ALHAJI ADELODUN UMORU & ORS V. ALHAJI MEMUDUN JIMOH ORIRE & ANOR. (2010)

ALHAJI ADELODUN UMORU & ORS V. ALHAJI MEMUDUN JIMOH ORIRE & ANOR.

(2010)LCN/3625(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 17th day of March, 2010

CA/IL/16/2009

RATIO

INTERPRETATION: INTERPRETATION OF SECTION 3 OF THE SURVEY LAW OF KWARA STATE

Now, beginning from the provisions of Section 3 of the Survey Law of Kwara State as above reproduced, it is indubitable that the Section contemplates two situations. The first leg, that is Section 3 (a) thereof, envisages a situation where any registrable instrument which is required by any written law to contain a map, plan or diagram is sought to be registered with such a map, plan or diagram of land prepared after the 1st of June, 1918. Where such a situation exists, the map, plan or diagram shall not be accepted for registration with any registrable instrument unless the map, plan or diagram has been prepared and signed by a licensed surveyor or is a copy of a map, plan or diagram prepared and signed and certified by such a licensed surveyor as being a true copy of the map, plan, or diagram of land so prepared by him.

The above provision without any iota of equivocation is mandatory and gives no room for any exercise of discretion by either the Registering Authority or the party seeking to register such instrument to show good cause why such a map, plan or diagram of land was not duly prepared and signed or certified by a surveyor as being a copy of the original document.

As for section 3(b), the wordings thereof just like Section 3(a) are also very clear and unambiguous and need no resort to any canon of interpretation, to decipher the intendment of the Legislature which is simply that the documents so enumerated (map, plan or diagram of land), shall not, ‘”except for good cause shown to the court,’ be admitted in evidence in any court if the said documents were prepared after the 16th of May, 1918 unless the map, plan or diagram of land has been prepared signed by a surveyor or is copy of the map, plan or diagram of land prepared by a Surveyor and signed and certified by a Surveyor as being a true copy.

Simply put, therefore, whereas Section 3(a) provides for the condition precedent to be fulfilled in absolute terms before the acceptance of maps, plans and diagrams of land for registration with any registrable instrument; section 3(b) which relates to the admissibility of such documents, like maps, plans and/or diagrams of land in evidence, gives the party seeking to tender such documents, a leeway to show good cause why the document were not so prepared and signed by a surveyor or are copies of such documents so prepared and not signed and certified by a Surveyor as being true copies thereof.

EVIDENCE: EFFECT OF FAILURE TO FOLLOW THE REQUIREMENTS FOR COUNTER-SIGNATURE OF THE SURVEYOR-GENERAL

Moreover, the requirements for counter-signature were matters of evidence and non-compliance with the Survey act did not render the plan void or useless.

Finally on this point, even at the risk of repetition; let me recall the dictum of Ogundare, J.S.C, in Aliyu v. Sodipo (Supra) at pages 20-21; where after copiously quoting from Karibi-Whyte, J.S.C, in Kola James v. Chief S. O. Lanlehin (Supra) and all the cases reviewed and distinguished by the latter also supported the view above expressed earlier by his learned colleague when he intoned:-

“Even assuming that the counter-signature of the Surveyor-General is a sine qua non to the admissibility of the plan No. AL 68/1956 attached to Exhibit 8, the fact that it was subsequently counter-signed by the Surveyor-General before the final registration of Exhibit 8 would cure whatever defect there might be. Lack of counter-signature does not render the plan void.

I have support for this view in the decision of this court in Ojiako & Ors. v. Ogueze & Ors. (1962) 1 ALL N.L.R 58 (Reprint) where the Court allowed the tendering party to obtain the necessary counter-signature and to produce the plan later as additional evidence” PER IGNATIUS IGWE AGUBE J.C.A.

WORDS AND PHRASES: MEANING OF A PUBLIC DOCUMENT

Moreover, the said survey plan falls squarely within the definition of public documents in Section 109 of the Evidence Act, it being a document forming the act or record of a sovereign authority, official body and public officers and executive of a Nigerian State and the Surveyor-General office is a place where public records are kept in Nigeria of private documents like any plan prepared by private licensed Surveyors in accordance with section 4 of the Survey Law. See Lord Blackburn in Sturia v. Precia (1880) 5 A.C. 623; who defined ‘public document’ as one made by a public officer for the purpose of the public making use of it and being able to refer to it especially where there is a judicial or quasi judicial duty to inquire. See Cooperative and Commerce Bank (Nig.) Ltd v. Odogwu (1990) 3 NWLR (pt. 140) 646 at 656, Nzekwu v. Nzekwu (1989) 2 NWLR (pt.104) 373 at 404 and African Continental Bank Ltd. & ors. v. B.B. Apogu (1995) 6 NWLR 65 C.A. PER IGNATIUS IGWE AGUBE J.C.A.

JUSTICES

SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

CENTUS CHIMA NWEZE Justice of The Court of Appeal of Nigeria

Between

1. ALHAJI ADELODUN UMORU (Galadima Ngeri Gegele Ilorin)

2. IMAM BABA ONIRIN GALADIMA

3. LAARO BOLAJIGAMBARI – Appellant(s)

AND

1. ALHAJI MEMUDUN JIMOH ORIRE

2. ALHAJI SALAWU JIMOH ORIRE (For and on behalf of themselves and entire Members of Obanisunwa Village) – Respondent(s)

IGNATIUS IGWE AGUBE J.C.A.(Delivering the leading Judgment): The Plaintiffs/Respondents in the High Court of Kwara State, in the Ilorin Judicial Division in Suit No. KWS/196/2002 took out a Writ of Summons against the Defendants/Appellants for that on the 27th July, 2002, the Defendants without just or reasonable cause went to the Plaintiff Obaninsunwa Village and after destroying economic trees and maize crops in their farms descended on the Plaintiff and others around mercilessly beating them with all conceivable dangerous weapons and tore their cloths and cap “Whereof the Plaintiffs claimed against the defendants jointly and severally as follows:-

“1. Special damages totaling One Million and Eight-Nine Thousand Naira (N1,089,000.00) particularized as follows:-

a. Value of palm trees, locust Bean trees and a. cashew trees destroyed N960.000.00

b. Total expenses on maize farms destroyed N129,000.00

“2. Declaration that premised on the Federal Government acquisition and resettlement, the plaintiffs are the owners of the whole of Obaninsunwa village land.

3. General Damages N2 Million

“4. Order of Perpetual injunction restraining the defendants by themselves, Agents, servants and privies from entering into disturbing, harassing or in any manner adversely dealing with the plaintiffs an Obaninsunwa village land.”

Pleadings were exchanged after some interlocutory skirmishes and the case was heard to judgment stage before Hon. Justice Orilonise, but because of his engagement in the Edo State Election Tribunal and subsequent retirement, he could not deliver judgment as at 8/12/2006, the scheduled date of delivery. Consequently, hearing commenced de novo before Honourable Justice I.B. Garba on the 28th of July, 2008. In the course of eliciting evidence, the learned counsel for the plaintiffs – J.S. Bamigboye Esq. – sought to tender a Survey Plan dated May, 2001, said to have been given to the plaintiffs showing the entire land acquired for their resettlement, through the PW1 (Alhaji Mahmoud Jimoh Orire), but I. Abdulazeez Esq., the learned counsel for the defendants, objected to the admissibility of the said survey Plan because according to him the “purported Survey Plan dated May, 2001” was “with no specific date and purportedly countersigned by the acting surveyor General of the Ministry of Lands and Housing, Ilorin Kwara State on 19th April, 2004.”

The learned Counsel for the defendant had further submitted in the course of the objection that the survey plan was inadmissible in law and should be rejected on the following grounds:-

1. The writ in the suit was taken out by the claimant on the 11th day of October, 2002.

2. The said Survey Plan had earlier been annexed to an application for interlocutory injunction on the 27th of January, 2003 and marked Exhibit A and the Court, per Orilonise, J had pronounced on the said document on the 23rd July, 2003, in his Ruling on a similar objection on its admissibility.

3. The document was purportedly signed by a surveyor who prepared it in May, 2001 but was not countersigned by the Surveyor-General until 19th April, 2004 contrary to Section 4 of the Survey Plan Cap. 154, Laws of Kwara State.

4. The said survey plan had earlier failed the test of admissibility in the earlier Ruling of Orilonise, J., and the document sought to be tendered was being brought in another form in order to stall the just decision of the Court.

5. The document was prepared while the suit was pending, contrary to section 91(3) of the Evidence Act.

Replying to the objection of the learned counsel to the Defendants, Mr. Bamigboye for the Plaintiffs, urged the Lower Court to overrule the frivolous objection particularly as regards the specific date of the-survey plan because the survey exercise may not have been carried out in one day. He argued that the survey plan was made in May, 2001 (Seventeen (17) months to the time of the institution of the suit) and that such a period could not have been within the contemplation of Section 91(3) of the Evidence Act more so, as the person making the document during the pendency of the suit was the Government of Kwara State who was not an interested party to the case. Thus, he further submitted, the operative date of the making of the survey plan was May, 2001 and not 19th April, 2004 when it was countersigned by the Ag. Survey-General of Kwara State.

On the question of Exhibit A which was attached to a motion dated 27th January, 2003/he submitted that it was different from the document they sought to tender which was a survey plan duly signed and prepared by a qualified surveyor and countersigned by the Ag. Surveyor-General and thus they had met the only legal requirements for admissibility of the survey plan, the authentication by the Surveyor-General who undertakes its accuracy by his counter signature.

On the provision of Section 4 of the Survey Law, which requires the deposit of the Plan with the Survey-General, the learned counsel for the plaintiff countered that, section was not applicable in that the survey plan was not prepared by a private surveyor but by the Kwara State Surveyor Division.

Ruling on the objection, the learned trial judge after considering the statutes cited by the learned counsel for the Defendants and the totality of the case held finally thus:-

“In effect I hold that the document survey plan No. Kwa 370 titled Land Set Aside for the Use of the Government of Kwara State, Obaninsunwa Resettlement Scheme, along Fili-Egbejila Road, Obaninsunwa village, Ilorin West Local Government Area is admitted in evidence and marked Exhibit I.”

Aggrieved by the ruling of the learned trial judge, the Defendants/Appellants filed their Notice of Appeal in the lower Court with two Grounds as contained in pages 54 to 57 of the Record of Appeal. Upon transmission of the Record of proceedings to this Honourable Court, the parties exchanged their respective briefs in line with the Rules of Court. In the Brief settled by I. Abdulazeez Esq. on behalf of the Appellants, two issues were formulated for determination as arising from the Grounds of Appeal filed and are hereunder reproduced-as follows:-

“i. Whether the learned judge was right in admitting in evidence a purportedly prepared survey plan in May, 2001 and countersigned by the Survey-General on 19th April, 2004, when the suit was instituted on 11th October, 2002? (Ground 1).

“ii. Was the trial judge right in his construction, interpretation and application of Section 91(3) of the Evidence Act, Cap. 112. LFN, 1990; to the admissibility of survey plan countersigned by the Surveyor-General on 19th April 2004, whilst a suit was pending? (Ground 2).”

On the part of the Respondents, Raufu Ibrahim Esq., the Learned Counsel who settled their brief identified only one issue as calling for determination in this Appeal which he couched in the following terms:-

“Whether the trial High Court is right in law in admitting the survey plan in evidence.”

Arguing Issue Number I, the learned counsel for the Appellants drew our attention to the date the Plaintiffs/Respondents commenced their suit as reflected on pages. 1-3. of the Records (a motion on Notice with its supporting affidavit and three annexures marked Exhibits A, B, and C) respectively on the 27th January, 2003, at page 4 of the Record of proceedings.

The learned counsel further alluded to paragraph 10 of the affidavit in support of the motion and the ruling of Orilonise, J. on the 23rd day of July, 2003, at page 52 of the Records noting that the survey plan handed over to the Plaintiffs by the Government of Kwara State which did not bear the signature of the maker eventually found its way into the trial with appended signature in May, 2001 and counter-signed by the Surveyor-General on 19th April, 2004. Citing Omorinbola II v. Military Governor of Ondo State (1995) 9 NWLR (Pt. 418) 201; it was submitted that a documentary evidence must bear a date of preparation or authorship and that in the instant case, the non insertion of the precise date of the preparation of survey plan as against May, 2001 is defective and inadmissible in evidence.

