JUDGMENT OF AMUA-SEKYI J.A.
This is an appeal from the judgment of Ansah-Twum J. sitting in the High Court, Accra refusing an application by originating summons made on behalf of the plaintiff, Joyce Markham (neé Flemister), to be declared the lawful widow of James Markhan, deceased, and a person entitled to benefit from his estate under the Intestate Succession Law, 1985 (PNDCL 111). Togbe Amegashie Afeku IV, the first defendant, is the head of family of the deceased, and Phyllis Markham (neé Aidoo), the fourth defendant, is a person held out by the family as the lawful widow of the deceased.
The facts are these: James Markham married Joyce Markham in Accra on 17 September 1955 under the Marriage Ordinance, Cap 127 (1951 Rev). In 1967 Joyce filed a petition for divorce on the ground of [p.36] cruelty. The suit was undefended. On 26 January 1968 the High Court presided over by Campbell J. granted a decree nisi to be made absolute in three weeks. The petitioner was granted custody of the three children. There being no claim for alimony or costs, no orders of the kind were made in her favour.
Later that year Markham brought an action against Joyce to prevent her from taking the children out of the jurisdiction. The action failed. When in 1973 he desired to marry Phyllis Aidoo , he made a search in the High Court to ascertain whether the decree nisi had been made absolute. The answer was that it had, and he went through a marriage under Cap.127 with her. She, too, has children by Markham who died on 24 August 1984. Joyce has now come back to this country to assert her rights as a widow.
The question of fact which arose in the High Court as to whether the decree nisi was ever made absolute was not in my view, satisfactorily resolved. I think it ought to have been possible to decipher the signature of the officer who wrote out the certificate on the search made on behalf of Markham. After all if the officer concerned were available he could have told the court what investigations he carried out before certifying that the decree had been made absolute. It was too readily accepted that he had made a mistake. Assuming then that such was, indeed, the case, we must ask ourselves what the effect of a decree nisi is. I think Mr. Brown is right that the marriage still subsists between the decree nisi and the decree absolute. In Wiggins v. Wiggins (Otherwise Brooks) and Ingram [1958] 2 All E.R. 555, Mrs. Brooks had been granted a decree nisi of nullity on the gr
