National Dialogue Memorandum to the Advisory Committee on National Dialogue
At Multi-Purpose Hall Umuahia 30th October, 2013
Submission by Academician Prince Dr Philip C. Njemanze, MD
Chairman, Owerri Provincial Indigenous Peoples’ Assembly
The formation of Nigeria from amalgamation of the two protectorates of Northern Nigeria and Southern Nigeria was officially documented in the Gazette of the Annual Colonial Reports No. 878 on Nigeria, Report for 1914 presented to both houses of parliament by Command of His Majesty on April 1916 in London by Governor-General F.D. Lugard. The Report was submitted to the Colonial Office on 26th January, 1916 in a letter addressed to Rt Honourable A. Bonar Law, P.C. M.P., Secretary of State for the Colonies. This Report is the authentic legal record of the British Government on the formation of Nigeria as a country.
The Report addresses the issues of the Amalgamation from Pages 35-37. The Report states that ‘On January 1st (as Governor of both Northern Nigeria and Southern Nigeria) I was privileged to declare at a public ceremony that by His Majesty’s order those two Administrations had ceased to exist, and were replaced by the single Government of Nigeria, under a Governor-General, constituted under new Letters Patent and Orders in Council with a new seal and flag. The principal changes introduced by this new departure were as follows: – The “Colony of Southern Nigeria,” whose boundaries for the first time were accurately defined, became the “Colony of Nigeria”’.
The Report further states on Page 36, that the amalgamation was of a temporary nature, to be revisited in the future, stating that:
‘The Protectorate, which comprises an area of 334,300 sq miles, was now divided into two spheres, each under a Lieutenant-Governor….These spheres corresponded with the former territories of Northern and Southern Nigeria, and were termed Northern and Southern Provinces – an arrangement which obviated the difficulty presented by the fact that they were each subject to different set of laws, in some cases widely divergent – and differed essentially in many matters of policy and administration. The system of land tenure and the prerogative of the Crown in respect to lands, the system of taxation, the Courts of Law, and the methods of Native administration were fundamentally different; and the adoption of any other method of sub-division, such as had been suggested, would therefore have produced an initial chaos. The division actually adopted , pending the unification of the laws and the evolution of a uniform policy, with such local variations as differences in race, in degree of civilisation, in religion and environment, which might prove to be necessary for Nigeria, in no way precluded a later adjustment of these spheres.’
LEGAL FRAMEWORK FOR THE DIALOGUE
- The Legal Effect of Letters Patent
Concerning the legal effect of Letters Patent on Land Territorial Rights in general, it can be said that in English Law, in royal charter for a colony (or a patent for land within a colony) would convey the soil and any lands that the Crown has actually acquired for itself and a lordship over lands held by the local population under customary law or common law aboriginal title.
- Cession of Sovereignty and Territory under International Law from Britain to Nigeria
Cession is one of the recognized methods of transferring sovereignty and territory under international law. According to Berman, “Because the rights so acquired are derived from the ceding state, the criteria for determining the validity of this mode of transfer in a specific situation are first, that the ceding entity possesses the legal capacity to cede and second, that it is transferring rights that it legitimately and actually holds . This second point is a restatement of the International Law maxim of nemo dat quod non habet, or no donor can give a greater interest than that which he himself has . Thus the British Government could transfer only what the British held in the ‘Colony of Southern Nigeria’ at the time of cession and Nigeria could receive no more than the British held.
In International Law the doctrine of acquired rights holds that a change in sovereignty alone cannot deprive persons of rights that existed under the old sovereignty [3,7].
- Nigeria – a Land Leased Territory
Nigeria was constituted under Letters Patent, a direct declaration of territorial lease over the area for a given time. A survey of international leases and servitudes have shown them to be mostly ad hoc arrangements tailored to address specific issues that arise among states in their interaction with one another .
Yet leases between states normally share three main elements that reflect the private law origins of the concept – the competences allowed, the duration of the arrangement and the compensation to be paid for having the rights.
The first element is the one that is most directly linked to the objective of the lease and has the greatest scope of variation, as the rights embodied in the servitude it creates may be extremely broad or quite narrow. It is thus the most critical factor in determining how much control the lessee state may obtain over the territory. In the case of Nigeria, the first element referenced in the Report was for administrative and economic reasons.