According to learned-counsel, the-purported survey-plan is a registrable instrument affecting land and ought to have been countersigned by the Surveyor-General when it was purportedly made in May, 2001, by a Surveyor by virtue of Section 9(2) of the Land Instruments (Preparation) Law of Kwara State, 2004. Relying on the case of Lawson v. Anfani Cont. Co. Ltd. (2002) 2 NWLR (Pt.?) 585 at 618 and Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360; it was submitted that a survey plan not counter-signed by the Surveyor-General is not admissible in evidence.

The learned counsel contended that the survey plan was not prepared before the issuance of the Writ of Summons on the 11th of the October, 2002, as can be gleaned from the deposition in paragraph 10 of the affidavit in support of the motion for interlocutory injunction which admitted that a survey plan had existed prior to the filing of the, action and the motion on notice on 27th January, 2003. He however posed the question as to why the plan was then counter-signed by the Surveyor-General only on 19th April, 2004, almost two years into the life of the proceedings which he answered by referring to the authority of Idowu Alashe v. Sanyo Olori Ilu (1964) 1 ALL NLR 383 at 390; to the effect that the survey plan was cunningly prepared during the pending of the suit to over reach the Defendants/Appellants.

Again, it was contended that if the said survey plan was in existence the Plaintiffs/Respondent would have annexed same to the motion for interlocutory injunction, more so, when the plan annexed to the motion of 27/1/2003, is different from the one tendered on 28th July, 2008. It was finally submitted that had the learned trial judge painstakingly considered the facts and antecedents of the two documents and the submissions of counsel in that respect, he would not have admitted the survey plan as done. He therefore urged us to resolve this first issue against the Respondent.

On the second issue, the learned counsel for the Appellants referred to the Ruling of the lower Court as regards Section 9(3) of the Evidence Act, which according to him has narrowed down the issue in contention. Learned counsel submitted that the learned trial judge’s interpretation of Section 9(3) of the Evidence Act is most misleading as the learned trial judge erred by holding that the survey plan was not prepared by the Respondents but by Cadastral Section of the Kwara State Surveys Department, Ilorin and by that token admissible in evidence.

He then cited the case of Noakes v. Don Caster Amalgamated Collieries Ltd. (1940) A.C. 1014 at 1022 and Maxwell On Interpretation Of Statutes, 12th Edition at 199, on the interpretation of the said section of the Evidence Act, insisting that from the above authorities, the survey plan was prepared during the pendency of the suit and could not have been admitted before 19th April, 2004, when the Acting Surveyor-General countersigned it. Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) at 360 referred. Citing again W.D.N. Ltd. v. Oyibo (1992) 5 NWLR (Pt. 239) 77 at 95-96; learned counsel reiterated that the learned trial Judge’s holding that Section 91(3) of the Evidence Act was not applicable to the survey plan because it was not prepared by the Respondents, is not tenable in law.

Still on the point taken by the learned trial judge that the document was prepared by the cadastral section of the Kwara State Surveys Department, he placed reliance on the dictum of Pats-Acholonu, J.C.A (as he then was) in Abdulahi v. Hashidu (1999) 1 NWLR (Pt. 600) 638 at 645 -646 to further argue that the mere fact that the document was prepared by a government agency did not render it saved by Section 91(3) of the Evidence Act. Learned counsel asserted that the Cadastral section of the Surveys Department was not called as witness so as to tender the said document through it as the maker and that on the authority of UNIC v. UCIC Ltd (1999) 3 NWLR (Pt. 593) and Bello v. Ringim (1991) 7 NWLR (Pt. 206) 668; the failure to call the maker of the survey plan and the absence of any evidence as to the maker would render the document inadmissible in evidence.

Still on the assertion that the survey plan was made by the Survey Department, he again relied on the case of Acme v. KSWB (1999) 2 S.C.1. at 14; to submit that a court does not make out a case for the parties. He then insisted that the only piece of evidence available to the Respondents to improve their case was the survey plan which could have been annexed to the application for injunction which was dismissed but in an attempt to over reach the Defendants/Appellants; the said plan was then obtained through the back door.

Finally, he urged the court to interfere with the findings of the lower court because they are perverse based on the inadmissible evidence which occasioned a miscarriage of justice. The court was then urged to resolve this issue in the Appellants’ favour and allow the appeal.

In his argument on the sole issue formulated by the Respondents and in reaction to the submissions of the learned counsel for the Appellants on the two issues he formulated; the learned counsel for the Respondents referred us to Sections 3 and 4 of the Survey Law, Cap. S. 13, Laws of Kwara State, 2006, which is in pan materia with Sections 3 and 4 of the Kwara State Survey Law, 1994 and quoted the said Sections copiously, submitting that the provisions of the said Laws are clear and unambiguous and must be given their ordinary meaning (F.C. Udoh & Ors. v. Orthopedic Hospital & Anor. (1993) 7 SCNJ 436, referred).

He explained that the survey plan tendered showed that it was prepared in May, 2001, by a licensed Surveyor who signed it as such and same was subsequently countersigned by the acting Surveyor-General on 19/4/04. These, according to the learned counsel for the Respondents, satisfied the requirements of the Law thereby rendering the plan admissible notwithstanding the fact that it was subsequently countersigned on 19/4/2004, by the Ag. Surveyor-General.

He urged us to hold that the subsequent countersignature of the Acting Surveyor-General did not render the Plan inadmissible and that by Section 3 of the Survey Law of Kwara State the counter-signing is a surplusage. For this submission he placed reliance on the interpretation of Section 3(b) of the Survey Law (Act) by the Supreme Court in the case of Alhaji A. Aliyu v. Dr. J. A Sodipo (1994) 5 S.C.N.J. 1 at 20-21, which settles this issue of breach of Sections 3 & 4 of the Survey Law, assuming the arguments of the learned counsel for the Appellants were well taken. On the submission by the learned counsel for the Appellants that the Survey plan was prepared during the pendency of the suit, he argued that such a submission was a misconception as the said plan on the face of it, was prepared in May, 2001 by Surveyor T. A. Afolayan while the suit was initiated on the 11th of October, 2002. It was therefore submitted that a document in Law is (sic) presented (presumed?) to be made on the date ascribed to it and not the date of counter-signature. (Section 4(1)(a) and (b) of the Survey Law referred. Learned counsel for the Respondents pointed out that by May, 2001, which the plan bore as when it was prepared, it was one year and four months before the institution of the suit and as such cannot in law and common sense be said to have been made during the pendency of the suit nor in contemplation of the suit thereby rendering Section 91(3) of the Evidence Act applicable.

He maintained again that the Government of Kwara State and its agency the Survey Department, cannot be said to be interested parties to the case. Making reference to the pleadings of the parties at pages 26-28 and 32-34 of the transcribed Record of Appeal, he posited that the parties admitted that the disputed land is a resettlement scheme acquired by Government and the plan was prepared by the Government agency. Citing again the case of Oba Goriola Oseni & Ors. v. Yakubu Dawodu & Ors (1994) 4 S.C.N.J 1 at 20-21; he reiterated further that from the pleadings, the Government of Kwara State and its Surveys Department were neither interested parties to the suit nor were they joined so as to render Section 91(3) of the Evidence Act applicable to the case. Accordingly, he urged us to dismiss the appeal:

On the comparison of the plan attached to the motion paper for interlocutory injunction as Exhibit A and the survey plan in question, learned counsel finally submitted that the comparison does not arise as the two documents are clearly not the same. According to the learned counsel for Respondents, it was the height of misconception to object to the admissibility of a survey plan duly prepared because a site Plan similar to it was attached to an earlier interlocutory injunction which was refused. He then urged this Honourable Court to resolve the Respondents’ only issue in the affirmative and against the Appellants.

It would be recalled that the Appellants filed a Reply Brief on the 8th October, 2009, in response to the arguments of the learned counsel for the Respondents. On the provision of Section 4(3) of the Survey Law, Cap. S. 13, Laws of Kwara State, and the argument of the Respondents in this regard, the learned counsel for the Appellants referred to Fasel Services Ltd. v. NPA (2009) 9 NWLR (Pt 1146) 400 at 416 and submitted that the above Section provides for penalty for failure to comply strictly with it and following the proposition of the Law in the above case, they are convinced that the non-presentation of the purported Survey Plan allegedly prepared in May, 2001, to be counter-signed by the Surveyor-General but was countersigned on 19th April, 2004, rendered the plan inadmissible in evidence.

The learned counsel then drew a distinction between Alhaji A. Aliyu v. Dr. J. A. Sodipo’s case cited by the Respondents’ counsel because their grouse in this case is the non-countersigning of the plan by the Surveyor-General in 2001, more so, when no cause was shown as to why the plan was countersigned in April 2004, during the pending of the suit unlike in Aliyu’s case where good cause was shown that the plan was countersigned in 1956 instead of 1976 when the suit had been instituted. He buttressed their position above taken with the case of F&F Farms (Nig.) Ltd v. N.N.P.C (2009) 12 NWLR (PL 1155) at 387 402, where the Supreme Court distinguished the facts in the said case with the case of Eboigbe v. N.N.P.C. (1994) 5 NWLR (Pt. 347) at 649.

On the submission by the learned counsel to the Respondents that the Appellants admitted that the preparation of the plan was done by an agent of Government, he referred us to page 33 of the Records and countered that the plan referred to by the Appellants in paragraph 9 of their Statement of Defence is a 1975 TPO plan redrawn in 1982 as found on page 21 of the records as one of the exhibits attached to the Appellants’ counter-affidavit in opposition to the Respondents’ application for injunction as found on page 4 through 16 of the Records contrary to the Survey Plan in dispute as found at page 58 of the Records. The learned counsel for the Appellants still urged this Honourable Court to dismiss the appeal.

I have taken the trouble to reproduce in detail the submissions of learned counsel on their respective issues and I intend to determine this appeal on the two issues formulated by the learned counsel for-the Appellants since the argument of the Learned Counsel for the Respondents on their sole issue has sufficiently incorporated all the points raised by the Appellants in the issues formulated by them.

ISSUE NUMBER I (ONE): WHETHER THE LEARNED JUDGE WAS RIGHT IN ADMITTING IN EVIDENCE A PURPORTEDLY PREPARED SURVEY PLAN IN MAY, 2001 AND COUNTERED SIGNED BY THE SURVEYOR-GENERAL ON 19TH APRIL 2004 WHEN THE SUIT WAS INSTITUTED ON THE 11TH OF OCTOBER, 2002?.

As the learned counsel has rightly observed in the Respondents’ brief, the kernel of the Appellants appeal is the admissibility of the survey plan said to have been made in May, 2001 on an unspecified date but counter-signed by the Acting Surveyor – General of Kwara State on the 19th of April, 2004, in violation of Sections 3 and 4 (1) (a) and (b) of the Survey Law Cap. S. 13, Laws of Kwara State, 2006, then the Survey Law Cap. 154, Laws of Kwara, State 1994, which law provides for a penalty for non-presentation of a survey plan prepared by a licensed surveyor to the Surveyor-General for his counter signature within the stipulated period for such presentation and counter signature, after preparation by the said licensed surveyor.

The resolution of the issue as to whether the learned trial Judge was right in admitting the said survey plan shall turn on the interpretation of the Sections of the said Law in question. For the avoidance of doubt, Section 3 of the Survey Law in question provides as follows:-

“3. Plan attached to registrable instruments or tendered in evidence to be signed by a Surveyor.

No map, plan or diagram of land-

(a) If prepared after the 1st day of June, 1918, shall be accepted for registration with any registrable instrument which is required by any written law to contain a map, plan or diagram and

(b) If prepared after the 16th day of May, 1918, shall, save for good cause shown to the court, be admitted in evidence in any court, unless the map, plan or diagram has been prepared and signed by a Surveyor or is a copy of a map, plan or diagram prepared and signed and certified by a surveyor as being a true copy”.

