Stephen E. Dan-jumbo & Ors. V. Bernard Erefa Dan-jumbo & Anor. (1999)

LAWGLOBAL HUB Lead Judgment Report

B. WALI, J.S.C

In the High Court of the Rivers State of Nigeria, holden at Port Harcourt, the plaintiff Bernard Erefa Dan-Jumbo, issued out a Writ of Summons against (1) Dr. Stephen E. Dan-Jumbo, (2) Howells Dan-Jumho (3) Gabriel Obubra Dan-Jumbo (4) Alfred D.W. Jumbo (5) Probate Registrar, Port Harcourt claiming as follows:-

“CLAIM

the plaintiff’s claim against the defendants is for the revocation of the grant of probate in respect of the Will of late Chief Emmanuel Erefa Jene made to the 1st to the 4th Defendants by the 5th Defendant on the 6th of July, 1976 without notice to the plaintiff”, at a time plaintiff’s appeal against the validity of the said Will was pending.”

Issues were joined and pleadings were ordered, filed and exchanged. The 1st – 4th Defendants filed a joint Statement of Defence while the 5th Defendant filed a separate Statement of Defence. The plaintiff testified in support of his own case and called no witnesses. 1st Defendant testified for himself and on behalf of 2nd-4th Defendants, while Johnson Eremie, the 5th Defendant also testified.

At the conclusion of the evidence, learned counsel addressed the court after which judgment was reserved to 11th August, 1983.

In a considered judgment delivered by Dagogo Manuel, J. he concluded as follows:

“I therefore hold that the plaintiff having lodged an appeal against the decision of the High Court considering the Will as being valid and as he has done all what is required by him to prosecute his appeal and as the loss of the original Will which has apparently caused the extreme delay in placing the proceedings before the appeal court has not been shown to be of his own making, it cannot be legally proper, as has been done, to grant probate before the appeal against the validity of the Will is determined.

In consequence the claim succeeds and the probate granted on the 6th July, 1976 and marked Exhibit “G1″ in these proceedings is hereby declared invalid and therefore revoked.”

Aggrieved by the decision of the trial court, the Defendants appealed against it to the Court of Appeal. The Court of Appeal unanimously dismissed the appeal and Kolawale, J.C.A who delivered the lead judgment stated therein thus –

“The conclusion which I have reached upon all the authorities to which I have referred is that the learned trial Judge was right in his conclusion that probate ought not to be granted to the appellants upon a Will the validity of which is still to be determined by the Court of Appeal. I am also satisfied that the fifth appellant was not entitled to grant probate to the first to fourth appellants. The respondent had entered a caveat against the grant without serving on the caveator a notice in the prescribed form.”

The defendants have further appealed to this form.

The facts of the case briefly stated are as follow:

Chief E.E. Jene of Bonny died on or about the 29th or 30th of March, 1969 and was survived by (1) Dr Stephen E. Dan-Jumbo, (2) Howells Dan-Jumbo. (3) Gabriel Obubra Dan-Jumbo. (4) Chief Alfred D.W. Jumbo and (5) Bernard Erefa Dan-Jumbo as his sons. The deceased left a Will.