Survey Practices: Court Nullifies Section 5 of Lagos State Survey Law

Justice Daniel Osiagor of the Federal High Court, in Lagos has held that the Lagos State House of Assembly acted unconstitutionally, in enacting the Section 5 of the Survey Law of Lagos State, which requires Surveyors to obtain written consent of the Surveyor General of Lagos State before carrying out survey on any State land or land acquired by the Lagos State Government.

Consequently, the court held that the Surveyors Council of Nigeria is the only body vested with authority to regulate and control survey practice/profession throughout the Federal Republic of Nigeria.

Justice Osiagor made these pronouncement while delivering judgement in a suit marked FHC/L/CS/1789/2020, filed by seven Surveyors, Adaranijo Ibikunle Ganiyu Rafiu, Aluko Kikelomo Sikirat (Mrs.), Adedeji Olarewaju, Adams Benjamin Olugbenga, Mekuleyi Oluseyi Samuel, Aliu Samuel, and Fashina Adedapo against the Surveyor General of Lagos State and 10 others.

Other defendants in the suit are, Surveyors Council of Nigeria, Surv Olatunbosun David, Surv Adesina Adeleke, Surv Akomolafe A.O, Surv Odetunmobi O. Olufemi, Surv Mrs Akintaro, Surv Michael Adebisi Alonge, Surv. Egbeyemi Lateef, the Attorney General of Lagos State, and the Attorney General of the Federation respectively.  

Justice Osiagor held further that  the Surveyors Council of Nigeria (SURCON) has the powers to issue the guidelines for the conduct of Survey Practice in Nigeria 2020 in exercise of its powers to regulate and control survey practice/ profession in Nigeria and that the Surveyor General, of Lagos State being a member of SURCON, is bound to follow and apply the Guidelines for the Conduct of Survey Practice in Nigeria 2020, in Lagos State.

The court also held that the Surveyor General, of Lagos State lacks the power to deny the Plaintiffs or any Registered Surveyor consent to conduct survey on any parcel of land in Lagos State (whether owned by the Lagos State Government, Corporate bodies or private individuals) and that he also lacks the power to reject copies of survey plans submitted by the Plaintiffs [and every other Registered Surveyor in Nigeria) for lodgement.

He further held that the Surveyor General of Lagos State does not have the power to demand and/or insist on counter-signing a survey plan prepared by a Registered Surveyor or any plan at at, as same has been abolished in Nigeria as far back as 1974.

Besides, Justice Osiagor held further that the engagement of Surv Olatunbosun David, Surv Adesina Adeleke, Surv Akomolafe A.O, Surv Odetunmobi O. Olufemi, Surv Mrs Akintaro, Surv Michael Adebisi Alonge, Surv. Egbeyemi Lateef by the Surveyor General via a letter dated 15 September 2020 with Reference No. OSSG/CAD/2020/Vol. 1/ 033, as the only Surveyors to carry out surveys in the Mende Revocation Area, to the exclusion of the Plaintiffs [and every other Registered Surveyor in Nigeria] is hereby set aside for being in gross violation of the provisions of Sections 4(d) and 19(1) of the SURCON Act, Sections 1(3), 1(5) and 3 of the Guidelines for the Conduct of Survey Practice in Nigeria 2020.

The court also granted an order of perpetual injunction restraining the Defendants from giving effect to the Surveyor General’s letter dated 15 September 2020 with Reference No. OSSG/CAD/2020/ Vol. 1/033, pursuant to which the said seven appointed surveyors were engaged by the Surveyor General.

The Plaintiff by an Originating Summons dated December 11, 2020, which was filed and argued by their lawyer, Osaretin Ogbebor, prayed the court to determine the following ‘’Whether having regard to Section 4(4) and items 25 and 26 Part Il of the second schedule of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Sections 1 and 4 of the Surveyors Council of Nigeria Act CAP S18, LFN 2004 (SURCON Act), the 2nd Defendant is the only body or authority vested with the powers to regulate and control the practice and the profession of surveying throughout the Federal Republic of Nigeria.”