As for Section 4 thereof which is captioned “Submission of maps plans and to state surveyor-general”, it provides thus:-

“4. (1) where a licensed surveyor prepares any map, plan or diagram which is to be annexed to, or form part of, any registrable instrument, he shall-.

(a) insert the date of completion of the preparation of the map, plan or diagram at the foot or other conspicuous part thereof; and

(b) within one month of the date of completion, submit a copy of the map, plan or diagram to the State Surveyor-General.

“(2) The Surveyor-General shall, on receipt of any of the documents provided for under subsection(1) above, issue a certificate of deposit to the licensed surveyor on payment of a fee of two hundred naira. ”

Under the provision of section 4(3) which was highlighted in the Appellants’ Reply Brief;

“(3) Any licensed surveyor who fails to submit to the state Surveyor-General the documents provided for under subsection (1) above shall be guilty of an offence and shall on conviction be liable to a fine not exceeding two thousand naira”.

Section 3(a) and (b) have been the subject of interpretation by our apex court in a handful of cases some of which have been cited by learned counsel on both sides of the divide. Beginning from Alhaji A. Aliyu v. Dr. J.A. Shodipo (1994) 5 S.C.N.J. 1 at 20 – 21; in that case the Respondent claimed that in 1956, he purchased a large expanse of land which included the land in dispute and the vendors executed a deed of conveyance in his favour. The said deed referred to a survey plan which was annexed to it at the time of execution before a Magistrate. Although the survey plan was signed by the Surveyor who prepared it, it was not countersigned by the Surveyor-General at the time of submission for registration at the land Registry. The Registrar later noticed the defect and returned the plan to the Surveyor-General for counter-signature through the surveyor who prepared the plan after which the Surveyor-General counter-signed and same was returned to the Registrar of Deeds who duly registered the plan.

After the land had been taken into possession, Dr. Sodipo noticed in 1976, that some workmen came into a portion of the land he had partitioned into three pieces marked A, B, C, in 1961, following the judgment he obtained against one Sinotu who had trespassed on the land. On enquiry, he discovered that one Lt. Col. A. Aiiyu was the one developing that portion which the said Colonel claimed was sold to him by Salami Okunade, the Head of the Abdul-Salami Okunade family or Fashola family. When the said colonel would not desist from continuing with his building on the land, the plaintiff/respondent sued him for declaration of title, injunction and damages in trespass.

At the hearing of the case, the Defendant/Appellant contended that the plan referred to in the Deed of conveyance was no, admissible in evidence as the said plan was no, in existence on the 23/6/56 when the Deed was executed. The trial, Judge believed the evidence of the plaintiff and gave him judgment which the Court of Appeal affirmed and on further Appeal to the Supreme Court, Ogundare, J.S.C. who read the lead judgment of the apex court aptly held at page 20 of the Report as follows:-

“I need add that where a plan is tendered per se but does not conform with the requirements of Section 3(b) of the Survey Law or Act) it may nevertheless be admitted in evidence, “if good cause (is) shown to the court.” for non-compliance”.

See also the dictum of Karibi-Whyte, J.S.C. in chief S. Owoola Lanlehin v. Kola James (1985) 2 NWLR (Pt.6) 262 at 268 who had earlier in his expository judgment where he analyzed most of the decisions pertaining to the provisions in pari material with Section 3(a) and (b) of the Kwara State Survey Law, taken the same position that:-

“It is clear, that the Section provides for the case where a map, plan or diagram is prepared after 1st June, 1918 and is attached for registration with any registrable instrument which is required by any written law to contain a map, plan or diagram. It also provides for where the map, plan or diagram is prepared after 20th October, 1897 (in our instant case 16th may 1918), and is tendered in evidence in court. In this second case if good cause is shown, it shall be admitted in evidence. Thus whether the map, plan or diagram is required to be attached to an instrument solus in evidence, the pre-condition of signature and counter-signature will seem to be required.”

The learned judicial icon then added the clincher:-

“the fact that the section is worded in the negative does not render the map, plan or diagram invalid for any purpose. Indeed the expression “save for good cause shown to court” clearly conveys that the map, plan or diagram, is not by the mere fact of the defect therein rendered inadmissible, and would seem admissible in evidence in any court if good cause is shown. See Alamba v. Marizuxsix Ors. (1972) 2 ECSLR (pt. II) 442; Ojiako v. Ogueze (1962) 1 ALL NLR 58.”

It is pertinent to note that the learned counsel for the Appellants has cited and relied on the cases of Anfani Cont Co. Ltd (2002) 2 NWLR (Pt? ) 585 at 618; Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) at 360 and Idowu Alashe v. Sanya Olori IIu (1964) 1 ALL NLR 383 at 390, with all the verve and emphases he could muster. In Oseni v. Dawodu (1994) 4 SCNJ 197 at 212-213; the Supreme Court was confronted with a similar scenario and argument as proffered by the-learned counsel for the Appellants on the admissibility of an un-counter signed plan and Iguh J.S.C., had cause to pronounce particularly, on the case of Idowu Alashe v. Sanya Olori Ilu (supra) when he held;-

“In the case of Idowu Alashe & Ors. v. Sanya Olori Ilu (supra) an un-countersigned survey plan was admitted in evidence without objection contrary to section 23(1) of the Survey Act, Cap. 194, Laws of the Federation 1958, which is in pari materia with section 3(1) of the Survey Law of Lagos, 1973. On appeal, it was held by this Court that the plan was inadmissible in evidence and should be discountenanced. It ought to be noted that the case was decided in 1965, well before the Survey (Amendment) Decree 1974 was promulgated. Similarly, the second case of Salau Okulade v. Abolade Alade (supra), although decided in 1976 referred to a survey plan made before 1974. It was consequently and quite rightly, caught by the provisions of section 23(1) of the Survey Act, Cap. 194, Laws of the Federation, 1958, which is in pari material with the provisions of section 3 of the Survey Law of Lagos State 1973.

In the present case, the plans Exhibits A, B, C and H were variously made in 1982 and 1983, well after the provision as to the counter-signature of Surveyor-General on plans had been abrogated in 1974. I am therefore in agreement with learned counsel for the Respondents that the plans are admissible in law and that their admissibility in evidence by the trial court was rightly upheld by the Court of Appeal….” (Pages 212 lines. 23-43 and 213 lines 1-10).

Indeed, that the emphasis placed by learned counsel for the Appellants on the inadmissibility of an un-countersigned plan by the Surveyor-General, has been overtaken by the Survey (Amendment) Decree 1974, being a statute of general application and indeed the Survey Law of Kwara State, has been sufficiently explained by Section 3(b) thereof and Iguh, J.S.C. in the Oseni v. Dawodu case earlier cited; where he supported the views expressed by Karibi-Whyte J.S.C. in Kola James v. Chief S.O. Lanlehin (1985) 7 S.C 404 at 436 and 444 thus:-

“But a close study of the various enactments which prescribed the counter signature of a Surveyor-General on plans as a precondition for their admissibility in Law does indicate however that failure to comply with this provision does not ipso facto render the plan totally invalid for all purposes. The expression used in these enactments is that such un-countersigned plans are not admissible in any court of law “save for good cause shown to the court”. This seems to connote that such a survey plan is not by the mere fact of the defect therein as a result of the lack of the required countersignature rendered totally inadmissible. In my view, and this is justified by the authorities, such an un-countersigned plan is admissible in evidence in any court of law if good cause is shown to the court for doing so. See Alamba v. Marizu and others (1972) 2 E.C.S.L.R (pt. 2) 422 and Ojiako & Ors. v. Ogueze & Ors. (1962) 1 ALL NLR 58 (reprint) and Kola James v. Chiefs. O. Lanlehin (1985) 7 S.C 404 at 436 and 444″.

In the instant case the question of absence of counter-signature does not arise since the document tendered was produced by and from the office of the Surveyor-General and had actually been countersigned by the Acting Surveyor-General of Kwara State. There was also no need for any good cause to be shown by the Plaintiffs/Respondents as to why the countersignature was made in 2004, when the plan was drawn by the Surveys Department of the Ministry of Lands, Kwara State.

If the plan had been prepared by a private licensed Surveyor, the question of the counter-signature by the Surveyor-General and it being deposited within one month of its preparation and indeed its admissibility would have arisen; as would be seen later when we consider the provisions of section 4 of the Kwara State Survey Law, above cited. In any case, it would appear that the Kwara State Legislature in enacting the Survey Law of 1994, any Cap. S. 13, 2006, had taken into due consideration, the Survey (Amendment) Decree No. 34 of 1974, (now Act) – a statute of general application which abrogated and dispensed with the counter-signature of the Surveyor- General on plans as pre-condition for their admissibility -by the absolute silence of Sections 3 and 4 of the Kwara State Survey Law in question as to consequences of non-countersigned plans nay their admissibility. See Oseni v. Dawodu (supra) at 212-214. I therefore discountenance the submissions of the learned counsel for the Appellants in this respect.

Turning to Section 4 of the Law, it mandates a licensed Surveyor who prepares any map, plan or diagram which is to be annexed to, or form part of, any registrable instrument to, under subsection (1):-

“(a) insert the date of completion of the preparation of the Map, plan or diagram at the foot or other conspicuous part thereof; and

“(b) within one month of the date of completion, submit a copy of the map, plan or diagram to the Surveyor-General. ”

Under sub-section (2) of the Section, the Surveyor-General is also mandated on receipt of any-of-the-said documents provided under subsection (1) so submitted to him, to issue a certificate of deposit to the licensed Surveyor on payment of a fee of two hundred naira.

Subsection 3 thereof which the learned counsel relies upon in his submission as to the inadmissibility of the document because it was not presented before the Surveyor-General in May, 2001, or within one month of the preparation of the plan sought to be tendered; imposes a penalty of a fine not exceeding two thousand naira upon conviction of any licensed Surveyor who Tails to submit any of such documents like map, plan or diagram of land sought to be annexed to a registrable instrument or to form part thereof.

It appears to me that nothing is also said about the admissibility of such documents as far as the above provisions are concerned. In my humble view, that section is meant for maps, plans and diagrams of land prepared by private licensed Surveyors to be, deposited with the Surveyor-General of the State for proper custody authentication and inspection by members of the public and for the Surveyor-General to issue a certificate of deposit to the Licensed Surveyors on payment of a token fee of two hundred naira. That section, with the greatest respect, cannot apply to the peculiar facts and circumstances of this case where the Survey Department of the Kwara State Ministry of Lands prepares a plan on behalf of the Government for a resettlement scheme for the displaced Plaintiffs/Respondents. To give the section the interpretation ascribed to it by the learned counsel for the Appellants will tantamount to manifest absurdity as this could not have been the intention of the Legislature while enacting the Survey Law. See per Karibi-Whyte in Savannah Bank of Nig. Ltd. v. Pan Atlantic Shipping and Transport Agencies Ltd. & Anor. (1987) 1 S.C. 198 at 294; where he held thus:-“Hence where the alternatively two modes of construction is likely to produce a result opposed to the intentions of the law regarding the section construed, it is the duty the judge to prefer and apply the construction that is in accord with and will lead to the obvious intentions of the Legislation.”

I am fortified in my stand by the provisions of Section 4(4) of the Survey Law which stipulates that:- “The Surveyor-General shall keep proper record of any map, plan or diagram so submitted to him pursuant to this section and shall ensure its safe custody and shall make it available to members of the public for inspection”. Thus, assuming a private licensed Surveyor prepared a plan as in this case in May, 2001, and such a plan was not submitted to the Surveyor-General within one month, what ought be done is to arraign such a recalcitrant Surveyor before a court of law and the necessary fine shall be imposed against him if tried and found guilty or in the interest justice the Court of first instance could send the plan to the Surveyor-General who shall impose such a fine before his counter-signature. The law is therefore silent as to whether a plan not presented to the Surveyor-General within one month of its preparation is not admissible in evidence.

