Tachie Vrs Abban [2022] GHADC 51 (21 November 2022)

CORAM: HER WORSHIP (MRS.) ROSEMARY EDITH HAYFORD, ESQ. SITTING AS DISTRICT MAGISTRATE, DISTRICT COURT “B”, SEKONDI ON THE 21ST NOVEMBER, 2022 __________________________________________________________________ SUIT NUMBER A4/16/2022 JOSEPHINE YAA TACHIE - PETITIONER V SAMUEL YAW ABBAN - RESPONDENT ------------------------------------------------------------------------------------------------------------- TIME: 10.00 AM PETITIONER RESPONDENT - - PRESENT ABSENT ___________________________________________________________________ JUDGMENT By an amended Petition filed by the Petitioner on the 13th of January, 2022 against the Respondent, the Petitioner claims the customary marriage celebrated between the parties sometime in 2018 has broken down beyond reconciliation and claims the following reliefs: 1. Dissolution of the customary law marriage celebrated between the parties. 2. Recovery of the sum of GH₵419,750 being monies owed to the Petitioner by the Respondent. 3. 4. 5. 6. Interest on the above sum from November 2010 till the date of final payment Two thirds share of the matrimonial home situate on PT 55, Ngyiresia Share of Petitioner in the income derived from the Botagyina and Adansi projects. Financial provision of GH₵120,000.00. The Petitioner grounds her reasons for the dissolution among others as follows: (i) That the marriage between the parties has broken down beyond reconciliation and the Petitioner cannot reasonably be expected to stay with the Respondent (ii) That Respondent is an incorrigible and indiscriminate womanizer who dissipates the household income on his numerous concubines (iii) That the Respondent unreasonably blames the Petitioner for the loss of their child and this has put the Petitioner to immense emotional stress and anguish (iv) That the Respondent sent drinks to the Petitioner’s family that he is no longer interested in the marriage, an indication that the Respondent is no more interested in the marriage. (v) That the Respondent does not maintain the Petitioner and has thus plunged the Petitioner into serious financial crisis (vi) The Parties have irreconcilable differences Apart from the particulars of the breakdown of the marriage as stated above, the Petitioner says that she is also an Assemblywoman who won building contracts for the Respondent and also invested money in their execution. Petitioner says that she has spent about a total of GH₵455,080.00 on various projects undertaken by the parties as enumerated in paragraph 6 of the petition. The petitioner avers that the Respondent stayed with her in her rented apartment at Inchaban and after the Petitioner got contracts for the Respondent, the revenue realized was used to purchase a plot that has since been developed into the matrimonial home. It is the contention of the Petitioner that she contributed the greater part of the money for the construction of the Matrimonial home. Hence the Petitioner prays per her reliefs. It must be noted that even though the Respondent was granted leave to amend his answer he failed to do same. In the circumstance, his answer filed on the 7th of December 2021 is the only one on record wherein he denied most of the averments and cross-petitioned that the marriage celebrated between the parties should be dissolved. The Respondent further stated that the parties were rather in a relationship for three years prior to their marriage in 2018 and not 8 years as averred by the Petitioner. That after the marriage the parties lived in the Respondent’s family house. The Parties lost their first child sometime in 2016; sometime during the marriage, the parties' second child also died. According to the Respondent, he only got to know about it through friends and family members who called to commiserate with him. It was later that the Petitioner told him after persistent demands. According to the Respondent the disappearance of the couple’s second child brought about so many misunderstandings which made both families sit down on the matter but same was never able to be resolved and to him, that has been the bone of contention between the parties since then. It is further the case of the Respondent that the Petitioner does not perform his wifely duties and leads a carefree life. Respondent further avers that the Petitioner did not win any contracts for him nor had she invested in executing any contract. i.e the Botogyina Chip Compound Project, the Market Project, and the Toilet Project. That the Petitioner refuses to allow his children and family members into their home since they married. That the Petitioner is arrogant, disrespectful, and has in her possession his personal documents which the Petitioner has refused to release to Respondent despite repeated demands. It is the case of the Respondent that the Petitioner is not entitled to any