2.6 Penalties, Offences and the Right to Practise

2.6 Penalties, Offences and the Right to Practise

Statutory reference: SURCON Act, Cap S18 LFN 2004, sections 17 to 20.

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1. The three grounds for a direction (section 17(1))

The Disciplinary Committee may give a direction where:

• (a) a registered or provisionally registered person is adjudged by the Disciplinary Committee to be guilty of infamous conduct in a professional respect; or
• (b) a registered person is convicted in Nigeria or elsewhere by any court or tribunal having power to award punishment for an offence (whether or not punishable with imprisonment) which in the opinion of the Disciplinary Committee is incompatible with the status of a surveyor; or
• (c) the Committee is satisfied that the name of any person has been fraudulently registered.

Note the drafting. Ground (a) reaches provisionally registered persons - pupil surveyors - as well as fully registered ones. Ground (b) does not require the offence to be one of dishonesty or to carry imprisonment; the test is the Committee's opinion of incompatibility with the status of a surveyor.

Section 17(4) protects the convicted: a person shall not be treated as convicted unless the conviction stands at a time when no appeal or further appeal is pending or may (without extension of time) be brought.

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2. The three directions available (section 17(2))

Where a ground is made out, the Committee may, if it thinks fit, give a direction:

That is the entire menu. Two boundaries follow:

• Suspension may not exceed six months. A direction suspending a surveyor for a year, or for five years, is outside the section. Where the Committee considers a longer exclusion warranted, the available direction is striking off - which is indefinite until an application under section 17(8) succeeds.
• The Committee imposes no fines. Fines under the Act are imposed by courts under section 18(4), on conviction for an offence.

What the Committee may add is restitutionary: any such direction may, where appropriate, include provision requiring the refund of moneys paid or the handing over of documents or any other thing as the circumstances of the case may require. That is how a client who paid for work never done, or whose field records are being withheld, obtains a remedy through the disciplinary process.

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3. Deferral (section 17(3))

The Committee may defer or further defer its decision as to giving a direction until a subsequent meeting, but:

• (a) no decision may be deferred for periods exceeding six months in the aggregate; and
• (b) no person shall be a member of the Committee for the purpose of reaching a deferred decision unless he was present as a member when the decision was deferred.

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4. Service, appeal and when a direction takes effect (sections 17(5) to (7))

Section 17(5): when the Committee gives a direction, it shall cause notice of the direction to be served on the person to whom it relates.

Section 17(6): that person may, at any time within 28 days from the date of service on him of the direction, appeal against the direction to the Federal High Court. The Disciplinary Committee may appear as respondent, and for the purpose of costs directions it is deemed to be a party whether or not it appears.

Section 17(7) is the provision candidates most often get wrong. A direction takes effect:

• (a) where no appeal is brought within the time limited - on the expiration of that time; or
• (b) where an appeal is brought and is withdrawn or struck out for want of prosecution - on the withdrawal or striking out; or
• (c) where an appeal is brought and is not withdrawn or struck out - if and when the appeal is dismissed,

"and not otherwise howsoever."

So the suspension of effect is automatic and statutory. A surveyor who appeals in time does not need to apply for a stay: the direction simply has no effect until one of the three events in section 17(7) occurs.

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5. Restoration after striking off (sections 17(8) and (9))

Section 17(8): a person whose name is removed in pursuance of a direction shall not be entitled to be registered again except in pursuance of a direction in that behalf given by the Disciplinary Committee on the application of that person. Restoration is a matter for the Committee, not for the registrar and not for the Council.

Section 17(9): a direction for removal may prohibit an application under section 17(8) until the expiration of such period from the date of the direction - and, where he has already made such an application, from the date of his last application - as may be specified in the direction. The Committee can therefore impose a minimum period before any restoration application will be entertained.

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6. Offences (section 18)

Section 18(1) - any person not being duly registered under the Act who:

• (a) for or in expectation of reward practises or holds himself out to practise as such; or
• (b) without reasonable excuse takes or uses any name, title, addition or description implying that he is authorised by law to practise as a registered surveyor,

is guilty of an offence. The reward element applies to limb (a); limb (b) is about titles and is qualified instead by "without reasonable excuse".

Section 18(2) - a person who, for the purpose of procuring the registration of any name, qualification or other matter, makes a statement which is false in a material particular, or recklessly makes such a statement, is guilty of an offence.

Section 18(3) - if the registrar or any other person employed by the Council wilfully makes any falsification in any matter relating to the register, he is guilty of an offence.

Section 18(4) - penalties:

Section 18(5) - where an offence by a body corporate is proved to have been committed with the consent or connivance of, or attributable to any neglect on the part of, a director, manager, secretary or other similar officer, or a person purporting to act in such a capacity, he as well as the body corporate is deemed guilty and liable to be proceeded against and punished accordingly.

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7. What registration is worth (sections 19 and 20)

Section 19(1): a registered surveyor shall, but to the extent only of his particular qualifications, be entitled to practise as a surveyor throughout the Federation. Registration is national, not State-by-State - but it is bounded by the qualifications actually registered against the name. This is the statutory reason Part D of the examination application form asks you to declare your areas of professional specialisation.

Section 19(2) places the annual reporting duty on institutions: the person in charge of each university or other institution of higher learning holding a course of training intended for prospective registered surveyors must furnish the registrar, not later than 31 March in every year, with a list of the names and such other particulars as the Council may specify of all persons who attended such courses in the preceding year.

Section 20 - recovery of fees. "A person other than a fully registered surveyor shall not be entitled to recover, by process of law, fees or other valuable consideration whatsoever in respect of any act, matter or thing done or omitted to be done by him pursuant to any contract while purporting to act as a registered surveyor."

Section 20 is a civil disability rather than a criminal penalty, and it bites harder in practice than section 18 does. A quack who completes the work and is not paid has no cause of action for the fee. Note also the words "fully registered": a pupil surveyor, being only provisionally registered under section 9(6), cannot contract in his own right for survey fees.