With the greatest respect, the only provision of the Kwara State Survey Law which deals with-admissibility of a plan as in this case, is Section 3(b) of the Law, which even gives a party the lee-way to show good cause why there was a breach of the provision when such a plan was made. It would therefore appear that Section 4 is meant to regulate the conduct of licensed surveyors who are the only persons authorized to prepare maps, plans or diagrams pertaining to land by virtue of the Survey Law and where such documents are meant for annexation to registrable instruments, then subsections (1) (a) and (b) of Section 4, must be complied with. The failure to comply, will not necessarily render the plan void or inadmissible in evidence but would rather attract a fine of two thousand naira against such Surveyor for noncompliance.

Also, by virtue of these provisions, the plan or map so submitted to the Surveyor-General for custody becomes a public document which is subject to inspection by members of the public upon payment of the prescribed fee. See Sections 39, 40, 109 and 111 of the Evidence Act. See Agagu v. Dawodu (1990) 7 NWLR 56 and Ogbunyinya & Ors v. Akudo (1979) 3 LRN 318. We shall come to these Sections of the Evidence Act, subsequently.

Suffice it to say that the learned trial Judge at page 43 of the Record of proceedings (page 9 of the Ruling), in my humble view, rightly observed that:-

“Note that the failure on the part of licensed Surveyor to comply with conditions stated under sub-section (1) attracts a fine on conviction which only a competent court can do. I observe of course that the entire provision did not say anything on what will happen to the map or plan which such a recalcitrant licensed Surveyor produced.”

From the above finding of the court with which I am in total agreement, one can confidently conclude that Section 4 of the Survey Law only relates to the nature of maps, plans or diagrams of land prepared by private Licensed Surveyors which are meant to accompany Registrable Instruments for purposes of registration. Nothing has been said of the admissibility of such documents where there is a breach of the conditions precedent as laid down in subsection (1)(a) and (b) of section 4 or section 4(3) of the Survey Law except for the imposition of a fine in the latter respect. Again, it would be absurd to bring Exhibit 1 tendered and admitted by the lower Court within the purview of a plan meant to accompany a registrable instrument because the said plan was prepared by the Survey Department under the supervision of the Surveyor-General of Kwara State and it would be most unreasonable to expect that the Surveyor-General will pay the prescribed two hundred naira for the deposit certificate which he is supposed to issue to private licensed surveyors, upon their depositing documents prepared by them, to himself (Surveyor-General or officers working under him).

The learned counsel for the Appellant has argued citing Omorinbola II v. Military Governor of Ondo State (1995) 9 NWLR (Pt. 418) at page 222 paras. C-D, where Akpabio, J.C.A; delivering the lead Judgment of this Court (Benin Division) rightly posited that:-

“In our jurisprudence it is not enough that a document should be duly certified which goes to admissibility, but in order to be acted upon there must be evidence of date and authorship. Even a Judgment or Ruling of a Court will be worthless if it was merely certified by a Registrar but without the name or signature of the judge or Justice who delivered it, and the date of delivery. See generally on this topic the cases of Omosanya v. Anifowose (1959) 4 F.S.C. 94 (2); M.A Okupe v. B. O. Ifemebi (1974) 3 S.C. 97.”

For the structural defects in the document tendered as Exhibits A-A3, in that case, the learned Emeritus Justice of the Court of Appeal refused to attach probative value or any weight to the said documents. From this judgment, the lower Court must have admitted the documents marked Exhibits A-A3 perhaps because of their relevance but the weight attached to them was a different thing entirely as found by Akpabio J.C.A. on appeal. I doubt whether the case above cited is of any help at all as far as the document sought to be tendered in this case is concerned, even though my Lord Akpabio J.C.A, had stated the correct position of the Law.

A look at the plan in question titled:

“KWA 370”

-LAND SET ASIDE FOR THE USE OF THE GOVERNMENT OF KWARA STATE OBANISUNWA RESETTLEMENT SCHEME ALONG FILI-EGBEJILA ROAD, OBANISUNWA VILLAGE, ILORIN WEST LOCAL GOVERNMENT AREA KWARA STATE OF NIGERIA “; would reveal that it was counter-signed by Surveyor Lamidi Oyebode, Ag. Surveyors-General of Kwara State and dated 19th April, 2004. On the bottom left-corner of the plan, is the name of the Surveyor of the land in dispute (Surveyor T. A. Afolayan), and it would appear that the date of survey and/or completion of the plan is what is given as May, 2001. The plan also contains the names of the officials/persons who checked, cleared and passed same. L. Oyebode, the Ag. Surveyor-General, also certified the plan as a true copy.

I agree therefore with the learned counsel for the Appellants that the plan does not contain any specific date as to its preparation. However, it would appear that the said plan has substantially complied with the provisions of Section 3(a) for purposes of registration of any registrable instrument (assuming but not conceding that the plan was meant to accompany a registrable instrument which was billed for registration) and Section 3(b) for purposes of admissibility in evidence. Assuming I am wrong, the Court below in my candid opinion-rightly observed at page 43 of the Records that the plan sought to be tendered in evidence was not prepared by a private licensed Surveyor who intends to annex it with any other registrable instrument for use or that of his client, but a survey plan drawn by the cadastral Section of Kwara State Surveys Department, Ilorin -a government agency. He then concluded thus:-

“Since the survey plan is one that was drawn by the government agency, in which the Surveyor- General Superintends, therefore it cannot be said to have failed the test or conditions prescribed under Section 4 of the Survey Law and I so hold.”

I cannot but agree more and totally with the above findings of the learned trial Judge and I am also of the view that Section 4(3) of the Survey Law of the Kwara State, cannot be invoked against the State Agency superintending the preparation of plans for purposes of Registration or the Plaintiffs/Respondents because the plan was not prepared by a private licensed surveyor for the said Plaintiffs/Respondents. The learned counsel for the Appellants has also harped on the fact that the Survey plan is a registrable instrument affecting land and ought to have been countersigned by the Surveyor-General when it was purportedly prepared in May, 2001 by a surveyor by virtue of Section 9(2) of the Land Instruments (Preparation) Law of Kwara State, 2004. He has also relied on the case of Lawson v Anfani Continental Co. Ltd. (2002) 2 NWLR (Pt.585) at 618 and Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) at 360.

I must state here without any fear of contradiction, that the arguments proffered by the learned counsel and the authorities cited have been overtaken by the Supreme Court decisions earlier on cited. Care must be taken not to situate cases which facts and the laws interpreted are not in pari-materia with the one at hand or to cite cases at large for the purpose of enhancing counsel’s submission.

As for back as 1985, in Chief S. Owoala Lanlehin v Kola James (1985) 2 NWLR (PT. 6) 262 at pp 268- 275 reported at pages 773 – 790 of “Documentary Evidence-Cases and Materials” Vol. 1. 1st Edition 2002, by Hon. Justice P.A. Onamade; Karibi-Whyte J.S.C. again was called upon to construe:

(1) The Lands Instruments Registration Law, Cap. 64 (Sections 9(1)(2), 15 and 34.

(2) Survey Act, Cap. 194, Vol. VII, Laws of the Federation 1958, Section 23 thereof which is in pari-materia with Section 3 of the Survey Law of Lagos State and

(3) The Land Instruments Registration, Regulations made under Section 32 and 34 (Regulation 2 (b) thereof.

Note that Sections 3 of the Survey Law and 9 of the Lands Instruments Registration Law which are the basis of the learned counsel for the Appellants’ argument were construed in that case. His Lordship reviewed Alashe v. Ilu (supra) cited by learned counsel for the Appellant; Erinosho v. Owokoniran (1965) NMLR 479 and in the latter case the dictum of Idigbe J.S.C with whom Ademola C.J.N. and Coker J.S.C concurred was cited thus:-

“………….it would appear that once an instrument is registered under Cap. 56, it should be admitted as registered instrument in evidence (see S.16 Cap. 56); if however the plan annexed thereto is defective in any way a different question will arise as to its evidential value.”

To lay to rest the unnecessary heavy weather being made of the counter-signature of the Surveyor-General, assuming this question of counter-signature of the plan sought to be tendered is relevant and appropriate in the circumstances of this case, the erudite and eminent jurist had made it clear that:-

“It is however important though strictly not relevant, to this case to consider the effect of the provisions of section 3(1) (b) of the Survey Law Cap. 132, Laws of Lagos State. This is because although it says that the plan, map or diagram is not to be admitted in evidence in any court; it however puts in an escape clause there providing a cause shown to the court. Accordingly, there is judicial authority for the propositions namely-

i. That a plan not counter-signed as prescribed may “for good cause shown to the court be admitted in evidence in court”, thereby rendering it not inadmissible.

ii. That the requirement of counter-signature e.t.c is a matter of evidence.

iii. That the plan, though not in compliance with section 3(1) (b) (in our instant case section 4) is not inadmissible; is also not void by reason of want of the prescribed-signatures” See page 787 – 788 of Documentary-Evidence – Cases and Materials (supra).

Note that section 3(1) (b) of the Survey Law, Cap. 132, Laws of Lagos State, 1973, which was interpreted above, incorporated the provisions of section 4 of the Kwara State Survey Law as to the deposit of the plan with the Surveyor-General for examination and counter-signature. It is also relevant here even for the sake of the submissions of the learned counsel for the Appellants, to state that as far back as 1962 our Federal Supreme Court in the case of Ojiako & Ors v. Ogueze & Ors (1962) 1 ALL NLR 58; allowed an unsigned plan to be signed and subsequently reintroduced into the appeal by way of motion for additional evidence which clearly demonstrates the fact that want of signature merely rendered the plan defective and not void. See again the dictum of Coker Ag. J.S.C. in Akano Fashina Agboola v. Augustina Abimbola S.C. 336/67 of 4th July, 1969; where a plan attached to a conveyance was not counter-signed at the time of execution but four months afterwards and application made to the Registrar of Titles was objected to and the Supreme Court dismissed the objection as it was so held that the plan was already in existence before the execution of the Deed of conveyance. Moreover, the requirements for counter-signature were matters of evidence and non-compliance with the Survey act did not render the plan void or useless.

The above dictum settles the contention by the Appellant that a survey plan not counter-signed by Surveyor-General is inadmissible. Accordingly, it would appear that the decisions in Lawson v. Anfani Cont. Co. Ltd. (2002) 2 NWLR (Pt. 2) 585 at 618 and Atolagbe v. Shorun (1985) (pt. 2) 360; were taken on their peculiar facts and circumstances and the particular law interpreted. For instance, it was the self same section 3(1) (b) (ii) of the Survey Law of Lagos State which specifically provided that a plan which is not countersigned by the Surveyor-General is inadmissible that was also considered in Dr. Shodipo’s case in 1994, which held otherwise. The preponderance of authorities seem to support the view that an un-countersigned Survey plan is not necessarily inadmissible, useless or void but a question of weight to be attached to such document.

On the submission that the plan sought to the tendered by the Respondents was not in existence as at when the suit was instituted in October, 2001, there is no doubt that in paragraph 10 of the affidavit in support of the motion for interlocutory injunction, the Plaintiffs/Respondents deposed to the fact that the “the Kwara State Government Surveyed the land and gave us copies. A copy of the Survey plan is herein annexed as Exhibit A.” Upon examination of the said plan, the learned trial judge (then Olabanji Orilonise, J.), who heard the application, remarked at pages 5-6 of the judgment (pages 51 and 52 of the Records) thus:-

“For now, I do not intend and indeed, I am not entitled to make any adverse comments on Exhibits A and B attached to the applicants’ motion because of the fact that they may be used by the applicants in their attempt to prove the substantive suit. However, for the purpose of the present application, I will simply say I do not attach any probative values to either Exhibit A or B. Exhibit A which is a mere site plan does not bear the signature of its drawer and cannot be regarded as a survey plan of the land in dispute. Since the site plan. Exhibit A. filed by the applicants has no probative value no interlocutory injunction can be granted”.

The underlined portions of the Ruling of Orilonise, J., are very instructive and self-explanatory to the effect that what was annexed to the application for interlocutory injunction was a mere site plan bearing no signature of the maker not to talk of any counter-signature by the Surveyor-General. The learned trial Judge, in my humble view, was right in not attaching any probative value to the said document. When the case was heard de novo however, the plan sought to be tendered and objected to by the Defendants/Appellants was different and in his Ruling the learned Garba, J. observed rightly also in my view at page 43 of the Record (page 9) of the Ruling that:- “Also, in the instant case, the Survey plan sought to be admitted in evidence is a Survey Plan not drawn by a private licensed Surveyor who intends to annex it with any other registrable instrument for his use or that of his client, but the survey plan prepared or drawn by the (sic) cadastar (read Cadastral) section of Kwara State Surveys Ilorin which is a government agency.