- Duration of the ‘Colony of Southern Nigeria’ Territorial Lease to Nigeria
The duration of the territorial lease reflects how the states perceive the territorial issue it addresses – as something temporary or permanent or too difficult to resolve by more definitive measures. This aspect of a lease can be shaped to the situation at hand, and can allow leases to be applied as a provisional measure when a more lasting situation proves elusive. It can also serve to reaffirm where sovereignty lies by anticipating the eventual returning of the territory to the lessor state or by acknowledging the lessor’s sovereignty on an on-going basis.
Several models have evolved for establishing the duration of territorial lease . The (a) Fixed Term or the Letters Patent model – has a life span of 99 years of the lease. For example, Hong Kong New Territories by Great Britain and China from 1898 – 1997, the North and Southern Sudan Amalgamation 1912 – 2011; (b) Fixed Term with Automatic Renewal – the term may be fixed but an automatic renewal clause that can prolong it unless action is initiated to halt the renewal. This was the nature of the lease arrangement in the Israeli-Jordanian Peace Treaty of 1994; (c) Term Contingent on Events – The timing of the expiration may depend on events. This was seen in reciprocal leases in 1894 between Great Britain and Belgium that involved the territory of the Congo Free State then under Belgian control.
In the case of Nigeria, the British Government stated clearly in the Report on Page 36, that Northern Nigeria and ‘Colony of Southern Nigeria’ were divergent spheres of their influence and could not contemplate on unification of the very different spheres. Hence, a lease arrangement was proffered as an option under ‘Letters Patent’ for a duration of 99 years, from January 1st 1914 to January 1st 2013.
According to the Report on Page 35, the principal departure in the Amalgamation were as follows: The Colony of Southern Nigeria,… became the “Colony of Nigeria” under an “Administrator”…’ It therefore follows that, the area called ‘Northern Nigeria’ is the State of Nigeria, of which Southern Nigeria became a colony in 1914. The entity Nigeria including the region called the ‘Colony of Southern Nigeria’ was granted independence in 1960 by the British Government, which ceded by an Act of Amalgamation by the British the Colony of Southern Nigeria to Nigeria in 1914.
The issue of the present Dialogue is the Expiration of the Cession of the region called ‘Colony of Southern Nigeria’ to Nigeria.
From the above recitals, it follows that on the expiration of the 99 years, the sovereignty taken by the British Government during the provisional amalgamation under Letters Patent for Land and Territorial Rights, would be returned to the People of the state formerly known as ‘Colony of Southern Nigeria’.
TERMINATION OF THE LEASE OF SOUTHERN NIGERIA DURING ITS TERM
Many might question did the independence and all the constitutions of Nigeria not terminate the original lease of the Colony of Southern Nigeria to Nigeria by the British in 1914.
In International Law, a territorial lease may be legally terminated regardless of its intended duration under certain conditions. These include:
- The emergence of a peremptory norm of international law that is incompatible with a territorial lease.
- The implied right of denunciation when a lease established by treaty has no provision for termination or withdrawal.
- The principle of rebus sic stantibus, which holds that a lease can be terminated if there is a fundamental change of circumstances.
- A material breach of a lease’s provisions. 
- The ending of a territorial lease during its term may also be brought about if the participating states revise or replace the treaty that creates it  by a transfer of title to the leased territory or by the disappearance of one of the contracting states.
In the case of Nigeria none of the known international law conditions for termination of the lease of during its term has been met, and hence the issue of the Nigerian independence, Constitutions and all other Declarations within the Republic of Nigeria, are not admissible as terms for termination of the Letters Patent Lease of the Territory of ‘Colony of Southern Nigeria’, during it term, until the expiry of the lease after 99 years. The only acceptable option remains for the contracting states of Nigeria (Northern) and ‘Colony of Southern Nigeria’ when the each constitute separate states with their respective polity enter into a new agreement for unification after a UN supervised Referendum on Self-determination!
The issue for National Dialogue is the transfer of Sovereignty back to the People of the Colony of Southern Nigeria from Nigeria.
