3.6 Resurvey, Boundary Disputes and the Surveyor as Witness
Key Takeaways
- Regulation 27 fixes the principle of resurvey: unless the original beacons have obviously been disturbed, the beacons on the ground indicate the true boundary even where resurvey data disagrees with the original plan.
- Regulation 28 requires a surveyor discovering a data disagreement or damage to Government beacons to make careful search and inquiry and forward a full report to the Surveyor-General with positions, diagrams, descriptions and particulars of development.
- Regulation 23 allows a surveyor to survey and show a disputed boundary while declining to demarcate the disputed portion, and provides that the survey is not thereby incomplete.
- Regulation 29 permits amendment of a Government survey and removal or re-siting of Government beacons only on the Surveyor-General's instructions, with a written report when carried out.
- Section 3 of the Survey Law makes a plan admissible in evidence only if prepared and signed by a surveyor, or certified by a surveyor as a true copy, save for good cause shown to the court.
3.6 Resurvey, Boundary Disputes and the Surveyor as Witness
Sources: Survey Regulations, regulations 23 and 26 to 29; Survey Law, sections 3 and 9; Land Use Act 1978.
1. The principle of resurvey (regulation 27)
In the resurvey of land, unless the original beacons have obviously been disturbed, the principle shall be observed that those beacons on the ground indicate the true boundary, even though the data obtained on resurvey disagrees with the data recorded on the original plan.
This is the most important single sentence in Nigerian boundary practice, and it inverts the intuition of many clients. The plan is evidence of the boundary; the monuments are the boundary. Where a resurvey produces a bearing or distance different from the original plan, the presumption is that the original measurement was imperfect, not that the beacon has moved.
The exception is exact and narrow: "unless the original beacons have obviously been disturbed". Obviously - not arguably, not on the balance of the computation. Disturbance is a physical finding: a pillar leaning, a fresh excavation, a mark reset in new concrete, a beacon that is now inside a wall it could not have been inside.
The practical consequence is that a surveyor asked to "correct" beacons to match a plan is being asked to do the opposite of what regulation 27 requires.
2. Reporting a disagreement (regulation 28)
When the surveyor discovers any such disagreement in data, or any damage to, or loss or displacement of, Government beacons, he shall make careful search and inquiry and shall forward a full report to the Surveyor-General, accompanied by:
- (a) a record of the accurate positions of the beacons as determined by the surveyor, accompanied by explanatory diagrams;
- (b) descriptions of the beacons; and
- (c) particulars of development in the neighbourhood of the beacons and of any other evidence bearing on the matter.
Paragraph (c) is the interesting one. The Regulation asks the surveyor to record the context - what has been built nearby, what road has been widened, what excavation has occurred - because that context is the evidence from which the Surveyor-General will judge whether a mark was disturbed and by what.
Regulation 26 imposes the more general duty: the removal, obliteration or defacement of any survey mark which comes to the notice of a surveyor shall be reported by him in writing to the Surveyor-General. It applies to any mark, not just Government beacons, and it is triggered by the mark coming to your notice - not by your being instructed to investigate it.
3. The objecting adjoining owner (regulation 23)
Where objection is made by the owner of the adjoining land to the position of a boundary as pointed out by the person for whom a survey is being made, or as located by the surveyor from the documents of title under which the land is claimed, the surveyor shall survey the position of this boundary and show the same on his plan, but may decline to demarcate that portion to which objection has been made. In such case the survey and demarcation shall not be regarded as incomplete, so far as the surveyor is concerned.
Four instructions in one regulation:
- Survey it. The objection does not entitle you to leave the line unmeasured.
- Show it on the plan. The plan must depict the position claimed. Regulation 31(e) expressly permits different verge colours to distinguish conflicting claims or overlapping areas on the same plan - the cartographic tool for exactly this situation.
- You may decline to demarcate the objected portion. You are not obliged to drive a pillar into a contested line.
- Your work is complete. The final sentence protects the surveyor's fee and professional position: the survey is not incomplete merely because a contested portion was left undemarcated.
