The rival British and French claims over the Niger River

1 Introduction

In the 1880s, while France was occupied with the Sudan and Germany not yet a serious competitor, Great Britain acquired its most important overseas territory in the Western part of Africa, Nigeria, so named by Lady Flora Lugard (1852–1929), British journalist and wife of Lord Lugard, first Governor-General of the territory. 1 Britain initially targeted the Nigerian coast, which is formed by the Niger Delta and its tributaries. Britain acquired this territory by concluding treaties, specifically protectorate treaties, with Nigerian native rulers. This chapter aims to examine the context of these treaties in terms of their negotiations, texts and follow-up.

Traditionally, protectorate treaties were concluded between two States by which one State transferred its external sovereign rights – its rights to enter into and maintain relations with other States – to the protecting State. In the age of New Imperialism, however, Britain used protectorate treaties not only to acquire external sovereignty, but also internal sovereign rights, i.e., the rights to control the internal affairs of the African polity it had undertaken to protect. And having acquired internal sovereignty rights, Britain also claimed to have acquired proprietary rights to African land. To substantiate this main argument, the current chapter appraises imperium and dominium and their relationship in the context of the British colonization of Nigeria in the late nineteenth century. It explores how the concepts of dominium and imperium appeared in the treaties between the British and the Nigerian people(s), and whether the institutions of territorial sovereignty and land ownership were used accurately and consistently. The chapter offers an analysis of protectorate treaties, specifically treaty provisions that concern the transfer of territorial sovereignty and private property of land, as well as the remedies under and beyond the treaties which could be invoked in case of breach of treaty. First, the historical background to the British presence in Nigeria is outlined (§2). Second, the theoretical framework of title to territory is explained from the British perspective (§3). Third, the results of a study and analysis of treaty practices between British and Nigerians are presented (§4). Fourth, the chapter assesses the lawfulness of these treaties and other kinds of agreements by discussing British conduct and the legislation enacted by the British after treaties had been concluded as well as the role of the British colonial judiciary and its case law (§5). Finally, the findings are summarized and British colonial practices in Nigeria are placed in the broader context of the European acquisition and partition of Africa in the late nineteenth century (§6).

2 Historical Background

As earl as the seventeenth century, the British had found their way to the West-African coast, where the main economic activity was trading slaves. The abolition of the British slave trade on 1 January 1808 radically changed British motives for being in Africa and therefore their activities. In the 1830s, a lively trade in palm oil developed. Especially the interior was rich in this oil, and it was the waterways, the Oil Rivers, of which the Niger was the most important, that brought the British to the area. European tradesmen were forbidden by their own authorities to do business directly with African natives, which is why African middlemen were used to liaise between the oil producers in the Hinterland and the European traders on the coast. The intermediate trade took place in the coastal city states of Brass, Bonny, and Calabar, which did not fall under British dominion and where trade and politics were hardly separable. The African middlemen had the monopoly on the intermediate trade, secured by commercial treaties with British traders. The British historian Augustus Mockler-Ferryman (1856–1930) paints a clear picture of contemporary practices in the Niger area: ‘The common theory that “trade follows the flag” hardly holds good with regard to the Niger, for that the Union Jack now floats over the greater part of these vast territories is due almost entirely to the efforts of traders and trading companies, though it is only fair to add that the British Government has usually backed up the traders whenever necessary.’ 2 Consolidating its commercial interests on the West-African coast and the Niger became Britain’s primary objective. This consolidation involved concluding treaties between British agents and African rulers or peoples on such issues as the abolition of the slave trade and human sacrifices, the promotion of peaceful trade and the protection of British subjects and missionaries. 3

Another important trade centre for British agents was the Kingdom of Lagos. Here, the growing palm oil trade drew British attention. In 1861, Britain convinced the King of Lagos, Docemo, to dispose of his empire in favour of the British in return for an annual bonus of gbp 1,000. As a result, Lagos became an English Crown colony. In 1849, a British consul had been appointed to control the area of the Oil Rivers. The consul looked after the British interests and over time earned the respect of the African rulers, who appealed to him when in difficulty. However, the consul’s judicial and administrative duties (and powers) were limited to British subjects. Other than appointing a consul the British Government took no action – hence the name ‘informal empire.’ 4

The British consolidated their commercial interests in the Niger Delta and its watershed 5 mainly through concluding treaties between British agents and African rulers and their peoples. Although the British government did not want to be directly involved in the acquisition and administration of overseas territories, mainly for financial reasons, it did promise traders that they could count on military support, if necessary. This restraint remained British government policy until the 1880s.

In 1880, British consul Edward Hewett found that informal empire no longer sufficed. Britain exercised exclusive influence over territories without having acquired formal possession of them. As consul, Hewett was expected to maintain order and uphold the law, but he did not have the authority to perform his duties. He advocated a formal empire for two reasons: to overrule the powerful position of the African middlemen and to avoid French interference. 6 In April 1882, Hewett requested the Secretary of State for the Colonies, the Earl of Kimberley (1826–1902), to establish a protectorate or a Crown colony in the Nigerian coast area. Remarkably, this request was accompanied by letters from the Cameroonians in which the African rulers ‘were alleged to be willing to surrender their country to the British Queen.’ 7 Kimberley, however, rejected the request. 8 A member of the anti-imperial Government of Prime Minister William Gladstone (1809–1898), Kimberley emphasized the additional responsibilities of the British government when acquiring the territory of ‘barbarians.’ British occupation of the Niger would only lead to war, war would require funding and taxes would have to be raised in the home country to replenish the treasury.

Then Sir George Goldie Taubman (1846–1925; hereafter ‘Sir Goldie’) entered the stage. 9 From 1877, he led a very successful trading company, initially named the United African Company, which in 1882 became the National African Company. A trader and an imperialist, Sir Goldie dreamt of building a vast British empire based on commerce on the African continent. Since the 1870s, the British had obtained access to the Niger and, alongside the trade in the Niger Delta with its African trade centres and middlemen, a new trade market had been established in which British did business directly with African producers. French traders also found their way into the interior, which led to fierce competition between them and the British. At the end of 1884, following various mergers with British and French trading companies, Sir Goldie and his National African Company had the trade monopoly on the Lower Niger. British rule in the Lower Niger area was acknowledged by the European powers at the Berlin Conference (1884–1885).

However, this did satisfy Sir Goldie’s ambitions; he aimed to expand his power to the interior and add a new colony to the British Empire. He set up more and more trading posts along the Niger and concluded treaties with African rulers, 37 agreements by 1884. 10 In these treaties, the rulers put their signatures under clauses stipulating that they ‘ceded the whole of our territory to the National African Company (Limited) and their descendants for ever’ and that they consented to the National African Company’s monopoly on trade. 11 The Dutch historian Henk Wesseling correctly observes that the National African Company ruled de facto as some sort of government over the Hinterland, even without the official permission of the British government. 12 Although Hewett and Sir Goldie both secured treaties with the rulers of the Oil Rivers and the Niger districts, it was Sir Goldie’s company that landed better deals, because African rulers ‘ceded’ their territories to the National African Company ‘in perpetuity.’ What Sir Goldie aimed for, however, was an official mandate by the British government, by way of a charter, because only then would he be able to attain his political purpose: the incorporation of Nigeria into the British Empire. 13

Initially, the British government remained reluctant to intervene in Nigeria. Although the necessity for political action became increasingly clear in the early 1880s, the British government feared the financial and political consequences. However, by the end of 1883 the British government changed its mind because the need to control the trade market and the African middlemen became urgent and competition with the French stiffened. 14 In July 1884, Hewett was empowered to conclude treaties with the object of establishing a British protectorate in the Niger area. The British Foreign Office sent him there with a number of standard treaty forms, each containing the same eight articles. Under these provisions African territory was brought under British protection and Britain obtained the right to free trade, which effectively ended the African middlemen’s power. Whether or not these treaties were understood by the African natives who signed them, they were of vital importance to the British: these treaties were the title deeds of Britain’s prospective colony of Nigeria. However, two other European powers with colonial aspirations – France and Germany – became increasingly eager to acquire African territory and did not avoid a confrontation with Britain. As a result, a steeplechase could not be avoided.

In contending for concluding protectorate treaties with African rulers, Bismarck acted more swiftly than the British: he sent the German explorer Gustav Nachtigal (1834–1885) with the war ship on a mission to the African west coast. 15 Nachtigal travelled on the warship Möwe, and on 5 July 1884 he concluded treaties in Togoland. He subsequently, on 14 July, succeeded in concluding a protectorate treaty for the territory of Cameroon, beating Hewett to it, who had yet to go ashore. 16 Here the first signs of the scramble for Africa appear. Despite this competition, no conflict arose between the two powers: at the Conference of Berlin, Britain recognized Germany’s sovereignty over Cameroon and Bismarck supported the British title to the Niger area. Soon after the Conference, which accelerated the scramble and put a strain on international relations, Britain and Germany signed an agreement demarcating their spheres of influence in Nigeria and Cameroon. The criterion of effective occupation, introduced at the Berlin Conference, implied that a valid title to territory could only be established if a European power was able to defend the territory against external attacks and to secure peace and order within the area. This requirement of effective occupation outlawed the British ‘colonial’ policy of informal empire and encouraged rival expeditions.

