DAN-JUMBO
v. DAN-JUMBO (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 1st to 4th
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
1st to 5th defendants (appellants) claiming for the
revocation of the grant of probate in respect of the Will of late Chief Bonny
made to the 1st to 4th defendants by the 5th
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 1st to 4th 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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