THE RELEVANCE OF A SURVEY PLAN IN LAND LITIGATION IN NIGERIA BY AKINTUNDE ESAN ESQ.

1.0 INTRODUCTION

1.1 This Legal Illumination is focused on the relevance of a survey plan in proving the identity of a land in dispute in land litigation in Nigeria.

1.2 The proof of identity of a piece of land in dispute is of utmost importance if any success is to be attained in any land suit. A plaintiff seeking for declaration of title to land has a cardinal duty to show with certainty, the area of land being claimed, failure to do so makes his or her claim to be at the risk of being dismissed. See: Baruwa v. Ogunsola 4 WACA 159; Elias v. Omobare (1982) 5 S.C. 25; Awere v. Lasoju (1975) N.M.L.R. 100 and Sangosanya v. Salawu (1975) N.M.L.R. 27.

2.0 DEFINITION

2.1 A survey plan is defined by the Black’s Law Dictionary 8th Edition at page 1486 as:

“The measuring of a tract of land and its boundaries and contents; a map indicting the results of such measurements”.

2.2 The definition of a Surveyor according to Section 2 of the Survey Act means a:

“Surveyor licensed or deemed to be licensed under the Surveyors Registration Council of Nigeria Act”

3.0 THE PURPOSE OF A SURVEY PLAN

3.1 The purpose of a survey plan in a land dispute is to show graphically the morphology of an area in dispute, its extent and size .See: Oyefeso v. Coker (1999)1 NWLR (Pt. 588)654 CA.

3.2 Where a plaintiff desires to draw up or cause to be drawn up a survey plan showing the land in dispute, such a plan must show clearly the dimensions of the land, the boundaries and other salient features. See Arabe v. Asanlu (1980) 5-7 S.C. 78. The demand for this is in consonant with the maxim: "Id Cerium Est Quod Cerium Reddi Potest; Sed It Magis Certum Est Quod De Semet Ipso Est Certum" meaning: "That is certain which can be made certain; but that is most certain which is certain on the face of it." See Ayinla v. Adisa (1992) 7 N.W.L.R. (Pt.255) 566

4.0 NECESSITY OF A SURVEY PLAN

4.1 There are many cases in which no survey plans are essential for a proper determination of the issues. What the court must consider is whether, in a particular case, it is necessary for the proper trial of the action for a survey plan to be produced.

4.1.1 When it is not Necessary:

4.1.1.1 The position of the law is that survey plan is not necessary where there is proper identification of the land in dispute vide the pleadings and evidence. Usung v. Nyong (2010)2 NWLR (Pt. 1177) 83 at 112, paras. A-B;. Kyari v. Alkali (2001) 5SC (Pt.II) 192.

4.1.1.2 Where the land in dispute is known to both parties or is clearly ascertainable whether form the averments in pleading or otherwise and its area, exact location and precise boundaries on the ground are either unmistakably and appropriately pleaded or are admitted or acknowledged by the defendant, the non-production in evidence of the survey plan of such land cannot be a matter of great moment and does not disentitle the plaintiff from maintaining an action in respect of title, trespass or injunction over such land. Oshodi v. Eyifunmi (2000) 7 SC (Pt.1)145

4.1.2 When it is necessary:

4.1.2.1 It is settled law that, where the identity of the land in dispute is in dispute, there is need to produce a survey plan particularly if the facts produced in evidence cannot establish, with certainty, the identity of the said land - see Kyan v. Alkali (2001) 11 NWLR (Pt. 724) 412; Odefeso v. Coker (1999) 1 NWLR (Pt. 588) 654.

4.1.2.2 Where parties file different plans on both side, it will be the duty of the party who disputes the identity of the land (and who wants to succeed), to file a composite plan where it becomes necessary or as the court may direct at the trial. The purpose of filing a composite plan is to fix and delimit the land in dispute. Igwe v. Kalu (2002) 4 MJSC 99 AT 131 para. F.

