In the Federal High Court of Nigeria

In the Lagos Judicial Division

Holden at Lagos

On Tuesday, the 2nd day of August, 2022

Before Their Lordships

Daniel Emeka Osiagor

Judge, Federal High Court

FHC/L/CS/1789/2020

Between

  1. SURV. ADARANIJO IBIKUNLE GANIYU RAFIU
  2. SURV. (MRS.) ALUKO KIKELOMO SIKIRAT
  3. SURV. ADEDEJI OLANREWAJU
  4. SURV. ADAMS BENJAMIN OLUGBENGA
  5. SURV. MEKULEYI OLUSEYI SAMUEL
  6. SURV. ALIU SAMUEL
  7. SURV. FASHINA ADEDAPO PLAINTIFFS

And

  1. THE SURVEYOR-GENERAL OF LAGOS STATE
  2. SURVEYORS’ COUNCIL OF NIGERIA
  3. SURV. OLATUNBOSUN DAVID O.
  4. SURV. ADESINA ADELEKE
  5. SURV. AKOMOLAFE A.O.
  6. SURV. ODETUNMOBI O. OLUFEMI
  7. SURV. MRS AKINRARO O.O.D.
  8. SURV. MICHAEL ADEBISI ALONGE
  9. SURV. EGBEYEMI LATEEF
  10. ATTORNEY-GENERAL OF LAGOS STATE
  11. ATTORNEY-GENERAL OF THE FEDERATION DEFENDANTS

(Judgement delivered by Honourable Daniel Emeka Osiagor, J)

Facts

The Survey Law of Lagos State was enacted by the Lagos State House of Assembly, with respect to the conduct of surveys on lands in Lagos State. Section 5 thereof, required that licensed Surveyors must first obtain the prior written consent of the Surveyor-General of Lagos State – the 1st Defendant – before conducting survey on any State land or land acquired by Lagos State Government. In giving effect to this provision, it was required that the 1st Defendant must counter-sign survey plans of State lands in Lagos State, before they can be accepted for lodgement.

In furtherance of Section 5 of the Survey Law of Lagos State, the 1st Defendant issued a circular letter dated 15th September, 2020 with Reference No. OSSG/CAD/2020/VOL. 1/033, appointing the 3rd – 9th Defendant as the only Surveyors authorised to carry out surveys in Mende Revocation Area of Lagos State, to the exclusion of every other registered Surveyor in Nigeria. Aggrieved by this development, the Plaintiffs filed an Originating Summons before the Federal High Court challenging the validity and constitutionality of Section 5 of the Survey Law of Lagos State.

The case of the Plaintiffs was that Section 5 of the Survey Law and the engagement of the 3rd to 9th Defendant as the only Surveyors to carry out surveys in Mende Revocation Area pursuant to the said provision, ran in contravention of Section 19(1) of the Surveyors Registration Council Act (“SURCON Act) and Sections 1(3 & 5) and 3 of SURCON’s Guidelines for the Conduct of Survey Practice in Nigeria, 2020 which provides that a registered Surveyor can practice freely throughout Nigeria. They sought inter alia, a declaration that the 2nd Defendant is the only body vested with the powers to regulate survey practice throughout Nigeria, and to issue Guidelines in exercise of the powers. They also sought a declaration that the Lagos State House of Assembly acted unconstitutionally in enacting Section 5 of the Survey Law of Lagos State, and the 1st Defendant being a member of the 2nd Defendant, is bound to follow the Guidelines issued by the 2nd Defendant. It was also their position that the 1st Defendant lacks the power to deny the Plaintiffs or any other registered Surveyor the right to conduct surveys on any parcel of land in Lagos State, or to demand and insist on counter-signing a survey plan prepared by a registered Surveyor.

