@ Omoboriowo Media 7 March 2024

The three regions of Nigeria - East, North and West - made an agreement to co-own Nigeria as a tri-communal entity, which they then called the Federation of Nigeria. They put that agreement in writing and called it the 1960 Independence Constitution. On 1 October 1960, the three regional blocks as a matter of law became co-owners of Nigeria. The co-owning regions were self-governing on 1 October 1960, each with its own separate and distinctive constitution, legislature, police, judiciary, and diplomatic service. 

The three co-owners of the Federation of Nigeria – Eastern Region, Northern Region and Western Region – made an agreement to turn their tri-communal property into a Republic, which they then called the Federal Republic of Nigeria. They put that agreement in writing and called it the 1963 Republic Constitution. On 1 October 1963, the three regional blocks as a matter of law became co-owners of the Republic. The co-owning regions were self-governing on 1 October 1963, each with its own separate and distinctive constitution, legislature, police, judiciary, and diplomatic service. 

The Breach of Agreement

By Decree No. 24 of 5 May 1999, General Abdulsalami Abubakar, the Fulani military dictator of Nigeria, promulgated a constitution for Nigeria in the mistaken belief that his military-led government owned Nigeria. The Abubakar constitution was intended to force political unitarism on Nigeria and make the Northern Region dominant. Accordingly, the constitution replaced the equal powers previously enjoyed by the three regions with dominance by the Northern Region with 19 of 36 states and 419 of 774 local governments allocated to the north. Section 6(5), which lists Sharia law but omits the Christian Ecumenical court, tacitly made Islam Nigeria’s state religion. Section 14(3) of the Abubakar constitution introduced the pernicious concept of ‘federal character’.

The 1999 Constitution was a Fulani agenda intended to move forward the instructions of Ahmadu Bello, their leader, who a week or so after independence in 1960 said this:

‘The new nation called Nigeria should be an estate of our grandfather, Othman Danfodio. We must ruthlessly prevent a change of power. We must use the minorities in the North as willing tools & the South as conquered territories & never allow their future.’

The 1999 Constitution constituted a Breach of Agreement in that it 

a)    abolished the geographical and political entity called Western Region of Nigeria, and 

b)   usurped powers that belonged to the aforesaid Western Region that had been acquired by agreement concluded respectively in the 1960 Independence Constitution and in the 1963 Republic Constitution.

The law

The government of the Federation of Nigeria did not itself participate in the 1960 agreement for the simple reason that the Federation did not exist until the tri-communal agreement created it. The Federation did not exist until 1 October 1960, and was therefore not signatory to the agreement creating the independent Nigeria. By contrast, the Regional governments, the parties to the agreement, predated the independent Nigeria; they had been in existence since 1954. 

The government of the  Federal Republic of Nigeria did not participate in the 1963 agreement for the simple reason that the Republic did not exist until the tri-communal agreement created it. The Republic did not exist until 1 October 1963, and was therefore not signatory to the agreement creating the Republic of Nigeria. By contrast, the Regional governments, the parties to the agreement, predated the Republic; they had been in existence since 1960. 

There are no constitutional means by which ownership of the Federation could be transferred from the three regions to a federal government outside of the 1960 Independence Constitution. The three co-owners of Nigeria agreed to terms that made alteration of their agreement very difficult indeed to achieve.

Ian MacLeod, Secretary of State for the colonies said this in the House of Common: 

‘On fundamental matters, however – I am sure that Nigeria is right again in this - there will be a rather more elaborate procedure for what are called the entrenched clauses. For these clauses, there will be a two-thirds majority required of all members of both Houses of the Federal Parliament and the concurrence, although by bare majority in this case, of both Houses of at least two of the regions. Thus, although change can take place, there is and there will be a considerable degree of firmness and stability and the foundations of which the independence of Nigeria is built.’

Section 4(1)  of the 1960 Independence Constitution provides:

‘[the Federal] Parliament may alter any of the provisions of this Constitution or (in so far as it forms part of the law of Nigeria) any of the provisions of the Nigeria Independence Act, 1960 [BUT] an Act of Parliament shall not come into operation unless each legislative house of at least two Regions has passed a resolution signifying consent to it having effect.’