In contrast with the French government’s colonial policy of direct rule aimed at assimilation, the attitude of the British government to the events on the African continent was tentative and indecisive. It took some time until the British grasped the imperial reality. Important players in the British political arena at the end of the nineteenth century were the liberals Gladstone, Earl Granville (1815–1891) and Sir Harcourt (1827–1904). Lord Rosebery (1847–1929), who was a convinced imperialist, succeeded Gladstone in 1894 as Prime Minister. The following year, the conservatives seized power in British politics, and Lord Salisbury (1830–1903) took his place as Prime Minister. He appointed Joseph Chamberlain (1836–1914) as Secretary for the Colonies. It was Chamberlain who propagated the transition to formal empire in Africa. He condemned liberalism and propagated an active political and economic role of the British State. The period of laissez faire was had ended, as had the era of freedom of trade; Chamberlain believed in protectionism and imperial preference. 17 The new policy or regime turned on investment and development, in which ‘scientific administration’ and ‘constructive imperialism’ were considered key concepts of the ambition to establish a British Empire from the Cape to Cairo. 18

Returning to the Nigerian situation, the British government asserted its sphere of influence or protectorate power not only over the coastal area between Lagos and Cameroon, but also over the territory behind the coastal strip up to where the Niger and the Benue Rivers converged. After the Conference of Berlin, there was a growing consensus that a protectorate did not suffice to justify or claim total rule over a territory. Although the Final Act did not prescribe effective occupation of the Hinterland as a condition for closing the door on other European powers, this condition was increasingly emphasized in practice. 19 Faced with this trend, the British government could only conceive of one solution, namely, to grant Sir Goldie’s National African Company a Royal Charter. Goldie’s desire for such a charter met with resistance in political circles, because of the grant’s foreseen financial and political consequences. The Charter authorized Sir Goldie’s company, renamed the Royal Niger Company, to administer those territories in the Niger basin regarding which it had concluded protectorate treaties. As will be argued, the British reinterpreted these treaties in a way that allowed them to claim comprehensive and absolute cession of African territory to the company. Although the Royal Charter granted to the company merely recognized the company’s claim, the Royal Niger Company demanded full sovereignty over the area. Instead of operating in the name of the British Crown, the Company presumed it had acquired sovereign rights over the territory. In addition to the Royal Charter, which granted the Company sovereign rights and the capacity to intervene as a government, the Company would receive a trade monopoly. 20 On 10 July 1886, the Royal Niger Company, succeeding the National African Company, was constituted, although enthusiasm and support for this move were modest. 21 Questions arose about the costs of increased British involvement and doubts were expressed as to whether trading companies were indeed able to represent Britain’s interests and control the acquired territory. The chartered Company eventually secured a tract of territory covering the Niger and Benue basins, an area almost twice the size of Britain, and one which, with the exception of South-Africa, would prove to be the most remunerative of tropical Africa. Thus, Britain possessed a protectorate and the Royal Niger Company had a charter, but the British government continued to have reservations about intervening in and assuming responsibility for local affairs; it remained cautious and tried to keep its distance.

Even so, Britain found itself increasingly drawn into the affairs of the protectorate of Nigeria and Sir Goldie’s chartered company because of problems and conflicts between British tradesmen in the Niger Delta and the Royal Niger Company. In addition, the relationship between the British and the African natives was troubled. Especially in its relations with African rulers, Britain began to interpret the protectorate treaty in ever broader terms. At first, the British strategy of choice was one of ‘preventive imperialism’: the British Crown extended its ‘gracious favour and protection’ to the African people and territory, a philosophy that is perfectly described in a letter of the British consul in Nigeria, Hewett, to an African ruler with whom the British were negotiating a treaty: ‘The Queen does not want to take your country or your markets, but at the same time is anxious that no other nation should take them.’ 22

Nonetheless, conflicts between traders and African natives became more frequent, intense and violent. The African natives resented the European merchants for entering the interior markets, because the European presence threatened their commercial advantages as middlemen. This volatile situation forced Britain’s hand and the British intensified their involvement in the Nigerian protectorate. In April 1886, the British Minister of Foreign Affairs informed Hewett that the limited interpretation of the protection treaties should be abandoned, and that Britain should claim its sovereignty over the whole territory of Southern Nigeria. 23 In this way the concept of the protectorate became to be interpreted so broadly as to transform its substance. This trend is confirmed by Anene, who states that ‘[t]he illusion that in a colonial protectorate the internal sovereignty of the indigenous rulers was to be respected was apparently preserved by the nature of the task imposed on the British Consul. […] European writers have referred to this period as the “paper protectorate.” This view is based on the assumption that it was the business of Britain to establish an elaborate Crown colony administration in 1885. Britain had in fact no legal or moral right to do so.’ 24

This situation, of course, led to conflicts and disputes between the merchants and the African inhabitants. As a protectorate power, Britain did not have the authority to intervene in the internal affairs of the African polities, which, as will be shown, was clearly expressed in the concluded treaties. The British government became increasingly involved in the problematic colonial affairs regarding the Oil Rivers and the Niger, and it became clear that the colonial policy of consular rule could not be maintained. The Oil Rivers Protectorate existed only on paper and nothing was undertaken to make it really effective. The consul was not averse to making use of African rulers to administer the Protectorate. Support for establishing a Crown colony grew. A report on the Royal Niger Company argued that ‘the best form of administering the district […] would be by a strong Consular administration’ under the supervision of an executive which had to ‘maintain order and assist in opening up the country,’ if necessary by means of ‘armed police or constabulary.’ 25 In 1891, the protectorate became a de iure colony with de facto direct rule. A consul-general was given broad authority; the headquarters arose in Old Calabar and a vice-consul was placed in charge of the five other principal rivers: Opobo, Benin, Brass, Bonny and Forcados. An administrator for the Niger Delta was appointed in 1893, and the area was henceforth called the Niger Coast Protectorate. This effectively put an end to Sir Goldie’s ideal, unified British rule under his Royal Niger Company: British traders did not want to subject themselves to Sir Goldie and the Lower Niger area was ruled by two opposing British parties, the government in the Delta and the Company on the river. 26

Although the British and French spheres of influence had been defined in a convention between the two powers in 1890, tensions between the two were commonplace. France provoked the British by stating that they had no real power, in the sense of effective occupation, over the Lower Niger area. This meant, so the French asserted, that the British claims could not be maintained in practice. The danger of a violent collision between the two parties was real and may even have seemed inevitable. British military forces went northwards to the Middle and Upper Niger, and French soldiers sought their way to the east and the south, heading for the sea and the Lower Niger. The two sides did indeed clash over the areas of Dahomey and Borgu, both of strategic importance because of their position along the Niger. 27 A detailed examination of these conflicts is beyond the scope of this chapter; but it is worth to draw attention to the main player on the Nigerian territory: Lord Lugard, also called ‘The Maker of Nigeria.’ 28 It was Lord Lugard, famous for his The Dual Mandate in Tropical Africa, 29 who introduced the administrative system of ‘indirect rule.’ 30

Lord Lugard, a professional soldier who first served the British government in East Africa, fought against the French over territory in West Africa. Although attempts at peaceful negotiations were made, territorial expansion took priority in the eyes of the two powers. From 1896 on, the French were active in the West African arena, and in 1897 even occupied the city of Bussa claimed by Britain, situated near the border with French Dahomey (present-day Benin). As a matter of fact, there was no effective British presence in Bussa, but Sir Goldie’s Royal Niger Company had already concluded treaties with local rulers in 1885 and thus had recognized treaty rights to the territory of Bussa. Here, title to territory based on effective occupation clashed with title to territory founded on treaty rights. Paper protectorates no longer sufficed. However, if Britain gave in on this point, its Niger policy would collapse, because that policy rested squarely on the treaties the Royal Niger Company had concluded with the African rulers. 31 Moreover, as Bussa was the gateway to the Niger, French occupation of the city would threaten the trade monopoly and, by extension, the economic future of the Royal Niger Company. British Minister of Colonies Chamberlain was prepared to support Sir Goldie’s Company and he gave him financial and military aid. At the end of 1897, the West African Frontier Force, a field force under the command of Lord Lugard, was set up, consisting of men from the Haussa and Yoruba peoples. Lord Lugard was given a free hand by Chamberlain in achieving a single objective as part of a chessboard policy: next to every French settlement, a British one had to be set up.

As was to be expected, this chessboard policy resulted in many incidents: a hoist-the-flag race between France and Britain ensued, leaving effective occupation a fanciful notion. What is more, the indigenous population fell victim to this violent competition. The Foreign Office, later the Colonial Office, 32 formally regretted the need for military domination, but it was adamant that there were no alternatives to military subjugation in dealing with ‘barbarians.’ 33 Eventually, both parties recognized that the situation was irregular and unendurable. They signed a convention on 14 June 1898, which laid to rest an antagonism that had lasted twenty years. Britain made some territorial concessions to France, but it retained political control over the Lower Niger area.

The British-French Niger Convention of 1898 dividing West Africa roughly mirrored the process of the partition of the whole of Africa by the European colonial powers. It clearly reflects the differences in British and French ambitions: As British imperialism was economically inspired, Britain settled for the small but economically most profitable area in West Africa, Nigeria and the Gold Coast. The French, aspiring to political power and prestige, aimed to gain as much territory as possible in an effort to establish the largest empire. The British government entered into negotiations with the Royal Niger Company in order to arrange the administration of and the authority over the territory. In 1900, the Niger Coast Protectorate was united with the Lower Niger area, which until then had been under the supervision of Sir Goldie’s company – a move that resulted in the Protectorate of Southern Nigeria. On 9 August 1899, the Royal Niger Company transferred its powers to the British government, in exchange for gbp 865,000. In a letter to the Secretary of Treasure of 15 June 1899, the Foreign Office put forward the reasons for revoking the Charter: ‘The West African Frontier Force, now under imperial officers, calls for direct Imperial control; the situation created towards other firms by the commercial position of the Company, which, although strictly within the right devolving upon it by Charter, has succeeded in establishing a practical monopoly of trade; the manner in which this commercial monopoly presses on the native traders […] are some of the arguments which have influenced his Lordship.’ 34The Colony of Lagos remained an administrative unit and a new Protectorate of Northern Nigeria was constituted.

