Creation of the Southern Protectorate of Nigeria in 1899 was irrational or unreasonable.
25 May 2022
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Our Ref: YorExit/UK3
Mr Boris Johnson
The Prime Minister
10 Downing Street
London
SW1A 2AA
Dear Mr Johnson
Perhaps you may recall my letter of 12 July 2021 in which I requested that you confirmed that the British Amalgamation of Yorubaland into Nigeria by Lord Lugard in 1914 was unlawful and void. Although I have not received a response to that letter, I write now to request for a review of the prerogative powers that were used to create the Southern Nigeria Protectorate in which the territories of the Yoruba were included. I make this new request on the grounds that the use of the Royal prerogative powers for that purpose was irrational or unreasonable, and was injurious to the rights of the Yoruba.
Since time immemorial, the Yoruba have occupied an area bounded to the north and east by the River Niger and to the south by the Atlantic Ocean. The territories of the Yoruba extended along the coast of West Africa as far as the Gold Coast (the modern day Ghana).
The Yoruba formed a distinctive, urban based, ancient civilisation. They shared the same language, customs and traditions but nevertheless existed in distinct and separate Kingdoms. Each Kingdom had its own defined territory that was governed by its own ‘Constitutional Oba’ comprising of a monarch (Oba) and a council of notables (Oloye) that limited the powers of the Oba. The British recognised the existence of these separate Kingdoms and in that vein, signed treaties separately with the individual Yoruba Kingdom.
The formation of the Nigeria protectorates and their amalgamation was achieved using the prerogative powers vested in the British Monarch. The use of the Royal prerogative powers for those purposes was irrational or unreasonable, and was injurious for the following reasons.
One, in 1899, the British government and Monarch had little knowledge of the vast territories over which the Queen was making the Orders for the protectorate.
Two, by the acts of establishment of the protectorates in 1899, the British unilaterally abolished the ancient Yoruba Kingdoms and expropriated their territories as British.
Three, the British in the various treaties that they signed with the Yoruba Kingdoms offered protection as a quid quo pro, the threat for which they offered their protection was not specified, and the term ‘protectorate’ was neither expressed nor implied.
Four, by the act of amalgamation of the Southern Protectorate with another to form Nigeria in 1914, the British created a Tower of Babel, unilaterally forcing together into one enormous country, peoples of diverse cultures, religions, and traditions, who had been antagonistic to each other, and who had previously been at war with each other. The British amalgamated into a unified and centralised authority, diverse peoples at different levels of economic, educational, and social development such that a deleterious outcome was foreseeable, inevitable, and predictable.
There were two pertinent Orders in Council made on 27 December 1899 that were unlawful: namely, the Southern Protectorate Order in Council 1899 and the Lagos Protectorate Order in Council 1899.
Entitlement to create protectorates: The British Queen claimed power and jurisdiction over the said territories by treaty, grant, usage, sufferance, and other lawful legal means.
Sufferance means the absence of objection rather than generic approval. Usage refers to habitual or customary practise creating a right. A grant is a transfer of property. The other lawful means in the Order are neither identified nor specified.
The Queen claimed powers to make the Order under the Foreign Jurisdiction Act 1890 ‘or otherwise in Her Majesty vested’ (ie the Royal prerogative).
The protectorate formula, and appointment of a High Commissioner, ostensibly were necessary to provide for the peace, order, and good government of the said Protectorate of Southern Nigeria.
Territories: The Protectorate split the territories of the Yoruba. A portion of the territories of the Yoruba was carved out and included in the British Protectorate of Southern Nigeria. That portion was bounded to the West by French territorial claims, south of a line drawn across from Yola (on the River Benue) to Idda (on the River Niger) to Owo to Akure, and west of a line running directly from there south to the Lagos creeks.
This aforementioned map of the Southern Protectorate of Nigeria was later redrawn at amalgamation in 1914 when some territories were excised from the northern part of the Yoruba territories and incorporated into the Northern Protectorate of Nigeria.
Lack of consultation: The Yoruba were not consulted, and they did not give their consent before the British created their protectorates, and then amalgamated them. There was no customary practice in the territories of the Yoruba to create a right for the British to establish a protectorate.