STRUCTURE OF THE DIALOGUE
- Compositional/Name *Method of Emergence *Size of Delegates
According to the Report ‘the Northern Provinces, twelve in number, comprise an area of 255,700 square miles, and a population estimated at 9.25 millions. The Southern Provinces, now nine in number, cover 78,600 square miles, with a population of 7.75 millions. The Colony (Lagos) has an area of 1,400 square miles, and a population of 166,000.’
The composition and number of delegates are to be derived from the pre-amalgamation customary areas that formed the initial administrative districts immediately after the amalgamation in the region of ‘Colony of Southern Nigeria’. These administrative districts reflected the realities of customary administrations seen by the British government on ground. Hence, the issue for the Dialogue is the return of sovereignty to the initial customary entities of authority in this region. Therefore, the delegates for the National Dialogue should be derived from representatives of the people living in the various old provinces and districts in the region called Southern Nigeria along with their pre-amalgamation customary ruling houses.
For example, according to the Colonial Administrative Records the 9 southern provinces, of which the Eastern Provinces as at 1914 were:
CALPROF 1-54: Calabar Provincial Office: first Batch (35,831 files, 1891-1963). Calabar Province was created in 1914 and was made up of the following Districts and Divisions: Abak, Arochukwu, Eket, Ikot Ekpene, Itu, Opobo and Uyo.
ONPROF 1-22: Onitsha Provincial Office (6,917 files, 1898-1961). The Central or Niger Province which was created after the session of the territories of the Royal Niger Company to the protectorate of Southern Nigeria in 1900 was for administrative purposes divided into a number of districts. Among them was the Onitsha District formed in 1904 with a station established at the town of Onitsha. In 1906 the Central and Western Province were merged while Onitsha maintained its position as a district. In 1914, with the formation of Nigeria, Onitsha Province was formed. It comprised the following districts: Onitsha, Awka and Udi. Okwoga District was constituted into Obole District; it later became the Nsukka Division under Onitsha Province.
RIVPROF 1-20: Owerri and Rivers Provincial Office (12,813 files, 1900-60). Owerri Province was constituted in 1914 following the amalgamation of the Northern and Southern Nigeria and the splitting of the Eastern or Calabar Province. Some of the districts in the Eastern Province were grouped together to form the new Province: Aba, Ahoada, Bende, Bonny, Brass, Degema, OkigwE, Orlu, Owerri, Opobo and Afikpo.
LEGAL PROCEDURES AND OPTIONS FOR INTEGRATING THE OUTCOMES
The internationally recognized procedure on issues of sovereignty is by Referendum on Self-determination. This Referendum should be conducted in the area used to be known as ‘Colony of Southern Nigeria’. Failure to resolve the matter by a referendum conducted within 12 months of the expiration of the amalgamation agreement on 1st January 2013, means that Nigeria and its polity have expired and have no internationally recognized legal framework of existence as one state.
- Michael J. Strauss, The Viability of Territorial Leases in Resolving International Sovereignty Disputes: A Comparative Study, doctoral thesis, Centre d’Etudes Diplomatiques et Stratégiques, Paris, 2006, p. 125-26.
- Vienna Convention on the Law of Treaties, art. 60, May 23, 1969, 1155 U.N.T.S. 331, entered into force
Jan. 27, 1980.
- HELEN DWIGHT REID, INTERNATIONAL SERVITUDES IN LAW AND PRACTICE 57-58 (The University of
Chicago Press 1932).
- Alfred de Zayas, The Douglas McK. Brown Lecture, University of British Columbia (Nov. 19, 2003),
available at http://www.law.ubc.ca/files/pdf/events/2003/november/GUANTANA.pdf.
- This is how the U.S. lease of the Canal Zone from Panama was terminated.
- Leon Yang (Yang Lieou-Fong), Les Territoires à bail en Chine, doctoral dissertation, Université de Paris, Paris, Les Presses Universitaires de France, 1929, at 155-56.
- F. A. VÁLI, SERVITUDES OF INTERNATIONAL LAW: A STUDY OF RIGHTS IN FOREIGN
TERRITORY (2d ed. 1958).