At first, Nigeria under British rule was split up into three administrative areas. Northern Nigeria was subjected to the British and became a protectorate between 1900 and 1903 under the supervision of Lord Lugard, who occupied the emirates of Kano and Sokoto on 3 February and 15 March 1903 respectively,. Subsequently, in 1906, the Colony of Lagos was added to the Protectorate of Southern Nigeria. The positions of consul-general and consul were abolished and a High Commissioner was appointed. The Protectorate of Southern Nigeria was administered by a High Commissioner, four Divisional Commissioners, three Travelling District Commissioners, nine District Commissioners, a Chief Justice, Judges, an Attorney General, and other officials. 35 Southern Nigeria was divided into four districts – Western, Central, Eastern, and Cross River – and on each of the principal rivers a Commissioner’s Court was established. In the course of time, native courts and courts of justice were instituted in every district to assist the European courts.

As almost all British overseas territories, Nigeria was administered through indirect rule, a system of government that was allowed the British colonial administration to rule the African inhabitants through their native rulers. Lord Lugard described this system of administration as follows:

The essential feature of the system […] is that the native chiefs are constituted as an integral part of the machinery of the administration. There are not two sets of rulers – the British and the native – working either separately or in co-operation, but a single Government in which the native chiefs have well-defined duties and an acknowledged status equally with British officers. Their duties should never conflict, and should overlap as little as possible. They should be complementary to each other, and the chief himself must understand that he has no right to place and power unless he renders his proper services to the State. 36

Indirect rule mobilized existing tribal structures and traditions, based on customary law, to help govern the subjected peoples and territories. However, the British authorities limited the power of local rulers to govern their societies by retaining ultimate ruling power: Britain had the final say.

How did the British obtain these jurisdictional powers over African territory? Answer this question requires taking a closer look at the substance of the treaties and other agreements British delegates and companies concluded with African, in particular Southern Nigerian, rulers and peoples.

3 Treaties and Contracts between Britain and African Natives

In 1909, the total length of British frontiers in Africa ranged between 16,000 and 17,000 miles, of which approximately 10,000 miles had already been surveyed, approximately 6,000 miles were marked on the ground, and 2,150 miles were marked and ratified in accordance with common procedures. 37 A brief glance at the list of treaties and agreements concluded in Southern Nigeria as provided by the librarian and archivist Sir Edward Hertslet (1824–1902) in his The Map of Africa by Treaty (1894) 38 brings home the enormity of the scale of the acquisition of territory and land by cession. The authentic minutes of the treaties between Europeans and African natives could be written in the language of the European contracting party and, subsequently, translated into the local African language, or in the languages of both contracting parties. Although Britain also concluded various territorial agreements with France and Germany, in what follows attention will be directed at the treaty and contractual relationships Britain established with the African rulers and their peoples.

The following sections analyse the types of treaties and agreements concerning Nigerian territory British representatives or trading companies concluded with African rulers. 39 First, a number of essential treaties from the second half of the 1800s will be analysed and discussed. Next, the treaties concluded between British and Nigerians in the age of New Imperialism will be scrutinized. It is important to bear in mind that the treaties concluded in the 1850s and 1860s mostly reflected economic considerations, as earlier treaties had done, while later treaties were increasingly political in nature. Along with this transition from economic to political incentives, protectorate treaties would come to be used far more often than cession treaties. Another fundamental trend was that the treaty texts would include clauses on sovereignty and property as well as use a variety of synonyms for ‘have’ and ‘transfer.’

3.1 Early Stage: Cession Treaties and Trade Contracts

One of the first treaties transferring title to territory the British concluded was in the Lagos area. On 1 March 1852, Akitoye, the King of Lagos and the Church Missionary Society signed an agreement that granted pieces of land to the British missionaries. 40 The purpose of this transfer of land was to build churches, schools, and dwelling houses for missionaries and native agents. The transfer of the land was worded as follows: ‘That King Akitoye has made over to the Rev. C.A. Gollmer the above specified pieces of land for the benefit of the Church Missionary Society, without any condition, and free of expense, and without limit of time, he declares by placing his mark to his name in the presence of his Chiefs and others.’ The precise meaning of ‘has made over’ is unclear. Did the object of transfer comprise only rights of use of the land, or land ownership? Or did the transfer even concern rights of sovereignty? At this stage, the agreement of King Akitoye and the Church Missionary Society is likely to have been of a purely private character, in which no territorial sovereignty was involved. It was an economic transfer in which only private rights over land passed from the African ruler to an English community.

The second half of the nineteenth century witnessed a change in the nature of the agreements that were concluded between Europeans and African natives. The original aim of these agreements had been to establish trade and economic relations, but political considerations began to play an increasingly important role in the regulation of European-African relations. With the gradual transition from an economic to a political nature of the agreements, the terminology used shifted from a private to a public one. This shift was marked in particular by the introduction in the 1860s of the term ‘treaty’ to denote legal relationships between British agents and African natives. A clear example of one of the few cession treaties 41 is the one transferring sovereignty rights over the Lagos territory from the local ruler to Britain. On 22 June 1861, the British Government decided to appropriate Lagos as a British Dependence. King Docemo, son of Akitoye, initially refused to transfer his territory to Britain and declined to sign the treaty with the Britain. The British representatives anticipated Docemo’s resistance by including a passage in the treaty text in which they declared that they did not intend to violate the sovereign rights of the King: ‘Her Majesty’s Government would be most unwilling that the establishment of British Sovereignty at Lagos should be attended with any injustice to Docemo.’ 42 The treaty also specified that the King of

Lagos would receive a pension from the British. Nevertheless, the treaty of 6 August 1861 ceding the Lagos territory clearly identified ‘dominion and sovereignty’ as the objects of transfer. It explicitly spoke of ‘British occupation’ by ‘the taking of possession of Lagos.’ Article i of the 1861 treaty reads as follows:

I, Docemo, do, with the consent and advice of my Council, give, transfer, and by these presents grant and confirm unto the Queen of Great Britain, her heirs and successors for ever, the port and island of Lagos, with all the rights, profits, territories and appurtenances whatsoever thereunto belonging, and as well the profits and revenue as the direct, full, and absolute dominion and sovereignty of the said port, island, and premises, with all the royalties thereof, freely, fully, entirely, and absolutely. I do also covenant and grant that the quiet and peaceable possession thereof shall, with all possible speed, be freely and effectually delivered to the Queen of Great Britain, or such person as Her Majesty shall thereunto appoint, for her use in the performance of this grant; the inhabitants of the said island and territories, as the Queen’s subjects, and under her sovereignty, Crown, jurisdiction, and government, being still suffered to live there.

Despite the transfer of sovereignty, Docemo retained some of his rights and duties under Article ii of the 1861 treaty. Yet from Docemo’s perspective and that of his people, it remained unclear what the precise object of cession was. The treaty stipulations are clear to the extent that sovereignty was transferred, but did this transfer automatically imply that the natives lost their property rights to the land? 43 While from the treaty text it is clear that sovereignty was the object of transfer, the status of the natives’ property rights after the cession remained unclear; their protection was minimal, as follows from the word ‘suffered’ in the last sentence of Article i. However, Article iii stated that ‘in the transfer of lands, the stamp of Docemo affixed to the document will be proof that there are no other native claims upon it, and for this purpose he will be permitted to use it as hitherto.’ According to Antony Hopkins, this clause served two purposes, namely, ‘to clarify the fact that Docemo had ceded only political sovereignty, and not possession of the land of Lagos; and to confirm the validity of the system of land grants which had come into being during the consular period.’ 44 Whether or not Docemo was aware of the significance of his signature and regardless of his intended object of transfer, he ceded full sovereignty rights over the territory to the British Crown, which in its turn promised not to interfere with Docemo’s and his people’s use of the land. However, as will be argued later (§4), the practice of issuing land grants and instituting individual land ownership by the British authorities, however, turned out to be a source of commercial benefits for the British and led to the expropriation of native land. 45 On 6 August, a provision was added to the treaty, in which Docemo declared to have ‘understood the

foregoing Treaty perfectly and agrees to all conditions thereof.’ 46

In the same year (1861), the King of Bagroo and his chiefs ceded their territory to the British Queen. They declared to ‘cede, surrender, give over, and transfer […] the full, entire, free, and unlimited right, possession, dominion, and sovereignty’ in and over their land. The wording of the treaty is unambiguous: Great Britain extended its sovereignty over the territory of Bagroo and the people of Bagroo were subjected to British jurisdiction. The question that remains, however, is whether the people of Bagroo retained ownership of the land.

Another example of ceding sovereign rights over territory in the early years of British rule over Nigeria concerned the territory of Badagry. On 7 July 1863, British lieutenant-governor, commander-in-chief, vice-admiral and acting consul John Hawley Glover, in the name of Her Britannic Majesty, concluded an agreement with the rulers of Badagry (representing their people) which transferred the territory of Badagry to Britain. It should be noted that this covenant was a cession agreement: the term ‘treaty’ was not used. Article i enumerated the purposes of the agreement: ‘In order for the better keeping of the peace and quiet of the well-disposed persons living in Badagry, and for the better security of their lives and properties, as also for the purpose of setting aside all pretentions on the part of the King of Porto-Novo and others to the right and royalty of this district of Badagry […]’ In other words, the main objective of the agreement was to protect the Badagry people. Article i continued:

We, whose names are hereunto subscribed, being Chiefs of Badagry, have freely and willingly ceded to Her Majesty the Queen of Great Britain, her heirs and successors, for ever, the town of Badagry, and all the rights and territories and appurtenances whatsoever thereunto belonging, as well as all profits and revenues, absolute dominion and sovereignty of the said town and territory of Badagry, freely, fully, entirely and absolutely.

Under this provision the native rulers directly ceded their sovereignty rights over the Badagry territory to Britain. The Badagry people became subjects of the British and consequently had to rely on the British government for protection of their person, goods and rights.

