Letter to Rishi Sunak, UK PM – Unlawful incorporation of Yorubaland in the 1914 Amalgamation
Our Ref: YorExit/UK10
31 January 2023
Mr Rishi Sunak MP
Prime Minister
10 Downing Street
London
SW1A 2AA
Dear Mr Sunak
Re: Pre-action Protocol for Judicial Review – Letter before Claim
I write to inform you of our intention to seek a judicial review to quash the decision of the British government to amalgamate Nigeria in 1914. The incorporating jurisdiction of the Amalgamation of Nigeria lies in Great Britain and therefore, with the British courts.
Lord Lugard’s Report to Parliament in 1920 provides most of the evidence for this judicial challenge.
The decision being challenged
The British government used prerogative powers vested in the British monarch to amalgamate Nigeria. The Protectorate of Nigeria was created under the Foreign Jurisdiction Act, 1890 (FJA) by an Order in Council dated 22 November 1913. The Protectorate of Nigeria Order was made by the British monarch acting on the advice of the government, and it was approved in person by the monarch. Orders in Council although ‘primary legislation’ were an executive product lacking the ‘representative character’ that came with Parliamentary authority and approval.
Grounds for a Judicial Review
The decision to amalgamate in 1914, the territories of the Yoruba (ie Yorubaland) with others to form a new country called Nigeria was irrational or unreasonable, and was injurious to the rights of the Yoruba people.
A decision is irrational if it is so unreasonable that no reasonable person, acting reasonably, could have made it. The decision of the British government to amalgamate Yorubaland with others to form Nigeria was irrational or unreasonable and injurious for the following reasons.
- The decision intentionally deprived the Yoruba of their resources.
- The decision subordinated the Yoruba to others.
- The Yoruba were not consulted.
- The decision subverted the expressed will of the British Parliament.
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 established that Orders in Council, although ‘primary legislation’, were still 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 its 2019 decision on the Parliament Prorogation case confirmed this ancient law.
Limitations
In general, rules of common law, including the prerogative, do not lapse by disuse. In Burma Oil Company v Lord Advocate [1965] AC 75, for example, the claimant received compensation in 1965 for prerogative powers used in 1942. The 1890 Act has never been effectively revoked. It remains British law. Queen Elizabeth II used powers conferred on her by the FJA to enact the Antarctic Act 1994 (Overseas Territories) Order 1995.
The Judicial review (JR) is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. JR is a challenge to the way a decision was made, rather than the rights and wrongs of the conclusion reached.
Applicable Civil Procedure Rules
54.1(2) In this Section –(a) a ‘claim for judicial review’ means a claim to review the lawfulness of – (i) an enactment…
54.2 The judicial review procedure must be used in a claim for judicial review where the claimant is seeking – (c) a quashing order…
54.3 (1) The judicial review procedure may be used in a claim for judicial review where the claimant is seeking – (a) a declaration…
Background
On 1 January 1914, Lugard, armed with the aforesaid Royal prerogatives, unified the territories of various ethnic nations, including the territories of the Yoruba (Yorubaland), to form a new country called Nigeria. Until that time the geographical entity called Nigeria did not exist. By that act of amalgamation to form Nigeria in 1914, the British created a Tower of Babel. The British unilaterally forced together into one enormous country, peoples of diverse cultures, religions, and traditions. The British amalgamated into a unified and centralised authority, diverse peoples at different levels and stages of economic, educational, and social development such that a deleterious outcome for the amalgamated was both foreseeable and predictable.
The Yoruba, since time immemorial, formed a distinctive, urban based, ancient civilisation spread along the coast of West Africa. The Yoruba shared the same language, culture, customs and traditions. The British recognised the existence of Yorubaland as a country. In 1888, Queen Victoria signed a treaty of friendship with the Alaafin of Oyo as the Head of Yorubaland. Historically, the territory is bounded to the north and east by the River Niger, to the West by the French colony of Dahomey (now Benin Republic) and to the south by the Atlantic Ocean.
Relevant Fact 1 – The decision intentionally deprived the Yoruba of their resources
The British government intended for the Amalgamation to shift the burden of paying for Northern Nigeria from the British tax payer to the Yoruba. Lugard in his 1920 report to Parliament, at Paragraph 5, wrote: ’The North, largely dependent on the annual grant from the Imperial Government, was barely able to balance its budget with the most parsimonious economy…was dependent on a grant paid by the British taxpayer…’.
