Chief Ademola Ogunniyi & Anor. V. Dr. Funsho Adaramola & Anor. (1973)
LawGlobal-Hub Lead Judgment Report
O. ELIAS, C.J.N.
This appeal is against the ruling of the High Court of Kwara State holden at Borin in which an application for an order of certiorari was refused.
The matter originated in this way in so far as can be gathered from the proceedings. There occurred a boundary dispute between Offa and Erinle communities in Oyun Division of Kwara State. In exercise of the powers conferred upon him under sections 3 and 5 of the Local Boundaries Settlement Edict No.9 of 1970, His Excellency, the Military Governor appointed Dr. Funsho Daramola as “Boundary Settlement Commissioner” and ordered him to enquire into and determine the boundaries between the two communities. Under section 6 of the said Edict, Mr. Ayo Jonathan, State Counsel, and Mr. A. A. Rotimi, Senior Surveyor, were also appointed as Secretary and Surveyor respectively “to assist the Commissioner who will enquire into and determine the boundaries” between the two communities. These two sets of appointment were published in the Kwara Gazette Notices Nos. 195 and 196 of 29th July, 1971, respectively.
It is to be noted that there is no provision for any appeal against the decision of the Commissioner in the Local Boundaries Settlement Edict No.9 of 1970.
The Commissioner duly carried out his assignment and submitted his determination of the question in controversy between the parties to the Governor of Kwara State. To this report was attached a plan (Exhibit A) in the proceedings before the High Court showing the boundaries as determined by the Commissioner.
It appears that at a certain period during the enquiry into the dispute between the two communities, Dr. Funsho Daramola was himself involved in some enquiry concerning his activities as a Lecturer in Ahmadu Bello University, Zaria. The Council of the University did not reach a decision on this enquiry until about 25th October, 1971.
In consequence of the recommendations made by the Commissioner, Chief George Ademola Ogunniyi, the Are of Offa, and Amusa O. Alawode applied for and were granted leave to apply for an order of certiorari to remove the Commissioner’s determination of the boundaries between the communities to the High Court for the purpose of the same being quashed.
In due course, the application came before Sir Nigel Reed, Chief Justice of the Northern States, for hearing and determination. The application was supported by affidavits. There were also counter-affidavits. Many grounds were argued in support of the application. After having given consideration to the submissions by learned counsel for the parties interested, the application was refused.
The applicants, being dissatisfied with the ruling, have brought this appeal to this court. Although there were four grounds filed only three grounds of appeal were argued before us.
The three grounds in the order in which they were argued before us were the following:-
(1) Having regard to ground 9 of the application for certiorari herein, the learned Chief Justice erred in law in his interpretation of section 8 (a) of the said Edict and in failing to grant the application on ground 9 aforesaid.
Particulars of Error
(a) No plan within the meaning of that section was attached to the Report and, accordingly, the learned Boundary Commissioner exceeded his jurisdiction.
(b) The effect of the requirements in the Edict for such plan is that the plan (with the boundaries ascertained) must be prepared by a person who is a licensed surveyor within the Survey Law.
(c) As an existing plan was the only plan attached to the Report, the “Boundaries” were not drawn by the licensed surveyor who prepared the old plan.
(d) The plan attached to the Report was in effect a plan prepared by the Boundary Commissioner who is not a licensed surveyor and, accordingly, the said “plan” is not a plan within the meaning of section 8 (a) of the Edict.
(2) Having regard to grounds 4, 5, 6 and 7 of the application of certiorari herein, the learned Chief Justice erred in law and on the facts in failing to hold that there was an error on the face of the records as respects the orders made by the Boundary Commissioner about removal of crops, compensation payable, etc. (and set out in section 11 of his Reports) .
Particulars of Error
The learned Boundary Commissioner exceeds his jurisdiction in making these orders and, accordingly, there was an error on the face of the record.
(3) The learned Chief Justice erred in law and on the facts, and misinterpreted section 3 of the Local Boundaries Settlement Edict, 1970, when he held that on the evidence before him the learned Boundary Commissioner was a “fit and proper person to be a Boundary Settlement Commissioner”, and that it was not established that he was not such a fit and proper person on the affidavit.