There are no constitutional means by which ownership of the Republic could be transferred from the three regions to a federal government outside of the 1963 Republic Constitution. The three co-owners of the Republic agreed to terms that made alteration of their agreement very difficult indeed to achieve.

Section 4(1) of the 1963 Republic Constitution Section provides:

‘[the Federal] Parliament may alter any of the provisions of this Constitution [BUT] an Act of Parliament shall not come into operation unless each legislative house of at least two Regions has passed a resolution signifying consent to it having effect.’

There are no constitutional or lawful means by which Nigeria’s military could abrogate the ownership of Nigeria to itself in particular when Nigeria’s law prohibited military coup d’états. 

Nigeria Penal Code 61 says:

‘Any person who advisedly does any unlawful act calculated to interfere with the free exercise by the President or a Governor of the duties or authority of his office or with the free exercise by a member of the Federal Executive Council, or a State Executive Council of his duties as such member, is guilty of a felony, and is liable to imprisonment for three years. [L.N. 2 of 1960. L.N. 112 of 1964. 1967 No. 27.]’

All governance and political acts by Nigeria’s military from 15 January 1966 onward, including the 1999 Constitution, were the offspring of the 1966 coup. They were all illegal because they were by-products of a crime.

The author of the 1999 Constitution, General Abubakar, came to power through a coup d’état, a pernicious condition that afflicted Nigeria continuously from 15 January 1966 to 5 May 1999. Neither the coup d’états nor the military-led governments could take over ownership of Nigeria. In Council of the University of Ibadan v Adamolekun (1967) 1 All NLR 213 (Nigeria), the Court held that the military government was just a takeover, that the 1963 Constitution was alive and that military decrees were inconsistent with it. In Lakanmi v Attorney-General Western Nigeria (1970) SC 4 LLER 1 (Nigeria), the Court held that the military takeover was not a revolution and was not conferred with unfettered legislative power.

Action for damages

Plaintiff: Any descendant of the Western Nigeria.

Defendants: Federal Government of Nigeria + Governments of States since created out of the Western Region (ie Delta, Ẹdo, Ekiti, Kwara, Lagos, Ogun, Ondo, Ọṣun and Ọyọ).

Court of jurisdiction: Case concerns enforcement of agreement. Judicial Division of the High Court at Ibadan, capital of the Western Region, had 1) jurisdictional powers under Section 32 of the 1963 Constitution and 2) ‘inherent’ powers (see Adigun v AG of Ọyọ State [1987] 2NWLR pt, 56). 

Type of action: Originating summons. Case concerns matters of law (ie the 3 constitutions). Facts not likely to be disputed.

Petition: The military-led Nigeria government through the 1999 Constitution committed Breach of Agreement concluded between the three regions of Nigeria – East, North and West - as described respectively in the 1960 Independence Constitution and the 1963 Republic Constitution.

Grounds for damages: The Breach of agreement caused the Plaintiff(s) personal damage in particular loss of benefits from loss of 

1.    freedom to associate with others in the specified entity of Western Region of Nigeria;

2.    freedom to participate in the government of the specified entity of Western Region of Nigeria; and

3.    a satisfactory environment favourable to his development based on the specified entity of Western Region of Nigeria.

Relief sought: 

1.    A Declaration that the Eastern, Northern and Western Regions of Nigeria were organised political communities that co-owned the geographical entity called Nigeria and created a tri-communal Republic.

2.    A Declaration that the Eastern, Northern and Western Regions of Nigeria were imbued with legal personalities, which entitled them to conclude the agreements contained in the 1960 and 1963 Constitutions.

3.    A Declaration that the 1999 Constitution was Breach of Agreement committed against the 1960 and 1963 Constitutions.

4.    An Order terminating the breach committed by the 1999 Constitution and rendering that constitution of no legal effect.

5.    An Order awarding damages to the Plaintiff in compensation for the Breach of Agreement.