of her reliefs save the dissolution. The Petitioner testified and called three witnesses and tendered 28 Exhibits in support of her case. The Respondent on the other did not appear in court at all. He failed to file his witness statement in spite of the leave that was granted him. On 27/10/2022 Counsel for the Respondent intimated to the court that they did not intend to testify. As such the unsigned witness statement that was filed by the Respondent on 5/8/2022 was struck out as withdrawn. At the end of the trial, the determinable issues included the following: 1. Whether or not the customary marriage celebrated between the parties has broken down beyond reconciliation 2. Whether or not House No. PT 55, Nygiresia is a joint/matrimonial property 3. Whether or not the Petitioner is entitled to two-thirds of House No. PT 55 4. Whether or not the Petitioner is entitled to recover GH₵455,080.00 from the Respondent 5. Whether or not the Petitioner is entitled to any share in the Botogyina and Adansi Projects 6. Whether the Petitioner is entitled to a financial provision of GH₵120,000.00 Issue 1 - Whether or not the marriage has broken down beyond reconciliation The sole ground for the grant of divorce per Section 1 of the Matrimonial Causes Act (M. C. A.) 1971 (Act 367) is that the Marriage has broken down beyond reconciliation. For the court to be persuaded that the marriage has indeed broken down beyond reconciliation, the petitioner must lead evidence to establish any one or more of the six facts enumerated in section 2 (1) of the Act. , namely adultery; unreasonable behavior; desertion for a period of two years; consent of both parties where they have not lived together as husband and wife for a period of two years; not having lived together as husband and wife for a period of five years; and finally, inability to reconcile differences after diligent effort. See: Section 2(1) of Act 367 As in any civil case, the standard of proof is proof on the preponderance of probabilities per section 12 of the Evidence Act 1975 (NRCD 323). Per section 2(3) of the Act, although the Court finds the existence of one or more of the facts specified under section 2(1), the court shall not grant the petition for divorce unless it is satisfied on all evidence that the marriage had been broken down beyond reconciliation. It is noteworthy that the only evidence on record is that of the Petitioner since the Respondent failed to file his witness statement and testify. He also failed to cross- examine the Petitioner on her evidence. This implies that the evidence of the Petitioner stands unchallenged. In effect, the same is admitted and acknowledged. See: Quagraine v Adams [1981] GLR 599, CA. It must however be noted that even though the evidence of the Petitioner stands unchallenged, the law requires the Petitioner to prove her case to the satisfaction of the court on all the evidence, after all the standard is on the balance of probabilities. See: Sections 10 and 12 of the Evidence Decree It is Petitioner’s case that the parties have irreconcilable differences. The Petitioner avers that the Respondent does not maintain her and is a womanizer and had over 6 children during the period the parties cohabited. And that the Respondent has dissipated the household income on his numerous concubines. The Respondent in his answer does not deny the number of children he has outside the marriage but denies that their household income is spent on his concubines. He avers that the women who come around are women he has had children with and that whatever money he acquires is distributed towards the welfare of his said children. The question I pose from the response of the Respondent is what about the welfare of the Petitioner? The Respondent just glosses over the maintenance issue for the Petitioner and does not deny the claim. If six (6) different women could always go to claim maintenance for their children, which the Respondent proudly confirms to the neglect of the Petitioner, would it not definitely affect the coffers of the family since the parties did not even have children of their own? To my mind, it could. Also, the Petitioner avers that the Respondent unreasonably blamed her for the loss of their second child and that this put her under immense emotional stress and anguish. The Respondent denies blaming the Petitioner. He, however, says he was in shock and traumatized about the sudden death of the parties’ child who “vanished into thin air” at the time preparations were ongoing for its birth and Petitioner failed to inform him until he received messages of condolence from family and friends. Later he had to confront the Petitioner several times before she eventually confirmed the death of the child to him as a result of this he began to “fear” for his life. Meanwhile, the uncontroverted evidence is that it was the Respondent