In the year before Amalgamation the grant paid by the British tax payer stood at £136,000, and it had averaged £314,000 for the 11 years ending I March 1912. By contrast, from 1906, ‘the material prosperity of the South increased with astonishing rapidity’. Liquor duties alone afforded an ever increasing revenue yielding the sum of £1,139,000 in 1913. Lugard wrote: ‘Thus the anomaly was presented of a country with an aggregate revenue practically equal to its needs, but divided by an arbitrary line of latitude.’
At the time that the relevant Orders in Council were created, the British government knew that Yorubaland had both the income and the economic potential of a country. In 1900, the total value of trade was £3.5 million, by 1913 it had more than trebled, and it reached £17 million in 1918. In 1913, trade with the British Empire was £8.5 million out of a total of £13.5 million (i.e 63%). In 1917, it was more than £12 million out of £14.5 million (i.e 83%).
The British government took £6 million out of Yorubaland for the Imperial War Debt; the interest and sinking fund on this money reached the sum of £13 million apparently spread over 36 years; meaning that the Yoruba were still secretly paying for World War 1 at least up to the 1950s.
Lugard expressed no fear that the expanding revenue of Yorubaland would not be able to bear the financial burden. Keeping in mind that £1 in 1914 is equivalent to £1500 today, the volume of trade with Britain at that time amounted to some £45 billion in today’s money. The contribution to the Imperial War Debt amounted to about £20 billion in today’s money.
Relevant Fact 2: The decision subordinated the Yoruba to others
Britain by way of the Berlin Act 1885 entered into an obligation to preserve the Yoruba country, but it failed to do so. Article 6 of the Act stipulated that:
‘All the Powers exercising sovereign rights or influence in the aforesaid territories bind themselves to watch over the preservation of the native tribes…’
Relevant Fact 3: The Yoruba were not consulted
The British government did not engage the Yoruba people in any discussions prior to the decision to amalgamate. Yoruba traditional rulers were available to consult. At Paragraph 2 of his Report Lugard wrote: ’…the Yorubas, Egbas, and Jebus had evolved a fairly advanced system of Government under recognised rulers…’. On 1 January 1914, Lugard held a Dunbar at Kano in Northern Nigeria, to celebrate the Amalgamation. Only the ‘chief Moslem rulers from Sokoto to Chad’ were invited ‘to swear allegiance to His Majesty’. The rulers of the Yoruba Kingdoms were not invited to swear the oath of allegiance.
Educated Yoruba elites, including Yoruba missionaries, were available for the British government to consult. At Paragraph 2 of his Report, Lugard wrote: ‘…In the principal towns (Lagos, Calabar etc) there were some few educated native gentlemen who practised as doctors, barristers etc’. Ajayi Crowder had been consecrated the first Bishop of West Africa in 1864. Samuel Johnson, as part of his missionary work, was at the material times in close collaboration with the British administration of the Southern Nigeria Protectorate. Following Crowder’s removal in 1890, radical ideas of self-determination were being openly expressed by the educated Yoruba elites.
The British government had no intention of consulting the Yoruba before amalgamating them with others in 1914 in part because of racist bigotry. As an example, Lugard instituted the ‘Segregation of Europeans and Natives’, separating their respective living quarters with ‘a non-residential area of a quarter of a mile in breadth which extends round the former’…acting ‘as a fire-break on the side of the native quarter’ (Paragraph 191).
Relevant Fact 4: The decision subverted the expressed will of Parliament
Subversion occurred as follows.
First, the decision of the British government to acquire Yorubaland prior to the Amalgamation violated the expressed will of Parliament. As Lugard pointed out at Paragraph 3 of his report, ‘…the abandonment of all West African settlements was contemplated, and any extension of responsibilities with the interior was vetoed.’
On 21 February 1865, Parliament appointed a Select Committee ‘To consider the state of the British Establishments in the Western Coast of Africa’. There were at that time 4 small British settlements at Gambia, Sierra Leone, Gold Coast and Lagos. On 26 June 1865, the Committee recommended:
‘I . That it is not possible to withdraw the British Government, wholly or immediately, from any settlements or engagements on the West African Coast.
