What is privilege?

Privilege is the right to do something. The ‘prerogative’ is a privilege accorded to the monarch by British law. The ‘prerogative’ empowered and enabled the British monarch to make legislative acts, including an Order in Council. 

According to Blackstone, the prerogative were the powers that ‘the king enjoys alone, in contradistinction to others, and not to those he enjoys in common with any of his subjects.’ Dicey defined the prerogative as ‘… the remaining portion of the Crown’s original authority and it is therefore … the name for the residue of discretionary power left at any moment in the hands of the Crown...’ 

What did the King do with the prerogative?

On 22 November 1913, the King of Britain, George V (the King), used the prerogative to issue an Order in Council (the 1913 Order) providing for the government of the Colony of Nigeria. The 1913 Order extended the governance of the colony to include the territories of the Yoruba peoples.

Why is the 1913 Order an Abuse of Privilege?

Abuse of Privilege is a harmful or wrongful use of privilege in a person’s duties either at the expense of others (the victims) or to the advantage of the abuser. The 1913 Order was both.

First, the 1913 Order was made at the expense of the Yoruba peoples. By incorporating their Homeland, the Yorubaland, into the governance of the British Colony of Nigeria, the Order was used to usurp sovereignty that the Yoruba neither ceded to the King nor surrendered to the King by conquest or any other lawful means. 

Second, the 1913 Order was made to advantage the King. By incorporating the Yorubaland into his governance of the Nigeria Colony, the King acquired jurisdiction over Yoruba territories that he had neither been granted by cession nor by conquest or any other lawful means.

What is the unlawfulness?

One, the 1913 Order deliberately and unlawfully bypassed a decision that the British parliament made on 21 February 1865 to ‘terminate’ the settlement at Lagos and not to extend territory. The prerogative was not an unfettered privilege. In particular, the prerogative was inferior to parliament. It was held in the Case of Proclamations (1610) that ‘the king hath no prerogative, but that which the law of the land allows him’. According to Article 1 of the Bill of rights 1689, a British Monarch could not suspend or execute laws without the consent of parliament. The Bill of Rights remains in the British statute and continues to be cited in proceedings, as for example, in the Miller case. The King by the 1913 Order suspended and executed laws without the consent of parliament, and the Order therefore is of no legal effect. 

Two, the 1913 Order contravened the Foreign Jurisdiction Act that the British parliament enacted on 4 August 1890 (the FJA). The King issued the 1913 Order under the cloak of the FJA. The FJA obligated the King to lay the 1913 Order before parliament otherwise it did not attain the status of law. The King did not lay the Order before parliament. Therefore, the 1913 Order is of no legal effect because it violated Section 11 of the FJA which provides: 

‘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 the commencement of the next session of Parliament, and shall have effect as if it were enacted in this Act.’

Three, the 1913 Order treated the Yorubaland as if the King had jurisdiction over all of the Yoruba territories. The King had no such jurisdiction. The FJA had different rules for territory over which the King had jurisdiction and territory over which he had no jurisdiction. The King made no such distinction in this 1913 Order. By not making that distinction that the FJA obligated him to do, the Order is of no legal effect because the King violated Section 2 of the FJA which provides:

‘Where a foreign country is not subject to any government from whom Her Majesty the Queen might obtain jurisdiction in the manner recited by 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 the provisions of this Act.’

Action for damages

In the case of Black v Chrétien et al. (2001), 54 O.R. (3d) 215 (CA), it was held that the prerogative was ‘powers and privileges accorded by the common law to the Crown’. In other words, the 1913 Order was subject to the common law. The British King committed an Abuse of Privilege. This is actionable under common law.

Plaintiff: Any Yoruba descendant.

Defendant: British government.

Title: The King committed Abuse of Privilege when on 22 November 1913 at Windsor Castle, he promulgated an Order in Council by which he extended his governance of the Nigeria Colony to include the territories of the Yoruba peoples.

Court of jurisdiction: British High Court

Type of action: Tort (the snail in the bottle principle)

Petition: The King committed Abuse of Privilege by extending his governance of the Nigeria Colony to include the territories of the Yoruba peoples. 

Grounds for damages: The dire situation in the Yorubaland today are the consequences of the Order in Council that the King promulgated on 22 November 1913 at Windsor Castle in which he unlawfully extended his governance of the Nigeria Colony to include the territories of the Yoruba peoples. The 1913 Order condemned the Yoruba to 46 years of colonial rule with Pavlovian conditioning to a lopsided political and structural configuration which right at the outset disadvantaged the Yoruba people, and has continued to do so.

Relief sought: 

a)    Declaration that the Order in Council promulgated by the King on 22 November 1913 violated statute law. 

b)   An Order that the British government identified exactly which Yoruba territories were under the jurisdiction of the King on 22 November 1913.

c)    An Order terminating the 1913 Order as Abuse of Privilege on the grounds of its unlawful extension of governance to include the territories of the Yoruba. 

d)   An Order awarding damages to the Plaintiff in compensation for the Abuse of Privilege.