The Plaintiffs thereby, sought an order setting aside the engagement of the 3rd – 9th Defendant by the 1st Defendant, as the only surveyors authorised to carry out surveys in Mende Revocation Area, and an order of perpetual injunction restraining the Defendants from giving effect to the said circular. The 1st, 3rd to 10th Defendant filed a joint Counter-affidavit and written address, as well as a Notice of Preliminary Objection challenging the competence of the suit. The 2nd and 11th Defendants on their parts, filed written addresses on points of law.

Issue for Determination in the Substantive Suit

The following issue was considered by the court in its determination of the Originating Summons.

Whether the 2nd Defendant is the only body or authority vested with the powers to regulate and control the practice and profession of surveying throughout the Federal Republic of Nigeria, and whether Section 5 of the Survey Law of Lagos State is not inconsistent with the provisions of the Surveyors Registration Act which regulates the practice and profession of surveying in Nigeria. 

Arguments

1st, 3rd – 10th Defendant’s Preliminary Objection

The 1st, 3rd to 10th Defendant challenged the jurisdiction of the court to entertain the suit on the ground that the subject-matter related to the constitutionality of acts of officials of the Lagos State Government and the validity of a State law, which are not matters within the judicial competence of the Federal High Court.

Arguments on the Substantive Suit

Counsel for the Plaintiff submitted that, by Section 4(d) of the SURCON Act, the 2nd Respondent is the only body vested with the statutory powers to regulate and control survey practice throughout Nigeria. He argued further that the Guidelines for the Conduct of Survey Practice in Nigeria, 2020 was issued by the 2nd Defendant in exercise of its statutory powers, and the 1st Defendant being a statutory member of the 2nd Defendant is not only bound by the Guidelines, he also has a duty to apply the provisions of the Guidelines and ensure their observance in Lagos State. Counsel for the Plaintiffs submitted that that once a Surveyor has met the requirement for registration under Section 9 of the SURCON Act and is issued with a Certificate of Registration by the 2nd Defendant, such a Surveyor can practice anywhere in Nigeria, and the provisions of Section 5 of the Survey Law of Lagos State limiting the right of a registered Surveyor in Lagos to lands other than State lands is at variance with Section 19(1) of the SURCON Act.

He submitted further that since the National Assembly had enacted Section 19(1) of the SURCON Act to cover the field with respect to the entitlement of any registered Surveyor to practice anywhere in Nigeria, the Lagos State House of Assembly is precluded from legislating on the same issue as it purportedly did through the enactment of Section 5 of the Survey Law of Lagos State. He relied on A-G LAGOS STATE v EKO HOTELS LTD & ANOR (2017) LPELR-43713 (SC).

Respective counsel for the 2nd and 11th Defendants, aligned themselves with the submissions of the Plaintiffs. They submitted further that by virtue of Items 25 and 26 of the Second Schedule of Part II of the 1999 Constitution, survey is one of the items that falls within the concurrent legislative list that can be legislated upon by both the Federal Government and the State Government, and should the State make any law on surveying, it must be subject to that made by an Act of the National Assembly.

Counsel for the 1st, 3rd to 10th Defendant on his part, submitted that consent under Section 5 of the Survey Law of Lagos State refers to the permission to enter a State land, and not regulation of practice as a Surveyor or a limitation to the right of a registered Surveyor to practice in Lagos State. He submitted that Section 19 of the SURCON Act deals with qualification to practice, as opposed to permission which is the purport of Section 5 of the Survey Law. He contended that the doctrine of covering the field does not apply, as the Survey Law of Lagos State has not in any way introduced any provision that is in conflict with the provisions of SURCON Act. He argued that Lagos State Government reserves the right to engage the Surveyor of its choice to carry out survey jobs on State lands, just the way an individual reserves the right to engage a Surveyor of his or her choice.

