Justice Daniel Osiagor of a Lagos Federal High Court, on Friday, October 28, 2022, declared that he cannot stop Surveyors practising in Lagos State, from earning a living, while the appeal filed against his judgment lasted.
Justice Osiagor consequently dismissed an application filed by the Lagos State, seeking for stay of the judgement of the court which nullified Section 5 of the Survey Law of Lagos State among other issues.
The controversial Section requires Surveyors to obtain written consent from the Surveyor General of Lagos State before carrying out a survey on any State land or land acquired by the Lagos State Government.
In asking the court for a stay on the judgment, the Surveyor General of Lagos State and 10 others, said their application is for an order of injunction pending appeal, restraining the respondents from enforcing, implementing or taking any further step or giving any effect to the judgment of the court delivered on August 2, 2022, pending the determination of the appeal now filed against the judgment.
Moving the Motion on Notice brought pursuant to Order 32 of the Federal High Court (Civil Procedure Rules, 2019) Mrs. T. E Akinbiyi of the Lagos Ministry of Justice urged the Court to grant the application, in order to forestall the breakdown of law and order in Lagos State.
She told the court that the applicants have a competent appeal on which the application is predicated, adding that it would be in the interest of justice if the application is granted.
However, counsel to the respondents, Osaretin Ogbebor opposed the application and urged the court to dismiss it in its entirety.
Ogbebor told the court that the applicants have refused to obey the judgment of the court, and have invited the court to speculate on what constitutes the ‘res’ in this matter and how the refusal of the application would occasion a destruction of the ‘res’ contrary to the settled principle of law that a Court of law does not speculate.
He stated that “A party who seeks an exercise of the Court’s discretion must place sufficient materials before the Court to aid the Court to exercise its discretion.
“Having not placed before this honourable Court, the ‘res’ which the applicants alleged will be destroyed in this matter, the respondents submit that the applicants have not placed sufficient materials before your lordship to warrant the exercise of your lordship’s discretion in favour of the Applicants.
He stated that as long as the applicants continue in their contempt of disobeying the orders contained in the judgment, the Court will not exercise its discretionary power in their favour.”
In his bench ruling, Justice Osiagor held that: “the fact that the applicants filed an appeal against the judgment of the court does not constitute a stay of execution of the judgement.”
The court further held that the judgement was declaratory, and not executory, hence they can not stay.
Dismissing the application, Justice Osiagor held that: “the application lacked merit, and there is absolutely nothing to restrain.”
Justice Osiagor, had on August 2 2022, held that the Lagos State House of Assembly acted unconstitutionally, in enacting 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 a survey on any State land or land acquired by the Lagos State Government.
The judge also held that the Surveyors Council of Nigeria (SURCON) is the only body vested with the authority to regulate and control survey practice/profession throughout the Federal Republic of Nigeria.
Justice Osiagor made these pronouncements while delivering judgment in suit Number: 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 Akinraro O, Surv Michael Adebisi Alonge, Surv. Egbeyemi Lateef, the Attorney General of Lagos State, and the Attorney General of the Federation respectively.
In the judgment, Justice Osiagor held that “only the Surveyors Council of Nigeria, (second defendant) has the powers to issue guidelines for the conduct of Survey Practice in Nigeria 2020 in the exercise of its powers to regulate and control survey practice/ profession in Nigeria.”
The judge also held that “the Surveyor General of Lagos State, (first defendant) being a member second defendant, is bound to follow and apply the Guidelines for the Conduct of Survey Practice in Nigeria 2020, in Lagos State.
The judge further 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 owned by the Lagos State Government, Corporate bodies or private individuals).”
The court also held that the first defendant lacked the power to reject copies of survey plans submitted by the Plaintiffs, and every other Registered Surveyor in Nigeria) for lodgement and that he has no power to demand and/or insist on counter-signing a survey plan prepared by a Registered Surveyor.
Besides, Justice Osiagor held that ‘’The engagement of the third to ninth Defendants by the first defendant 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.
Subsequently, the court made an order of perpetual injunction restraining the defendants from giving effect to the first defendant’s letter dated 15 September 2020 with Reference No. OSSG/CAD/2020/Vol. 1/033, pursuant to which the third to ninth defendants were engaged by the first defendant is hereby granted.