Next to transactions of sovereignty rights over territory, agreements on property rights to land were concluded and even more common, as the indenture between the people of Okeodan and Britain on 17 July 1863 shows. The main provision of the document reads as follows:

[T]he said Chiefs have consented and agreed to the said Thomas Tickel [resident agent] to grant and convey to Her Majesty the Queen of Great Britain, her heirs and successors for ever, the piece or parcel of land […] and […] that they have the right to grant and convey the said land to Her Majesty the Queen of Great Britain, her heirs and successors, notwithstanding any act of the said Chiefs done or committed; and that any of Her Majesty’s representatives […] shall have peaceable and quiet possession of the said land free from all incumbrances […] And the said hereinbefore-named Chief releases to Her Majesty the Queen of Great Britain, her heirs and successors, for ever, all claims upon the said land.

Clearly, this

agreement ‘granted and conveyed’ land ownership from the rulers of Okeodan to the British Crown. It is a case of public authorities acting in a private capacity. The natives retained the right to stay on and enjoy the land and its fruits. Jurisdictional rights over the territory were not mentioned. These types of agreements were negotiated and concluded between Europeans (private individuals, companies and States) and African rulers and natives. 47 Most of these early treaties contain a provision excluding cession of territory to European States and other political entities. Such an exclusion clause commonly read as follows: ‘It is further agreed that no cession of territory, and no other Treaty or agreement, shall be made by the King of […] than the one they have now made with Great Britain without the full understanding and consent of the British Government,’ as it says in the treaty Britain concluded with the rulers of Aboh on 13 October 1863.

The cession treaty between the King of the Samoo Bullom country and Great Britain, concluded on 2 May 1877, explicitly mentions both the transfer of sovereign rights over the territory and the continuation of native property rights to the land: the British Queen accepted the sovereignty over the territory – including the waters – under the condition of ‘reserving and guaranteeing […] to the native inhabitants of the said islands and lands so ceded aforesaid […] and assigns the full, free, and entire possession of so much of the said lands as is now held and occupied by them, save and except such sovereignty as aforesaid.’ In this contractual relationship with a native ruler, Britain did distinguish between sovereignty and property rights. A similar distinction can be observed in an agreement the native ruler Nquiliso concluded with the British Major H.G. Elliot on 17 July 1878. While the agreement dealt with the cession of sovereignty in the first article of the agreement – ‘Nquiliso cedes […] all sovereign rights which he now possesses, or is entitled to claim’ – the second article stipulated that the ruler ‘agrees to cede to […] such portions of land as may hereafter agreed upon’ and that ‘the land […] be paid for at a fair valuation.’ In other words, the British treaty party explicitly acknowledged the existence of the natives’ private rights to land and recognized that a fair price had to be paid by British settlers to these natives if these settlers wanted to acquire ownership of the land.

3.2 The 1880s and 1890s: Protectorate Treaties

Before the Conference of Berlin (1884–1885) Britain concluded various types of agreements with African natives for the purpose of subjecting the African people to the protection of the British Crown. As mentioned before, the political aspect became gained in prominence in establishing relationships between European and African parties, and this rise of political influence coincided with the institution of a public legal sphere. From the middle of 1884 onwards, concluding treaties would become the exclusive instrument to create legal relations between the Europeans and African natives. Feeling the pressure of French and German rivalry, the British changed their colonial policy from indirect rule to a more directly regulated form of government. Establishing protectorates instead of concluding cession treaties turned out to be an effective and efficient way of acquiring title to territory: a protectorate kept France and Germany out and limited the financial burdens on Britain. Shortly after the Conference of Berlin had ended, a notification was issued in the London Gazette, proclaiming the establishment of the British protectorate over the Niger Districts, the Oil Rivers Protectorate: ‘It is hereby notified for public information that, under and by virtue of certain Treaties concluded between the month of July last and the present date, and by other lawful means, the territories on the West Coast of Africa, herein after referred to as the Niger Districts, were placed under the Protection of Her Majesty the Queen from the date of the said Treaties respectively […].’ 48

Between 1884 and 1892, the National African Company and its successor, the Royal Niger Company, concluded several treaties with native rulers and their peoples and others inhabiting and possessing territories in the basin of the Niger District. 49 In these treaties of protection, 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. These treaties had been standardized: all that remained to be specified were date, place, names and territory. Standardized treaty forms thus completed only required signing.

In addition to the treaties concluded by trading companies, Hewett in 1884 concluded several treaties with native rulers and their peoples in the Niger Districts that subjected the territories of these rulers and peoples to the protection of Britain. 50 These treaties prioritized transferring sovereignty; property rights were explicitly excluded from transfer to the British. It would seem that the British became increasingly aware of the differences between sovereignty and property, so much so that they ensure that these concepts were explicitly mentioned in their treaties with African natives. The objective of these treaties – establishing a relationship of protection between Britain and the African polity – was expressed unambiguously, as in the treaty of 4 July 1884 with the rulers of New Calabar: ‘[the Queen of Great Britain] undertakes to extend to them, and to the territory under their authority and jurisdiction, her gracious favour and protection.’ Inserting exclusion clauses in these treaties underlined this relationship, because in these provisions the African contracting party granted the British ‘the right to trade, to work mines, to cultivate ground, to gather produce of any kind, or to carry on any other occupations in our country’ and declared that they would ‘not grant such rights to, nor deal in any way with any strangers and foreigners, nor enter into any Treaties whatever with them, without the consent and authority [of the British].’ 51 In the treaty between the King and Chiefs of Opobo, concluded on 1 July 1884 and used as a model for many treaties in this part of Africa, the native rulers had to ‘agree’ and ‘promise’ to ‘refrain from entering into any correspondence, Agreement, or Treaty with any foreign nation or Power, except with the knowledge and sanction of Her Britannic Majesty’s Government.’ Moreover, non-intervention clauses were routinely included in these treaties, declaring that the British would ‘bind themselves not to interfere with any of the native laws or customs of the country.’ Or, as the National African Company declared in its agreement with the rulers of Atani, concluded on 20 September 1884, the British contracting party undertook to ‘respect all native laws and customs of the country, and not to interfere with the existing rights of any of the natives without first obtaining their consent.’

That Britain increasingly had to rely on treaties of protection with African rulers to realize the expansion of its empire and to prevent other European States from acquiring title to African territory was the consequence of the competitive atmosphere between European colonial powers stirred up by the Conference of Berlin. In October 1885, shortly after the Conference had ended, at a time when competitive tensions between European powers increased, Britain established a protectorate by treaty over the territory of Mahin. The intense rivalry between Germany and Britain had a significant impact on this treaty. Amapetu, the King of Mahin, who represented his people and territory, played a crucial role in the struggle for power between the two European colonial powers. The Mahin treaty addressed the issues of who acquired title to the Mahin territory, whether the treaty was concluded validly, and what the prospective rights to the territory implied, and it settled these issues in favour of the British Crown. Article i of the Mahin treaty of 24 October 1885 clearly expressed the object of the treaty:

King Amapetu, of Mahin, led by the desire to strengthen and enlarge the relations, commercial and otherwise, maintained by the trading and mercantile community of Lagos with him and his country, to protect the independence of the latter, to fortify his Government, to procure to his subjects the advantages of civilization, and to secure to strangers the due protection of life and property, begs Her Majesty the Queen of Great Britain and Ireland, Empress of India, to take him and his country, including the island or land called Atijere, and all portions of his country bounded by the sea, under Her most gracious protection. [Italics added]

From this passage it can be deduced that the object of the treaty was twofold: transferring partial sovereignty rights over the territory and establishing a protectorate. It is clear that the British Crown was burdened with the protection of the ‘independence’ of the territory under Amapetu’s rule. The exclusion clause that was included in the treaty (Article ii) straightforwardly stated that ‘King Amapetu hereby engages not to cede his country nor any parts of it to any other Power, nor to conclude treaties with other Governments without the special consent of Her majesty the Queen.’ 52

Another interesting development was the enactment in the year 1888 of several proclamations and declarations at a time when Britain was negotiating treaties with African rulers. In these written acts, the independence of a certain territory was emphasized and the exclusion clause took a prominent place in these documents. 53 The treaty between Britain and the Kingdom of Ketu is a case in point. This treaty established a relationship of protection and was signed by both contracting parties: ‘We, the King-designate, Chiefs, Elders, and people of the kingdom of Ketu, hereby offer ourselves and our territory to be included within the protectorate of Her Majesty’s Government of Lagos […].’The treaty also contained very clear provisions on the exclusion of other foreign States from the concerned territory: ‘We engage not to enter into any negotiations with any foreign State without the express permission of Her Majesty’s Government,’ and ‘[w]e further engage to make no cession of territory, and no Treaty or Agreement other than one we now have made, without the full understanding and consent of the Governor for the time being of the Colony of Lagos on behalf of Her Majesty.’ The treaty thus clearly allocates internal sovereignty rights to the protected entity and external sovereignty rights to the protecting State – as a traditional protectorate required.

Another example of an African ruler issuing a declaration confirming his agreement to his territory being placed under the protection of the British Crown concerns the territory of Ilaro. On 21 July 1888, a ‘convention’ on the transfer of partial sovereignty rights over territory was signed and it included a sound exclusion clause. The very next day, the King of Ilaro issued a declaration in which he underlined the independence of the Kingdom whilst reaffirming that the Kingdom would subject itself to the protection of ‘Her Britannic Majesty’: ‘[W]e entreat Her said Majesty to take our territory under her gracious protection; accordingly, and to include it in the protectorate of her Colony of Lagos.’ Several questions arise as to the compatibility of the declaration and the convention as well as to the interpretation of the texts of both documents. 54 The King of Ilaro signed a treaty of protection transferring external sovereignty to Britain and formally reaffirmed this transfer in a separate declaration.

In some cases, the British did not have to resort to bilateral treaties with Nigerian rulers to gain sovereign rights over territory. These rulers issued a unilateral declaration in which they transferred their sovereignty and property rights over a certain territory to the British Queen. A case in point is that of Kosoko, the ex-ruler of Epé and the former King of Lagos. 55 The question is whether a native ruler had the power to transfer sovereign and proprietary rights unilaterally without consulting his people, especially when considering that he represented his people and their rights. It is safe to say that the validity of such unilateral proclamations is controversial.