who personally grinded some herbs and gave same to the Petitioner to use. It was after using the herbs that the Petitioner started to bleed and was rushed to the Hospital, eventually Petitioner miscarried the pregnancy. The doctor even requested to meet with the Respondent at the hospital to discuss it but the Respondent refused to meet with the doctor. PW1 confirmed that when he asked the Respondent why he refused to see the doctor he retorted that the said doctor will not tell him anything sensible. Subsequently, the Respondent sent drinks to the family of the Petitioner that he was no longer interested in the marriage. It is my humble view that that was a time when both parties needed to be there and console each other, rather the Respondent opted to end the marriage. Clearly, an action like that will surely affect the Petitioner and cause her stress and anguish. I find from the evidence that the parties’ issues stem from the loss of the baby even though it was through no fault of the Petitioner but the Respondent. I further gleaned from the evidence that both families of the parties have tried on numerous occasions to resolve the parties’ differences and to reconcile them without any success. Having enquired into the facts and evidence I find that the parties have irreconcilable differences and I am satisfied in my mind that the marriage between the parties has broken down beyond reconciliation. The exact date of the customary marriage between the parties could not be confirmed by the parties. I find that strange though. However, both parties were ad idem that it took place sometime in 2018. Accordingly, I decree that the customary marriage celebrated between the Petitioner and the Respondent sometime in the year 2018 be and is hereby dissolved. I shall now turn my attention to issue 2 which is “whether or not House No. PT 55 Ngyiresia is a joint/matrimonial property”. The resolution of issue 2 will help resolve issues 3 and 4 as well. It is the case of the Petitioner that she was in concubinage with the Respondent from 2010 until the parties got married customarily in 2018. According to the Petitioner at the time she was in the relationship with the Respondent, he was married and living with another woman at Nkroful and she was living in a rented apartment where the Respondent visited regularly and spent nights. The petitioner avers that the parties acquired land at Ngyiresia and put up the matrimonial property currently in contention. It is the case of the Petitioner that she contributed over One hundred and fifty thousand cedis (GH₵150,000.00) to the joint property and therefore claims two- thirds of same. Respondent although did not testify had denied this assertion in his answer. He stated that the said property was put up before he married the Petitioner by himself and his siblings and that the Petitioner did not contribute in any way. As I earlier stated the Petitioner still bears the evidential burden of proof and must succeed her case on its own strength and not on the weakness of her opponent. See: Agyenin Boateng & 38 ors v S. K. Boateng (2009) 5 GMJ 558 and Duagbor vrs Akyea-Djamdon [1984-86] 1 GLR 697 In proving her case, Petitioner tendered Exhibit “C” a receipt to signify the purchase of the land. It is dated 2/06/2012, plot 55 is captured on same. However, this receipt does not bear the Petitioner’s name but the Respondent’s. The presumption is that it is the person whose name is on the receipt that purchased the land or is the owner. See: Wood (substituted by) Asante-Koranteng v Tamakloe & Derban [2007-2008] 2 SCGLR at 858 and also Section 35 of the Evidence Act, 1975 (NRCD323). Here, it must be noted that the parties were not married so if Petitioner has an interest, then she must prove that they bought the property together. In the absence of any cogent evidence or direct contribution to the property prior to their marriage in 2018 that property cannot be described as matrimonial or joint property especially as at the time of its supposed acquisition, parties were not married, and more so, at the said time, the Respondent was married to another woman. The property could therefore at best be the Respondent’s personal property or property he acquired with his wife at the time. The Petitioner’s evidence in paragraphs 9 and 10 of her witness statement filed on 13/01/2022 is instructive. I shall quote same here “10. After the divorce between Respondent and his wife, the Respondent had to vacate from Nkroful, so he came to stay briefly with me at Inchaban before we decided to buy a plot and put up our own building. The receipt for the purchase of the plot is hereby tendered at Exhibit “C”. Though we bought the plot in 2010, I later saw that the Respondent had changed the date to 2012.” (Emphasis mine) I find some contradictions or inconsistencies in the evidence of the