‘’Whether having regard to the provisions of section 4 (a-e) of the SURCON Act, CAP S18, LFN 2004, the 2nd Defendant has the powers to issue the Guidelines for the conduct of survey practice in Nigeria 2020 in exercise of its powers to regulate and control survey practice in Nigeria.”

‘’Whether having regards to section 2 and 4 of the SURCON Act, the 1st Defendant who is a member of the 2nd Defendant is bound to follow and apply the Guidelines for the conduct of survey practice in Nigeria 2020, in Lagos State.”

‘’Whether having regard to section 4(2)(3)(4)&(5) of the Constitution, items 25 and 26 part 11 of the Second Schedule of the Constitution, section 1, 4 and 19(1) of the SURCON Act, the provisions of section 5 of the Survey Law of Lagos State is valid.

The Plaintiffs had in a 37 paragraphs affidavit deposed to by Surv. Adaranijo Ibikunle Ganiyu Rafiu, urged the court to determine whether having regard to Section 4(4) and items 25 and 26 Part Il of the second schedule of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and Sections 1 and 4 of the Surveyors Council of Nigeria Act Cap S18, LFN 2004 (SURCON Act), the 2nd Defendant is the only body or authority vested with the powers to regulate and control the practice and the profession of surveying throughout the Federal Republic of Nigeria.

The Plaintiffs also urged the court to determine whether the Surveyor General of Lagos State  has the power to reject copies of survey plans submitted by the Plaintiffs (and every other registered surveyor in Nigeria) for lodgement as required by section 2 of the Guidelines for the conduct of survey practice in Nigeria 2020 and section 2 of the Survey Law of Lagos State.

However, in their Notice of Preliminary Objection, the 1st, 3rd- 10th defendants challenged the jurisdiction of the court to entertain the suit.

The Defendant argued that the suit by its nature is a challenge to the constitutionality of the actions of the Officials of Lagos State Government under a law enacted by the House of Assembly of Lagos State and therefore not one of the matters within the judicial competence of the Federal High Court as conferred by section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

They further argued that the reliefs sought by the Plaintiff/Respondent are against the 1st, 3rd -10th  Defendants/Applicants who are not agents of the Federal Government.

They urged the court to hold that the suit as constituted disclose no cause of action or reasonable cause of action against the seven appointed surveyors.

In his response,the plaintiffs counsel: Osaretin Ogbebor argued that from the supporting affidavit, it is evident that the suit bothers on the interpretations of the provisions of the 1999 Constitution of the Federal Republic of Nigeria, the SURCON Act, which is an Act of the National Assembly and the Guidelines for the conduct of survey practice in Nigeria 2020, for the purpose of determining who has the power to regulate survey practice in Nigeria, which falls within Section 251(1)(q) of the 1999 and therefore within the jurisdiction of the Federal High Court. He further argued that from the plaintiffs’ affidavit evidence, there are cause of action against the applicants and therefore urged the court to dismiss the preliminary objection.

In his judgement,  Justice Osiagor dismissed the preliminary objection and held that ‘’The SURCON Act, being an enactment of the National Assembly is under the Jurisdiction of the Federal High Court. The 2nd and 11th Defendants are Agencies of the Federal Government and Interpretations of Constitutional provisions as it affects any Agency of Federal Government is within the ambit and scope of the Federal High Court’s Jurisdiction. This therefore means that the Federal High Court has jurisdiction over the subject matter of this suit and I so hold. It is for this reason that I find no merit in the Preliminary Objection and accordingly dismiss same.”

On the substantive suit, the court held ‘’The Constitution of the Federal Republic of Nigeria 1999 (as amended) being the grundnorm, stipulates the powers of the three tiers of government namely: the Federal, State and Local Government. The Federal Government operates through the National Assembly and legislates on matters on the Exclusive Legislative List set out in part I of the Second Schedule to the Constitution. The National Assembly is also empowered to legislate on matters on the Concurrent Legislative List set out in Part II of the Second Schedule to the Constitution.”

