End of year address Part 2 by Baasegun (Dr) Olusola Oni, Leader of the Yoruba Party in the UK (7 January 2025)
On 1 January 1914, in an act of Amalgamation pursuant to an Order in Council issued by King George V at his Windsor residence on 22 November 1913 (the 1913 Order), Yorubaland became incorporated into the Colony of Nigeria. Members of the Yoruba Party in the UK (YPUK) as heirs to the Yoruba legacy seek to challenge the lawfulness of this 1913 Order on the grounds of illegality, irrationality, and proportionality. In the GCHQ case (1984 UKHL 9), Lord Diplock held that a decision that affected a persons ‘private rights or legitimate expectations’ was amenable to review by the courts. The 1913 Order caused harm to heirs to the Yoruba legacy by depriving them of their entitlement to an independent Homeland.
The grounds for this instant claim arose on 16 November 2024 when at the 1st Annual Party Conference, YPUK members resolved that they were heirs to the Yoruba legacy and entitled therefore to claim their inheritance of that legacy.
Monarchy and parliament are the two mechanisms that Britain used for making laws. The Monarchy or Crown mechanism, called the ‘prerogative’, is a relic of the past not very widely known to the British public. The ‘prerogative’ is a device used by the British government when it wished to bypass parliamentary scrutiny. What happened in practice was that the government wrote an Order that it wished to make into ‘primary’ legislation and then got the monarch to sign it. But unlike parliamentary legislation, the ‘prerogative’ despite its title is common law, justiciable and circumscribed by parliamentary legislation.
Lord Diplock in the GCHQ case held that for a ‘prerogative’ to pass the test of legality, the decision-maker must correctly understand the law that regulated his decision-making power and must give effect to it. The decision-maker in this present case knew that the Foreign Jurisdiction Act 1890 (FJA) regulated him, but the decision-maker nevertheless did not give effect to it.
Section 2 of the FJA 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 the foreign country within the meaning of the other provisions of this Act.’
The decision to incorporate Yorubaland into the Colony of Nigeria in the 1913 Order contravened Section 2 of the FJA and rendered the 1913 Order of no legal effect. On 22 November 1913, Britain did not have jurisdiction over Yorubaland. The British in 1888 had concluded, and in 1890 ratified and operationalised, a treaty that recognised Yorubaland as an independent State imbued with international character. Lord Shelbourne’s Niger Committee Report of 1899 had unambiguously stated that the ‘Yoruba Country’ laid outside the British jurisdiction. Lord Lugard in his report to parliament confirmed that prior to Amalgamation on 1 January 1914, Britain did not have jurisdiction over territories it was amalgamating. In the absence of jurisdiction, Britain did not have authority over the Yoruba people or over their territory.
Section 11 of the FJA 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.’
The decision not to immediately obtain parliamentary approval for the 1913 Order contravened Section 11 of the FJA, and rendered the 1913 Order of no legal effect. Hansard is the official report of all parliamentary debate with facilities for searching keywords and dates. Search for ‘Colony of Nigeria’ with dates between 1 January 1913 and 1 January 1914 yielded ‘no results’. The decision-maker did not lay the 1913 Order before parliament because he knew it would not be passed. On 25 June 1865, parliament had instructed the government to without exception withdraw from ‘all settlements including Lagos and not to annexe new territories’.
A claim that Yorubaland was a British protectorate has been proffered as defence against a claim of illegality against the 1913 Order. That defence is not available. Before 1913, British decision-makers knew that what was a ‘protectorate’ was a question of law, and not a device for establishing suzerainty.
In the 1910 case of R. v. Earl Crave ex parte Sekgome (1910) 2KB Kennedy LI said this @619:
‘What the idea of a Protectorate excludes, and the idea of annexation on the other hand would include, is that absolute ownership which was signified by the word 'dominium' in Roman Law, and which, though perhaps not quite satisfactorily, is sometimes described as territorial sovereignty. The protected country remains in regard to the protecting State a foreign country...’
The ICJ in the Bakassi Peninsula case showed that, as they were not concluded with states, ‘treaties of protection’ that British officials concluded with rulers of individual towns and villages did not reach the status of ‘protectorate’ under international law. Indeed, the British used the threat of punitive military action to coerce treaties out of several Yoruba towns and villages. None of these treaties were ratified. Lord Lugard whilst acting on the 1913 Order dismissed all these treaties as having no legal effect.
The 1888 Britain-Yorubaland Treaty was an exception to all the ‘Yoruba treaties’ - on 23 May 1888, Britain requested for it in writing; on 23 July 1888, the parties physically signed it; on 16 June 1890, the parties ratified it. As a matter of law, enacting the 1913 Order could not override the independent and international sovereign status conferred on Yorubaland by the 1888 Britain-Yorubaland Treaty in accordance with the legal Doctrine of Recognition.
According to Oppenheim's International Law. Vol. 1, 9th cd., 1992. pp. 267, 268. 269:
‘The position…of a state under protection is defined by the treaty of protection which remunerates the reciprocal rights and duties of the protecting and the protected states. Each case must therefore be treated according to its own merits...But it is characteristic of a protectorate that the protected state always has, and retains, for some purposes, a position of its own as an international person and a subject of international law.’
All the aforesaid grounds for seeking judicial review of the enactment of the 1913 Order on the grounds ofillegality apply equally for judicial review on the grounds of irrationality or unreasonableness. In this regard in the GCHQ case, Lord Diplock held that a decision-maker was not entitled to make a decision that defied logic or defied accepted moral standards that no sensible person would have arrived at it. YPUK contends that on the following grounds, the enacting of the 1913 Order defied both logic and moral standards of the time:
Ground 1 - absence of jurisdiction as required by the FJA.
Ground 2 - contravention of the 1888 Britain-Yorubaland Treaty.
Ground 3 - acknowledgment by a parliamentary committee that the ‘Yoruba country’ laid outside of the British jurisdiction.
Proportionality, defined as a measure of whether a decision struck a balance between the interests of the parties involved, is a potential third head of complaint for judicial review. Proportionality is different from procedural fairness, by which was meant the requirement for the decision-maker to act fairly. For the purposes of this judicial review, there were two parties to the 1913 Order - Britain and Yorubaland - but the decision was entirely concerned with serving the British interest. The decision did not demonstrate that the decision-maker contemplated the Yoruba interest in his decision-making. The decision-maker’s failure to do this rendered the 1913 Order of no legal effect.
For the purposes of the inter temporal rule, decision-making in regard to the 1913 Order could be contrastedwith decision-making in regard to the 1888 Britain-Yorubaland Treaty. In the latter, the decision-makers on the one hand, gave Britain a preferential-trading-nation status whilst on the other, they gave Yorubaland control of the local market. In other words, the decision-makers for the 1888 Britain-Yorubaland Treaty made a decisionto strike a balance between the interests of the two parties involved. In the former decision, that is to say, the1913 Order, the decision-maker gave it all to Britain. Prior conduct by Queen Victoria in respect of the 1888 treaty with Yorubaland meant that King George V knew what the proportionate thing to do was, but he failed do it.
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