Petitioner above. In one breath they purchased the land after the divorce of the Respondent’s wife, in another breath, the land was purchased in 2010. In Gyabaah v The Republic, it was stated that where there are material conflicts or inconsistencies in the evidence offered to prove a fact in issue, they may result in disproving allegations of fact or impeaching the credibility of witnesses. The evidence on record is not clear when the Respondent divorced his wife. What is clear on the record which is unchallenged is the evidence of PW2, who said in paragraphs 2 and 3 of his witness statement that sometime in 2013, when he met the Respondent during the final funeral rite of Hon. Gladys Asmah, the Respondent was living with his wife at Nkroful. This means that as of 2013, the Respondent was still married and had not divorced his wife. Assuming the divorce was even in 2013, and from Petitioner’s evidence the land was purchased after the divorce, it would therefore mean that the land was purchased after 2013, this then would contradict her own evidence that the land was purchased in 2010 for which she attached Exhibit C which does not even bear her name. In Hayfron v Egyir [1984-86] 1 GLR 682, CA, the court held that where there is in existence a written document and oral evidence on the same transaction, the rule is that the court should consider both the oral and documentary evidence, but to lean favourably towards the documentary evidence, especially where the documentary evidence is authentic while the oral evidence is conflicting. As has been seen the oral evidence of the Petitioner is so conflicting. I find that the land that has the matrimonial building on was indeed purchased in 2012 as evidenced by Exhibit C tendered by the Petitioner herself and not in 2010 or after the divorce of the Respondent’s former wife. To further illustrate the point that the land on which the matrimonial property is situate was purchased in 2012 and not when the Respondent and his wife divorced, the testimony of PW2 is very instructive. I shall quote paragraphs 10, 11, 12, 13 and 14 of his witness statement below “10. All this while, the Respondent was living at Nkroful with a different woman while the Petitioner who was then one of the concubines was staying in Inchaban. 11. The Respondent along the line informed me that he had started a residential home at Ngyiresia and took me there where I saw that they had started a store building. 12. Around that time, there was problem between the Respondent and the woman he was staying with at Nkroful. The Respondent pleaded with me and I went to the woman’s town, Ankwanda, to attempt to resolve the problem but was unsuccessful so the marriage ended. 13. As a result of the dissolution of that marriage, the Respondent had to vacate from the room at Nkroful and since they had then completed one store in their new building at Ngyiresia, he moved into it. 14. I then advised the Respondent to finish some of the rooms in the house so that he could stay in them with the Petitioner...” (Emphasis mine) During cross-examination of PW2 by Counsel for the Respondent on the 19th of July, 2022 at page 23 of the proceedings below is what transpired: Q. Now in your paragraph 14, you indicated that you advised the Respondent to finish some rooms so he could stay there with the Petitioner is that not so A. That is so Q. Now from the pieces of evidence, the house had been constructed to an appreciable level by the 2018 when the Respondent married the Petitioner A. Yes, by then he had constructed to an appreciable level. He initially moved into the store so I advised him to complete one of the rooms and move in and that is what he did” (Emphasis mine) It can be seen that the evidence of PW2 above contradicts the evidence of the Petitioner that the land was purchased and the property was built after the divorce of the Respondent’s wife. It was held in Atadi V Ladzekpo [1981] GLR 218, CA that whenever the testimony of a party on a critical issue is in conflict with the testimony of his own witness on that issue, it is not open to the trial court to gloss over such a conflict and make a specific finding on that issue in favour of the party whose case contained the conflicting evidence”. I shall come back to this issue later. To further prove her case Petitioner tendered the Indenture and site plans to the disputed property. The name on the indenture itself (Exhibit E) and the first Site plan attached to it, is “Yaw Offei Abbam Sam”. However, the cadastral plan and the layout plan also attached to the indenture (Exhibit E1) bear the name “Mr. Yaw Offei Abban”. Amazingly the indenture and all the site plans are all in respect of Plot 55, Ngyiresia and it is dated 14th September 2012. It must be noted that the year “2012” is the same year on Exhibit C the receipt that was issued evidencing the purchase