The early treaties made an explicit distinction between sovereignty rights and private property rights appeared, while treaties concluded in the 1880s and 1890s used shorter, standardized and general formulations that did not specify how existing land rights were affected. As a result, treaty provisions left more room for discretion: clear statements on, for example, non-interference with native customs, laws and property rights featured less prominently in the treaties and eventually disappeared altogether. 56 The fundamental change was the increasing indeterminacy of the scope of the sovereign rights over territory, i.e., the object of transfer in the treaties between Britain and the African natives. The scope and substance of the relationship of protection remained unclear: the division of sovereignty rights between Britain as protector and the African ruler as the protected party was no longer articulated in any significant detail. This indeterminacy led to British interference with the sovereign rights of the African ruler, British control of the internal affairs of the polity and, eventually, British expropriation of native land.

As indicated earlier, in the early years of concluding protectorate treaties, the British would explicitly undertake not to interfere with the property rights of the African inhabitants. The protectorate treaties left the door open to acquiring private property rights to land, but private property rights to land could only be acquired if compensation was paid. Sovereignty rights were transferred, native proprietary rights to land remained unaffected and such property rights could only be acquired by (or on behalf of) the European contracting party if the native African owners were compensated, as a standard treaty form of the National African Company stated: ‘[T]he National African Company (Limited) will not interfere with any of the native laws, and also not encroach on any private property unless the value is agreed upon by the owner and the said Company.’ 57 However, the successor to the National African Company, the Royal Niger Company, while quick to use its discretionary powers to acquire title to land, proved less willing to pay compensation to African natives. 58 In actual fact, compensation was hardly ever paid, and even when it was paid, it neither represented the value of the acquired land nor amounted to a reasonable sum. As the Royal Niger Company not only acted in its own private interest, but was also mandated by the British government to conclude protectorate treaties and rule the protected Nigerian territories in the name of the British Crown, the distinction between sovereignty and property and, more generally, between public and private law blurred. It is also worth noting that the treaties did not specify remedies in case parties breached their contractual obligations.

In 1885, the National African Company was granted a Royal Charter and was renamed the Royal Niger Company. This event was a milestone in Britain’s presence in Nigeria. The Royal Charter contained various passages which were, from a legal point of view, controversial, debatable and, even, disputable, especially those provisions that concerned the rights, duties, tasks and competences of the Royal Niger Company. The mandate of the Company was neither well defined nor strictly demarcated. The Crown confirmed the Company’s entitlement to the sovereignty rights African rulers in the Niger basin had ceded to the Company, and it authorized the Company to administer these rights for the Company’s own benefits. Here, the private interests of the Company and the public interests of the British authorities became entangled. The main duties of the Company were to advocate and continue trade on Nigerian territory and to establish an administration on the basis of delegated sovereignty: ‘[T]hey have two duties to fulfil, the return of a satisfactory dividend to their shareholders, and the administration of the territories entrusted to them to the advantage of the natives within it.’ 59 When the Royal Niger Company was constituted (under Royal Charter), the number of rights possessed by the British State changed; the activities of a private entity were backed by the public involvement of the British State. The Company was assigned the task of administering those territories regarding which it had signed protectorate treaties: ‘The treaties were thus reinterpreted by the British so that they claimed complete and perpetual cession of territory to the company. The Niger Company then purported to be the complete sovereign ruler of the area, and the British protectorate granted to the company was simply a recognition of the company’s claim.’ 60 This confusion of private and public interests soon led to many problems and conflicts which required the British government to intervene directly. The Royal Charter was withdrawn in 1899.

The British tendency to rule their Nigerian territories directly ran parallel to the phenomenon of the ‘colonial protectorate’ which obliterated the difference between a colony and a protectorate. In principle, a protectorate was established by means of a treaty concluded between a European State and an African political entity and only transferred external sovereignty rights over territory. After the protectorate treaty had been concluded, however, the European State would exercise all-comprehensive sovereignty rights – resembling its control over a colony – over the ‘protected’ territory. Michael Mulligan asserts this deployment of the colonial protectorate by Britain by arguing that ‘in the Niger Delta, as elsewhere, the model of indirect rule that had been prevalent since the early 1880s was thus superseded by more direct rule. The protectorate, which had formally been a means of control of external sovereignty, now encompassed control of internal sovereignty as well.’ 61 In theory, Britain acquired external sovereignty rights over the African territory by establishing a relationship of protection with the African ruler on the basis of a treaty. In practice, however, the British expanded their exercise of sovereignty rights to include control over the internal affairs of the African polity. In other words, the protectorate treaty was the first step to fully fledged colonial rule by Britain. This shift towards increased interference in the internal affairs of Nigerian polities can be clearly seen in Article 5 of the treaty Britain concluded on 2 September 1887 with the rulers of the Obako district on the Upper Opobo River: ‘The Kings and Chiefs of Obako hereby engage to assist the British consular or other officers in the execution of such duties as may be assigned to them; and, further, to act upon their advice in matters relating to the administration of justice, the development of the resources of the country, the interests of commerce, or in any other matter in relation to peace, order, and good government, and the general progress of civilization.’

Britain concluded hundreds of treaties (or similar agreements) with native Nigerian rulers and these could of course not all be discussed here, but the few that have are a fairly representative selection. Initially, the British made a clear distinction between cession to acquire sovereignty over territory and the establishment of protectorates. Cession treaties, however, were soon abandoned in favour of acquiring title to territory by establishing treaty-based relationships of protection with African rulers and their polity. The treaty concluded with native ruler Kazembe on 31 October 1891 is an exception. It was a cession treaty and it explicitly distinguished sovereignty rights and proprietary rights: ‘I [Kazembe] do hereby cede to Her Majesty the Queen of Great Britain […] the full sovereign rights of my country, reserving only the proprietary rights to the soil.’ The protectorate treaties differentiated between rights of sovereignty and property and they would invariably contain exclusion non-intervention clauses. When the scramble for Africa intensified, protectorate treaties were standardized, formalized and generalized: contractual arrangements of the rights and duties of the contracting parties became less detailed. The distinction between external and internal sovereignty rights was articulated less clearly and this indeterminacy gave the British colonizer broader discretionary powers. Nevertheless, Britain continued to distinguish between sovereignty and property in their treaties with African rulers.

However, after the treaties had been concluded, interpretation and compliance issues arose that had to be resolved. Even Britain, which favoured establishing protectorates over creating colonies and which discountenanced direct intervention and involvement in its overseas territories, gradually resorted to direct rule of these territories. In addition to exercising external sovereignty rights, Britain started to interfere in the internal affairs of the African political entities it had concluded treaties with and thus encroached on the sovereign rights of the rulers concerned. There were two reasons for this increasing interference. First, the intensified power struggle between the main European States on the African territory eroded Britain’s reluctance to acquire and rule its overseas territories. Traditionally, it had insisted that economics and trade, not politics, should determine overseas relations, but this position changed when France and Germany entered the scene to realize their desire to expand their empires by way of formal rule. The condition of effective control, as explicitly included in Article 35 of the Final Act of the Berlin Conference, strengthened Britain’s urge to intensify its rule in the protectorates. Second, the number and scope of conflicts and problems in the protectorates increased. These conflicts emerged among British settlers and traders, between them and the native inhabitants and among the African natives themselves. Preventing and settling these conflicts required intensified British authority to establish law and order. It should be noted that in this period the British hardly, if ever, used the construct of the colonial protectorate to justify their interference in the internal affairs of African polities. What the analysis of British treaty practices in Nigeria in the late nineteenth century shows is the high frequency of recurrence of the dichotomies of theory versus practice, of the wording of the treaty texts versus the interpretation of these texts and of law versus politics.

4 Legislation in the Wake of the Acquisition of Sovereignty over Territory

Now that it has been established how property and sovereignty issues were addressed in treaties and agreements between Britain and Nigerian natives transferring sovereign rights over territory, the next question to be answered is how existing sovereignty and property rights fared after the treaties had been signed. To that end, post-treaty legislation and case law will be examined, but first two particular features of the British constitutional system must be briefly commented on, because they are relevant to understanding British rule of overseas territories. The first feature is Britain’s dualist legal system. To confer title to territory on the Crown, the mode of acquisition had to be acknowledged by law and the status of treaties transferring title depended on municipal law. A treaty, as indeed any instrument of customary international law, had no effect in municipal law if it were not incorporated or adopted. And if municipal law provided a solution for a problem and international law suggested a different solution, the latter solution had to be rejected. In other words, international law was supplementary law and its position vis-à-vis municipal law was subordinate. This dualism was and still is a leading feature of the British legal system.

The effect of this dualist approach was that the British Crown was not bound by international law that had not been incorporated into its national legal system and as a consequence had enormous freedom of action in the international practice of acquiring territories. In practice, the Crown, exercising its prerogative powers, would often claim unilaterally to have acquired both sovereignty and ultimate property rights over the territory, regardless of the mode of acquisition (i.e., cession or protectorate treaty) and without any intervention from the legislature. The Act of State, understood as the unlimited and unimpaired power of the Crown, was a powerful British weapon. Power, not law, had the final word in the acquisition of overseas territory. Power served the Crown and it was through power that the Crown acquired and exercised rights. This of course raises the question whether in the context of the acquisition of territory the dualist British legal system and the prerogative powers of the Crown implied that Britain was not bound to norms of international law. This question will be addressed in Chapter 8.