2 . That the settlement on the Gambia may be reduced, by McCarthy’s Island, which is 150 miles up the river, being no longer occupied; and that the settlement should be confined as much as possible to the mouth of the river.
- That all further extension of territory or assumption of Government or new treaties offering any protection to native tribes, would be inexpedient; and that the object of our policy should be to encourage in the natives the exercise of those qualities which may render it possible for us more and more to transfer to them the administration of all the Governments, with a view to our ultimate withdrawal from all, except, probably, Sierra Leone.
- That this policy of non-extension admits of no exception, as regards new settlements, but cannot amount to an absolute prohibition of measures which, in peculiar cases, may be necessary for the more efficient and economical administration of the settlements we already possess…’
Second, the decision of the British government to import the Royal prerogatives to Yorubaland violated the Foreign Jurisdiction Act 1890 (FJA). One, Yorubaland was a foreign country as confirmed in the treaty of 1888. Two, the extent of the British jurisdiction was not known. As Lugard wrote: ‘no one – neither the Colonial Office nor the Chief Justice – had any clear idea as to what jurisdiction could legally be exercised by the Crown, or what executive powers were, under the Treaties, vested in the Colonial Government…’ Osborne, Chief Justice of Southern Nigeria, reported that ‘the whole question of jurisdiction was in a chaotic state, and that the administration of the Colonial Government in the past was full of anomalies’.
The FJA Section 2 applied:
‘Where a foreign country is not subject to any government from whom Her Majesty jurisdiction of Her Majesty the Queen might obtain jurisdiction in the manner cited in 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 this Act.’
Third, the British government did not comply with FJA Section 11, which required that Parliament scrutinised Orders in Council:
‘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 commencement of the then next session of Parliament, and shall have effect as if it were enacted in this Act.’
Fourth, the decision to amalgamate unilaterally set aside previous treaties between Britain and Yorubaland even though the treaties had been previously ratified by Parliament. The British government did not consider it ‘necessary to substitute any Agreement’ for treaties already signed with the Yoruba rulers (Paragraph 22). The British entered into several treaties in Yorubaland of two kinds, namely, cession and non-cession treaty of protection. In the cession agreements, like the one signed with the rulers of Badagry on 7 July 1863, the word ‘treaty’ was not used.
The non-cession treaties of protection were in a standardized format only requiring signing as and when. In these treaties, the native rulers committed themselves not to transfer their territories to others by way of cession, or to enter into treaty negotiations with foreign States without the notification and preceding consent of the British Government. In turn, non-intervention clauses were routinely included declaring that the British would bind themselves not to interfere with any of the native laws or customs of the country, and not to interfere with the existing rights of the natives without first obtaining their consent.
On 14 August 1893, the Bale of Ibadan and his chiefs wrote to the Acting Governor Denton expressing their reluctance to sign a treaty. They objected to a Resident European. They expressed fears of the potential undermining of respect and authority for them. The Governor in his reply reassured them that there would be no alienation of land and in recognition of that fact, rent would be paid for any land that the British used. He confirmed that there would be no interference with the Native Government of Ibadan.
Request for a Select Committee as alternative
The incorporating jurisdiction of the Amalgamation of Nigeria lies in Great Britain. Annulment of the 1914 Amalgamation of Nigeria is possible, and within the powers of His Majesty’s Government (HMG) of which you sir are Prime Minister. HMG created the legal instrument for the Amalgamation on 22 November 1913. HMG could annul the Order if it wished to do so. To this end, as alternative to Judicial Review, we respectfully request that you convened a Select Committee of the House in response to this letter. We pledge to participate fully and unconditionally were you so to decide.
Please acknowledge receipt of this letter.
Respectfully Yours
Baasegun (Dr) Olusola Oni
MBBS, MSc, MD, LLM, GDL, FRCSEd, FWACS, FMCS, FRCSEng
For and on behalf of Yoruba Descendants
Read Also:https://www.change.org/p/united-nations-security-council-self-determination-for-the-yoruba-people-of-nigeria
Read Also:https://www.newdawnngr.com/2021/09/03/letter-to-british-prime-minister-boris-johnson/
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