of the land. This further confirms that the land was purchased in 2012 and not 2010 as Petitioner wants this court to believe. The Petitioner avers that the Respondent has no brother by the name inscribed on the indenture. In the absence of any contrary proof from the Respondent and having critically analyzed the documents, I find that the assertion of the Respondent that he has another brother by name Yaw Offei Abbam Sam is not supported by the evidence on record. It is my considered view that the two names are one and the same person being the Respondent and that he owns the property. Having said so, I further find that, the documents the Petitioner tendered bear no evidence of her name. In my humble view Exhibits C, E, E1, and E2 undermined Petitioner’s own case. From the combined effect of Petitioner’s own evidence, PW2’s evidence, and the cross- examination in respect of the disputed property, I make the following findings: 1. At the time the Petitioner met the Respondent he was already married and was living with his wife. 2. That at the time the disputed land was purchased the Respondent was living with his wife and the Petitioner was a concubine 3. At the time the matrimonial property in dispute was being built the Respondent was still married to his wife and had not divorced her 4. That at the time the parties got married in 2018 the matrimonial property had reached an appreciable level 5. That apart from the matrimonial property there was the construction of stores as well It is further the evidence of the Petitioner that she contributed to putting up the matrimonial home. Exhibit D series were tendered as proof. Exhibits D, D1, D2 D3, D4, D5 and D7 are cash sales/invoices from K-Nyame Builder Enterprise bearing the name of the Petitioner for various items and with different dates. Essentially, it means the goods were not bought on credit but with cash and they were supplied. However, there is no linkage between these cash sales/ invoices and the disputed property. The same applies to Exhibits D8, D9, D10, and D11. These are cash sales/receipts. In respect of Exhibits D6, D12,and D 13, they are just invoices with Exhibit D6 bearing no name on same. An invoice only shows the value of whatever is intended to be purchased, it does not mean that payment has even been made. It is my considered view that Petitioner failed to link any of these exhibits to any undertaking on House Number PT 55, Ngyirisia. Again, what petitioner avers are capable of proof by even corroborative testimonies of Artisans who carried out the works but she failed to call any of them. Against these lapses in the evidence tendered by the Petitioner and the court’s earlier finding that the land was purchased and the property built by the Respondent at a time the Respondent was already married and was living with another woman, it is difficult to come to a conclusion that Petitioner contributed to the building of H/No PT 55 and thus the house is joint property. The Petitioner was a concubine then. Black’s Law Dictionary Deluxe Ninth edition, defines a concubinage relationship as “a relationship of a man and woman who cohabit without the benefit of a marriage. The woman in the relationship, the concubine, cohabits as a wife without title. Although a concubine was expected to serve all the functions of a legitimate wife, she has no authority in the family or household, and was denied certain legal protections.” It is trite that a concubine has no share in a property acquired by a man without any cogent proof of contribution. See: MARIAN OBENG MINTAH VRS. FRANCIS AMPENYIN Civil Appeal No. J4/18/2013 The position of the law would have been different if the property had been acquired during the subsistence of the marriage between the Petitioner and the Respondent. This principle was reiterated in ARTHUR v ARTHUR (2013) SCGLR where the Supreme Court per Date Bah JSC emphasized the equality is equity principle and stated as follows: “It must be emphasized that, in the light of the ratio decidendi in MENSAH v MENSAH, it is no longer essential for a spouse to prove a contribution to the acquisition of matrimonial property. It is sufficient if the property was acquired during the subsistence of the marriage.” (Emphasis mine) In the instant case, the land and building were acquired before the parties got married in 2018, at the time when the Respondent was already married to another woman. The Petitioner further claims a share of the income derived from the Botogyina and Adansi Projects. It is her case that she is the Assemblywoman of the Mpohor District Assembly and the Women’s Organizer of the New Patriotic Party (NPP). She avers that she used her political influence and position in the District Assembly to win contracts in the name of the Respondent’s company. The Petitioner tendered Exhibits A and A1 as proof of her