There are two sets of laws that govern the affairs of a territory. Domestic or Municipal Law governed the relationships between the citizens within the territory whilst International Law was concerned with the relationships between that territory and others. International Law, or the extraterritorial rule of law, is universal law. Based on the principle of ‘mutuality’, it is not confined to one or other corner of the earth, and it is not based on the level of development of a state or on its military prowess.

For centuries, treaties were concluded between Europeans and Non-Europeans, and between Europeans and Africans. These treaties were meant to indicate the will to give rise to legal relations. The parties respected the principles of pacta sund servanda (‘agreements must be kept’) and estoppel (‘previous representations must be binding’). Based as they were on the customary norms of the law of nations regulating relations between Europeans and Non-Europeans, treaties between Europeans and Africans were governed by the same customary international law. Indeed, the very existence of European-African treaties showed that international law applied. Under international law, the existence of facts, that is, the terms of a treaty, created its own law (ex factis jus oritur).

But after the 1885 Berlin Act , the Europeans stopped complying with obligations arising out of the European-African treaties, thereby violating customary international law. The ensuing acts of the Europeans were not lawful. Under international law, illegal acts could not create law (ex injuria jus non oritur). Emer de Vattel in Law of Nations (1758):

‘He who violated his treaties, violates at the same time the law of nations; for he disregards the faith of treaties, - that faith which the law of nations declared sacred; and, so far as depends on him, he renders it in vain and ineffectual. Doubly guilty, he does an injury to his ally, he does an injury to all nations, and inflicts a wound on the great society of mankind.’

In the 1800s, the British Crown established 3 types of legal relationships in the Yorubaland – cession, non-cession and protectorate. In the cession relationship, the native ruler ceded specified aspects of their state’s sovereignty, usually not all, to Britain. In the non-cession relationship, the native ruler asserted their state’s independence as a nation but sought from Britain friendship and trade only. In the protectorate relationship, the native ruler agreed to Britain protecting their state from external aggression that the protectorate could not resist by itself. In the end, however, Britain treated all the aforesaid relationships as one, one of complete domination. The British judiciary refused to hold Britain accountable for these treaty violations citing as their excuse, a false doctrine of Judicial Immunity of the prerogative powers of the Crown.

Adeyinka Oyekan and others v. Musendiku Adele (1957): 

‘…the courts of law will not take it upon themselves to construe the Treaty. The effect of the Act of State is to give to the British Crown sovereign power to make laws and to enforce them, and therefore the power to recognise existing rights or extinguish them or to create new ones. In order to ascertain what rights pass to the Crown or are retained by the inhabitants, the courts of law look, not to the Treaty, but to the conduct of the British Crown.

An Order in Council, or Act of State, like the one that created Nigeria in 1913, is however justiciable. The Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case) [1984], a ‘locus classicus’, confirmed that there was a duty to act fairly when the prerogative power was used. R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61 confirmed that Orders in Council, although ‘primary legislation’, were subject to the ordinary grounds for judicial review. The Case of Proclamations (1610) held that ‘the king hath no prerogative, but that which the law of the land allows him’. The Supreme Court in a 2019 decision on the Parliament Prorogation casereiterated this ancient law. In other words, the prerogative power of the British Crown was not an absolute as the British Judiciary would want everyone to believe. Under the British Municipal Law, the prerogative power was subordinate to parliament. It was corruption of the British law for the judiciary to treat the prerogative power as absolute.

So what now? The Yorubaland of today (in 2023) is entitled to ‘specific performance’ by Britain of the 1888 Britain-Yorubaland Treaty. Britain unilaterally breached its obligations under the said treaty.

1.     The Treaty was made not by individuals, but by 2 independent states – Britain and the Yorubaland.

2.     The Treaty is a fact; copies can be obtained from the National archives in London.

3.     The Treaty made its own laws, which have become British and Nigerian laws, which made irrelevant the passage of time.

4.     The Treaty partner, Yorubaland, had about the same landmass as Britain, and was composed of large polities including Oyo (Yoruba proper), Egba, Ketu and Ijebu;

5.     The Treaty partner, Britain, in a letter dated 23 May 1888, sought the Alaafin’s permission to include its colony of Lagos in the Yorubaland.

6.     The Treaty was made at the behest of Britain, to use to fight the French, and Britain provided the text of the Treaty.

In The Law as practised by the Ancient Yoruba: A book to remind us of the world that we lost (amazon.com/dp/B087T2Z1CG/ref=cm_sw_em_r_mt_dp_ZVJS586BWD291AB2D023), Olusola Oni reminded how the Yoruba too had their own distinctive Municipal Law at those material times. Britain’s Municipal Law was not superior to the Yoruba Municipal Law. Alleged superiority of Britain’s Municipal Law was an illusion mounted on the barrel of a gun.