Boundaries And Titles: The Legal Angle (3)

By Mike Ozekhome SAN

In this concluding section of the paper delivered at the 1st Stakeholders’ Summit organized by the Office of the Surveyor-General of Lagos State, I took on practical issues relating to boundaries and titles. The work of the surveyor in helping to demarcate and delineate the size and scope of land goes a long way in assisting to remove all the controversies and confusion bedevilling the determination of cases on the title to land by the Courts.

Issues of overlap, boundary disputes and indeed the mistaken identity of land need not drag on for so long in the court if the surveyor is allowed to use his skills to sift the wheat from the chaff.

The role and effect of boundaries on title

Let us now delve into the areas that I consider practical applications of boundaries on claims to the title.

1. Conflicting claims – In many of the cases pending before the various courts concerning land administration and control, the difficult job of the judge in wading through bundles of documents by way of pleadings can be lessened with the intervention of experts on the field, in this case, the surveyors. Under and by virtue of section 7 of the Survey Law of Lagos State, owners and occupiers of land whose boundaries have a trigonometrical station, survey beacon, mark or pole affixed thereto, are duty bound to preserve them and to report to the Survey Department if they are to be removed, injured or require repair. Similarly, section 8 of the said law imposes a duty on any chief, village and local government council to prevent obliteration, removal or injury of any trigonometrical station, survey beacon, mark or pole or boundary mark within the limit of their jurisdiction.

2. The role of survey plans – In real practical experience, a survey plan helps to establish the size, identity and dimension of land. Thus, in section 31 of the Survey Law of Lagos State, ‘public survey’ is defined as ‘any survey made for the purpose of defining the boundaries of any land’. The survey plan is, therefore, one of the important documents required for a successful claim of ownership of land, although in some cases, especially in rural areas, the boundaries of land can be vividly captured without a survey plan.

3. The confusion of survey plans– The business of surveying land is not a bed of roses, as even in the face of a definite survey plan, contradictions, confusion and counter-claims still exist in respect of the claim of ownership of land. This is manifested in several cases of overlap by which one land crosses over to another land in one form or another. The danger in this is that some unscrupulous persons take advantage of a such overlap to mislead unsuspecting investors. This is where the issues of charting and land information at the Office of the Surveyor-General come to play. But even at that, there have been several instances where land information issued by the Office of the Surveyor-General proves to be incorrect or outrightly misleading. In this regard, most land information certificates would state that the land is free from acquisition until after payment has been made by the prospective investor before it is discovered that the land had been acquired a very long time ago.

4. Regulation of survey practice – This topic cannot be concluded without a discussion of the issue of survey practice since the survey plan is one of the documents by which the boundary of land can be identified. Very recently, a group of surveyors approached the Federal High Court in Lagos for judicial interpretation of section 5 of the Survey Law of Lagos State on the control of survey practice. The said section provides as follows:

“Power of surveyor to enter the land

1. Any licensed surveyor may for the purpose of surveying and land, enter on and pass over any land, whether private or public, causing as little inconveniences to the owner or occupier of such as is consistent with their duties:

Provided that no licensed surveyor will demarcate or survey State land acquired by the State Government without the prior consent in writing of the Surveyor-General and after the payment of the prescribed consent fee.

2. Any licensed surveyor who contravenes the provisions of subsection (1) commits an offence and is liable on conviction to a fine of One Hundred and Eighty Thousand Naira (N180,000:00) or to imprisonment for twelve (12)  months.”

The contention of the surveyors who approached the Federal High Court is simply that the contents of section 5 above are ultra vires the House of Assembly of Lagos State in that matters relating to surveying practice are covered under the Exclusive Legislative List with the consequence that only the National Assembly is empowered by law to legislate thereon. They contended further that the Surveyor Council of Nigeria Act has covered the field of survey practice and as such, Lagos State is incompetent to legislate on the practice of survey, especially in determining who can or who cannot engage in the practice of survey. No doubt part of the reason why the case was filed in court was also about the fees being charged as consent fees.

In its judgment, the Federal High Court (Per Daniel Osiagor, J.) nullified section 5 of the Survey Law of Lagos State as being inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria. The Court stated that the Surveyors Council of Nigeria remains the only body vested with powers to regulate and control survey practice/profession throughout Nigeria. The Court held further that the Surveyor Council of Nigeria has the powers to issue guidelines for the conduct of survey practice/profession in Nigeria and that the Surveyor-General of Lagos State was bound to follow and apply the guidelines for the conduct of survey practice in Nigeria.

As an advocate of restructuring, I am a little reluctant to rejoice over the decision and it is gratifying that the Lagos State Government has filed an appeal against the said judgment. However, one may not totally fault the judgment when it is realized that section 5 of the Survey Law of Lagos State has been couched in very absolute terms. The discretion granted to the Surveyor-General of Lagos State is rather too wide. This is because the power to grant consent also includes the power to refuse to grant consent. The law should have stated the criteria for granting or refusing consent and thereafter create opportunities for those who may be aggrieved with the decision of the Surveyor-General to seek redress either administratively or judicially.

And considering that the grant of consent has to do with State Government land, what this invariably means is that even surveyors acting on behalf of the federal government can be faced with the embarrassing situation of refusal to grant consent. The other issue is the criminalization of non-compliance with section 5 of the Survey Law. In our clime where political persecution is prevalent, one can best imagine what would be the fate of political opponents who have one reason or the other to disagree with the government in power. In this particular case, some surveyors were already designated as those with exclusive rights to enter a particular land to the detriment of other surveyors who were not so lucky to be designated as such.

While we await the decision of the superior courts on the legal issues to be canvassed before them, it is necessary to commend the courage of the surveyors that filed the court case. The true practice of democracy requires that citizens must be conscious of their rights and obligations and be ready to defend, assert, protect and perform them. Our leaders should be held accountable to explain the crux of their actions and policies to the people. The joy of true federalism, in this case, is that laws made by the state government can be challenged in courts different from those under the control and influence of the state.

In this case, the Federal High Court held that the Surveyor-General of Lagos State lacks the power to deny the plaintiffs or any registered surveyor consent to conduct a survey on any parcel of land in Lagos State, whether such land is owned by the Lagos State Government, corporate bodies or private individuals. It was also the decision of the court that the Surveyor-General of Lagos State lacked the power to reject copies of survey plans submitted to him by the plaintiffs and every other registered surveyor in Nigeria for lodgement, adding that he has no power to demand and/or insist on counter-signing a survey plan prepared by a registered surveyor.

Conclusion

Distinguished Ladies and Gentlemen, I have come to the conclusion of this lecture. I have obviously painted a rather rough picture of the topic considering the short time availed to me by the organizers of this wonderful program. I would have loved to offer more insight on this but time offers no man extra hours for we all have 24 hours in a day. Remember, to be successful is not enough, you must be exceptionally and distinctively successful. Finally, permit me to say:

“…. For everything under the heavens there is season and time, a time to start and a time to end”. The floor was opened for me some time ago to start this lecture and it is time to close the curtain. May the grace of the Lord be with you all. Thank you please.

Credit:TheNigeriaLawyer