influence. Exhibits A and A1 are letters emanating from the Mpohor District Assembly, presumably the area where the Petitioner is an Assemblywoman. However, both letters were addressed to the director of Messers Offeibu Ltd. of Effiakuma. Both parties have confirmed that this is the name of the Respondent’s company. Indeed, in the said two letters no mention is made of the Petitioner. It is noteworthy that the Company Offeibu is a Limited Liability Company, a legal entity in itself and it is separate from the Respondent. See: Salomon and Salomon. The case established that a Limited Liability Company wears an independent legal identity from its shareholders. It can sue and be sued. Therefore, shareholders cannot be held responsible for the debt and liabilities of the company. Petitioner boldly avers that she used the Respondent’s Company to win these projects. This is clearly supported by her own witness (PW3) who said that the contract was awarded to “a company” and not an individual. As to whether the Petitioner played a role in the award of the contract, PW3 averred that he was told by the Petitioner and not that he was part of the bidding process or he had personal knowledge. Below is what transpired under cross- examination at page 26 of the record of proceedings of 2nd August 2022 Q. You have mentioned in paragraph 3 of your witness statement that the Petitioner informed you that she has used her position in the Assembly to win a contract for a chip compound, were you ever involved in the bidding or award of the contract to the Petitioner? A. No but she informed me after she had the contract Q. So will I be wrong in saying that you cannot speak to the details of the award of the contract in issue A. No, I cannot tell Q. Did you ever work with the Petitioner and her husband prior to being informed about this contract A. No XXX Q. Now in your experience as the chairman of your party (the ruling government) it is the case that when such government contracts are being awarded it is awarded to a particular company, is that not the case? A. I know they award it to companies. Clearly from the above, PW3 confirms that the Petitioner did not take part in any contract of award and the contracts are also awarded to companies and not individuals. Petitioner further tendered Exhibits D14 and D15 as proof of her contribution in the said project. These are cash sales/invoices in the name of the Petitioner and on them are written Chip Compound Botodwina and Adansi Two Toilet containing various building materials. Strangely, these two separate documents bear the same serial number namely “No.001” and they have no dates making it difficult to know the exact time these items were purchased. Granted that it was indeed for the two projects in respect of Exhibits A and A1, as I have already stated supra the contract was awarded to a Company (Offeibu Limited) and not an individual (the Respondent), therefore, if the case of Petitioner is that she has advanced monies to the Respondent’s business/company or she has contributed in the said project, the duty would be on her to show why the corporate veil should be lifted for which she can sue the Respondent personally, otherwise, the action should be against the company I so find. It is Petitioner’s further case that she also used her influence to win contracts for Respondent’s company from Ghana Ports and Harbours Authority (GPHA) and has tendered Exhibit B series in support of this claim. Exhibit B is a letter from GPHA addressed to Respondent’s company in respect of the painting of the light House Concrete structure at Cape Three Points. Exhibit B1 is a letter that was written by the Respondent as the Managing Director of Offeibu Limited to the Director of GPHA about the causes of the delay in the commencement of the work. Exhibit B2 is an agreement executed between GPHA and Offeibu Limited in respect of the Rehabilitation of Fence wall at SHC, Staff Quarters, Effia Kuma. It must be noted that nothing on these documents links the Petitioner to the projects. And as stated supra the Company Offeibu is a legal entity and is separate from the Respondent. An action personally to the Respondent will not lie in this case I so hold. Petitioner in paragraph 14 of her witness statement stated that the parties contacted a friend in Japan who agreed to ship down cars and other items for sale. According to the Petitioner, she gave a total of GH₵67,000.00 to the Respondent who paid same into his accounts and transferred same to the said friend. The Petitioner avers that the Respondent always sold the items and misused the money. Petitioner has tendered Exhibits F, F1 and F2 as proof. The said exhibits are cash deposit receipts from Ecobank. The cash was deposited by Samuel Yaw Abban (the Respondent) into account number 1441001375858. However, the account name, that is the recipient of