Advice of T. O. Elias, AG of Nigeria To Dr. Okoi Arikpo, Commissioner for External Affairs, on Bakassi

In Breaking News, Reports

by Dr. Walter Ofonagoro

A great deal has been said, and written about the “Elias Legal Opinion” of September 3, 1970[1], expressed in a letter to his External Affairs counterpart, Dr. Okoi Arikpo, on the prospects of Nigeria winning the Bakassi case in court, should Nigeria ever allow herself to be dragged to court over the issue.

He was sure that Nigeria would lose the case, and his prediction has come to pass. Dr. Elias is, no doubt, a distinguished legal luminary, whose views must command respect all over the world. He was a professor of law at the University of Lagos, Attorney General and Commissioner for Justice in the Government of General Gowon, Chief Justice of the Federation of Nigeria, and President of the international Court of Justice.

These credentials are, by all standards intimidating. It is however, the hallmark of scholarship, the world over, that no opinion, no matter how highly placed the source, should be immune from the search light of intellectual analysis, because we can thereby further enrich our knowledge of the empirical basis of such opinion.

In a paper that seeks to understand the roots and ramifications of the Bakassi question, we must study the evidential basis of the Elias Legal Opinion of September 3, 1970, in order to benefit from his rich store of knowledge, and accumulated experience, especially in the context of our quest for answers to the questions raised in this paper.

We must note, in passing, that Dr. Elias based his legal opinion on the following facts:

(1) “The recent developments in the relations between Nigeria and the Cameroons concerning the disputed Bakassi Peninsula, particularly the work of the Nigeria-Cameroons Joint Commission which sat at Yaoundé from 12 to 14 August, 1970. This ministry has given a most careful consideration to the whole question in the light of all the available evidence and the conclusion is that there is no legal basis for Nigeria’s claim to Bakassi peninsula for the reasons stated hereon”

[2] It is evident that Dr. Elias placed extra-ordinary weight on the work of the Nigeria/Cameroon Joint Commission which met at Yaoundé from August 12 to 14, 1970. The major decisions taken at that meeting, “after considerable discussion”, was that the “Joint Commission agreed to use the 1913 Anglo-German Treaty” as the basis for demarcating the boundary”

[3] It is obvious that this decision was made without seeking guidance from either the Attorney General, or the Honorable Minister of Transport through the office of the Head of State, otherwise, Dr. Elias would not be referring to decisions reached at the Yaoundé meeting of August 12-14, 1970. The vital decision had been taken at that meeting of the Joint Commission, at which the most senior Nigerian official present was the Federal Director of Surveys.

Once that decision had been taken, there was no escaping the implications of Article 20 of the Anglo-German Treaty of March 11, 1913, which stipulated that;

“Should the lower course of the Akwa Yafe so change its mouth as to transfer it to the Rio Del Rey, it is agreed that the area now known as the Bakassi peninsula shall remain German territory”

[4] Dr. Elias further drew attention to “the exchange of notes between Nigeria and the United Kingdom on October 1, 1960” which “binds Nigeria to honour obligations entered into on our behalf by the United Kingdom”. The implication of this statement is that the External Affairs Ministry considered the 1913
Agreement as one of the pre-independence treaties entered into by Britain on Nigeria’s behalf.

He did not, however, make any pronouncement on the legal validity of that treaty. He only referred to decisions already taken by the Yaoundé meeting of the Nigerian-Cameroon border commission to adopt the 1913 Treaty as the basis for their boundary demarcation negotiations. The commitment had already been made in August 12-14, and he was of the opinion that Nigeria was bound to honour that commitment.

His legal opinion does not in any way preclude other scholars from inquiring into the legal validity of that agreement, and some have already expressed such concerns. Professor Bassey Atte (1993) in a study of this subject has stated that the 1913 Anglo-German Agreement “which purported to alter the status quo to Nigeria’s disadvantage, is subject to great controversy as to its legality”.