Since the survey plan is one that was drawn by the Government agency, in which the Surveyor-General superintends, therefore it cannot be said to have failed the test or conditions prescribed under Section 4 of the Survey Law and I so hold.”

I am in total agreement with the holding of the learned trial judge that the survey plan tendered and accordingly- admitted actually emanated from the Kwara State Government as can be gleaned from the entries therein. As I had said earlier on, all the government officials who surveyed the land, prepared/drew, checked and cleared the plan have either their names or signatures embossed in the said survey plan.

Apart from being counter-signed by the Ag. Surveyor-General as the Head of the Surveys Department who drew the plan, there is a certificate by the said Ag. Surveyor- General as to the authenticity of the said document by the said document being signed and certified as a true copy of the original of the survey plan of the land set aside for the use of the Government of Kwara State for the Obanisunwa Resettlement Scheme. Such a plan is therefore not the subject of section 4 of the Survey Law of Kwara State nor can the Appellants argue as they have done that the survey plan was not in existence as at 11th October, 2002, when the Writ of Summons was issued considering that on the face of the plan, it was said to have been made in May, 2001.

It would be recalled that the Plaintiffs in paragraph 22 of their statement of claim pleaded “all letters, plans and correspondences relevant to this suit”. The plan sought to be tendered is therefore relevant and ought to be admitted in evidence as a certified true copy of a public document under sections 39, 40, 109 (a) (ii) and (iii), 111, 112, 113, (iii) (iv), 114 and 150 of the Evidence Act which should be the applicable law to the facts and circumstances of this case and in particular the admissibility of the survey plan in question, rather than sections 3 and 4 of the Survey Law as purported by the Appellants. See Torti v. Ukpabi (1984) 1 SCNLR 214.

I shall consider each of these provisions briefly. Under Section 39 of the Act, an entry in any public or other official book, register or record, stating a fact in issue or relevant fact and made by a public servant as in the case of the officials of the Survey Department of Kwara State who made the survey plan, in the course of the discharge of their official duties, is a relevant fact. See Onyetmusi v. Okpukpara (1953) 14 WACA 311; Chief Ayeni and others v. Joseph Dada (1978) 3 S.C. 35 and Onochie v. Ikem (1989) 4NWLR (pt.) 116 at 458.

Perhaps, the most relevant of the Sections above cited is Section 40 of the Evidence Act which provides that:- “40. Statement of facts in issue or relevant facts made in published maps or charts generally offered for public sale or in maps or plans made under the authority of Government, as to matters usually represented or stated in such maps, charts or plans are themselves relevant facts” (underlining mine for emphasis). See (Attorney- General v. Horner (No. 2) (1914) 2 Ch. 140; Fowke v. Berrnington (1914) 2 Ch. 140 and the Nigerian Supreme Court cases of Fadlallah v. Arewa iles Ltd.(1997) 51 L.R.C.N. 1739 and Ogunbiade v. Sasegbon (1966) N.M.L.R. 33. The plan tendered and admitted by the court below, falls squarely within the provisions of Section 40 as it was made under the authority of the Kwara State Government for the purpose of resettling the Plaintiffs/Respondents and is therefore relevant and admissible as far as the information contained therein is concerned.

As for Section 111, the Acting Surveyor-General whose signature and name appear on the survey plan, certified and/or issued the said document to the Plaintiffs/Respondents and by subsection (2) thereof, he shall be deemed to have been authorized to have delivered the survey plan to the Plaintiffs and ought to have been deemed to have the proper custody of that document Once that certified true copy was tendered having been duly certified and signed as required by the Evidence Act and Indeed the Survey Law, the document ought to have been admitted on mere production by the Plaintiff, See Agagu v. Dawodu (1990) 7 NWLR 56. It was therefore unnecessary to call the public officers or makers of the document to the tender same or the officer who certified it as the said document may even be tendered from the bar. See Ogbunyinya v. Okudo (1979) 6-9 S.C. 37 and Aina v. Jinadu (1992) 4 NWLR (pt.233) 91. From the above provisions of the Evidence Act and the authorities above cited it is clear that the learned trial Judge rightly admitted the said survey plan.

As for Sections 112, 113,114 and 150 of the Evidence Act, those Sections further support the view that the mere production of the certified copy of the admitted survey plan or any part thereof, is the usual method of proving public documents in Court-and there is no need to call the maker or certifying authority, as once it is signed and certified it becomes admissible on mere production. Section 113 also provides for the mode of proving certain public document, In respect of this document which has been challenged by the Respondents, Section 133(a)9ii), (iii), (iv) is very relevant as the said survey plan is an official communication of the Government of a State and the copy of the survey-plan is duly signed and certified by the Acting Surveyor-General of Kwara State. It is also the record of the Survey Department certified by the Head of the Department in respect of a matter to which the executive authority of the state extends by the Governor or any person nominated by him. Finally, the document was printed by order of Government and it has been shown to have been certified by the legal keeper, (the Acting Surveyor-General (Surveyor-Lamidi Oyebode).

Under Section 114, the lower Court ought to and indeed rightly admitted the survey plan since the document ought to be presumed as genuine, same having been in substantial conformity with the provisions of the Evidence Act as the presumption is also in favour of the Acting Surveyor-General who issued and certified same, as having held the official character or capacity which he claims to hold, in the survey plan tendered and admitted as Exhibit 1. See Adekoya v. Victor Olidepo Fowler & Anor. (1993) 7 NWLR 637, S.C; Jules v. Afani (1980) 5-7 S.C 96; Cardoso v. Daniel (1966) 1 All NLR 25, and per Agbajie J.S.C. in Abiodun Adelaja v. Olatunde Fanoiki & Anor (1990) 3 NWLR (pt. 131) 137 at 167-168.

In conclusion, it is most appropriate to allude to Section 150(2) on the presumption that when the Ag. Surveyor-General of Kwara State signed and certified the plan, he had been duly appointed and the survey plan was regularly made. The maxim of the law is “omnia praesumuntur rite esse acta.” See Odubeko v. Fowler & Anor:(supra) at 655 S.C; Boyd Gibbins v. Skinner (1951) 1 ALL E.R. 379; Nelson & Anor v. Akonfranmi (1962) ALL NLR 130; Magnusson v. Koiki (1991) 4 NWLR 119; Integrated Rubber Products (Nig.) Ltd. v. Irabor Oviawe (1992)5 NWLR 572; Benson v. Onitiri (1960)5 F.S.C. 69; Ondo State University & Anor. v. Ezekiel Odekunle Folayan (1994) 7 NWLR 1, (S.C) and Ogbunyinya v. Okudo (supra) at 551.

In the appeal at hand, it is left for the Appellants to show in the lower Court that the plan sought to be tendered does not reflect the information contained therein. However, it is gratifying to note that the Appellants also pleaded the plans of the land allocated to the Plaintiffs/Respondents. In the course of eliciting evidence and under cross-examination of the parties, the lower court shall be in a better position to know whose maps are more authentic and accordingly ascribe probative value to same. Accordingly, I resolve issue Number 1 (one) in favour of the Respondents and hold that the learned trial Judge was right in admitting the survey plan.

With the resolution of the First Issue, it should have been needless to consider the second issue. However, assuming I am wrong in my holding above and in view of the hierarchy of this Court, it is advisable to resolve remaining issue raised by parties in this appeal.

ISSUE NUMBER TWO (2): WAS THE TRIAL JUDGE RIGHT IN HIS CONSTRUCTION, INTERPRETATION AND APPLICATION OF SECTION 91(3) OF THE EVIDENCE ACT, CAP. 112. LFN, 1990; TO THE ADMISSIBILITY OF SURVEY PLAN COUNTERSIGNED BY THE SURVEYOR-GENERAL ON 19TH APRIL 2004, WHILST A SUIT WAS PENDING? GROUND 2.

The grouse of the Appellants on this issue is on the interpretation of Section 91(3) of the Evidence Act, Cap. 112, Laws of the Federation, 1990, on the admissibility of the survey plan countersigned by the Surveyor-General on the 19th April, 2004, whilst a suit was pending. I have already resolved the issue of the document annexed to the motion for interlocutory injunction and the holding by the learned trial Judge that the said document was different from that tendered and admitted at the trial court.

I have also held that the learned trial Judge rightly admitted the survey plan in spite of the fact that it was countersigned on the 19th of April, 2004, during the pendency of the suit. The position I have taken is borne out of the fact that contrary to the submission of the Appellants, the plan was made in May 2001, seventeen months before the institution of the proceedings on the 11th of October, 2002. More so, the Plaintiffs have pleaded that they shall rely on all the relevant plans given to them in proof of their case. Thus, the learned trial Judge in my view rightly held at page 44 of the Record of proceedings while ruling on the provision of Section 91(3) of the Evidence Act that:-

“Although, the Survey plan in question carried the date of May, 2001, as the period the land was surveyed which preceded the institution of this action in October, 2002, but contained the name and signature of Acting Surveyor-General dated 19th April, 2004, yet, I hold that, that does not invalidate the said survey plan as it was not drawn by the claimants but by the government agency who is not interested in the pending proceedings”.

Now Section 91(3) of the Evidence Act which has been cited by the Appellants with all the enthusiasm they can muster provides thus:-

“(3) Nothing in this Section shall render admissible as evidence any statement made by a person interested at the time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

Luckily, the above provision has not suffered from any paucity of decided cases both by the apex Court and this Court. Basically, this section of the Evidence Act couched in the form of a proviso to the preceding two sections on the admissibility of statements in documents which-include maps and plans as in this case, prohibits the admissibility of such documents or statements made under the following circumstances:-

1. If the statement is made by a person interest and

2. When proceedings were pending or anticipated, involving a dispute as to any fact in issue which the statement might tend to establish.

For a statement to be admitted under this Section therefore, such a statement must not be made by “a person interested” in the outcome of the proceedings or put differently a likely beneficiary of the fruits or outcome of the litigation in question.

In the English case of Evon v. Noble (1949) 1 KB. 222, 225, the term a person interested’ was defined as not being confined to the maker of the document but as including “any person whatsoever provided that he is interested.” To be considered a person not interested so as to make such a statement admissible therefore, the said person must be “a person who has no temptation to depart from the truth on one side or the other-a person not swayed by personal interest, but completely detached, judicial, impartial, and independent”. Thus, it has been held in the said English case that there must be a real likelihood of bias before a person making a statement can be said to be a “person interested”. See again Bearmans Ltd. v. Metropolitan Police District Receiver (1961) W.L.R 684 per Jacob M.R. at 637.

As for the second ‘condition that is that the statement was made when proceedings were pending or anticipated”, the English decisions which have been followed by our apex Court and indeed this Court, have held that a statement made by a driver involved in an accident is a statement made by an interested person when a dispute or proceedings were anticipated. The position is the same irrespective of whether the maker of the statement was cautioned or not. See Bowskill v. Dawson (1854) 1 Q.B 288; and Robinson v. Stern (1939) 2 K.B 260; where it was further held by the English Court of Appeal in Jarman v. Lambert and Cooke (Contractors) Ltd [1951] 2 KB. 937, that the word ‘anticipated’ must be construed as including ‘likely’ as was interpreted in Barkway v. South Wales Transport Co. Ltd [1949] 1. KB 54 at 61. The above interpretation was given judicial assent by the eminent and erudite Law Lord, Evershed M. R; when he held that by “proceedings-were anticipated” was meant “proceedings were regarded as likely” or even “reasonably probable”, see Evon v. Noble (Supra).

Back home in Nigeria, the Supreme Court had in some land mark cases where the principles enunciated in all the English cases cited above were received and adopted, laid solid foundation for the resolution of the vexed issue as to the admissibility of the survey plan said to have been made in May, 2001, but counter signed by the Acting-Surveyor-General of Kwara State on the 19th of April, 2004, when proceedings initiated in October 11th 2002, was said to be pending.