5.0 PLEADINGS AND EVIDENCE

5.1 Where a plaintiff pleads and serves the defendant a survey plan which is subsequently admitted in evidence as exhibit and which shows the boundaries and features on the land in dispute, this will constitute sufficient proof of the boundaries and features set out in the land in dispute. Elias v. Omo Bare (1982) 5 SC 25; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80)1

5.2 A defendant who intends to challenge or dispute such boundaries or features as shown in the survey plan must do so by specifically traversing the plaintiff’s pleading in that regard, because a mere general traverse will be insufficient. See Elias v. Omo Bare (1982) 5 SC 25; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80)1.

5.3 Where a plaintiff tenders in evidence a survey plan of the land in dispute which is admitted without objection and the defendant fails to file a counter claim, the defendant cannot be heard to contend that the plaintiff did not prove with certainty the boundaries of the land in dispute. See: Adepoju v. Oke (1999) 3 NWLR (594) SCNLR 375; Ochin v. Ekpeci (2000) 5 NWLR (Pt. 656) 225 CA.

5.4 What governs the admissibility of a survey plan is Section 3 (1) (i) of the Survey Act Cap LFN 1990 which requires laying the foundation that a plan survey:

(i) has been prepared and signed by a surveyor or is a copy of a plan so prepared and signed and certified by a surveyor as being a true copy, and

(ii) has been examined by the Survey Department and bears the countersignature of the Director.

5.5 Where the identity of a land is in dispute and there is no cogent evidence on the identity of the land the party who pleads a survey plan ought to tender the plan at the trial. Where he fails to do so, the court is entitled to invoke Section 167 (d) of the Evidence Act. See Aremu v. Adetoro (2007) 11 MJSC 159 at 164-168 paras. E-C.

5.6 Where a party to land in dispute had produced and tendered the survey plan showing, the area he is claiming with certainty and ascertainable boundaries, that party need not call a surveyor to testify before the trial court, the court can attach credibility to such a survey plan. A survey plan can also be tendered by consent. Awoyoolu v. Aro (2006) 4 MJSC 128 at 146-147 paras. G-A.

5.7 It should be noted that on appeal, if the defendant did not raise the issue of a plan at the trial court, if he had the opportunity to do so, it becomes unfair to deprive the plaintiff of the benefit of the judgement in his favour. Reasigba v. Evih (1963) FSC 281; Ebile v. Onwugbonu (1963) FSC 124.

6.0 IMPLICATIONS OF AN INACCURATE DESCRIPTION IN A SURVEY PLANS

6.1 It is incumbent on the surveyor to prepare plans which will not only capture the details of what their clients show them but also features which will help the court to form a good picture of the land and unless it is meant to fulfill said function it would be useless to the court in following the party’s case.

6.2 Surveyors will do well to bear in mind the provisions of section 8(1) of the Survey Act by which they will lose their licences, if they make false or incorrect surveys or untrue report or plan. But more than that, the court has the power, if satisfied that the surveyor has made an inaccurate plan to punish him as for contempt of court: Ketting v. Adie (1960) 4 ENLR 113.

6.3 In circumstances where having found a possible discrepancy in the two plans tendered and as no expert was called to explain the discrepancy, the trial court will not enter judgment in favour of the plaintiff for his claim. Federal Public Trustee v. Akinwunmi (1960) SCNLR 375.

6.4 The court will not ascribe probative value to a survey plan which is bereft of features which can give the boundaries in it the character of certainty. See: Usung v. Nyong (supra).

6.5 If an inaccurate plan is adduced in the court or the plaintiff’s evidence is at variance with his plan, the court will not make a declaration of title. However, it is submitted that the proper order for the trial court to make in such a circumstance is not one of dismissal of the plaintiff’s claim but a non-suit with liberty to the plaintiff to take fresh action after rectifying the plan. See: Darko v. Agyakwa (1943) 9 WACA 163 while the appellate court should order a new trial. See: Akubueze v. Mwakuche (1959) 4 FSC 262.

7.0 CONCLUSION

7.1 The production of a survey plan is one of the ways in which evidence can be led to prove the identity of a person’s land. Owie v. Ighiwi (2005)3 MJSC 820 at 100. In fact in Arabe v. Asanlu (1980) 5-7 SC 78 it was held that a survey plan prepared by a licensed surveyor is the best way of discharging the onus of establishing an entitlement to a piece of land.

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