. 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 is 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)  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 the 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 were 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 order 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 order 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 favour 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.