[5] Furthermore, in 1981, a Task Force on the Cameroon, appointed by President Shagari, concluded that the 1913 Agreement was voidable. An inquiry into the legal validity of the 1913 Agreement is therefore not intended to challenge the immense professional stature of legal giants who have worked on this problem before. Our only objective is to re-assess in the empirical data on which certain decisions of the past have been based, in order to find fresh insights towards solving the problems posed by the ICJ judgment and the consequences for the people of Nigeria.

Certainly, nothing compels Nigeria to accept as sacred uncritically; any treaty, entered on her behalf, during Colonial rule. If the treaty is eventually found to be legally invalid, then any decisions based on it must necessarily be quashed in a judicial review.

In any case, the Nigerian legal team at the ICJ had this to say about the legal validity of the Anglo-German Agreement of March 11, 1913:

“In relation to the Treaty of Versailles, Nigeria points out that Article 289 thereof provided for “the revival of pre-war bi-lateral treaties concluded by Germany on notification to Germany by the other party.” It contends that since Great Britain had taken no steps under Article 289 to revive the Agreement of March 11, 1913, it was accordingly abrogated.”

[6] This agreement bound Nigeria and Cameroon only because they had chosen to be bound by it before going to court. It was certainly not among the inherited colonial treaties and agreements inherited from Britain at Independence, since Britain had not chosen to revive it with Germany after 1916.

[7] We may note, in passing, that the Nigerian delegation to the August 1970 Yaoundé meeting of the Joint Commission went there with a draft agenda that included “fresh physical and administrative considerations for delimiting the boundary”. This means that they had misgivings about the legal validity of that treaty. They only agreed to use the 1913 Treaty as a basis for their decisions “after considerable deliberation”.

There were two other grounds on which the Elias Legal Opinion of September 3, 1970 were based. One was sentimental: that was, that “Every effort should be exerted on our side to ensure that Nigeria does not show ingratitude to a sister country that stood by us during the Civil War”.

We shall return to this issue of “gratitude” for services rendered to Nigeria by Cameroon during the Civil War in another Chapter. Dr. Elias was however careful to draw attention to Article 21 of the Agreement of March 11, 1913. This was very significant. In terms of defining the maritime boundary, this was the most important.

Article 21 states that “From the center of the Navigable channel on a line joining Bakassi point and King point; the boundary shall follow the center of the Navigable channel of the Akwa Yafe River as far as the 3 mile limit of territorial jurisdiction.

For the purpose of defining this boundary, the Navigable channel of the Akwa Yafe River shall be considered to be wholly east of the navigable channel of the Cross and the Calabar Rivers”. The Article was the most important in the entire agreement regarding the definition of the maritime boundary, and it was the article that defined the Boundary. It was therefore mandatory and fundamental.

Dr. Elias lists as the basis of his opinion that Bakassi belonged to Cameroon “as international Boundary was drawn through the Thalweg of the Akpa Yafe which puts Bakassi peninsula on the Cameroon side of the boundary”. This legal opinion was dated September 3, 1970. On that date the Boundary Commission had not yet drawn the boundary line to the 3 mile limit, as specified in Article 21, because they were having great difficulty locating the navigable channel of the Akwa Yafe River, and resolving the problemative assertion, that it must “lie to the East of the Navigable channels of the Cross and Calabar Rivers”.

It was only at the Yaoundé Summit of the two Heads of State, held on April 4, 1971, that the famous Ngo/Coker, was first drawn to a 3-mile limit from the Akwa Yafe River, westwards to the channel of the Cross and Calabar Rivers, placing Bakassi on the Cameroonian side of this new boundary.

If Dr. Elias knew about this boundary by September 3, 1970, eight months before Yaoundé Summit, where the Ngo/Coker line was agreed , then it means that at the highest level of the Nigerian Government, the level of the Attorney General, and presumably, his boss, the Head of State, the decision had already been taken at that time, to ignore the provision of Article 21 of the Anglo-German Treaty of March 11, 1913, and draw the boundary to the west of the Akwa Yafe River.