(a) Having regard to ground 8 of the application for certiorari herein and paragraph 27 of the affidavit in support thereof the said finding by the learned Chief Justice is against the weight of the evidence.
(b) Section 3 of the said Edict requires a Boundary Commissioner to be a “fit and proper person” not only on the date of his appointment but throughout the duration of his judicial functions, and the learned Chief Justice erred in law in holding otherwise.
In respect of the first ground of appeal Mr. Balogun, for the appellants, referred to paragraph 9 of the grounds filed when the application for leave to apply for the order was made. This particular ground reads:-
“9. That the learned Boundary Commissioner exceeded his jurisdiction by just running a red mark over a plan drawn by the Surveyor-General before the commencement of the enquiry purporting the same to be the plan within section 10 (1) of Edict No.9 of 1970 contrary to the Survey Law which provides that a plan can only be made by a licensed surveyor, and when the Boundary Commissioner is not a licensed surveyor.”
Learned Counsel submitted that it was wrong in law for the learned Chief Justice not to have held that the plan (Exhibit A) prepared by the Surveyor-General was not the kind of plan envisaged by the provisions of section 8 (a) of the Edict. He, however, conceded that the Commissioner was a sole Commissioner having regard to the instrument of his appointment and that the plan made by the Surveyor-General would meet the requirements of the Edict, provided the said plan was not interfered with by the learned Boundary Commissioner as he did by running a red mark across the same and indicating the boundaries between the two communities with letters A, B, C, D, E, F and G. By so marking the plan, contended learned counsel, the Commissioner had usurped the functions which should have been performed by a licensed Surveyor.
It seems to us that this submission is based on a misconstruction and a misapprehension of section 8 (a) of Edict No. 9 of 1970, the relevant provision whereof is in the following terms:-
“8. The finding of a Commissioner shall include-
(a) a description of all boundaries determined and a plan thereof;”
Surely the above provision does not contemplate the preparation of a completely new survey plan by a licensed surveyor. The provision may be contrasted with the provisions contained in section 10 (1) of the said Edict which are as follows:-
“10 (1) The Commissioner shall, as soon as practicable, cause the boundaries and the rights or interests in or over land finally determined in accordance with the foregoing provisions of this Edict to be demarcated on the ground and a cadastral survey plan thereof prepared.”
One would have thought that a plan prepared by the Surveyor-General who by law is the only authority to approve plans made by other professional licensed Surveyors ought to be preferred to a plan made by an ordinary licensed Surveyor. A plan by a Surveyor-General must, of necessity, bear the imprimatur of the Government of Kwara State and must be considered more authoritative than other plan. An examination of the plan (Exhibit A) shows quite clearly that all the learned Boundary Commissioner did was to indicate the line of boundary separating the land of the two communties by the letters A to G and to link these letters by a line showing the direction of the boundaries determined by him. This is the normal practice by courts of justice where it becomes necessary to indicate the boundary between contesting parties on a plan duly exhibited and used in the course of a trial of a land dispute, where the boundaries would not otherwise be clear.
We are of opinion that the learned Chief Justice was right when he held that he saw no substance in this complaint as there was no suggestion that the plan was not clear, nor could he see any prima facie objection to the method adopted by the learned Boundary Commissioner. This ground of appeal therefore fails.
On the second ground of appeal, namely that having regard to grounds 4, 5, 6 and 7 of the application for certiorari herein, the learned Chief Justice erred in law and in fact in failing to hold that there was an error on the face of the records as respects the orders made by the Boundary Commissioner concerning the removal of crops, compensation payable, etc. as the learned Boundary Commissioner exceeded his jurisdiction in making such orders. In support of this contention, learned counsel referred to section 11 of the Commissioner’s findings headed: “Effects of the Delimitation on Proprietary Rights and Interests in the Boundary Area”.
