"The claim, the subject matter of this appeal is for 1) A declaration that the said land in question, which the plaintiff inherited from her father, according to Nnewi native law and custom, is her bona fide property. 2) An Order of perpetual injunction restraining the defendants, their agents, privies, cohorts and workmen from trespassing into the land or disturbing the plaintiff from using the land which her father bequeathed to her as his heir and according to Nnewi native law and custom. 3) An Order of Court directing the defendants to pay the sum of 100, 000.00 (One hundred thousand naira only) as damages to the plaintiff. 4) Any other/s which the honourable court may deem fit to make on the matter. Page 7 of the Record of Appeal. Let me reproduce the provisions of Section 24 (b) of the Land Use Act, and Section 39 of the Land Use Act. Section 24 (b) - "The devolution of the right of an occupier upon death shall be in the case of statutory right of occupancy (unless any non-customary law or other customary law applies) be regulated by the customary law of the deceased occupier at the time of his death relating to the distribution of property of like nature to right of occupancy".
Section 39 (1) "The High Court shall have exclusive original jurisdiction in respect of the following proceedings:a) Proceedings in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed to be granted by him under this Act; and for the purpose of this paragraph, proceedings includes proceedings for a declaration of title to a statutory right of occupancy. b) Proceedings to determine any question as to the person entitled to compensation payable for improvements on land under this Act". Now the relief sought in the Court below has nothing to do with a claim for declaration of title. The issue of title did not arise in that claim. Being a sole heir to the deceased, the plaintiff wanted a declaration from the Court that she inherited it according to the Nnewi native law and custom. She asked for a restraining order. The combined effect of Section 24 (b) of the Land Use Act, and Section 39 (1) of the Land Use Act is that even when a land is subject to a statutory right of occupancy, the devolution of the rights of the owner/occupier of a land subject of a statutory right of occupancy to his/her heir or successor upon death shall be regulated by a customary law of the deceased owner/occupier.
A distinction has got to be made between the issue of declaration of title to land and devolution of rights of owner or occupier of land subject to statutory right of occupancy at the time of death. While on the issue of declaration of title to land, subject of statutory right of occupancy in an urban area shall be within the ambit of the High Court by way of jurisdiction, the issue of devolution of rights in respect of property even in an urban area, can be entertained by the Customary Court because such is regulated by the customary law of the deceased owner or occupier. The Land Use Act, in my view does not oust the jurisdiction of an Area Court or Customary Court in respect of EVERY proceeding involving land subject to statutory right of occupancy - UMARU VS PAM (2010) 2 NWLR (PT. 1178) 404 The provision of the Land Use Act does not seek to truncate adjudication in respect of matters relating to customary law in deserving cases. A painstaking perusal of its provision seems to me, that while it seeks to bring in sanity into the issue of land regarding urban and rural areas, it did not remove from the Courts the jurisdiction to entertain matters relating to strict customary law, as it affects the parties. Noteworthy is that none of the Plaintiffs claim in the lower Court is for declaration of title to statutory right of occupancy, nor is any of her claims for a declaration of title to the land in question. As learned counsel to the Respondent rightly argued, it is the substance of an action and not the form of the claim the Court looks at to determine jurisdiction OKONMA VS NWAEGBU (1992) 2 NWLR (PT. 223) 662.
I am of the view that the gravamen of the plaintiff's case in the lower Court is whether the devolution of the respondent's father's right to the land in question was in accordance with the Nnewi native law and custom. In Paragraph 1 of the plaintiffs claim at the lower Court, he avers thus "The plaintiff is a native of Ebeleogo Village, Umudim Nnewi and a heir to the estate of her late father Gabriel Okonkwo Azochim of Ebeleogo Umudim Nnewi, during his lifetime; Gabriel Okonkwo Azochim bestowed on the plaintiff the status of 2 heir to his estate, a ritual performed in the presence of Umunna and other relations and friends, according to Nnewi native law and custom. The ceremony, simply known as "Nrachi" places on the recipient the status of both man and woman, the undisputable occupier of the "Ngwulu" after the recipient's father's death". In determining whether a Court has jurisdiction, it is trite that the claim of the party comes to focus. Therefore, the entire claim must be perused, in order to know what the gravamen of the case is. I am of the view that the reference to Section 39 (1) and 41 of the Land Use Act is not applicable to this case. As the issue of devolution of the property in dispute has to do with customary law, the Customary Court has jurisdiction to entertain the claim.
The Court below was right when it observed that "... the mere fact that a land in urban area is subject of matter relating to inheritance does not oust the jurisdiction of the Customary Court or this honourable Court to adjudicate or hear an appeal on the said issue. It is obvious that issues relating to inheritance rare question of customary law whether or not the properties or land in question that are the subject of the case are in urban or rural area ..." - Page 107 of the Record of Appeal."
Per PEMU, J.C.A. IN MONEKE & ANOR v. OKONKWO CITATION: (2017) LPELR-43523(CA)
