The existence of the Britain-Yorubaland Treaty is an indisputable fact. There is documentary evidence of it. The Treaty was confirmation that Yorubaland was a state in its own right, under international law. It is being argued, however, but wrongly, that Section 12(1) of Nigeria’s 1999 Constitution has rendered the said treaty ineffectual.

The Section 12(1) says:

‘No treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly.’

On 22 November 1913, the Colony of Nigeria was created by an Order in Council. That Order incorporated the Yorubaland into Nigeria. The Order did not exclude the 1888 Britain-Yoruba Treaty so that the Treaty remained binding on Britain and the Yorubaland, and by implication, extended to the Colony of Nigeria. Thus, on 22 November 1913, the Britain-Yorubaland Treaty through the Order became part and parcel of the law of the Colony of Nigeria, self-executing, and requiring no further legislative act to implement.

On 1 January 1914, Lugard proclaimed the Amalgamation of Nigeria and incorporated the Yorubaland into Nigeria. Lugard in his Amalgamation Report acknowledged the fact of the existence of ‘Yoruba treaties’. Lugard confirmed that he did not use the opportunity afforded to him by the amalgamation to substitute any of the ‘Yoruba treaties’. In other words, on 1 January 1914, the 1888 Britain-Yorubaland Treaty, being  one of the ‘Yoruba treaties’, was carried unfettered into Lugard’s new constitutional arrangement. The Treaty thus remained part and parcel of the law of the Colony of Nigeria, self-executing, requiring no further legislative act to implement.

On 1 October 1960, Nigeria gained its independence from Britain. The 1888 Britain-Yoruba Treaty was not revoked by the 1960 Independence Constitution or repealed by the British legislature as could have been done. In an exchange of letters between Britain and Nigeria, the Nigeria Government confirmed and agreed that;

1.      All obligations and responsibilities of the Government of the United Kingdom which arise from any valid international instrument are from 1 October 1960 assumed by the Government of the Federation of Nigeria in so far as such instruments may be held to have application to or in respect of the Federation of Nigeria.

2.      The rights and benefit heretofore enjoyed by the Government of the United Kingdom in virtue of the application of any such international instrument to or in respect of the Federation of Nigeria are from 1 October 1960, enjoyed by the Government of Nigeria.

Olufunlola Oyelola Adekeye JSC said this in JFS Investment Ltd v Brawal Line Ltd:

‘…by October 1st 1960  at the Nigeria Independence the Government of the Federation assumed all obligations and responsibilities of the colonial regime of the government which arose from valid international instruments…an international agreement embodied in a convention such as Hague Rules is autonomous and above domestic legislation of the subscribing countries and the provisions cannot be suspended or interrupted even by the agreement of the parties.’

In other words, on 1 October 1960, the 1888 Britain-Yorubaland Treaty became ‘existing law’ of Nigeria. As a consequence, the Treaty was protected and preserved by Section 3(1) of the Nigeria (Constitution) Order in Council 1960:

‘The existing laws shall, notwithstanding the revocation of the orders specified in the First Schedule to this order have effect after the commencement of this Order as if they had been made in pursuance of this order and shall be read and construed with such modifications adaptations, qualifications and exceptions as may be necessary to bring them into conformity with this order.’

by Section 156(1) of the 1963 Republic Constitution:

‘All existing laws, that is to say, all laws which, whether being a rule of law or a provision of an act of Parliament or of a Law made by the legislature of a Region or of any other enactment or instrument whatsoever, is in force immediately before the date of the commencement of this Constitution or has been passed or made before that date and comes into force on or after that date, shall, until that law is altered by an authority having power to do so, have effect with such modifications (whether by way of addition, alteration or omission) as may be necessary to bring that law into conformity with this Constitution and the constitution of each Region.’

and by Section 315 of the 1999 Constitution:

‘(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with this Constitution and shall be deemed to be -

(a)     an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws; and

(b)     a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.

(2) The appropriate authority may at any time by order make such modifications in the text of any existing law as the appropriate authority considers necessary or expedient to bring that law into conformity with the provisions of this Constitution.’ 

Finally, Section 3(1) of the Revised Edition (Laws of the Federation of Nigeria) Act 1990 empowered Nigeria’s A-G to specify by order, a schedule of enactments to be omitted from the Revised Edition of the Laws of the Federation of Nigeria, 1990, for reasons that such enactments are:-

(a)     obsolescent; or

(b)     of temporary nature; or

(c)     under revision with a view to replacement; or

(d)     of restricted or personal application;

The A-G did not make any such order against the 1888 Britain-Yorubaland Treaty. The omission to act did not amount to repeal, however. The A-G may not be aware of the existence of the 1888 Britain-Yoruba Treaty but, ignorance of the Treaty does not amount to its repeal. Lack of action by Nigeria’s A-G has meant that the 1888 Britain-Yorubaland Treaty was neither irrelevant nor obsolete in accordance with Section 3(2) which provides:

‘Enactments, omitted in accordance with subsection (1) of this section, shall have the same force and validity as if they had not been omitted in the Revised Edition.’

On the basis of all the aforesaid, the Yorubaland is able to assert with confidence firstly, that Section 12(1) of Nigeria’s 1999 Constitution has no legal effect in respect of the 1888 Britain-Yorubaland Treaty, and secondly, that the said 1888 Treaty is still a valid enactment that has the force of law in Nigeria.