The second feature concerns British understanding of the relationship between property and sovereignty. In the late nineteenth century, British doctrine made a clear distinction between territorial sovereignty and ownership of land, as Sir Kenneth Roberts-Wray observes: ‘[I]t must be emphasized that by acquisition of territory we do not mean acquisition of title to the land. That is a very different matter.’ 62 In case of a territory belonging to the Crown’s dominions, sovereignty vested in the Crown is of two kinds: the power of government and the title to the land. 63 While territorial sovereignty and property of land are unified with regard to the Crown’s dominions, in a protectorate the Crown only had external sovereignty rights over the territory. In the case of cession, the Crown acquired jurisdiction over the territory and ultimate ownership of the land. The distinction between territorial sovereignty and land ownership is explicitly referred to in British legal doctrine: ‘[O]wnership of the country is radically different from ownership of the land: the former can belong only to a sovereign, the latter to anyone.’ 64Under feudal law, British land fell under the sovereignty and was the property of the Crown, which implied that ‘when a new colonial possession is acquired by the Crown and governed by English law, the title so acquired is not merely territorial but also proprietary.’ 65 In other words, when the Crown acquired territorial sovereignty through conquest, occupation or cession, it also acquired ultimate land ownership. Because the Crown was considered to be the supreme proprietor – at the apex of the feudal pyramid – rights in land were by definition always relative. In a colony, irrespective of the application of feudal law, the absolute or ultimate title to land was vested in the Crown. In a protectorate, feudal law, as such, was not applied. 66 These two characteristics of the British constitutional system underlay and helped shape Britain’s colonial venture.

After acquiring Nigerian territory by means of treaties, the British Crown had legislative powers over ceded territories: ‘For conquered and ceded Colonies, it is established beyond question that the Sovereign has full power under the Prerogative to make laws either in the constituent field or otherwise.’ 67 According to the Foreign Jurisdiction Act (1890), there is a difference in the extent of legislative powers of the Crown with regard to protectorates, a difference that will be addressed later in this section. Although the British government was reluctant to engage in direct rule in the African territories, it became increasingly involved in governing its colonies and protectorates. Legislation enacted for the Nigerian area, 68 often Orders in Council, were the follow-up to the protectorate and cession treaties in the sense that such legislation intended to implement the arrangements laid down in these treaties. In general, the powers and duties of the legislature in the colonies and protectorates were determined by the particular legislative instrument. Legislation could therefore be enacted in territories acquired by means of cession and protectorate treaties.

Following the conclusion of the 1863 Lagos cession treaty, an extensive system of land grants was established, and this system took individual land ownership as its point of departure. 69 The British authorities controlled the allocation of property in land by issuing Crown grants to both settlers and African natives claiming land. Between 1868 and 1912 the British authorities in Lagos issued some 4,000 Crown grants. 70 Transactions between persons holding rights under the Crown grants had caused difficulties and conflicts, since these transactions had sometimes been effected under native customary law and sometimes under British common law. To regulate titles to territory and settle disputes legislation seemed to be the solution.

In addition to acquiring rights through treaties, Britain introduced statutes regulating land tenure in the southern part of Nigeria. Legislation, mostly Orders in Council, prohibited land speculation in an attempt to ensure subsistence-level production and a continuous supply to the market. The Orders in Council regulated the competition for land and land grabbing and clarified the legal relationships between competitors and the titles to the territories. British Parliament intervened more and more and British governance in Nigeria became increasingly direct.

One of the most influential statutes of the time was the Foreign Jurisdiction Act (1890), replacing its 1843 predecessor, 71 which authorized the British Crown to exercise jurisdiction over all natives and foreigners in its protectorates, despite the fact that Britain did not officially possess these territories. Article 1 of the Act stated that the Crown had the power to exercise jurisdiction ‘within a foreign country in the same and as ample a manner as if Her Majesty had acquired that jurisdiction by the cession or conquest of territory.’ To be clear, ‘foreign country’ referred to countries outside the Crown’s dominions. As a consequence, the British Crown had exclusive control over the foreign relations of its protectorates and was responsible for the internal peace and order of these territories. The British Crown conferred powers on itself to act within a territory, regardless of how that territory had been acquired, and this self-authorization considerably extended the scope of Britain’s legal personality under international law. Moreover, Crown jurisdiction could not be challenged in court. The Preamble to the Foreign Jurisdiction Act 1890 stipulated that the law was determined in Westminster and applied to Britain and its colonies and dominions. As a result of this Act the distinction between a protectorate and a colony blurred and eventually disappeared altogether, and this change also had implications for the distinction between sovereignty rights and private property rights. The relationship between territorial sovereignty and private land ownership will be addressed later. While it remained unclear whether the Foreign Jurisdiction Act of 1890 also applied to protectorates, considering that protectorates were officially not part of the Crown dominions, the Order in Council of 1892 stated explicitly that the establishment of a protectorate implied Britain’s right to govern the subjects of a protectorate. 72 With this Order in Council the British allocated the rights of internal sovereignty to themselves; a move that was commonly accepted by the European States in their competition for African territory.

Second, the Native Lands Acquisition Proclamation (1900) provided that ‘no person other than a Native shall either directly or indirectly acquire any interest in or right over land within Southern Nigeria from the Natives without the written consent of the High Commissioner first had and obtained. Any such interest in or right over land acquired without such consent shall be void.’ 73 In other words, bureaucratic thresholds such as consular consent in order to transfer land were built into land acquisition by the British. This shows that African native rulers no longer had a say in the allocation of rights to land and that they gradually lost the sovereignty rights they had retained under the protectorate treaties to the British authorities.

Third, the Public Lands Act (1903) provided that the British governor had the competence to take any ‘lands required for public purposes for an estate in fee simple or for a less estate, on paying compensation to be agreed on or determined by the Supreme Court of the Colony.’ The Act further ruled that ‘the Governor is to give notice to all the persons interested in the land, or to the persons authorized by the Ordinance to sell and convey it.’ The ruler of the African polity was authorized to sell and convey land in property of a native community in fee simple, whether or not such conveyance was in contravention of any native law or custom. In addition, ‘[t]here [would] be no compensation for land unoccupied unless it [wa]s proved that, for at least six months during the ten years preceding any notice, certain kinds of beneficial use have been made of it. In other cases the Court [wa]s to assess the compensation according to the value at the time when the notice was served, inclusive of damage done by severance.’ 74

Fourth, the Crown Lands Management Proclamation (1906) regulated the management, control and disposition of Crown Lands in the Protectorate of Southern Nigeria. It provided that the ‘High Commissioner shall have the management of all Crown lands in the protectorate, and may at any time and from time to time sell, lease, exchange or otherwise dispose of such lands as he may think fit.’ 75 Article 1 of the Proclamation defined Crown lands as ‘all lands and all rights in and over lands which at any time of after the commencement of this proclamation are vested in, held in trust for, or otherwise belong to His Majesty, his heirs and successors.’ In addition to having obtained sovereignty, the British Crown acquired ultimate land ownership by issuing an Order in Council (1907) which stipulated that the lands of the protectorate of Southern Nigeria were Crown lands: ‘His [the African ruler’s] personal property and personal rights are in that case secured to him; but the property in the soil itself belongs neither to him nor to his tribe, but lies in the protecting power, who may grant unreserved portions to settlers or occupants. In such a case the title to the land is usually secured by registration in a court provided for that purpose, presided over by the resident or administrator.’ 76 The effect of this Order in Council was that internal and external sovereignty rights, whose separateness was essential to the difference between a protectorate and a colony, merged and this in turn led, at least on paper, to the expropriation of land owned by natives.

Fifth, Crown lands were lands which the Royal Niger Company acquired through the various treaties it had concluded with the local rulers. These lands were taken over by the British government under the Niger Lands Transfer Ordinance (1916). Sections 2 and 4 of this Ordinance are particularly relevant. They stipulated that ‘all the lands and rights within the Southern provinces of the protectorate belonging to the Niger Company Limited […] on January 1, 1900 […] shall be and are hereby vested as from January 1, 1900, in the Governor in trust for Her Majesty.’ However, certain lands and rights to these lands, such as trading posts and natural resources, remained in the hands of the Company. Although the Ordinance gave the British government control over these lands, in practice it left the local inhabitants in undisturbed possession and enjoyment of their rights under local law and custom.

Sixth, the Native Lands Acquisition Ordinance (1908) regulated the acquisition of native-held land by foreigners, British nationals and other non-natives. It was repealed in 1917. Article 3 of the ordinance provided that ‘(a) No alien shall acquire any interest or right in or over any land within the Protectorate from a native except under an instrument which has received the approval of the Governor’; and ‘(b) Any instrument which has not received the approval of the Governor as required by this section shall be null and void.’ 77 Article 4 provided a remedy in the form of a penalty 4 if there Article 3 was not complied with. In other words, the Ordinance authorized the acquisition of privately owned land by the British government, i.e., Crown lands, conditional on the consent of the British authorities.

Seventh and last, the Public Lands Acquisition Act (1917) authorized the Governor ‘to acquire lands when required for public purposes.’ Rights to unoccupied lands automatically accrued to Britain. Section 13 of this Act defined unoccupied lands: ‘Lands shall be deemed to be unoccupied where it is not proved that beneficial use thereof for cultivation, or habitation, or for collecting or storing water of for any industrial purpose has been had for a continuous period of at least six months during the period of ten years immediately preceding the publication of the notice stating that such lands are required for public purposes.’ In other words, this Act gave the British authorities and settlers the power to expel African natives from their own lands when their use of the land did not meet British expectations.

By enacting legislation after cession treaties had been signed and protectorates had been established in the Niger area, Britain gradually acquired full sovereignty over the territory and ownership of the lands. The Foreign Jurisdiction Act (1890) and the proclamation of Crown lands proved crucial stages in this process.

5 The Judiciary and Its Case Law

As has been argued, after cession and protectorate treaties had been concluded, the instrument British authorities used most to control the territory was legislation. In the same period, case law emerged on the acquisition of sovereign rights and land ownership, as the various treaties gave rise to conflicts that were brought before colonial courts. The treaty concluded between Britain and the rulers of Okrika on 17 May 1888 contains the typical formulation of jurisdiction: ‘It is agreed that full and exclusive jurisdiction, civil and criminal, over British subjects and their property in the territory of Okrika is reserved to Her Britannic Majesty, to be exercised by such Consular or other officers as Her Majesty shall appoint for that purpose. The same jurisdiction is likewise reserved to Her Majesty in the said territory of Okrika over foreign subjects enjoying British protection, who shall be deemed to be included in the expression “British subject” throughout this Treaty.’

