LEGAL PRINCIPLE: EQUITY AND TRUSTS — Presumption of Advancement — Effect — Father Lacks Capacity to Sell Property Given as Advancement
PRINCIPLE STATEMENT
Since the presumption of advancement enures in favour of the child, the father lacks legal capacity to sell the property in dispute to a third party. Consequently, any deed of transfer made in that regard is null and void.
RATIO DECIDENDI (SOURCE)
Per Edozie, JSC, in Ughutevbe v. Shonowo (2004) NLC-1601997(SC) at p. 32; Paras A–B.
"Since the appellants led no credible evidence to dislodge the presumption of advancement that the father of the 1st respondent intended that the property in dispute was a gift to the 1st respondent that presumption enures in his favour. The implication is that the father of the 1st respondent lacked the legal capacity to sell the property in dispute to the appellant's father. Consequently the Deed of Transfer made in that regard was null and void."
EXPLANATION / SCOPE
Where presumption of advancement applies, the father cannot later sell property gifted to the child. Any such sale to a third party is null and void. The principle applies to equity and trusts. The rule protects the child’s beneficial interest. The father’s legal capacity to alienate is extinguished by the advancement. The third party purchaser acquires no valid title.