Court’s Judgement and Rationale

Resolution of the 1st, 3rd – 10th Defendant’s Preliminary Objection

In determining the Preliminary Objection, the court held that to determine the jurisdiction of the court, it is the pleadings of the Plaintiff that would be considered. From the affidavit of the Plaintiff in this instance, it is evident that the claim before the court borders on the interpretation of the Constitution, the SURCON Act and the SURCON Guidelines for the purpose of determining who has the power to regulate survey practice in Nigeria. By Section 251(1) (p-r) of the 1999 Constitution, the SURCON Act being an enactment of the National Assembly is under the jurisdiction of the Federal High Court. The 2nd and 11th Defendant are agencies of the Federal Government and interpretation of constitutional provisions as they affect any agency of the Federal Government is within the ambit of the Federal High Court. The preliminary objection was thus, dismissed.

Deciding the substantive suit, the court referred to Paragraphs 25 and 26 on the Concurrent Legislative List set out in Part II of the Second Schedule to the Constitution. Paragraph 25 particularly empowers the National Assembly to make laws in respect to survey, while Paragraph 26 empowers the State House of Assembly to make laws in respect to survey, subject to the Paragraph 25. Guided by the foregoing provisions, the court held that the inclusion of “subject to” in Paragraph 26 operated as a limitation to the powers of the State House of Assembly, to make such laws and makes the powers subject to those of the National Assembly. The court referred to the interpretation given to the phrase in EZENWOSU v NGONADI (1992) NWLR (Pt. 228) Pg. 159.

His Lordship held that, the National Assembly in exercising its legislative powers under Item 25 on the Concurrent Legislative List, enacted the SURCON Act and clothed the 2nd Defendant with the exclusive powers to regulate survey practice in Nigeria. The 2nd Defendant is thus, the only body vested with the powers to regulate and control survey practice/profession throughout the Federal Republic of Nigeria. In pursuance of these powers, the SURCON Act by Section 19 thereto validly provided that all registered Surveyors shall be entitled to practice as a Surveyor through the Federation, and the only restriction it provided with respect to a registered Surveyor’s entitlement to practice, is only as regards his qualifications.

Referring to the decision in INEC v MUSA (2003) FWLR (Pt. 145) 729  at 811 – 813 and the statement of  Dr Chukwuma A.J. Chinwo in his book – Principle and Practice of Constitutional Law in Nigeria, 2nd Edition at Page 105, the court held that by the doctrine of covering the field, where the law made by the National Assembly on a subject in the Concurrent List, from its items, nature or subject-matter is intended as a complete statement of the law regarding a particular matter or set of rights and duties, then a State law which regulates or applies to the same subject-matter or relations is regarded as a detraction from the full operation of the Federal Law and thus, inconsistent. 

By the above legal principle, it is crystal clear that Section 5 of the Survey Law of Lagos State which restricts licensed Surveyors in Nigeria from carrying out survey works on any land owned by or acquired by the Lagos State Government without the prior written consent of the Surveyor-General of Lagos State, is at variance with the provisions of Section 19 of the SURCON Act and Section 1(3) and (5) of the Guidelines for the Conduct of Survey Practice in Nigeria 2020 which provide a right to nationwide practice, both on public and private parcels of land, without any hindrance whatsoever for all qualified and registered Surveyors. Section 5 of the Survey Law undoubtedly, is professionally restrictive, and this runs contrary to the general intent and purpose of the Surveying Act which permits the free practice of any licensed Surveyor in any part of Nigeria.

On the basis of the foregoing, the court invoked the Blue Pencil Rule, and struck down Section 5 of the Survey Law of Lagos. The court also invalidated the engagement of the 3rd – 9th Defendant by the 1st Defendant’s Circular dated 15th September, 2020 as the only Surveyors to carry out surveys in Mende Revocation Area, for being in gross violation of the SURCON Act. An order of perpetual injunction was also made, restraining the Defendants from giving effect to the said Circular.

Preliminary Objection Dismissed; Reliefs in the Originating Summons Granted.  

Representation

Osaretin Ogbebor for the Plaintiff.

T.E. Akinbiyi (Mrs) for the 1st, 3rd and 10th Defendant.

Uzezi Amawhe-Okoh, holding brief of Suraju Haruna, for the 2nd Defendant.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)

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