A selection of judgments delivered by the Judicial Committee of the Privy Council will be considered to ascertain how treaties concluded between Britain and African native rulers were interpreted and executed. This analysis will be preceded by a brief exploration of the judiciary system in British Nigeria and the division of judicial authority between the Nigerian protectorate and Britain.

5.1 Colonial Judiciary

English law was first formally introduced in Southern Nigeria by the enactment of the Supreme Court Ordinance (1876), which in essence accepted that the native populations continued to observe and be governed by their customary law. However, this acknowledgement of and respect for native laws was not unconditional, because these laws should not be ‘repugnant to natural justice, equity and good science.’ 78 Furthermore, the natives’ customary laws should of course not conflict with any colonial legislation enacted by Britain.

Although English would officially only take effect in Southern Nigeria in the second half of the nineteenth century, the first judgments based on English law were pronounced in the early nineteenth century. The courts delivering these judgments never entirely replaced the natives’ judicial systems. Indeed, the courts were primarily established to advance British interests and not for the benefit of Nigerians. Serving justice was considered a secondary priority. As Omoniyi Adewoye drily observes, ‘the courts might have served the ends of justice, but they served much more besides.’ 79 They were, after all, deployed as instruments of Britain’s policy of conquest and control over Southern Nigeria. The courts had been put in place for the clear if admittedly not express purpose of serving British interests, adjudicating mutual trade disputes and resolving conflicts with African natives. Nevertheless, to avert the appearance of partiality these new courts had to judge cases brought before them in accordance with the law.

The British-established courts in Southern Nigeria served a dual and sometimes contradictory purpose of formalizing legal relations between natives and British and of extending British territorial influence. The first proper English-style courts to be established in Nigeria were the courts of equity. These were constituted in the Niger Delta by Hewett, the first opening its doors in the district town of Bonny in 1854. These courts were established in response to the necessity ‘to administer some rough form of justice between Africans and European supercargoes trading along the Niger coast.’ 80 Justice was administered in accordance with the principles of fairness and sincerity, applied to the circumstances of a particular case. 81 These courts would mostly concern themselves with trade disputes and

with drafting and enforcing regulations on matters of common interest to European traders. Courts of equity were composed mainly of British traders, with only a few native leaders or rulers serving, and were instruments to extend and perpetuate British power over the territory. The importance of the courts is described by Adewoye:

The Court of equity was a tribunal not only for settling European disputed locally, but also for dealing with conflicts between Africans and European traders. Undoubtedly it marked a significant step in the establishment of British power and authority in the Niger delta. For by the use of the court European traders and British officials were able to move away from the precincts of the African ruler and operate on the basis of an institution outside his purview. Not only did the court require no sanctions from the local ruler, in some instances it also exercised jurisdiction, formally or informally, over his subjects. 82

The British consul in the Niger Delta also held jurisdictional power. It fell to him to enforce the agreements and treaties concluded between the native rulers and the British government and he was authorized to make rules and regulations to maintain peace, order and good government – by British standards of course – in the territory under his control.

The Royal Niger Company established its own courts under the Charter it had been granted, an arrangement that conferred governmental and administrative powers on the Company. In practice, this meant that districts agents of the Company had the authority to try a limited range of civil and criminal cases.

Other more or less judicial institutions were a number of governing councils, which were introduced in 1885. These governing councils had been authorized to dispose of a wide range of jurisdictional issues: they were charged with enforcing consular orders, preserving the peace, maintaining the physical and communicational infrastructure, regulating commerce and adjudicating minor civil and criminal actions. It was these governing councils that pulled the strings on Nigerian soil and, even more so than courts of equity, served as instruments of the British colonial establishment.

Alongside these British judicial institutions, there was a variety of native courts, which performed judicial and administrative duties. It is a fair to ask, however, to what extent these courts were ‘native.’ African rulers did serve on these courts. However, as follows from the proclamation establishing a Supreme Court for the Southern Nigeria Protectorate (see below), it is fair to ask to what extent these native courts could genuinely take cognizance of native interests. In May 1900, a proclamation established a Supreme Court for the Southern Nigeria Protectorate. Section 9 of the proclamation stipulated the competences of the new Supreme Court: the Supreme Court ‘shall possess and exercise, so far as circumstances admit, all the jurisdictions, powers and authorities which are vested in or capable of being exercised by Her Majesty’s High Court of Justice in England.’ It was awarded full jurisdiction over all courts in the Southern Nigeria Protectorate. The applicable law, according to Section 11 of the proclamation, was to be ‘the Common Law, the doctrines of Equity, and the statutes of general application which were in force in England on 1 January 1900.’ In practice, the Supreme Court only adjudicated conflicts among British subjects and between British subjects and African natives and other European settlers, because lack of staff and resources kept it from deploying the full scope of its jurisdiction. In the territory of the Royal Niger Company, the Supreme Court mostly heard commercial disputes and cases involving foreigners.

How did the native population receive these ‘made in England’ judicial authorities that were imported and imposed on them without their say-so? Perhaps unsurprisingly, the natives were initially distrustful of these institutions and reluctant to bring cases before them, preferring to rely on their own judicial bodies to administer justice by customary law standards. Nonetheless, when it became clear that the British and their courts were there to stay, the native population came to terms with the British style of dispensing justice. After the Lagos Colony and the Southern Nigeria Protectorate merged in 1906, some changes in the judicial organization had to be implemented to create a unified legal entity.

Although the Privy Council was not physically present in the Britain’s overseas territories, it did play a determinative role in matters judicial and legislative. In addition, the Privy Council was the executive institution of the British Crown and took a prominent place in colonial affairs, as the Crown was closely involved with its territorial possessions. In other words, all three branches of State organization – administration, legislature and judiciary – were united in the position and activities of the Privy Council. In 1834, the Judicial Committee was instituted to deal with the legal affairs of the Privy Council and it served as the supreme court of appeal for the British colonies, protectorates and other dependent territories.

On a final note, British judges, both in the overseas territories and at home, often relied on the Act of State doctrine: they would decline to decide many a case that concerned the Crown’s prerogatives, because courts of justice were not allowed to review these prerogatives. Consequently, as James Gathii states, ‘common law courts effectively made the entire complement of the Crown’s prerogatives in a protectorate or foreign possession not amenable to judicial review and only limitable at the discretion of the Crown by moral principles.’ 83

5.2 Case Law

Do the judgments of the Nigerian courts and the Judicial Committee of the Privy Council offer proof of the inaccurate and inconsistent use of imperium and dominium at the time of Nigeria’s and Africa’s colonization?. The Judicial Committee of the Privy Council formulated intriguing judgments on the treaty-based transfer of sovereignty and private property rights and developed interesting arguments. 84 Although most judgments of the Privy Council that will be discussed concern the British overseas territory of Southern Nigeria, some key decisions regarding South Africa, Rhodesia and Swaziland will also be dealt with. These decisions show close similarities on the facts and in how the British operated with respect to land acquisition. The cases to be discussed represent the leading opinions of the Privy Council in its case law on colonial affairs. The selected judgments give an explanatory and to all intents and purposes complete survey of the treaty practices concerned. They also answer the question whether the central legal concepts of territorial sovereignty and private property were used accurately and consistently in the interpretation of the treaties concluded with African natives as part of a strategy to maximize the rights and powers of the British. What will also be assessed is whether Judicial Committee of the Privy Council considered the British colonization of Nigeria legal. The cases to be considered set important precedents. 85

After the Conference of Berlin (1884–1885), the scramble for Africa rapidly intensified as France and Germany began to seek and compete for territorial expansion in earnest. The British felt threatened and regarded its rivals ambitions and efforts an attack on its own interests. The British government became especially convinced that it had to strengthen its titles to territories, as nominal protectorates and colonies no longer sufficed. As the Berlin Conference had decided and as was laid down in its Final Act, aspiring colonizers would have to demonstrate effective control over the concerned territories. Britain strengthened its titles to territory by granting a Royal Charter to the most important British trading company, by adapting the content of the cession treaties (blurring the distinction between sovereignty rights and property rights), and by enacting Orders in Council, official laws in the British overseas territories, which affected the cession treaties concluded between Britain and African natives. These Orders in Council repealed and revoked the cession treaties by declaring and promulgating that the ceded territories not only fell under British sovereignty, but were in fact the property of the British Crown. In other words, national laws were enacted to correct, adapt or repeal cession treaties for the purpose of acquiring property rights over land, thus expanding British control over the territory. Other legal instruments, such as ordinances, commands and proclamations, were also enacted, applied and enforced to unilaterally transfer African private property rights over land to the British Crown – without the consent or involvement of African natives having been sought.

British practices on the African continent come to light in the case law of the Judicial Committee of the Privy Council. As regards the practice of concluding cession treaties, it was recognized that the African contracting party, the native ruler, was an independent sovereign, who had the power to conclude cession treaties to transfer sovereignty. 86 In addition, the Judicial Committee repeatedly affirmed the distinction between a protectorate and a colony or annexation as well as the consequences and implications of these different legal institutes. 87 Generally, cession treaties concluded between the British Crown and a native ruler were held to transfer territorial sovereignty with the proviso that such transfer did not affect natives’ property rights to land – a proviso that reflects adherence to the continuity principle.

The Judicial Committee acknowledged that British jurisdiction had at times been stretched to its limits by means of Orders in Council, but it held that such conduct was considered an Act of State, which for that reason could be neither challenged in court nor attributed under the Foreign Jurisdiction Act (1890). 88 The Judicial Committee also ruled on the allocation of power to the British Crown and the chartered trading companies: the former acquired sovereignty over the territory, the latter rights of enjoyment in view of their trading purposes and objects. 89 In Southern Rhodesia (1919) 90 the Judicial Committee held that ‘a manifestation by Orders in Council of the intention of the Crown to exercise full dominion over lands which are un-allotted is sufficient for the establishment of complete power.’ Orders in Council enacted over ‘unalienated’ lands could therefore establish sovereignty rights over territory in favour of the Crown; the Crown had the capacity to unilaterally annex territory to its dominions.

