DAN-JUMBO v. DAN-JUMBO (1999) 1 LRLR Vol 1 Page 34 (Reprint)

DAN-JUMBO v. DAN-JUMBO

Citation

(1999) 1 LRLR Vol 1 Page 34 (Reprint)

Alternative Citation

(1999) 7 SCNJ 112

FACTS

Due to the death of Chief Emmanuel Erefa Jene Bonny who died leaving a Will (testate), the Probate Registrar invited his five children and read the Will to them.

The same day the Will was to be read, was the same day that the respondent filed a caveat attacking the Will on the ground that the signature on it was not that of Chief Bonny (their late father). The respondent and 1^st to 4^th appellants were the five children of the deceased.

The defendant (respondent) filed a caveat attacking the validity of the Will in the High Court of Rivers State and issued out a Writ of Summons to the 1^st to 5^th defendants (appellants) claiming for the revocation of the grant of probate in respect of the Will of late Chief Bonny made to the 1^st to 4^th defendants by the 5^th defendant on 06/07/76 without notice to the plaintiff’s appeal against the validity of the said Will was pending.

The trial court held the grant of probate invalid and revoked it. Aggrieved by the decision of the trial Court that the Will be revoked and declared invalid, the appellants appealed to the Court of Appeal, which unanimously dismissed their appeal and affirmed the decision of the lower court. Dissatisfied again, they further appealed to the Supreme Court.

HELD

1.     Although an appeal against a decision will not operate as an automatic stay of execution against such judgment, the court should always consider the facts in the case as to whether such judgment if enforced will not render nugatory the obtained result.

2.     The Probate Registrar did not take the appropriate steps which he should have taken after the entry of caveat by the respondent, for he ought to have issued a notice to appear against the caveator, respondent, on behalf of the 1^st to 4^th appellants whose application for a grant had been stopped.

3.     The Probate Registrar was not entitled to grant probate to the other four appellants after conclusion of the case by the High Court when an appeal had been lodged against the judgment.

4.     There was no necessity to apply for a stay of execution as the lis was still pending and the Will was still in litigation.

5.     The taking of an administration with a Will annexed was obtained irregularly.

6.     The principle of lis pendens is that the law does not allow to the litigant parties to give to them during the currency of the litigation involving any property rights in such property so as to prejudice any of the litigating parties.

7.     A caveat cannot be sealed if the Probate Registrar has knowledge of an effective caveat.

8.     The caveator was entitled to be put on notice by the Probate Registrar before proceeding to make the grant (application for grant of probate is to be in solemn form). The grant of probate was irregularly obtained.

Thus, the Supreme Court dismissed the appeal and stated that the trial court was right to revoke it, and the Court of Appeal was also right to affirm it.

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