In practice, the navigable channel of the Akpa Yafe was invariably forced to flow to the Bakassi north shore, and East to the Rio del Rey, and the British stated this fact in Article 20: “Should the lower course of the Akwa Yafe so change its mouth as to transfer it to the Rio Del Rey”, it is agreed that the area now known as Bakassi peninsula shall still remain German territory.

Even by Article 20 of this Treaty, Bakassi is not ceded to German Cameroon; the article simply says that Bakassi shall still remain German territory. This means that it was already “German territory” before the date of the drafting of Article 20 of that treaty. That being the case, Cameroon still has to produce the documentary basis of Bakassi becoming “German territory” in the first place.

There must be some documentary basis of Bakassi becoming German territory between April 14, 1893 and March 13, 1913, since the language of the Treaty says that Bakassi shall still remain German territory, even when by the flow of the boundary, following Akwa Yafe to Rio del Rey, it finds itself on the British side of the boundary. This is most strange to treaty law.

In 1907, when the British and Germans had agreed that the Boundary should progress inland from the Thalweg of the Akwa Yafe, the Germans had requested for the frontier to be continued out to sea after reaching the mouth of the Akwa Yafe, all the way to the “middle of the channel of the mouth of the old Calabar River”, the British, according to minutes recorded by Mr. Strachey of the Foreign Office, refused this request and told the Germans the “line should follow the shore of the Bakassi peninsula along the thalweg of the Akwa Yafe when the actual mouth of the river was reached”

[8] It is therefore clear that as far back as 1907, it was generally known by both powers, that the navigable channel of the Akwa Yafe could never put Bakassi on the Cameroonian side of the border, since that channel must lie to the east of the Calabar and Cross River channels. The heavier flow of these two bigger rivers would always force the Akwa Yafe east to Bakassi shore and the Rio Del Rey. Most often, the channel disappeared altogether, and was extremely difficult to find.

The problem was in fact insoluble until April 1971 at the Yaoundé summit, when, at the suggestion of President Ahidjo, General Gowon drew the line on a map, from a spot indicated by Surveyor Coker, and both Gowon and Ahidjo signed, and what came to be known as the Ngo/Coker line was born.

That line, later extended out to sea, cut right across the navigable channels of the Calabar and Cross Rivers, and dragged the boundary from the Rio Del Rey where it should have been forced by Nature and treaty law to remain, all the way to the Calabar channel, where it was never intended to be, not even by the British and the Germans who prepared and signed the 1913 Agreement.

The Ngo/Coker line that the ICJ has used as a line of compromise violates many provisions of the already defective Anglo-German Agreement of 1913. It violated the mandatory provisions Article 21, which stated that the boundary must lie east of the Calabar and Cross River channels, and it violated article 25, which gave Britain and therefore Nigeria, sovereignty over the Calabar and Cross River Estuary.

Article 25 gave Britain the exclusive responsibility of marking, dredging or buoying the navigable channels of the Cross and Calabar Rivers from the 3-mile limit landward. It states that it “shall be carried out by the British Government at the discretion of that Government”. This power over Nigeria’s territorial seas was preserved in the Anglo-German Agreement of 1913.

In signing the Yaoundé I and II, and the Maroua Declarations of 1970/71 and 1975, Nigeria and Cameroon, cannot be said to have implemented this Article of Agreement. In fact these new Agreements have completely destroyed the letter and spirit of the Anglo-German Treaty of 1913.

In 1972, Cameroon started drilling for oil on the old Calabar navigable channel, thereby posing a danger and obstruction to Nigeria’s major South Eastern sea port of Calabar, claiming that the channel was the new border on the basis of the Ngo/Coker line. Nigeria joined Cameroon in drilling for oil, side by side, along the same line drawn out to sea and signed into an Agreement at Maroua in 1975. Can those agreements be said to be based on the Elias legal opinion? These are questions only international lawyers can answer.