Non-cession treaties: Practically all the treaties that the British signed with the Yoruba Oba included a non-cession clause.
On 14 August 1893, the Bale of Ibadan and his chiefs wrote to the Acting Governor Denton expressing their reluctance to sign a treaty. They objected to a Resident European. They expressed fears of the potential undermining of respect and authority for them. The Governor in his reply reassured them that there would be no alienation of land and in recognition of that fact, rent would be paid for any land that the British used. He confirmed that there would be no interference with the Native Government of Ibadan.
The Lagos Protectorate Order in Council 1899 defined the powers and jurisdiction of the Lagos Legislative Council, and at Section II Paragraph 2 provides as follows:
‘Provided that nothing in any such Ordinance or Ordinances contained shall take away or affect any rights secured to any natives in the said territories by any Treaties or agreements made on behalf or with the sanction of Her Majesty, and that all such Treaties and agreements shall be and remain operative and in force, and that all pledges and undertakings therein contained shall remain mutually binding on all parties to the same.’
Section VI Paragraph 2 of the Southern Protectorate Order in Council 1899 limited the High Commissioner’s proclamation powers as follows:
‘The High Commissioner in issuing such Proclamations shall respect any native laws by which the civil relations of any Native Chiefs, tribes, or populations under Her Majesty's protection are now regulated, except so far as the same may be incompatible with the due exercise of Her Majesty's power and jurisdiction, or clearly injurious to the welfare of the said natives.’
The Foreign Jurisdiction Act 1890: That Act did not permit Britain to import the Royal prerogatives to the territories of the Yoruba. In 1899 when the protectorate Orders were promulgated, the different Yoruba Kingdoms were still in existence and self-governing.
FJA Section 2 provided: ‘Where a foreign country is not subject to any government from whom Her Majesty jurisdiction of Her Majesty the Queen might obtain jurisdiction in the manner cited in this Act, Her Majesty shall by virtue of this Act have jurisdiction over Her Majesty’s subjects for the time being resident in or resorting to that country, and that jurisdiction shall be jurisdiction of Her Majesty in a foreign country within the meaning of this Act.’
The Yoruba Oba, individually or collectively, in 1899 did not cede their Kingdoms’ sovereignty to Britain. Therefore, the jurisdiction of Her Majesty was limited to British subjects only. Indeed, Lord Lugard in his 1914 report to Parliament acknowledged that the area of jurisdiction of Her Majesty was unclear.
Further, to be legal and legitimate, the 1890 Act required that Parliament scrutinised the Orders in Council by which the Protectorates were created. According to FJA Section 11,
‘Every Order in Council made in pursuance of this Act shall be laid before both Houses of Parliament forthwith after it is made, if Parliament be then in session, and if not, forthwith after commencement of the then next session of Parliament, and shall have effect as if it were enacted in this Act.’
Orders in Council although touted as ‘primary legislation’ are an executive product that lacked the ‘representative character’ that comes with Parliamentary authority and approval. The Protectorate Orders of 1899 were not scrutinised by Parliament as obligated by the Act. Therefore, the Orders were null and void.
Prime factor: Trade was the prime factor for creating the protectorates. There was no legal theory behind it. Ongoing French commercial activities in the west of the Yoruba territories threatened British interests. The protectorate formula was devised to protect the British commercial interests rather territory. This is reflected in the wordings of treaties that the British signed with the individual Yoruba Kingdom.
The practice then was that the British government provided administrative support and protection for trading posts that British traders and businessmen had established. In 1885, for example, the National Africa Company of Sir Goldie published in British newspapers that Nigeria was under British control. The British government in 1899 established the Niger Protectorate to take over Goldie’s company.
For over 100 years we Yoruba have lived with the terrible consequences of an irrational or unreasonable use of the Royal prerogative powers on 27 December 1899 to create the Southern Protectorate of Nigeria. You can put an end to our misery and nightmare by referring the matter to a Select Committee of the House or to the British courts for a review. The British owe us that much.
Yours sincerely
Chief (Dr) Olusola Oni
MBBS, MSc, MD, LLM, GDL, FRCSEd, FWACS, FMCS, FRCSEng
(Baasegun Alabe of Ijebu-Jesa, Osun State, Nigeria)
For and on Behalf of Yoruba Descendants