The Supreme Court also had the occasion to pronounce on the contention that the document sought to be tendered was nonexistent as at the time of initiation of proceedings even when not made by the Plaintiffs/Respondents but by a Government Agency. Beginning from Highgrade Maritime Services Ltd v. First Bank of Nigeria Ltd. (1991) 1 S.C.N.J 110 at 121; Wali, J.S.C adopted the definition of ‘a person interested’ as in Evon v. Noble (Supra) hook, line and sinker. Perhaps, the most illuminating and enamoring opinion on this subject was given by Karibi-Whyte, J.S.C, when he in the same case (Highgrade Maritime Services Ltd v. First Bank of Nigeria Ltd.) Supra at pages 126-127; posited inter alia:-

“Thus the general principle is that the document made by a party to litigation or person otherwise interested when proceedings are pending or is anticipated is not admissible. Barkway v. South Wales Transport Co. Ltd. (1949) 1 K.B. 54. The disqualifying interest is a personal interest not merely interest in an official capacity. See Bearmans Ltd. v. Metropolitan Police District Receiver (1961) 1 W.L.R. 634/ Where however the interest is purely official or as a servant without a direct interest of a personal nature, there are decided case that the document is not thereby excluded. See Evon v. Noble (1949) 11 K.B. 222. See The Atlantic and the Balyk (1946) 62 T.L.R. 461; Repower v. Barclays Ltd. (1956) P. 110 and Galler v. Galler (1955) 1 W.L.R. 400”.

The learned emeritus Justice maintained further:-

“Hence where an official is discharging a ministerial duty which does not involve any personal opinion, the question of bias will not be in issue.”

See also Uwais, J.S.C, (as he then was) in Mrs. Elizabeth N. Anyabosi v. R.T. Briscoe {Nig.) Ltd (1987) 6 S.C. 15 at 49-50. In the same case, Karibi-Whyte, J.S.C, again took the view that the disqualifying interest referred in section 91(3) of the Evidence Act, must be given a narrow and technical definition to ensure its effectiveness and allow the continuance of evidence of ordinary legitimate transactions untrarhmeled by the exclusionary rules of evidence. See also per Salami, J.C.A, (as he then was) in Gbadamosi v. Kabo Travels Ltd (2000) 8 NWLR (Pt. 668) 243; on the test to apply in determining an interested party; P.I P.C. Security Ltd. v. George & Vlachos & Anor. (2008) 4 NWLR (PT 1076) 1 at 26 paras. C-E per Belgore, J.C.A and Anisu v. Osayomi (2008) 15 NWLR (Pt. 1110) 275 paras. C-E (a decision of this Honourable Court, per Abdulahi, J.C.A).

What emerges from the totality of all the authorities cited is that a statement (the survey plan as in this case, assuming it was made when the suit on appeal was pending or anticipated, which is not conceded), is not inadmissible under Section 91(3) of the Evidence Act, where such a statement is made by an independent person who is dispassionate, unbiased or impartial and cannot be tempted to depart from the truth or swayed from departing from the truth on the side of any of the parties. Such a person or persons must not have any personal interest to protect as far as the subject matter of the suit is-concerned.

On the question of the second arm of “when proceedings were pending or anticipated”, there is no doubt that section 91(3) of the Evidence Act is anchored on the doctrine of lis pendens which prevents the admission of documents made pende lite. Achike, J.S.C., had in Ogidi & Ors. v. Chief Daniel B. Igba & Ors. (1999) 10 NWLR (Pt.621) 4 at 6; deprecated the admissibility of such documents made by interested parties pending litigation. He had held that the doctrine is common to both courts of Law and equity. There appears to be considerable force too in the submission of the learned counsel for the Appellants and on the authorities of W.D.N. Ltd. v. Oyibo (1992) 5 NWLR (Pt.239) page 77 at 95 – 96 and Abdullahi v. Hoshidu (1999) 4 NWLR (Pt.638) at 645 – 647 per Pats-Acholonu, J.C.A. (of blessed memory), that by the provisions of Section 91(3) of the Evidence Act, documents made during the pendency of an action for the purpose of the action and particularly after pleadings have been filed should not be admitted on the grounds that they lack evidential value and would tantamount to stealing a match against an opponent. However, the applicability vel non of Section 91(3) to the peculiar facts of this case, must be determined against the background of section 91(4) which provides that:-

“(4) for the purpose of this Section, a statement in a document shall not be deemed to have been made by a person unless the document or material part thereof was written made or produced by him with his own hand, or was signed or initialed by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible “.

Going by the provisions of this subsection, can there be any substance in the submissions of the learned counsel for the Appellants? It is clear even from the face of the document pilloried by the Appellants that the survey plan was made by the Survey Department of the Ministry of Lands and Surveys. The document was said to have been prepared in May, 2001, and it was certified as a true copy by the Surveyor-General and countersigned by him on the 19th April, 2004. Apart from the fact that the document was not produced under the hand of the Plaintiffs/Respondents, the makers of that document were/are dispassionate public servants without any interest to serve.

To quote the dicta of their Lordships of the English Courts and indeed our Supreme Court in the various cases earlier cited, the officials of the Ministry of Lands and in particular the Surveys Department of Kwara State, have no temptation to depart from the truth on one side or the other and are persons “not swayed by any personal interest, but completely detached, judicial, impartial and independent”. They are merely Civil Servants who drew the plan in the course of their duty and they can therefore not be brought within the purview of interested persons and within the meaning of Section 91(3) of the Evidence Act, Cap. 112, Laws of the Federation, 1990, (then applicable to the case), they having nothing to benefit from the outcome of the litigation between the parties.

I have already held earlier on that, by virtue of Sections 39; 40; 109 (a) (ii) and (iii); 111; 112; 113 (iii) (iv), 114 and 150, of the Evidence Act, and if I may add, Section 97(1) (e) and (2) (c) of the Act, such a document being a certified true copy of a public document can be tendered from the bar and indeed becomes admissible on mere production by the Appellants as in this case.

I find no merit in the argument by the Appellants nay their insinuation on the authorities of UNIC v. JCIC Ltd. (1999) 3 NWLR (Pt.593) (Supra; Bello v. Ringim (1991) 7 NWLR (PL 206) (Supra) and ACME v. KSWB (1999) 2 S.C. 1 at 14; that the survey plan was not tendered by the makers and that the learned trial judge had made a case for the parties. The findings of the learned trial judge were borne out of the face of the survey plan sought to be tendered and was accordingly admitted by the Court below on the peculiar facts of the case. Those findings were therefore, not perverse and no miscarriage of justice was occasioned by the decision of the learned trial Judge which I find unassailable, contrary to the insinuations of the learned counsel for the Appellants who still has the opportunity to cross-examine the Respondents on the contents of the plan and its authenticity. I am therefore not inclined to interfering with those findings so as to warrant their being set aside.

On the whole, I cannot fathom the relevance to the appeal at hand of the cases of Fasel Services Ltd v. N.P.A. (2009) 9 NWLR (Pt.1146) 400 at 416 and F & F Farms (Nig). Ltd v. N.N.P.C. (2009) 12 NWLR (Pt.1155) at 387 particularly at 402; cited by the learned counsel for the Appellants in their Reply Brief.

As for the submission by the Appellants that there is a misleading reference of the Respondents to their (Appellants) admission that the preparation of the disputed plan was done by an agent of the Government whereof the court was referred to pages 26-28 and 32-34 of the Records; I have looked at the pages referred to by the parties and I have found out that whereas the Plaintiffs/Respondents in paragraphs 10, 11 and 22 of their statement of claim pleaded that after they had enjoyed unchallenged and uninterrupted possession and ownership of the disputed land for 26 years following their resettlement, the defendants sometime in the year 2001, attempted to enter into the portion of the land (paragraph 10 of the Statement of Claim).

In paragraph 11, they averred that: “The challenge led to a dispute which was referred to the Ministry of Lands and Housing, Ilorin. The Ministry waded into the matter and communicated the official government position to the Defendants vide a letter dated 27th July, 2001. The letter is pleaded”. There is no indication whether in the course of the dispute in 2001; the Ministry of Lands/Surveys Department drew the plan of the land in dispute. However in paragraph 22 of their Statement of Claim they “plead all letters, plans and correspondences relevant to this suit and will rely on all rule of Law doctrine of equity relevant to this suit.”

On the other hand; the Defendants/Appellants’ case with regard to their plan is as pleaded in paragraphs 9-12 of their Statement of Defence and what emerges from the pleadings of the parties is that, whereas the plaintiffs/respondents rely on plans (one of which is the survey plan of May, 2001, so tendered and admitted as Exhibit 1 by the court below), the defendants/appellants on their part, specifically rely on a 1975 TPO plan which was redrawn in 1982 and following the dispute in 2001, the Ministry of Lands and Housing wrote to parties interpreting the redrawn TPO plan of 1982 by a letter dated 27/7/2001. According to the Plaintiffs, “Sometime in September, 2002, the Permanent Secretary, the Surveyor-General as well as other staff of Ministry of Lands and Housing, Ilorin with both the Plaintiffs family and the defendants family present on site at Obanisunwa demarcated the boundary of the Plaintiffs’ family land premised on the redrawn TPO Plan of 1982, with a tractor which was not disputed then”. See paragraph 12 of the Statement of Defence.

Could be that the plan tendered by the plaintiffs is a result of this further demarcation? It would appear that the parties are saying virtually the same thing that the plans they rely on to establish their respective cases were drawn by the Survey Department. Rather than dissipate energy on the admissibility vel non of the plan to the extent of this interlocutory appeal, any of the parties should have subpoenaed the Survey Department to come and identify the authentic plan and the extent of the each other’s land from the respective plans tendered by each of the parties. Alternatively, the Court can suo motu join the Ministry of Lands (Surveys Department) as a party so that the matter can be effectively, effectually and completely determined in the interest of justice, harmonious relationship and the peace and stability of not only Ilorin West Local Government Area, but the entire State.

Finally, I am not oblivious of the decision in the English case of Noakes v. Don Caster Amalgamated Collieries Ltd. (1940) A.C 1014 at 1022 and the position of the Law as enunciated in Maxwell on the Interpretation of Statutes 12th Edition at 199; that in the determination of either the general or specific intention of the legislature or the meaning of its language in any particular passage, the intention which appears most in accord with conveniences, reason, justice and legal principles should in all cases of doubtful significance, be presumed to be the true one. Learned for the Appellants was also on very solid ground when he posited that judges are not called upon to apply their opinion of policy so as to modify the plain meaning of statutory provisions.

I reiterate that the learned trial Judge did not import his opinion or policy to modify either the provisions of the Survey Law of Kwara State or of the Evidence Act in the exercise of his interpretative jurisdiction. Rather, what the learned trial Judge did was in accord with long established principles of interpretation of statutes and given judicial endorsements by our apex Court in a long line of cases and I need just to cite a few, beginning with the dictum of Emeritus Eso, J.S.C., in the Attorney-General, Ogun State v. Alhaji A. Aberuagba & Ors. (1985) 4 S.C. (Pt.1) 288 at 383, where he asserted that:-

“In the interpretation of statutes, the ordinary literal meaning must first be examined. If the words are clear and unambiguous then the ordinary literal meaning must be given to them, for then, the intention of the Law maker has not been obscured. It is only where there is doubt or ambiguity, that recourse is made to other canons of interpretation. See Awolowo v. Shagari (1979) 6-9 S.C. 51″

See further Nafiu Rabiu v. The State (1980) 5-11 S.C 130 at 148; Savannah Bank of Nig. Ltd v. Pan Atlantic Shipping & Transport Agencies Ltd & Anor. (1987) 1 S.C. 198 at 294; IBWA Ltd v. Imano (Nig.) Ltd. & Anor (1988) 7 S.C.N.J (Pt. 11) 326 at 344-345; Abubakar v. Yar’ Adua (2008) 19 NWLR (Pt 1120) 1 S.C; Agbareh v. Mimra (2008) 2 NWLR (Pt. 1071) 378 S.C; and Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 S.C”.

