On 23 July 1888, Britain and Yorubaland signed a non-cession treaty of friendship and exclusive, preferential trade, that is, the 1888 Britain-Yorubaland Treaty. At the time of the signing of the treaty, Nigeria did not exist. Nigeria became a colony of Britain through the Colony of Nigeria Order in Council issued by King George V on 22 November 1913. At independence on 1 October 19660, Nigeria became Britain’s ‘successor’ state of Nigeria.
The first relationship between the 1888 Britain-Yorubaland Treaty and the country of Nigeria was established by the international laws of treaties, which indicated that there was no relationship. Nigeria was totally extraneous to the treaty and as such Nigeria had no ability to interfere with the treaty. The Permanent Court of International Justice (PICJ) in its 1926 judgement on Silesia held that:
‘…a treaty only creates law as between States which are party to it; in case of doubt, no rights can be deduced for it in favour of third party.’
According to Article 2 (g) of the Vienna Convention on the Laws of Treaties (VCLT), a party to a treaty is
‘…a State which has consented to be bound by the treaty and for which the treaty is in force..;’
By law, as non-signatory to the 1888 treaty, Nigeria could not interfere with the boundary of Yorubaland established by that treaty. On this, Article 11 (Boundary regimes) of Vienna Convention on Succession of States in respect of Treaties (VCSST) of 23 August 1978 was clear:
‘A succession of States does not as such affect:
(a) a boundary established by a treaty; or
(b) obligations and rights established by a treaty and relating to the regime of a boundary.’
Nigeria could not interfere with obligations and rights attached to the 1888 treaty; VCSST Article 12 (Other territorial regimes) provides
‘1. A succession of States does not as such affect:
(a) obligations relating to the use of any territory, or to restrictions upon its use, established by a treaty for the benefit of any territory of a foreign State and considered as attaching to the territories in question;
(b) rights established by a treaty for the benefit of any territory and relating to the use, or to restrictions upon the use, of any territory of a foreign State and considered as attaching to the territories in question.’
The second relationship between the 1888 Britain-Yorubaland Treaty and the country of Nigeria was established by way of Nigeria itself consenting to be bound by the treaty. On this, VCLT Article 34 (General rule regarding third States) provides:
‘A treaty does not create either obligations or rights for a third State without its consent.’
The Colony of Nigeria Order in Council 1913 did not annul the 1888 treaty. Although Lugard, who carried out the act of amalgamation on 1 January 1914, knew of the existence of ‘Yoruba treaties’, he neither substituted them nor made laws to supersede them. In other words, the 1888 treaty was live at independence on 1 October 1960 when Nigeria agreed to take over international legal responsibilities and obligations of the British government. As a consequence of that independence agreement, the 1888 treaty became an ‘existing law’ of Nigeria.
This legal situation was confirmed in the landmark case of JFS Investment Ltd v Brawal Line Ltd where Olufunlola Oyelola Adekeye JSC said this:
‘…by October 1st 1960 at the Nigeria Independence the Government of the Federation assumed all obligations and responsibilities of the colonial regime of the government which arose from valid international instruments…an international agreement embodied in a convention such as Hague Rules is autonomous and above domestic legislation of the subscribing countries and the provisions cannot be suspended or interrupted even by the agreement of the parties.’
An ‘existing law’ of Nigeria was designated statute law by Nigeria’s 1960 Independence Constitution (Section 3(1)), 1963 Republic Constitution (Section 56(1)), and 1999 Constitution (Section 315). Nigeria’s Attorney General was empowered by Section 3(1) of the Revised Edition (Laws of the Federation of Nigeria) Act 1990 to remove any undesirable laws from the statute books. He has not done so in respect of the 1888 Britain-Yorubaland Treaty, which meant that Nigeria regarded the 1888 treaty as neither obsolete nor of temporary nature.
Further, Nigeria in the Bakassi Peninsula case accepted that pre-colonial territorial treaties made in the Nigeria area were legally binding and current. The Anglo-German Treaty that the International Court of Justice (ICJ) used to transfer Bakassi sovereignty from Nigeria to Cameroon was signed on 12 March 1913, some 8 months before King George V made the Colony of Nigeria Order in Council. The 1888 Britain-Yorubaland Treaty too was a pre-colonial territorial treaty. Nigeria thus is obligated to accept that treaty as legally binding and current.
The conclusion to be made from all of the aforesaid is that under international law, Nigeria could not prevent enforcement and implementation of the 1888 Britain-Yorubaland Treaty.
You too can join YPUK’s campaign to enforce and implement the 1888 Britain-Yorubaland Treaty. Visit www.yorubapartyuk.org to donate to YPUK’s application for judicial review of the deliberate frustration by the British of the 1888 Britain-Yorubaland Treaty.