‘’Flowing thereon, it is clear that any law made by the State House of Assembly must be in agreement with that of the National Assembly particularly on the same subject matter. Furthermore, the National Assembly in exercising its legislative powers as regards item 25 on the Concurrent Legislative List, enacted the Surveyors Council of Nigeria Act Cap S18, LFN 2004 (SURCON Act). Section 1 of the Act established the Surveyors Council of Nigeria (SURCON), a body corporate in perpetuity.”

‘’I am in total agreement with the learned author the book Principles and Practice of Constitutional Law in Nigeria, 2.4 Edition, at page 105 – 107 and applying the above legal principles to the case at hand, it is crystal clear to me that the provisions of Section 5 of the Survey Law of Lagos State which restricts licensed surveyors in Nigeria from carrying out survey works on any land own by or acquired by the Lagos State government without the prior written consent of the Surveyor general of Lagos State and after payment of the prescribed fee failing which a licensed surveyor may be liable upon conviction to a fine of N180,000.00, is at variance with the provisions of section 19 of the Survey Act, which provides a right to nationwide practice for all qualified and registered surveyors.”

‘’Seeing as the provisions of the Survey Law of Lagos State purports to legislate over survey, a matter under the concurrent legislative list, a field already covered by the SURCON Act by virtue of the fact that the nature of the subject matter and items, especially with particular respect to the entitlement of registered surveyors to practice and carryout survey works without any hinderance, it is safe to hold that the power of the Lagos state legislature to legislate over survey is Limited. It is important to note that even section 1(3) and (5) of the Conduct of Survey Practice in Nigeria supersedes the provisions of the Survey Law of Lagos State including Section 5 thereof, despite being earlier in time to the guidelines, by virtue of the doctrine of covering the field the equities are not equal. The Federal enactment upon which the guidelines is superior thus obliterating the Survey law, it must be placed in abeyance, as a matter of fact, I so hold.

It must be emphasized that legislative enactments are subject to judicial interpretation because they are not and can never be absolute on their own standing alone without the interpretation of the courts. The Exercise of legislative powers shall be subject to the jurisdiction of courts of law which can examine and determine whether or not there is any legislation that is in conflict with the constitution”

‘’It is to this end that, in exercise of the powers of this court, | have examined the SURCON Act and the Survey Law of Lagos State and have come to the conclusion that, Section 5 of the Survey Law of Lagos State ought to be struck down because the SURCON Act has already covered the field. I so hold.

‘’Clearly, the Survey Law of Lagos is not targeted at the general public but at the plaintiffs and specified surveyors who in exercise of their duties in line with the SURCON Act, dare to enter into and survey any land in the Mende revocation area of Lagos, to survey any property and As-built survey plans of individuals, organisations or companies.

 ‘’In the final Analysis, I find merit in the Originating Summons, strike down the offensive portions of section 5 of the Survey Law of Lagos State by invoking the Blue Pencil Rule. See the case of, A-G Abia State & Ors v. A-G Federation (2002) LPELR -611 (SC) where it was held thus:

“The blue pencil rule is applied to severe a part of a legislation that is good in the sense that it is valid, from the part that is bad, in that it is invalid. That is, the blue pencil is run over the part that is bad. If what remains of the impunged legislation, that is the part that is good, can stand, then it is applied. But if what remains cannot stand on its own, the impugned legislation is declared invalid. A classic example of the application of this rule is the case of T. A. Doherty v. Sir Abubakar Tafawa Balawa.”

Thus, the Section 5 of the Survey Law of Lagos State, “Provided that no licensed surveyor will demarcate or survey any stale land or land acquired by the state Government without the prior consent in writing of the surveyor general and after the payment of the prescribed fee”, is deleted By implication, the Defendant’s Circular-dated the 15/09/2020 which is premised on the proviso to Section 5(1) of the Survey Law of Lagos State, to which the blue pencil rule has been applied is invalid because the law is settled that you cannot put something on nothing and expect it to stand. See Macfoy v. U.A.C (Supra). I so hold.