Finally, Dr. Elias based his legal opinion on the Northern Region, Western Region, Eastern Region Boundaries Proclamation Order in Council, L.N. 126 of 1954[9]. I have read that piece of legislation, especially the third schedule, parts I and II. Both parts define the Southern Boundary of both Eastern Region and Cameroon as “the sea”.

Schedule I defines Eastern Boundary of Eastern Nigeria, which is also the Western Boundary of Southern Cameroon, as going inland “from the sea, and following the navigable channel of the Akpa Yafe River” all the way inland through various identified pillars and land marks, and terminating “at Boundary pillar 100, on the Ameli River”, at the Northern Region/Eastern Region border.

It makes no reference to the boundary stipulations in Articles 18 to 30 of the Anglo- German Agreements of 1913. In effect, just as the French had redrawn their Boundary position on the Eastern Border of Cameroon with French Equatorial Africa to its pre-1911 frontiers by 1919, the British had by this “Definition” of the Nigeria/Southern Cameroons Boundary in 1954, which they inserted into the Constitutions of the Southern Cameroon and Eastern Nigerian 1960, abandoned Articles 18 to 30 of the Anglo-German Agreement of March 11, 1913.

Articles 9-17 of the 1913 agreement were already covered by other agreements done piecemiel, as the boundary snaked its way from Yola to the sea. It did not include the Boundary from the Gulf of Guinea into the interior, because that section of the boundary had been settled by the Anglo-German Boundary Agreements of 1885, 1886 and 1893.

A cursory examination and comparative textual analysis of the Definition of the Eastern Nigeria/Southern Southern Boundary in Legal Notice 126 0f 1954, the last definitive Boundary legislation which gave Nigeria and her Eastern Neighbor the Boundaries they inherited at Independence, is quite revealing, when compared to the text of the Anglo-German Boundary Agreement of March 11, 1913. First, the 1913 Agreement starts from Yola and winds it way south to the mouth of the Akpa Yafe River.

The common Boundary of Eastern Nigeria and Southern Cameroon on the other hand, as defined in the Third Schedule, Part I, Nigerian Boundary Definition Law, L. N. 126 of 1954, starts the definition from the sea, and works its way thence from the thalweg of the navigable channel of the Akpa Yafe River, up to boundary post 100 on the Eastern Nigeria /Northern Nigeria border.

The idea that the boundary having reached the thalweg of the Akpa Yafe River must necessarily place Bakassi on the Cameroon side of the River when drawn out to sea was incorrect. That Boundary had already been drawn through the thalweg of the Akpa Yafe River by 1907, and the Germans requested to move it to sea, westward through the Calabar and Cross River channels, at that time. The British denied the request and insisted that it must follow the north shore of the Bakassi Peninsula, east to the already established Rio del Rey boundary.

The insertion of Article 21 and Article 25 into the 1913 Agreement had the effect of ensuring that the boundary must reach the sea by following the center of the navigable channel of the Akwa Yafe River, east to the Rio Del Rey. A cursory comparative examination of the text of schedule 3, Part I of the Boundaries (Definition) Order-in-Council, L.N. 126 of 1954, and the text of the Anglo-German Treaty of March 11, 1913, will show that the two documents do not come from the same source. Not only are place names and landmarks different in many instances, even the names of rivers and villages mentioned in the two documents are different.

Furthermore, the 1913 Agreement discusses the boundary from North to South, because the boundary definition started from the north, from Yola, in the Territory of the Royal Niger Company, 1886-1899; while the Eastern Nigerian boundary definition started from the sea, the territory of the Oil Rivers Protectorate, in 1885; and was concluded in 1893. It is obvious that the text of the Boundary Definition Order-in-Council of 1954, may not have been derived from the text of the Anglo-German Treaty of March 11, 1913.

The marking of border pillars, and demarcation of the boundary in Eastern Nigeria, started from the Rio Del Rey at the south coast of Bakassi peninsula, way back in1885, and worked its way North. It was only after it was discovered in 1886, that the Rio Del Rey was not a major river leading to the interior, that the decision was made to proceed inland, from the head waters of the Rio Del Rey, eventually going west to the Akpa Yafe, and following that route to the interior.