The complaint of the appellants on this ground of appeal would appear to be exaggerated because, from the records, all the Commissioner said was that “it shall be open” to the farmer to dismantle and remove his hut, or to the owner of a permanent building to dismantle and remove it within 30 days failing which such building would stand forfeited to the owner; and that “food crops farm shall remain in the owner’s possession until all the existing food crops have been harvested”. It is also to be noted that the Commissioner specified compensation payable in respect of permanent crops.
Although it is true that the Commissioner was appointed to inquire and determine the boundaries between the two communities, we think that the orders complained of appear to be covered by the provisions of section 8 (b) and (c) of the Edict which are as follows:-
“8. The finding of a Commissioner shall include-
(b) a statement of the proprietary or jurisdictional interests by reference to which the boundary has been determined and the findings of the Commissioner with respect to the limits of such interests which are relevant to the settlement of the boundary;
(c) the manner and the extent, if any, in or to which the rights or interests in or over land of any local government authority or community whose boundaries the Commissioner was ordered to determine or of any other local government authority or community permitted to be represented by a legal practitioner at the enquiry, shall be affected by the determination.”
While it is unfortunate and might be considered improper that the word “forfeiture” was ever used by the Commissioner in these orders, might it not have been justified by the maxim quic quid plantatur solo cedit in that once the boundaries have been determined and fixed, it will be an act of trespass for members of one of the communities to cross into the opposite side of the boundaries already determined to belong to the other side. In this connection, crops, hut and buildings stand on the land and form part thereof. Once the boundary had been determined it would be the duty of the owners of such crops, huts and buildings to have them removed or come to some understanding with the rightful owners of the land. It would appear that it was competent for the Commissioner to determine what should happen to such crops, huts and buildings. His orders might therefore be regarded as incidental to his determination of the boundaries between the parties.
Then there is section 11 (1) of the Edict which appears to clothe the decision of the determination made by the Commissioner with finality. It provides: –
“11 (1) Subject to the provisions of section 12, the determination of a boundary, or any rights or interests in or over land of which notice is given in accordance with section 10 shall, notwithstanding anything contained in the notice establishing a local government authority or in any judgment, be final and conclusive as to that boundary, or community boundary, or those rights or interests in or over land and shall not be open to question in any court.”
We are of the view that the Commissioner did not exceed his powers in all the circumstances of this case. In any event, it is not open to this court to consider whether the orders were properly made or not, there being no right of appeal against the orders of the Commissioner. It may, however, be desirable to draw the attention of His Excellency the Military Governor to these orders. He may give consideration to the question whether more time should be given to those affected for the removal of their structures or permanent buildings, if any. This appears to be within his own powers.
The final ground argued concerned the question whether or not the Commissioner was a fit and proper person to have been appointed as Boundary Settlement Commissioner.
We are satisfied and hold that this point was adequately dealt with by the learned Chief Justice. The complaint itself is vague. Furthermore, the proper time for giving consideration to the fitness or otherwise of a person to be appointed Boundary Commissioner must be prior to or at the date of such appointment. If, for any cause whatsoever, the Commissioner subsequently is considered unfit for the job, we believe there is a proper remedy for his removal which is certainly not by means of certiorari. In this particular case the Commissioner was appointed in exercise of his powers by His Excellency the Military Governor under section 3 of the Edict of 29th July, 1971.
The presumption must be that the appointment was made after due inquiries as to his fitness to act in that capacity. It was not until about October, 1971 apparently after the Commissioner had completed his work, before there was a report concerning some inquiry concerning him in relation to his activities in the University of Ahmadu Bello Zaria.
The subject matter of that inquiry had no bearing on the determination of boundaries. The affidavit which contained allegations of misconduct on the part of the Commissioner gave no details or particulars of what the misconduct consisted. It is therefore impossible to determine from such a vague allegation that the Commissioner was not a fit and proper person to act in a judicial capacity which the determination of a boundary dispute involves.
This ground of appeal also fails.
On a very careful consideration of all the grounds argued before us, we were quite satisfied that none of them had any substance or merit, hence we dismissed the appeal on 10th December, 1973 with no order as to costs after due hearing of the same, for the reasons which we now give.
SC.171/1973