In the case at hand, the wordings of the statutes interpreted are clear and unambiguous so also from the survey plan tendered, could the Court infer that it was prepared in 2001, seventeen months before litigation by the Surveys Department – an independent party and an organ of the State not interested in the outcome of the proceedings, assuming the document was even prepared pende lite. Again, the Supreme Court in 1994, (when the Survey Law of Kwara State which allegedly vitiated the admissibility of Exhibit 1 was enacted), had through Iguh, J.S.C.; laid it to rest in Oba Goriola Oseni & Ors. v. Yakubu Dawodu & Ors. (1994) 4 SCNJ 197 at page 211 para. 25-40 & 213 para. 25-40 to page 214; that:-

“There can be no doubt, therefore, that as far back as in 1974, the provision for the Surveyor-General to counter-sign survey plans before they shall be admitted in evidence had been dispensed with throughout the Federation. I must, with respect, therefore disagree with the submission of learned Appellants’ counsel that it was by the Lagos State Survey Edict No. 8 of 1984 that the provisions of section 3(1)(b) of the Survey Law of Lagos State 1973 were first abrogated. In my view Decree No. 34 of 1974, which pursuant to its express terms has effect throughout the Federation covered the field of the subject matter in issue, that is to say, the issue of the position of the law throughout the Federation in so far as the counter-signature of the Surveyor-General on a plan is concerned as a precondition to its admissibility in a court of law. This point must be made as the superiority of a Decree or an Act of the National Assembly over an Edict or a State Legislature is beyond dispute (pages 111 and 112)”

On the whole, Issue Number 2 shall again be resolved against the Appellants and in favour of the Plaintiffs/Respondents. The Ruling of the learned trial judge admitting” the survey plan tendered by the Plaintiffs/Respondents is hereby affirmed. This interlocutory appeal therefore lacks merit and is accordingly dismissed with N30,000.00 (Thirty Thousand Naira) costs in favour of the Plaintiffs/Respondents. .

SOTONYE DENTON WEST, J.C.A: I have had the privilege of reading in advance the Judgment just delivered by my learned brother IGNATIUS IGWE AGUBE (JCA) and I am to an extent constrained to agree with his conclusion herein, although from a different view point and reasoning. However for emphasis and more elaboration, I would like to add thus that, this appeal is against the Ruling of the High Court of Justice of Kwara State, Holden at Ilorin, delivered by the Honourable Justice I. B. Garba, on the 30th day of October, 2008, admitting a Survey Plan No. KWA 370 as Exhibit 1.

The Appellant and the Respondent filed their different briefs of argument. The Appellants. Counsel filed their Appellants brief of argument dated 31/03/2009 and filed same on 2/04/09. the Appellant also filed a reply to the Respondents brief dated and filed 8/10/09. Raufu Ibrahim Esq., Learned Counsel to the Respondent’s thereafter filed a brief of argument which was deemed properly filed and served on 08/10/09. The appellant’s Counsel I. AbdulAzeez Esq., prayed this Court to allow his appeal and order a retrial before another Judge of the High Court of Kwara State.

On 18 day of January 2010,the Appellants’ and the Respondents’ counsel adopted their deemed and properly filed briefs.

The Appellant’s Counsel deduced 2 issues as follows for determination by this Honourable Court:

(1) Whether-the Learned Judge was right in admitting in evidence a purportedly prepared survey plan in May, 2001 and counter-signed by the surveyor General on 19th April, 2004, when the suit was instituted on 11th October, 2002.

(2) Whether the Trial Judge was right in his construction, interpretation and application of Section 91 (3) of the Evidence Act, CAP 112 LFN 1990 to the admissibility of a Survey Plan counter-signed by the Surveyor General on 19th April, 2004, whilst a suit was pending.

The Respondent’s Counsel also adopted these same issues.

The Appellant argued his two issues separately, but same will be treated together because the Respondent treated same jointly.

ISSUES 1 AND 2

The Appellant’s Counsel, started by drawing the mind of the Court to the facts that a Writ of Summon was taken out by the Respondents on the 11/10/02, claiming a number of reliefs as it appeared on pages 1 to 3 of the record and a motion on notice with a supporting affidavit and the (3) Annexure marked as Exhibits A, B and C respectively on 27th January, 2003, as appearing on pages 4 to 16 of the record.

That the Respondents deposed in paragraph 10 of the supporting affidavit thus:-

That the Kwara Government surveyed the land and gave us copies. A copy of the survey plan is herein annexed as Exhibit A, as appearing on page 6 of the record.

Following the ruling of the Lower Court presided over by Orilonise J. on the 23rd day of July, 2003, the Court ruled inter-alia, on page 52 of the record thus; “However, for the purpose of the present application, I will simply say I do not attach any probative values to either Exhibit A or B, Exhibit A which is a mere site plan does not bear the signature of its drawer and cannot be regarded as a survey plan of the land in dispute, since, the site plan, Exhibit A, filed by the Applicants has no probative value no interlocutory injunction can be granted.”

Appellant counsel then stated that it was curious that the said survey plan, as was shown above, had been disregarded as evidence by Orilonise 1 The survey plan was brought into the trial and this time the drawer had appended his signature in May 2001 and counter-signed by the Surveyor-General on 19th April 2004. Respondent counsel relied on the case of OMORINBOLA II VS. MILITARY GOVERNOR OF ONDO STATE (1995) 9 NWLR (PT 418) PG 242 to State that a documentary evidence must bear the date of its authorship, and concluded that the non-insertion of the precise date of the preparation of the survey plan as against May-2001 is defective and inadmissible in evidence.

Appellants counsel further submitted that the purported survey plan is a registrble instrument affecting land and as such ought to be counter-signed by the Surveyor-Generla when it was purportedly prepared in May, 2001 by a Surveyor. He cited section 9(2) of the land instrument (Preparation) Law of Kwara State 2004. He further stated that where a survey plan is not counter-signed by a Surveyor-General it is inadmissible no matter how well and properly drawn. He cited the case of LAWSON VS. ANFANI CONT. CO. LTD. (2002) 2 NWLR (Pt. Pg. 585 AT 618 AND ATOLAGBE VS. SHORUN (1985) 1 NWLR (PT.2) AT 360.

The Appellants counsel alluded that the survey plan was cunningly prepared during the pendency of this suit to over reach the Appellants, because the survey plan which was handed to the respondent prior to the filling of the writ of summons and the motion was only just counter signed by the Surveyor-General on the 19/4/2004, almost two years into the life of the writ of summons. He referred the court to the case of IDOWUALASHE VS. SANYA OLORI ILU (1964) 1 ALL NWLR 383 AT 390.

The Appellants counsel also stated that if the survey plan had been prepared by a licensed surveyor and counter-signed by the Surveyor-General prior to 11/10/02, when the writ of summons was filed in court, that the Respondents would have annexed it to the motion on notice dated 27/01/2008 filed by them. The Appellants counsel also observed that the purported survey plan annexed to the motion on notice of 27th January, 2003 is quite different from the one tendered on 28th July, 2008. He referred the court to pages 4-16, 37-41 ancT58 of the record. Appellants counsel concluded his argument on issue 1, by stating that the learned trial judge would not have come to the decision of admitting the survey plan as evidence as he stated on page 58 of the record after painstakingly considering the facts and the antecedent of the two documents and the submissions made by the counsel in respect of them. The Appellant counsel urged this court to resolve this issue against the respondents.

Appellants counsel started his argument on the second issue by stating that the issue has been narrowed down by the ruling of the learned trial judge when he inter alia stated thus:-

As regards the second issue that the survey plan was made during the pendency of this case, I believe section 91(3) of the Evidence Act has sufficiently and appropriately provide a relief or succor. The provision says;

“91(3) nothing in this section shall render admissible as evidence any statement made by a person interested at a time when Proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

….”although the survey plan in question carried the date of May 2001 as the period the land was surveyed which proceeded (SIC) the institution of this case in October, 2002 but contained the name and signature of Acting Surveyor-General dated 19th April, 2004. Yet, I hold that does not invalidate the said survey plan as it was not drawn by the claimants but by the government agency who is not interested in the pending proceedings….”

The Appellants counsel stated that the interpretation of section 91(3) of the Evidence Act Cap 112 LFN 1990 is misleading. That the law was not interpreted within its ordinary meaning by the lower court, when it held that the survey plan was not prepared by the Respondents, but by the Cadastral section of Kwara State surveys, Ilorin and as such was admissible in evidence, though not backed up by the evidence of the claimant witness. The Appellants counsel submitted that fudges are not called upon to apply their opinions of policy so as to modify the plain meaning of statutory words. He cited the case of NOTES VS. DON CASTER AMALGAMATED COLLIERIED LTD. (1994) AC 1014 AT 1022, and Maxwell on the Interpretation of stages 12th edition page 199 and opined thus:-

“in determining either the general object of the legislature or the meaning of its language in any particular passage, it is obvious that the intention which appears to be most in accord with conveniences, reason, justice and legal principles should in all cases of doubtful significance, be presumed to be the true one.”

The Appellants counsel further submitted that the survey plan would not have been admissible in evidence if any attempt had been made to tender it in evidence before the 19th April 2004 when the Acting Surveyor-General counter-signed it, he said his argument is strengthened by the fact that any survey plan not countered by the Surveyor-Genera, is inadmissible in evidence and he cited the case of ATOLAGBE VS. SHORUN (1985) 1 NWLR (P.72) AT 360.

The Appellants counsel also contended, that the statement by the trial judge to the effect that the survey plan was not prepared by the respondent and as such was not caught by the provision of section 91(3) of the Evidence Act Cap 112 LFN-1990 15 is not tenable in law and they cited W.D.N. LTD. VS. OYIBO (1992) 5 NWLR PT239 PG 77 AT 95-96, where the court held as follows:

“Where a document is prepared during the pendency of an action for the purpose of the action, the court should not attach any weight to it”

He also cited the case of ABDULLAHI VS. HASHIDU (1999) 4 NWLR PT. 638 AT PG 645-646: where it was held that

“Documents made in the course of proceedings after pleadings have: been filed and served have no evidential value and should not be admitted in evidence.”

Particularly at pages 645-646 Per ACHOLONU, JCA thus:

“7776 next issue is as to the status of exhibit JJ and KK. There is no doubt that when these documents were made pleadings have been filed and served therefore they were made at the time of the proceedings of the case. Exhibit M2 is a document which omits face value appears to be the governments expression of its acceptance of the recommendations of the judicial commission of inquiry which indicted the 1st respondent exhibits JJ and KK which on their face seek to explain the Federal Government’s position on ‘M2’ were obviously wrongly admitted as they were made in the course of the proceedings. Therefore they are of no evidential value in assessing the worth of these documents.”

The Appellants counsel concluded that following from the above authorities, the mere fact that a document was prepared by a government agency whilst a suit is pending will not make it to be saved by the provision of section 91(3) of the Evidence Act, Cap 112, LFN 1990.

The Appellant counsel further submitted that the reasoning of the learned trial judge to the effect that the said survey plan was not prepared by the respondents but by the Cadastral section of the Survey Department of Kwara State and by that fact, admissible in evidence, is inconsistent with the known Nigerian Law. His submission is predicated on the fact that the Cadastral section of the-survey department was not called as a witness to testify which ordinarily they should have, since they are the makers of the document and could have tendered the survey plan in evidence. The fact that the trial judge held that the survey plan was not prepared by the Respondents admits that the Respondents are not the makers and the Survey Plan could not be tendered through them, therefore, the failure of the Respondents to call the maker of the Survey Plan and the absence of any evidence as to the whereabouts of the maker will render the document inadmissible in evidence. The Appellants referred the court to UNIC VS. UCIC LTD. (1999) 3 NWLR (PT 593) AND BELLO VS. RINGIM (1991) 7 NWLR (PT) 206 to buttress their point.

The Appellants further stated that the Trial judge by asserting that the Survey Plan was prepared by the Cadastral section of Kwara State surveys without any evidence by the witness through whom the document was sought to be tendered made a case for the parties. That a party establishes his case or fails, he cited the case ACME VS. KSWB (1999) 2 SC 1 AT 14 in support of their position.