In this respect the Akpa Yafe was not the take-off point, (or end-point) of the Border from the Gulf of Guinea. It was merely a continuation inland of the Rio Del Rey Boundary. There are also a number of inconsistencies in both documents. Some place names and landmarks in the 1954 Legal Notice No. 126, do not correspond to those found in the 1913 agreement. It is therefore clear that the definition of Eastern Nigeria/ Southern Nigeria boundary in L.N. 126 of 1954 does not appear to be based on the text of the 1913 Agreement.

As Britain was the Colonial Power in Eastern Nigeria and Mandate Power in Southern, we are bound by the boundary definition contained in L.N. 126 of 1954, which states precisely the border shared by both neighbors.

We must remember that the boundary between Nigeria and Cameroon was never at issue between 1914 and 1919. What was presented to the League of Nations was only the Milner-Simon line, the Boundary between British Cameroon and French Cameroon, partitioning Cameroon between the two parties before the League of Nations came on the scene.

The British Cameroon over which the British Government signed the League Mandate was not the German Cameroon of 1914. It was the British Cameroon of 1922, which Britain had ruled for seven years (1916-1922), before signing the League Mandate. The League is therefore powerless to insist on the inclusion of any portion of pre-1916 German Cameroon, not offered for inclusion under the Mandate by Britain or France in 1922. As Professor Gardinier stated at the Yale University Conference on British and German Imperial and Colonial history in 1965, the Cameroon of the Mandate period was a German Cameroon, reduced to its pre-1911 frontiers.

[10] As a consequence of the 1916 to 1919 partition of Cameroons and territorial adjustments made by both France and Britain to the conquered German Cameroon, the Cameroon of the League Mandate was the Cameroon of its pre-1911 frontiers not, the Cameroon of 1914. The 1913 Treaty was no longer legally valid.

The Northern Region, Western Region and Eastern Region (Definition of Boundaries) Proclamation, 1954, Legal Notice 126 of 1954, requires further comment. What I find significant here, is that the Eastern Nigeria Boundaries definition Order-in-Council, completely excludes all conditional clauses found in the text of the Treaty of 1913. These conditional clauses are contained in Articles 19 and 20 of the Anglo-German Agreement of March 11, 1913. Article 19 states:

“should the thalweg of the Lower Akwa Yafe, upstream from Bakassi Point to King Point, change its position in such a way as to affect the relative positions of the thalweg and the Mangrove Islands, a new adjustment of the boundary shall be made, on the basis of new positions, as determined by a map to be made for the purpose.”

This article is completely eliminated from the Eastern Nigeria Boundaries Definition Law. Article 20 states that

“should the lower Akwa Yafe so change its mouth as to transfer it to the Rio Del Rey, it is agreed that the area now known as Bakassi peninsula shall still remain German territory. The same condition applies to any portion of territory now regarded as being British, which may be cut off is a similar way.”

This provision is excluded from the Boundaries definition Law of 1954. Obviously, a boundary can never be stated in conditional terms. The landmarks and specifications are usually definite. What is important here is that the Boundary Definition Proclamation, L.N. 126, Order-in-Council of 1954 eliminated any mention of Bakassi which is so highlighted in a conditional clause in the 1913 Agreement.

It is significant that the Cameroonian claims to Bakassi were based on these two conditional articles of the 1913 Agreement; not taken into account in the Definition of Boundaries Law of 1954. The British Colonial Government could have explicitly stated in the Boundaries definition law that Bakassi belongs to Southern Cameroon. They did not. In fact, all articles of the 1913 Treaty, from 18 to 30 are eliminated from this definition of Boundaries law of 1954.

