How Court Rescued Surveyors in Lagos
The recent judgment of the Federal High Court in Lagos, which held that the Lagos State Surveyor General lacks the power to deny any registered surveyor in the country consent to survey any parcel of land in the state has brought relief to stakeholders in the surveying profession, writes Wale Igbintade
Respite came the way of over 400 registered surveyors licensed to practice anywhere within the Federal Republic of Nigeria, following the judgment of a Federal High Court in Lagos, which declared Section 5 of the Survey Law of Lagos State unconstitutional.
Justice Daniel Osiagor in his judgment delivered in a suit marked FHC L/ CS/ 1789/ 2020, filed by seven aggrieved surveyors against the Surveyor General of Lagos State and 10 others, held that the state House of Assembly overstepped its legislative boundary in enacting the offensive Section 5 of the Survey Law of Lagos State.
Section 5 (1) of the Survey Law requires that no licensed surveyor will demarcate or survey any state 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.
Section 5(2) of the law also provides that any licensed surveyor who contravenes the provisions of subsection (1) commits an offence and is liable upon conviction to a fine of N180,000 or imprisonment for 12 months.
The plaintiffs in their originating summons, dated December 11, 2020, had prayed 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, and Sections 1 and 4 of the Surveyors Council of Nigeria Act Cap S18, LFN 2004 (SURCON Act), the Surveyors Council of Nigeria is the only body vested with the powers to regulate, and control the practice and the profession of surveying throughout the Federal Republic of Nigeria.’’
They also urged the court to determine “Whether having regard to the provisions of section 4 (a-e) of the SURCON Act, CAP $18, LEN 2004, the Surveyors Council of Nigeria, (2nd defendant) has the powers to issue the guidelines for the conduct of survey practice in Nigeria 2020 in the 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 in Lagos State.’’
They also prayed the court to determine whether the Surveyor General, of Lagos State (1st defendant) has the power to deny the plaintiffs or any registered surveyor, consent to survey any parcel of land in Lagos State (whether owned by the Lagos State Government, corporate bodies or private individuals).’’
However, in their notice of preliminary objection, the 1st, 3rd, and 10th defendants challenged the jurisdiction of the court to entertain the suit. They 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.
They further argued that the reliefs sought by the plaintiff/respondent are against the 1st, and 3rd -10th Defendants/Applicants who are not agents of the federal government. They urged the court to hold that the suit as constituted disclosed no cause of action or reasonable cause of action against the 3-9” defendants/applicants.
But, 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 court held that the 2nd and 11th defendants are agencies of the federal government and that the 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,” the court held.
On the substantive suit, the court noted that “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 1 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 11 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 $18, LFN 2004 (SURCON Act). Section 1 of the Act established the Surveyors Council of Nigeria (SURCON), a body corporate in perpetuity.
“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 work on any land owned 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 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.
“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 because of the nature of the subject matter and items, especially with particular respect to the entitlement of registered surveyors to practice and carry out survey works without any hindrance, it is safe to hold that the power of the Lagos state legislature to legislate over survey is limited.
“It must be emphasised that legislative enactments are subject to judicial interpretation because they are not and can never be absolute on their 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 conflicts with the constitution.
“It is to this end that, in the exercise of the powers of this court, I 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.
“The Survey Law of Lagos is not targeted at the general public but at the plaintiffs and specified surveyors who in the 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.
“The blue pencil rule is applied to severe a part of legislation that is good in the sense that it is valid, from the bad part, in that it is invalid. That is, the blue pencil is run over the bad part. If what remains of the impugned legislation, that is the good part, can stand, then it is applied. But if what remains cannot stand on its own, the impugned legislation is declared invalid.
’Thus, 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 defendants 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. I so hold.’’
According to experts, some state governments have delved into the surveying contents of the state policies because they believe that the Land Use Act vests all land in the state in the governor and because surveying is contained on the concurrent list of the Nigerian constitution.
According to Ogbebor Osaretin, a lawyer and surveyor, the practice has suffered setbacks because of the misrepresentation of some important facts by the stakeholders in the surveying profession.
He noted that surveyors in Lagos State have been subjected to serious professional trauma and financial draught, as they have been deprived of their legitimate practice right because most parcels of land in the state have been tagged “government acquired land” or “government acquisition”.
Osaretin said this impression is not the true position of the law because, from the statutory provisions and case laws referred to, as far as surveying and geo-informatics are concerned in Nigeria, SURCON does not share its statutory and regulatory powers with any state or authority.
He said state governors or governments, have no power to make policies on surveying, while the state Houses of Assembly have no power to make laws on surveying, although surveying is on the Concurrent list, as long as SURCON exists.