The Appellants further stated that it is trite law that a Court of Appeal should not interfere with the findings of facts of the lower court except such findings are perverse having been based on inadmissible evidence or that having been rejected, it occasioned a miscarriage of justice. He referred the court to ACME VS. KSWB (SUPRA) AT 15.

The Appellants counsel occluded his brief of argument by stating that based on earlier submissions, it is their avowed conviction that a survey plan purportedly, prepared in may, 2001 without a specific date in the said month and counter-signed by the Surveyor-general on 19th April, 2004 was not in existence prior to the institution of the suit on 11/10/2002 otherwise, it would have been employed to seek for the injunctive reliefs prayed for in the motion on notice dated 29th January, 2003 by the Respondents, and of which the respondents agreed by virtue of paragraph 10 of the affidavit in support of the said motion on notice. The appellants counsel urged the court to resolve the appeal in the Appellants favour.

The Respondents counsel, Raufu Ibrahim Esq., in arguing the two issues together, submitted that the provision of sections 3 and 4 are dear and unambiguous and must be given their plain and ordinary meaning. He cited the case of F.C. UDOH & ORS VS. ORTHOPAEDIC HOSPITALS & ANOR (1993) 7 SCNJ 436 to emphasize his point.

The Respondents stated that the Survey Plan satisfied the requirement of the law rendering it admissible in evidence and that the fact that the survey plan was subsequently counter-signed on 19/4/04 by the Acting-Surveyor-General does not render it admissible in evidence. He urged this court to so hold. Expartiating that section 3 of the Survey Law of Kwara State states that the counter-signature of the Surveyor-General is not necessary but a surplusage and cannot render inadmissible an admissible document.

The Respondents counsel cited the case of ALHAJI A. ALIYU VS. DR. J.A SODIPO (1994) 5 SCNJ 1, 20-21, where he stated that the Supreme Court, while interpreting, held that the requirements for counter-signature relate to matters of evidence and that the production of the document in evidence and a non-compliance with the Survey Act does not render the plan void or useless. Respondents counsel further stated that the contention that the Survey plan shows clearly on its face that it was prepared in May, 2001 by Surveyor T.A. Afolayan, whilst the suit was filed on 11/10/2002. He thus submitted that a document is in law presented to be made on the date ascribed to it and not the date of counter-signature, he referred the court to section 4(1)9a)(b) of survey law. The Respondent’s counsel further submitted that section 91(3) of the evidence Act is not applicable to this case because the government of Kwara State, and its Agency, the Survey department, cannot and do not qualify as interested parties.

The Respondent’s counsel also stated that from the pleadings of both parties it is admissible that the disputed land is a resettlement scheme acquired by the government and that the plan was prepared by government agency. He stated that the law is that parties are bound by their pleadings and a fact admitted by the defendant in his pleading need not be proved any more by the plaintiff. He cited the case of OBA GORIOLA OSENI & ORS. VS. YAKUBU DAWODU & ORS. (1994) 4 SCNJ 197, 217 for emphasis. Hence, from the pleadings of both parties, the government of Kwara State is not an interested party in this case, neither was it made a party to it, and its agency, the survey department is by the same token not an interested party.

The respondent’s counsel argued on the comparison between a state plan attached to a motion for interlocutory injunction as exhibit A and a survey plan, that the comparison does not arise as the two document are clearly not the same, he concluded that the argument is irrational and the contention untenable in law. The respondent’s counsel urged the court to resolve the issue against the appellant and to dismiss the appeal.

The respondent counsel concluded by praying this court to dismiss the appeal on the following grounds:-

1. The survey plan satisfied the requirements of the law of its admissibility in evidence.

2. The survey plan having been prepared in May 2001 predates the filing of this suit in October 2002 by a year and 4 months.

3. The survey plan pleaded, is relevant and admissible in evidence.

4. The survey plan is admitted by both parties in their pleadings as been prepared by a government agency who is not a party to the suit, long before the suit was field. The counter-signature of 19/4/04 is of no moment and does not affect its admissibility.

5. This appeal is a ploy to delay the hearing and expeditious determination of this case of 7 years.

6. The admissibility of the document is in the interest of both parties and justice.

The appellants counsel in its reply to the respondents brief canvassed only a sole issue, that is, whether the trail High Court is right in law in admitting the Survey plan in evidence.

The appellant’s counsel submitted that section 4(3) of the survey law cap 13 laws of Kwara State, 2006 specifically provides for penalty on the failure of complying strictly with section 4(1)(a) and (b) of the said law. Respondent’s counsel stated that the attitude of the court to the interpretation of statute of this nature is well encapsulated in the Supreme Court’s decision in the case of FASEL SERVICES LTD. VS. N.P.A. (2009) 9 NWLR PT.1146 PG. 400 AT 416, where the court held that where a statute declares a contract or transaction between parties void and imposes a penalty for its violation, that contract or truncation is illegal ab initio, where the legal sanction is merely to prevent abuse or fraud and no penalty is imposed for the violation of the provision of the statute the violation is merely voidable and not illegal. The appellant counsel concluded the following from the decision of the Supreme Court in the above case, that the non-presentation of the purported survey plan is admissible in evidence when it was tendered in evidence as there is a penalty imposed for failure to comply with the presentation of the survey plan for the counter-signature of the Surveyor-General within a month of its preparation.

The appellants counsel distinguished between the cases of ALHAJI A. ALIYU VS. DR. J.A. SODIPO, which was cited earlier by the respondents in their brief, and this case, the difference being that in this present case, the survey plan was purportedly dated May 2001 and counter-signed on 19th April, 2004. While in Aliyu’s case, the deed of conveyance was made in 1956 with reference to a survey plan attached to it at the time the deed was executed, but the registrar of deed discovering that the survey plan was not counter-signed by the Surveyor-General which was subsequently counter-signed before its registration in 1956 was admissible in evidence in a suit instituted in 1976. The Appellants counsel further stated that if the counter-signature of the Surveyor-General had been endorsed prior to the institution of the suit on 11/10/2002, the appellants would not have taken any objection to the admissibility of the said survey plan. Moreso, no good clause was shown at the lower court for the discrepancies as envisaged in Aliyu’s case (supra). The good cause shown in Aliyu’s case is that the survey plan was counter-signed in 1956 and not in 1976 when the suit was instituted.

The appellants counsel then concluded by stating that their position is strengthened by the decision of the Supreme Court in F & F FARMS (NIG.) LTD. VS. NNPC (2009) 12 WLR PT.1155 AT 387, where the apex court distinguished the facts in the said case with that of EBOIGBE VS. NNPC (1994) 5 NWLR (PT.347) AT 549. On the interpretation of N.N.P.C. enabling law, the Appellant further submitted that based on the records of the court especially as found in page 33, paragraph 9, page 21, page 4 to 16 and page 58, there is no inference that can be deduced from the logic put forward by the respondents that the appellant admitted the existence of the purported survey plan dated May, 2001.

The appellants urged this court to allow their appeal.

On issue 1 and 2 that were argued together, it is necessary to explore the relevant laws and guiding principles to know which party’s view, the court would accept in the circumstances of this case. The two main grouse here as stated in the briefs of argument is narrowed down to one issue, which is on the admissibly of a survey plan that was purportedly prepared during the course of this action at the trial court. Section 4(2) of the survey law cap section 23 laws of Kwara State 2006 provides thus:

Section 4:(1) where a licensed surveyor prepares any map, plan or diagram which is to be annexed to, or from part of, any registrable instrument, he shall:

a) insert the date of completion of the preparation of the map plan or diagram at the foot or other conspicuous part thereof and

b) within one month of the date of completion submit a copy of the map plan or diagram to the State Surveyor-General.

(2) The Surveyor-General shall, on receipt of any of the documents provided for under subsection

(i) above, issue a certificate of deposit to the licensed surveyor on payment of a fee of two hundred naira.

While section 91(3) of the Evidence Act provides that

‘nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish’.

To start with, I agree in toto with the citation of the respondents, wherein the apex court held in the case of ALHAJI A. ALIYU VS. DR. J.A.A SODIPO (SUPRA) that:

“Where a plan is tendered per se but does not confirm with the requirements of section 3(b) of the survey law (Act) it may nevertheless be admitted in evidence if good cause is shown to the court for non-compliance. Even assuming that the counter-signature of the Surveyor-General is sine qua non to the admissibility of the plan attached to the deed of conveyance, the fact that it was subsequently counter-signed by the Surveyor-General would cure whatever defect there might be. Lack of counter-signature does not render the plan void.”

I have painstakingly taken my time to read the authority of ALIYU VS. SODIPO (SUPRA) and I can see that it is totally different from this case. In Aliyu v. Sodipo’s case, the survey plan was not prepared during the pendency of a case in court, it had to do with discrepancies in dates of executing the deed. The main issue here is, will a party be allowed to use a document that was prepared when the case has already been instituted? By the guidance of section 91(3) of the Evidence Act, I will say that any document that was prepared during the pendency of a case will not be admissible, though there are some exception that deals with production of statement of Bank account. It does not have anything to do with this case.

Even though I agree with the conclusion of my learned brother AGUBE JCA, I had simply wanted to show that the issue of admissibility of a document depends on the circumstances and facts of a case which is never static. However I am also obliged to concede that the ruling of the trial Judge admitting the survey plan tendered by the plaintiff/respondents be affirmed and that the appeal lacks merit and is accordingly dismissed. I abide by the Thirty Thousand Naira coss in favour of the respondents.

CHIMA CENTUS NWEZE J.C.A: I had the privilege of reading the draft of the leading judgment which my Lord Agube JCA just delivered now. I agree with His Lordship that this interlocutory appeal is unmeritorious and should, therefore, be dismissed.

However, I would like to make a few comments first, on the submission relating to section 91(3) of the Evidence Act. At page 44 of the record, the lower court held that:

Although, the survey plan in question carried the date of May, 2001, as the period the land was surveyed which preceded the institution of this action…but contained the name and signature of (sic) Acting Surveyor- General dated 19th April, 2004, yet I hold that, that does not invalidate the said survey plan as it was not drawn by the claimants but by the government agency who (sic) is not interested in the pending proceedings.

Learned counsel for the appellant disagreed with this view of the lower court. He contended that the court erred in its view that the said plan was not prepared by the respondent but by a Government agency and ipso facto admissible.

Now, although, the Evidence Act does not define the meaning if the word “interested”, judicial expositions on the word tend towards its narrow interpretation to ensure its effectiveness and, more importantly, to permit the continuance of ordinary legitimate transactions see per Karibi-Whyte JSC (as he then was) in Anyaebosi v R. T. Briscoe Nig Ltd (1987) 3 NWLR (pt 59) 84, 109. Pursuant to this narrow interpretation, surveyors, like experts in all other fields of learning, are not categorised as persons interested in respect of the statements coming within the ambit of section 91(3) (supra).

The justification for this position can be found in the unanswerable explanation of the Supreme Court in Apena v. Aiyetobi (1989) 1 NWLR (pt 95) 85 at 94 to the effect that such persons have no temptation to depart from the truth as they see it from their professional expertise.

The lower court, therefore, rightly admitted the exhibit not because of the reason it gave, namely, that it was prepared by a government agency; rather, it was because the exhibit came within the category of documents prepared by experts: experts whose professional expertise tend to insulate them from the foible of making untrue statements.

One final point: it is difficult to understand all the fuss about the countersignature of the Surveyor-General. It is, actually, surprising that counsel could, in 2010, be canvassing arguments that had long been overtaken way back in 1974.

This is so for, as Iguh JSC (as he then was) explained in Oseni and Ors v Dawodu and Ors (199) 4 SCNJ 197, 211, Decree (now Act) No. 34 of 1974, which pursuant to its express terms, had effect throughout the Federation, covered the field of the subject matter. The fallout of that enactment was the dispensation with the counter-signature of the Surveyor-General as a condition precedent to the admissibly of survey plans. The contention of counsel is, therefore, unfounded.

For these, and the more detailed reasons contained in the leading judgment of my Lord Agube JCA I, equally, enter an order dismissing this appeal. I abide by the consequential orders in the said leading judgment.

Appearances

I. Abdulazeez Esq.,For Appellant

AND

L. O. Abdulsalam Esq.For Respondent