The “Sea”, mentioned in the Legal Notice No.154 discussed above is a specific reference to the Sea Boundary of Eastern Nigeria established in the following Boundary agreements:

1.) The Anglo-German Agreement of April 29, 1885, (No. 260 of 1885).
2.) The Anglo-German Agreement of August 2, 1886, (No. 263 of 1886).
3.) The Anglo-German Agreement of July 1, 1890 (No. 270 of 1890).
4.) The Anglo-German Agreement of April 14, 1893 (No. 273 of 1893).
The validity of the Rio del Rey Boundary is further confirmed by:

1.) The Constitution of the Federation of Nigeria, 1960,Section 134 (6),which makes the continental shelf of a region part of the territory of that region;

2.) The Constitution of the Federal Republic of Nigeria,1963, especially at Section 140 (6), which stipulates that the Continental Shelf of a region is part of the territory of that region.

3.) The Rio del Rey Port Declaration Order, 1960, which established the port limits on the Rio del Rey Land/Sea Boundary at Cape Bakassi, on September 29th, 1960, on the exact co-ordinates of the Rio del Rey/ Bakassi boundary of April 14, 1893.

4.) The fact that Eastern Nigeria continued to receive royalties on off-shore oil up to the present, with the exception of the period, 1971- 1979 when the Federal Government took it all. That coast-line included the coast of Cross River State which was the coast of Bakassi Peninsula
Today, the only successor state of the former Eastern Region of Nigeria that no longer receives off-shore oil derivation funds, is the Cross River State, which having lost Bakassi Peninsula, has lost her sea coast since a recent Nigerian Supreme Court judgment, based on the ICJ judgment of October 10, 2002, made her no longer a littoral state.

[11] However, even that action of excluding Cross River State from the Littoral States status may be unconstitutional for the following reasons:

1. The National Assembly has not yet recognized the excision of Bakassi from Nigeria. This means that under the law and Constitution of Nigeria, Bakassi is still a part of Nigeria, and is still the Sea Coast of Cross River State, until Parliament amends our constitution to excise Bakassi, and Bakassi Local Government from the territory of Nigeria. So long as Bakassi Local Government, as defined in L.N. 126 of 1954 is territorially part of Nigeria (not the temporary arrangement made by the Obasanjo administration at Akpabuyo), and receives revenue allocation from the Federation Account Allocation Committee, Bakassi is still legally, and constitutionally a part of Nigeria. The Supreme Court can only act within the Constitution, not outside it.

2. The International Court of Justice never made any order as to the nullification of the old Rio del Rey boundary between Nigeria and Cameroon, which made Bakassi part of Nigeria since April 14, 1893. The existence of that boundary which we inherited at independence, and which has been the basis of payment of off-shore revenues to Cross River State up to this year, was concealed from the court.

Professor Walter I. Ofonagoro
________________________________________
[1] The Elias Legal Opinion of September 3, 1970 has been accessed through the internet. A copy is hereby attached.
[2] IBID
[3] Nowa Omoigui, The Bakassi Story, p. 20. (Accessed from the internet).
[4] See Text of the Anglo-German Agreement of March 11, 1913 (accessed from the internet).
[5] Bassey Atte, “Nigeria and Cameroon, in Bassey E. Atte, and Bola A. Akinterinwa, Nigeria And Its Immediate Neighbours, (Lagos; N.I.I.A.,) p.143
[6] B.A,Njemanze, The legal battle between Nigeria and Cameroon over Bakassi Peninsula, (Owerri, 2003) p.114. see Paragraph 198 of ICJ Judgement on Bakassi.
[7] ibid
[8] Nowa Omoigui, “Bakassi Story”, pp.24-25
[9] For text of this Law, see The Laws of the Federation of Nigeria, 1958, Vol.XI, p.711. Compare the description of the boundary here to the text of the Anglo-German Treaty of March 11, 1913.
[10] David E. Gardinier, “The British in Cameroons” 1919-1939, in Prosser Gifford and Wm. Roger Louis, Britain and Germany in Africa, (New Haven, Yale University Press, 1967) pp.520-524
[11] See advertisement by Cross River State on the 76 Oil Wells Dispute with Akwa Ibom State, published in The Punch of August 3, 2012.

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