Relevance of a survey plan in establishing the boundaries of a piece of land

NOTABLE DECISIONS

ON THE RELEVANCE OF A SURVEY PLAN IN ESTABLISHING THE BOUNDARIES OF A PIECE OF LAND

In Eigbejale v. Oke (1996) 5 NWLR (Pt. 447) 128 at 143 to 144 H-B, the Supreme Court, per Iguh JSC, held thus,

No doubt, the law is well settled by a long string of authorities that the onus lies on the plaintiff who seeks a declaration of title to land to establish with certainty and precision the area of land to which his claim relates. See Akinola Barua v. Ogunsola (1938) 4 WACA 159; Ezeokeke v. Ununocha Uga and others (1962) SCNLR 199; (1962) 1 All NLR 482; Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325; Olusanmi v. Oshasona (1992) 6 NWLR (Pt. 245) 22 at 36; Ate Kwadzo v. Robert Adjei 10 WACA 374; Imah v. Okogbe (1993) 9 NWLR (Pt. 316) 159 etc. Where, however, the land in dispute is so clear that it leaves neither the defendant nor the court in any doubt as to the specific area claimed in the sense that from the plaintiff’s description thereof, a surveyor can produce a plan showing accurately the land in dispute, the plaintiff will be deemed to have discharged the onus on him to prove the specific area he claims. See Ate Kwadzo v. Rober Adjei supra; Ezeudu v. Obiagwu (1986) 2 NWLR (Pt. 21) 208 at 220; Rowland Omoregie and others where the land in dispute is certain and clear and there is no difficulty whatever in identifying its precise extent and boundaries, a declaration of title may be made even without it being based on or tied to a survey plan. See Sokpui v. Agbozo WACA 249; Etiko v. Dikibo 91976) 6 SC 97.

In the book, Law of Evidence in Nigeria at page 1444, learned author, S.T. Hons. SAN, opined that

a survey plan, usually drawn by a licensed surveyor, is admissible in evidence as the written opinion of an expert under section 68 of the Evidence Act. Thus, in Elias v. Omobare (1982) 1 ALL NLR (Pt. 1) 70, the Supreme Court held that in accordance with “established practice”, it is always the duty of the plaintiff to produce an accurate plan of the land in dispute and that such a plan must be served on the defendant.

In Elias v. Omobare (1982) 1 ALL NLR (Pt. 1) 70 at 83, the Supreme Court, per Udo Udoma JSC., held thus

the issue of boundaries is most crucial in a case of this nature, because, according to the testimony of Momodu Ilo (PW3), accepted by the learned trial judge and as pleaded in paragraph 5 of the amended statement of claim, the portion of land sold to the appellant and covered by the deed of conveyance, Exhibit A was only part of a larger area of land originally the property of Oshoja family, the said larger area having partitioned on the death of Oshoja among his four children. The portion sold to the appellant was said to be the portion which fell to the share of Talabi and of which Talabi was seised in accordance with “Yoruba native law and custom”. It is for these reasons that the averments contained in paragraph 2 of the amended statement of claim become most relevant and important and, indeed, vital to the case of the appellant. The necessity to produce at the trial a proper plan of the land claimed by the appellant and in dispute prepared by a licensed surveyor, and on which should have been delineated certain prominent features found thereon including the particular portion on which the house of the respondent had been erected as being within the area acquired by the appellant must have been fully appreciated when the pleadings were settled. It was in consideration of that fact, it must be presumed, that the appellant promptly and properly pleaded in paragraph 2 of this statement of claim by way of notice of the respondent that he would produce at the trial a plan of the land in dispute showing the area upon which the respondent had committed acts of trespass of which the appellant was complaining.

The Court went further at page 84 of Elias v Omobare (supra) to expound that,

In the normal course of events and in accordance with established practice, it is always the duty of the plaintiff who seeks the decree of declaration of title to land to produce an accurate plan of the land sought to be so declared. Such a plan must have been prepared by a licensed surveyor, and since the Survey Act 1952, countersigned by the Director of Surveys. A copy of such plan must be served on the defendant against whom the declaration is sought to enable him to know the land claimed against him. Such a plan must also show clearly features appertaining to the said land, the subject matter of the suit. Without such a plan, a defendant or respondent, as here, would be highly prejudices to the extent of being unable to put forward a proper defence to the action in that he would be ignorant of the area the subject matter of the claim by the plaintiff.

It is also noteworthy that an inaccurate plan or a description of land in a survey plan that contradicts the description of the land, say in the pleading, will defeat a plaintiff’s claim Ogedengbe v. Balogun (2007) All FWLR (Pt. 366) 615 at 628 SC.

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