the money is not on both slips. Besides that, the currency is in cedis presumably it is a Ghana account and not in Japanese yen. The amounts on the three Exhibits are GH₵15,000.00, GH₵12,000.00 and GH₵100.00 respectively, which gives a total of GH₵27,100.00 and not GH₵67,000.00 being claimed by the petitioner. Clearly, an amount of GH₵27,100.00 was deposited by the Respondent, but I fail to see any linkage with a car transaction in Japan. I take judicial notice of the fact that cars and other items that are imported into the country would usually come with a Bill of Lading and in respect of a car, a Certificate of Ownership. None of these documents were presented by the Petitioner to prove that indeed some cars and items were imported and that the Respondent has sold and squandered the money without recourse to her. I find that Petitioner did not lead cogent evidence to substantiate this claim. Again, Petitioner avers that Respondent was sued in the District Court, Shama for his indebtedness to one Rev. Albert Eshun, and judgment was given against the Respondent. She had to pay off the said debt of GH₵5,000.00. Petitioner tendered Exhibits G and G1 as proof. On the face of both exhibits, there is no doubt that the Respondent was sued by one Rev. Albert Eshun. However, the two exhibits are not the judgment of the court. Exhibit G is a Writ of Summons and Exhibit G1 is an Order for Substituted Service which indicates that the Respondent could not even be served with the Writ for which a substituted order was made. Nothing on the two exhibits shows that judgment was delivered against the Respondent. Petitioner says she paid an amount of GH₵5,000.00 to the said Rev. Albert Eshun, yet she does not exhibit any evidence of payment or even call said Rev. Albert Eshun to corroborate her evidence. The learned S. A Brobbey states on page 378 of his book PRACTICE & PROCEDURE IN THE TRIAL COURTS & TRIBUNALS OF GHANA thus; “In civil proceedings, the consequences of a party’s failure to call a material witness depend on the onus of proof placed on him by the facts of the case. If a party has to establish his case and therefore assumes the onus of proof, he must call witnesses material to establish that case. In the event, his failure to call a material witness may result in a ruling being given against him for the reason that he has failed to establish that case: See NRCD 323, s11 Owusu V Tabiri [1987 -88] 1 GLR 287” It is my humble view that the burden on Petitioner was not discharged. The same applies to her evidence that she spent an amount of GH₵60,000.00 on the Respondent’s vehicles that had broken down namely: Toyota Pathfinder No. WR 959 – V (GH₵25,000.00); Iveco Truck No. GR 3478 – Y (GH₵20,000.00) and Tundra Ford Car WR 137 – 14 (GHc15,000.00) as well as his debt of GH₵3,500.00 to the wife of one Mr. Fiifi. Indeed, these are acts that are capable of proof yet Petitioner failed to prove same, mere averments will not lie. See Majolagbe v Larbi & Others [1959] GLR 190 at 192 Having critically examined the facts and evidence adduced and on the balance of probabilities, it is my considered view that the Petitioner failed to discharge the evidential burden imposed on her. In the circumstance, her action must fail, save the dissolution and financial provision. Section 20 of Act 367 states as follows: ‘(1) The Court may order either party to the marriage to pay the other party a sum of money or convey to the other party movable or immovable property as settlement of property rights or in lieu thereof or as part of financial provision that the Court thinks just and equitable.’ (2) ‘Payments and conveyances under this Section may be ordered to be made in gross or instalments.’ In determining property settlement and or financial provision for a party, the Court is enjoined to be “equitable and just”. It has been held in OBENG v OBENG (2013) GMJ that what is equitable and just is a question of fact. The present and future earning capacities of the respective parties, their ages, their standard of living, and the duration of the marriage as well as the peculiar circumstances of the case are some of the factors to be taken into account. In the instant case, the Petitioner is a Business woman and the Respondent is a building contractor. They have been married for four (4) years after so many years in concubinage. The Petitioner is entitled to some financial provision. I proceed to make the following orders: DECISION 1. The customary marriage contracted between the parties sometime in 2018 is hereby dissolved. 2. The Respondent is ordered to pay to the Petitioner financial provision of Thirty Thousand Ghana Cedis (GH₵30,000.00) 3. Parties to bear their own costs. (SGD) H/W ROSEMARY EDITH HAYFORD (MRS) MAGISTRATE COUNSEL F. F. FAIDOO FOR THE PETITIONER AMA KOOMSON HOLDING BRIEF FOR EMMANUEL TIBOAH FOR THE RESPONDENT 20