IN RE MARKHAM (DECD); MARKHAM vs. AFEKU IV AND OTHERS [1987]DLCA763

Date	1987-01-29
Suit No.
Citation No.	[1987]DLCA763

ABBAN JA

WUAKU JA

AMUA-SEKYI J.A.

BROWN (WITH HIM OPPONG) FOR THE APPELLANT.

DR. EKOW DANIELS FOR THE RESPONDENT

[1987]DLCA763
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													<main id="main" class="content" style="min-height: 60rem" >IN RE MARKHAM (DECD); MARKHAM <o:p></o:p>vs. <o:p></o:p>AFEKU IV AND OTHERS <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 1 GLR 34<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE
29 JANUARY 1987<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

BROWN (WITH HIM OPPONG) FOR THE APPELLANT. <o:p></o:p>

DR. EKOW DANIELS FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ABBAN, WUAKU AND AMUA-SEKYI JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMUA-SEKYI J.A.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p>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 ground of her husband’s incapacity. Before the decree
was made absolute, she went through a ceremony of marriage with the petitioner
who now prayed to have his marriage with Mrs. Brooks declared a nullity or, in
the alternative, for a decree of divorce on the ground of her adultery with
Ingram. It was held that the second marriage was bigamous.<o:p></o:p><o:p>&nbsp;</o:p>Although
I appreciate his difficulty, I am unable to agree with Ansah-Twum J. that the
order nisi become absolute three weeks later by effluxion of time. The case of
Fender v. St. John Mildmay [1938] A.C.1, H.L. which he cited was concerned with
the question whether a promise made by one spouse after a decree nisi has been
pronounced, to marry a third party after the decree has been made absolute, is
void on the grounds of public policy. The promise had originally been made
before the petition was presented and was clearly within the rule in Wilson v.
Carnley [1908] 1 K.B. 729, C.A. However, its repetition after the decree nisi
was a new promise which, in the opinion of the majority of the House of Lords,
was enforceable. I do not understand the decision as putting forward a
proposition that it is not necessary to apply for a decree nisi to be made
absolute. At 16 Lord Atkin said:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“. . . It
is said that the status of marriage exists until decree absolute. Of course it
does. It is said that if either of the spouses has immoral intercourse with a
third party he or she commits adultery. Certainly. That follows from the
continued existence of the status of marriage.”<o:p></o:p><o:p>&nbsp;</o:p>