An undertaking is a commitment made to another person to do something on which that other person could rely. An undertaking has legal force behind it. An undertaking is legally binding. A treaty is an undertaking. On 23 July 1888, Queen Victoria of Britain concluded a treaty with Oba Adeyemi, Alaafin of Oyo and Head of Yorubaland (the 1888 Britain-Yoruba Treaty). The parties ratified the treaty on 16 June 1890. The 1888 Britain-Yorubaland Treaty established a legal relationship between Britain and Yorubaland, which the terms of the treaty stated was to be in perpetuity. In that 1888 treaty, Britain undertook,
1. to recognise the Yorubaland as a state within its own borders (treaties could only be concluded between independent states).
2. to conduct preferential trade with the peoples of the Yoruba state, the proceeds from which were to be used specifically to develop the Yorubaland.
3. to safeguard the integrity of the territory of the Yoruba people.
4. to imbue the Yoruba State with an International character (the treaty was intended to exclude Britain’s international competitors), and
5. to have the force of international law.
According to William MacGregor, Governor of Lagos, Britain concluded treaties with the Yoruba that were imbued with legal force, which constrained the British, and were to be honoured ‘as long as they continued to exist’. The Governor said that the treaties informed the Yoruba peoples that their provinces were ‘independent states; the native authorities, not unnaturally, begin to think they are entitled to the privileges and rights of great powers, and they resent anything that could be construed as encroaching on their sovereign rights’. The governor was confirming that the Yoruba placed reliance upon treaties that Britain had concluded with them.
The Breach of Undertaking
In 1914, Britain stopped doing the things that it committed to do in the 1888 treaty. This is a breach of undertaking. That breach is actionable.
On 1 January 1914, Britain unilaterally incorporated Yorubaland into Nigeria by an act of amalgamation under an Order in Council made by the British Monarch on 22 November 1913. The act of Amalgamation was a Breach of Undertaking that Britain had made to the Yoruba peoples in the 1888 Britain-Yorubaland Treaty in that it a) removed statehood from the Yorubaland, b) transferred the proceeds of trade accruing from the Yorubaland to Northern Nigeria, and c) usurped the sovereignty of the Yorubaland.
1. The incorporation of the Yorubaland into Nigeria was cynical, and it was done with frivolous and improper intent.
Lord Harcourt, Colonial Secretary (1 January 1914) said this:
‘We have released Northern Nigeria from the leading strings of the treasury. The promising and well conducted youth is now on an allowance of his own and is about to effect an alliance with a Southern lady of means. I have issued the special license and Sir Frederick Lugard will perform the ceremony. May the union be fruitful and the couple constant.’
Lugard, Nigeria’s Governor General (1 January 1914) said this:
‘What we often call the Northern Protectorate of Nigeria today can be better described as the poor husband whilst it’s southern counterpart can be fairly described as the rich wife or the woman of substance and means. A forced union of marriage and marital bliss for both husband and wife for many years to come. It is my prayer that the union will last for ever.’
2. At the time of the Amalgamation in 1914, Britain did not have jurisdiction over the Yorubaland that it sought to amalgamate.
Lugard in the Amalgamation Report at Paragraph 17 wrote:
‘…treaties with the Yorubas and with many small tribes and “Crowned Kings”’ [were not explicit]…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, had reported to Lugard 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’.
3. Britain knew or ought to have known that Amalgamation would be damaging.
AJ Harding, a Colonial official, commented in 1913:
‘Sir F. Lugard's proposal contemplates a state which it is impossible to classify. It is not a unitary state with local government areas but with one Central Executive and one Legislature. It is not a federal state with federal Executive, Legislature and finances, like the Leewards. It is not a personal union of separate colonies under the same Governor like the Windwards, it is not a Confederation of States. If adopted, his proposals can hardly be a permanent solution…’
Governor Hugh Clifford (29/12/20, Nigerian Council Debates):
‘The people of British West African colonies and protectorates have no more pretensions to a common nationality than have, for example, the people of Europe.’