The differences between concepts and their understanding in various legal orders were also taken into account. If concepts were transplanted from one legal order to another, this should be done with caution, as the Judicial Committee took care to point out. 91 With respect to the nature of native land tenure, which was taken to be communal, 92 the Judicial Committee asserted that the British title to the territory was qualified by the rights of enjoyment or use of the native communities that inhabited the territory; these rights had been recognized by the British Crown as the outcome of deliberate policy. In cession cases, the Judicial Committee recognized the continuity doctrine: ‘No doubt there was a cession to the British Crown, along with the Sovereignty, of the radical or ultimate title to the land, in the new Colony, but this cession appears to have been made on the footing that the rights of property of the inhabitants were to be fully respected.’ 93 Referring to The Attorney-General of Southern Nigeria v. Holt (1915), the Judicial Committee in Amodu Tijani v. The Secretary of the Southern Provinces of Nigeria (1921) held that while the cession treaty between the British Crown and a native ruler effectuated a transfer of rights, it did not affect the factual situation: the private property rights of the natives had to be respected. 94 Continuity of existing property rights to land which changed jurisdictional power was the general rule.

Eventually, the Judicial Committee would rule that a cession treaty granted the British Crown all rights of protection, legislation, jurisdiction and administration over the territory and inhabitants of that territory, provided that the natives were guaranteed their laws and customs, and their grazing and agricultural rights, ‘so far as not inconsistent with the laws pursuant to the convention.’ 95 Here, a crucial qualification of the continuity doctrine was introduced: in the case of cession, existing property rights had to be respected as long as they were consistent with British law.

The establishment of a protectorate gave the British Crown territorial sovereignty in the international relations of the protected territory; protectorates were not part of the Crown’s dominions. British authorities had certain if limited powers to enact legislation, but they could not interfere with the private property rights, more specifically the land ownership, of the native population.

In conclusion, as to whether imperium and dominium were used consistently, it can be said that the object and purpose of the cession treaties were at first generally clear: the transfer of sovereignty over territory from an African native ruler to the British Crown on condition that the private property rights over land of the natives were respected. However, by way of subsequently enacted legislation – a competence the British obtained when they acquired sovereign power – the Crown did interfere in private property rights of natives. Britain had the formal competence to enact legislation regarding the allocation of land ownership, because it had acquired jurisdictional rights over the territory by way of cession. In exercising this authority, Britain did not breach the law. The continuity principle, however, was ignored soon after the cession treaty had been signed, and natives were subjected to mass expropriation. Although the principle of continuity carried weight in court cases involving the transfer of sovereignty, it cannot be concluded that failure to respect the continuity principle constituted a violation of law. The principle served as a standard of good behaviour, a political guideline. Disregarding the continuity principle and not respecting native land ownership, while morally objectionable, were not illegal. If, however, the protection of native property and proprietary rights had been explicitly formulated, as it had been in most cession treaties, Britain failed to comply with its treaty obligations. In these cases, the cession of sovereignty over territory was illegal.

As regards protectorate treaties, in Sobhuza ii v. Allister M. Miller and others (1926), 96 the Judicial Committee established the factual situation of the transfer of sovereignty rights and the legislative powers involved. What it did not do, however, was conclude that these practices were unlawful, illegal, or a violation of treaty obligations. The Judicial Committee did not address the legality issue, because the Foreign Jurisdiction Act and the Act of State doctrine prevented it from doing so. It affirmed that a protectorate implied that the protector only had the power to exercise external sovereignty rights. Interference in affairs of internal sovereignty was, however, not entirely excluded. Legislative acts, mostly in Orders in Council, would be issued (with increasing frequency), extending external sovereignty rights to include internal sovereignty rights. Mostly for financial and political reasons, a protectorate would continue to go by that name, but in practice, a protectorate essentially was a colony or a Crown dominion. Accordingly, the protecting power could acquire native property rights by way of these legislative acts. The Judicial Committee refrained from assessing the legality of these practices, because Acts of State were not open to judicial review.

Lastly, in Adeyinka Oyekan and others v. Musendiku Adele (1957), 97 the Judicial Committee of the Privy Council lucidly summarized its position on the effect of the Act of State on a cession treaty between the Crown and African natives. Its conclusion merits full quotation:

[T]he Treaty of Cession was an Act of State by which the British Crown acquired full rights of sovereignty over Lagos. In these circumstances the courts of law will not take it upon themselves to construe the Treaty. The effect of the Act of State is to give to the British Crown sovereign power to make laws and to enforce them, and therefore the power to recognise existing rights or extinguish them or to create new ones. In order to ascertain what rights pass to the Crown or are retained by the inhabitants, the courts of law look, not to the Treaty, but to the conduct of the British Crown. It has been laid down by their Lordships’ Board that ‘Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised. Such rights as he had under the rule of his predecessors avail him nothing.’ […] In inquiring, however, what rights are recognised, there is one guiding principle. It is this: the courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected. Whilst therefore the British Crown, as Sovereign, can make laws enabling it compulsorily to acquire land for public purposes. It will see that proper compensation is awarded to every one of the inhabitants who has by native law an interest in it: and the courts will declare the inhabitants entitled to compensation according to their interests, even though those interests are of a kind unknown to English law […]. Furthermore if a dispute arises between the inhabitants as to the right to occupy a piece of land, it will be determined according to native law and custom, without importing English conceptions of property law […] except, of course, in those cases, now growing in number, where English conceptions of individual ownership have superseded previous conceptions.

In sum, although the conclusion of a cession treaty was considered to be an Act of State by which the English Crown acquired sovereign powers over the African territory concerned, the Judicial Committee once again considers that native property rights should be respected and be valued in accordance with native customary law. In other words, the Judicial Committee recognized the continued existence of native property rights, and I if native property were expropriated, the native proprietor was entitled to compensation. Here the analysis of the Judicial Committee stops, because the Act of State doctrine prescribes judicial restraint in matters involving the Crown. Their Lordships were not prepared to interpret the cession treaty to determine whether it safeguarded existing rights; they would only consider the conduct of the Crown, because the rationale of the Act of State ‘is to give to the British Crown sovereign power to make laws to enforce them, or create new ones.’ 98

Consequently, no reference was made to any British wrongdoing in failing to meet their treaty obligations and to respect native property rights. The Judicial Committee ultimately refrained from concluding that in failing to adhere to the continuity principle, the Crown acted unlawfully. The continuity principle – which potentially restricted the Act of State doctrine – yielded to that doctrine; political expediency prevailed over legal argument; might is right.

6 Conclusion

Two main questions have been addressed in this chapter. The first of these was how in the second half of the nineteenth century property and sovereignty were arranged in treaties and agreements between Britain and Nigerian natives transferring sovereign rights over territory. The second was how existing native sovereignty and property rights fared after treaties had been concluded. Although there had been a British presence on the African continent for some centuries, British rule on and over Nigerian territory started with the cession of Lagos in 1861. Many treaties transferring sovereign rights over territory were to follow. From the mid-1800s onwards, the nature of the agreements between Britain and African natives changed. Where they had originally been driven by economic concerns, they gradually came to be politically motivated. This shift concurred with the increasing use of treaties over contracts. Public law instruments thus gained prominence as a means of regulating relations between Britain and African natives. Britain continued to control its overseas territories through indirect rule.

In the 1880s, the competition between European States for title to African territory reached fever pitch. The contest between Britain and its two main European rivals, France and Germany, combined with the political pressure fuelled by the Conference of Berlin (1884–1885) to compel Britain to abandon its policy of indirect rule and to gradually assume direct control over its African territories. The growing emphasis on effective control of extra-European territories and the European race for African territory boosted the use of protectorate treaties over cession treaties to acquire sovereignty rights over African territory. When it transpired that establishing a traditional protectorate was unrealistic, European politicians introduced the colonial protectorate to acquire and justify title to African territory. Britain was fully involved in and actively contributed to these high-pace developments.

Britain concluded many treaties transferring sovereignty rights from Nigerian rulers to the British State. As time went by and more treaties were concluded, ambiguities in protectorate treaties on the precise object of transfer increased. This development gave rise to the question how the sovereignty rights of the native rulers and the existing native rights to land were affected. Boundaries between British sovereignty exercised over the territory and the sovereignty rights of the native rulers blurred, and this indeterminacy helped to pave the way for the extension and strengthening of British rule over Nigeria. Under the Foreign Jurisdiction Act (1890), the British authorities in the Nigerian territories could, in the name of the Crown, enact Orders in Council which were regarded as Acts of State. By way of these Orders Britain unilaterally awarded itself territorial sovereignty at the expense of the native rulers, whose sovereignty were effectively deprived of any substance. The Orders in Council enabled the British authorities to set up concession systems granting lands and rights to land to British settlers, necessarily implying the appropriation of native property and entitlements. The Judicial Committee of the Privy Council confirmed Britain’s practice of establishing colonial protectorates by means of treaties, but refused to assess the lawfulness of this practice. Britain’s acquisition and direct rule of Nigeria were accomplished through Acts of State that were not open to judicial review.

But questions remain. Was it legally permissible to set aside the continuity principle after the cession treaties had been concluded? Could national legislative acts repeal the treaties establishing protectorates? Did these acts override treaties that had been concluded under international law? Could treaties be lawfully amended or repealed under national law without the consent of the other treaty party required by contemporary international law? How should the fundamental principles underlying the conclusion, interpretation and execution of treaties be assessed? And did Britain and, more generally, European States violate international law? Chapter 8 addresses these questions by comparing the British, French and German treaty-making practices on the African continent.