The correct professional posture follows from the regulation. The surveyor is not the tribunal. He records the competing positions accurately and impartially, and leaves the adjudication to the parties or the court.
4. Amending a Government survey (regulation 29)
A Government survey shall only be amended, and Government beacons removed or re-sited, on the Surveyor-General's instructions, and the surveyor shall report in writing when such instructions have been carried out.
Two limbs: the authority to amend or move must come from the Surveyor-General, and there is a reporting duty back once the work is done. Together they are the answer to any scenario in which a client, a contractor or a public authority asks a surveyor to shift an existing Government mark.
Beyond the Regulation, moving a mark without authority is criminal: section 9 of the Survey Law makes wilful obliteration, removal or injury of a survey beacon an offence carrying a fine of two thousand naira or three months' imprisonment, plus the cost of repair or replacement and of any survey rendered necessary. And falsifying a boundary would expose a registered surveyor to a direction of the Disciplinary Committee for infamous conduct in a professional respect under section 17(1)(a) of the SURCON Act.
5. Where boundary disputes come from
A Paper VI answer is stronger for naming causes rather than describing symptoms:
| Cause | Mechanism |
|---|---|
| Double allocation | The same parcel granted twice by different arms of the land administration, or under the customary and statutory systems in parallel. |
| Unconnected surveys | Two adjoining surveys tied to different local origins, neither connected to Government framework, so their coordinates cannot be compared. |
| Beacon destruction | Road works, building, farming, or deliberate removal, leaving the boundary evidenced only by a plan. |
| Sale by description | Land conveyed by a verbal or narrative description with no survey plan, so extent is a matter of oral testimony. |
| Encroachment over time | Successive fencing, extension and cultivation moving the occupied line away from the surveyed line. |
| Family and communal succession | Sub-division of family land without survey, generating overlapping claims among descendants. |
The common denominator in most of them is the absence of a connected, deposited survey plan - which is precisely why sections 3 and 4 of the Survey Law and regulation 4 exist.
6. The surveyor in court
When a boundary dispute is litigated, the surveyor typically appears in one of two roles.
As the maker of a plan. Section 3 of the Survey Law controls admissibility: save for good cause shown to the court, no map, plan or diagram of land shall be admitted in evidence unless prepared and signed by a surveyor, or a copy of such a plan certified by a surveyor as being a true copy. Regulation 38 governs those certificates on copy plans. A plan produced by an unlicensed person is not merely poor evidence - it faces a statutory bar.
As a witness. The surveyor gives evidence of what he observed and measured, and of the professional inferences he drew. Some working principles:
- Distinguish observation from inference. "I found a concrete pillar stamped AB 47 at this position" is observation. "That pillar is the original south-east corner" is inference, and the basis must be stated.
- Your field book is your evidence. This is why regulation 5(D) forbids erasures and torn pages. A field book with pages removed invites cross-examination on nothing else.
- The court decides the boundary; you do not. Surveys ordered by a court are dealt with expressly in the Survey Law - the beacon-protection offence in section 9 extends to marks placed for a survey ordered by a court, and section 15 protects a surveyor executing such a survey from obstruction.
- Do not become the client's advocate. A surveyor who shapes evidence to a client's case has ceased to be a professional witness, and is exposed under section 17(1)(a) of the SURCON Act.
- Explain regulation 27. Where the ground and the plan disagree, the court will need to be told that Nigerian survey practice treats undisturbed beacons as indicating the true boundary. That single explanation resolves a large proportion of boundary disputes.
On a resurvey, undisturbed original beacons are found in positions that do not match the bearings and distances on the original plan. Under regulation 27, which prevails?
Regulation 28 requires a report to the Surveyor-General where a disagreement in data or damage to Government beacons is discovered. Which item does the regulation expressly require to accompany the report?
Under section 3 of the Survey Law, what is required before a copy of a survey plan may be admitted in evidence in court?
A client instructs a surveyor to give evidence supporting the client's boundary claim rather than the position the surveyor actually measured. What is the correct professional analysis?