4. The Yoruba did not accept the Amalgamation.
Lagos Weekly Record (February 1919):
‘Let us hope that with the departure of Sir Frederick the Nigerian system the product of his exuberant imagination will be consigned to the limbo of oblivion where embedded in the historical strata of British imperial colonization it will exist as the fossilated remains of an administrative experimental failure.’
Jurisdictional issues
The Breach of Undertaking committed by Britain is actionable in Nigeria. The 1888 Britain-Yoruba Treaty was formally incorporated into the British domestic law by virtue of its enactment under the enabling provisions of the Foreign Jurisdiction Act 1843 (the FJA). The treaty was also incorporated into the laws of the colonial state of Nigeria via Section II of the FJA, which says that any treaty concluded under the FJA was ‘valid and effectual as though the same had been done according to the local law then in force within such Country or Place’. In his 1919 Report to Parliament, Lugard, the Governor General of Nigeria, confirmed the existence of ‘Yoruba treaties’ that he stated were not substituted, which meant that they continued to exist at that material time.
A Nigerian court in JFS Investment Limited v Brawal Line Ltd established that ‘…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…’. In other words, the 1888 Britain Treaty became a carryover law into the laws of the independent state of Nigeria protected and preserved by Section 3(1) of the Nigeria (Constitution) Order in Council 1960, by Section 156(1) of Nigeria’s 1963 Republican Constitution, and by Section 315 of the infamous 1999 Constitution.
It also is noteworthy that the AG did not use the legislative provisions of the Revised Edition (Laws of the Federation of Nigeria) Act 1990 to remove the 1888 Britain-Yorubaland Treaty from Nigeria’s laws, which he was entitled to do. Section 3(1) of the Act gave the AG the power to remove enactments that were obsolete, of temporary nature, under revision, or was of restricted or personal nature. Section 3(2) provides that: ‘Enactments, omitted in accordance with subsection (1) of this section, shall have the same force and validity as if they had not been omitted in the Revised Edition.’ In other words, the 1888 Britain-Yoruba Treaty is ‘existing law’ of Nigeria.
Action for damages
Plaintiff: Any Yoruba descendant.
Defendants: Federal Government of Nigeria + Alaafin of Oyo.
Title: The act of Amalgamation of 1 January 1914 incorporating the Yorubaland into Nigeria was a Breach of Undertaking.
Court of jurisdiction: Case concerns enforcement of treaty (contractual) obligations. Judicial Division of the High Court at Oyo, where the 1888 Britain-Yorubaland Treaty was concluded and ratified, had 1) jurisdictional powers under Nigeria’s common law and 2) ‘inherent’ powers of the court (see Adigun v AG of Oyo State [1987] 2NWLR pt, 56).
Type of action: Originating summons. Case concerns matters of law (the 1888 Britain-Yorubaland Treaty -v- 1914 Act of Amalgamation). Facts not likely to be disputed.
Petition: By the incorporation of Yorubaland into Nigeria in the act of Amalgamation of 1 January 1914, Britain committed a Breach of Undertaking that Britain had made to the Yoruba peoples in the 1888 Britain-Yorubaland Treaty.
Grounds for damages: The Breach of Undertaking caused the Plaintiff actual damage in particular
a) loss of benefits that would have accrued to him had Britain kept its 1888 treaty undertaking to use trade to develop Yorubaland,
b) loss of citizenship of an independent Yoruba State that would not have occurred had Britain kept its undertaking, and
c) loss of benefits that would have accrued to him from that citizenship had the Yorubaland not been incorporated into Nigeria in 1914 contrary to the undertaking.
Relief sought:
a) A Declaration that Britain through the 1914 act of Amalgamation committed a Breach of Undertaking that it previously had accepted in the 1888 Britain-Yorubaland Treaty, and which was continuing and ongoing since 1914.
b) An Order terminating the Breach of Undertaking, that is to say, terminating the 1914 act of Amalgamation as null and void.
c) An order awarding damages to the Plaintiff in compensation for the Breach of Undertaking.