THE DOCTRINE OF NECESSITY – PRESIDENT GERALD FORD AND GOVERNOR ROTIMI AMAECHI – NATURAL LAW IN ACTION Published on Daily Independent Thursday 29th 2007 Published on National Mirror Thursday December6th 2007 Page 9 “Necessity created the Law; it supercedes rules and whatever is reasonable and just in such cases is likewise legal” per Sir W. Scott in “ The Gratitudine” (1801) 3 Rob. Adm. Rep. 240 “We are not final because we are infallible but rather we are infallible because we are final” - per Oputa J.S.C in his valedictory speech at the Supreme Court. With the above quotations, we commence this article which is our measured response to the reactions from the legal community and diverse and disparate citizens both eminent and common, but all profound and respected to the landmark judgment of the Supreme Court which hoisted Mr. Rotimi Chibuike Amaechi on the people of RiversState as their “elected” Governor 2007. We are very mindful of the fact that the Supreme Court is yet to give the elaborate reasoning and text for the judgment until 18th January 2008. We are convinced that a proper exposition of the jurisprudence of the Supreme Court decision will show that indeed that Supreme Court panel was not only just but wise; and also that the Constitution was firmly upheld in a situation which challenged that court to uphold the Natural law maxim “Natura non facit vacuum, nec lex supervacuum” i.e “Nature makes no vacuum and the law nothing purposeless” This is because as we shall espouse presently the Supreme Court would have been in a very difficult position if after declaring that Mr. Celestine Omehia was not a legally nominated candidate give no definitive order. Chief Gani Fawehimni, Alhaji Balarabe Musa, Professor Ben Nwabueze representing a host of eminent commentators have commented that the order the Supreme Court ought to have given would have been to nullify the election of Omehia and/or order a re-election with Amaechi as the PDP candidate. That contention we humbly submit is irredeemably and incurably flawed because the Supreme Court in this case drew its Jurisdiction from the Federal High Court (the court of first instance) and by Section 251 of the 1999 Constitution the Federal High Court has no power to nullify an election and/or order an election into the office of Governor. That power resides with the Election Tribunals created under Section 285 of the constitution and the test for appreciating the jurisdiction of the Supreme Court in this case is a very simple one viz: a) Does the Supreme Court in the circumstance of this case have the Jurisdiction to annul the 2007 Governorship election in Rivers State and order a fresh election? b) Which Court has that Jurisdiction? c) Did the People of Rivers State vote for only Mr. Celestine Omehia? d) What is the proper order the Supreme Court must make after declaring that Celestine Omehis was not the rightful candidate to contest the election on the Platform of the party that won the election? The answer to question (a) is NO!!! Because the Federal High Court from where the Jurisdiction arose does not have such a power. The answer to question (b), is the Election Tribunals set up under Section 285 of the Constitution; the answer to question (c) is; the people of Rivers State voted for both Omehia and PDP, the answer to question (d) is the reason for this disquisition and we proceed forthwith; We humbly assert that the reason for the hoopla from even eminent Lawyers even before the Supreme Court has given reasons for this epochal judgment is because the Positivist School of Law of the Austinian pedigree has overwhelmed our latter day jurisprudence as if; that which is recondite cannot be illuminated and that which is visionary cannot be broached; this is because our Courts have generally become too hasty to ask “what is your authority? “(meaning case law)” seeking mathematical imperical answers to issues which may require philosophical and even solomonic wisdom and solutions. The fundamentals of the law which lie in Jurisprudence are these days seldom recoursed to; the rules of Equity are only employed when imperical law is severely challenged. It is our position that the Supreme Court as the acme of our Judicial regime which upholds the doctrine of stare decisis is expanding dynamically the coast of our jurisprudence by adapting and upholding the dictates of the Natural Law School. What this Peter Obi and Amaechi cases are sowing are the seeds from which giant oaks will sprout. This is because this Supreme Court is clearly upholding principles of Natural Law theory by pursuing; (1) “Ideals which guide legal development and administration” (2) “A Basic moral quality in law which prevents a total separation of the is from the ought” (3) “The method of discovering perfect law” (4) “The contest of perfect law deductible by reason” (5) “The condition sine quibus non for the existence of law” – cf pg 652 Jurisprudence by Dias 4th Edition Dias further stated and we agree that “As long as social conditions (read socio-political) remained stable, positivism could flourish. This in turn failed when those conditions were upset by the convulsions that have beset nations sincethe second half of the last century. It failed because it could give no guidance amidst the challenge to accepted moral and social beliefs; it failed because it could give no help in avoiding or remedying monstrous abuses of power and liberty that have been and are still prevalent. With its decline there has arisen a new preoccupation with social justice which includes amongst it manipulations a revival of natural law doctrine. This is more in line with the older “natural law of method” and endeavours to avoid the criticism of the past and to meet the problems of today. It is against this background that theories of natural law should be approached. Since their concern has always been with the needs of particular ages……………… there is connection between means and ends. (ibid Pgs 654-655). There is no doubt that our Nation has been beset by convulsions in every ramification socio-political in particular, for all you know Dias might have been writing about Nigeria of 2007 in the above paragraph. As Law students in the common law countries of which our Nation Nigeria is one, Equity and Jurisprudence were essential in our course content this is because in our practice of the Law in latter years our stream of consciousness will be guided by the teachings garnered from these foundational fundamentals of the law. We dare not forget that the preeminent jurists who sit as Justices of the Supreme Court must have, amongst themselves, played devils advocates, and must have debated the pros and cons in an earthshaking judgment like the Peter Obi and Amaechi cases and when seven of them are in agreement; then Oputa’s dictum must apply. It is presumptive for other learnedmen to hastily criticize such judgments in a knee jerk fashion from the isolation of their hospital beds or the solitariness of their studies totally forgetting that it is within the province of Supreme Court Judges to “even make laws”, after all a very great judge in his famous paper the “Path of Law”; Mr. Justice Holmes (1841 – 1935) in 1897 uttered these famous truth “The prophesies of what the Courts will do infact and nothing more pretentious are what I mean by law”. Our thesis therefore is that upon the well known principles of Natural Justice Equity and Good conscience, the Supreme Court evoking its enormous powers impelled by the injunctions of the Doctrine of Necessity and exercising its constitutionally empowered jurisdiction and accepting the invitation that “Necessitas vincit legess; legum vincula irridet” i.e. necessity overcomes the law; it laughs at the fetters of laws. The Supreme Court had to return Amaechi as Governor. THE AMERICAN EXPERIENCE: Article II, Section 1; of the Constitution of the United States of America, states as follows: “The Executive Power shall be vested in a President of United States of America. He shall hold his office during the term of four years, and, together with the vice president, chosen for the same Term be elected as follows”…. Emphasis on the word elected supplied by us. Now all of us know that America is the “leading democracy” in the world; is it thinkable that someone can emerge as President of the United States of America in modern times without being elected? Will Americans accept to be governed by an unelected President? But subdued by the Doctrine of Necessity as encapsulated in the maxim “Necessitas facit licitum quod alla non est licitum” i.e necessity makes lawful what otherwise is unlawful, Americans had to endure or is it enjoy an unelected President Gerald Ford. This is the exegesis of President Gerald Ford, the 1st and only man to be President of the United States of America without being elected and he did not stage a coup d’etat. Spiro Agnew was the elected Vice-President of the United States together with his President, Richard Nixon; a scandal led to Spiro Agnews resignation, and Gerald Ford was appointed Vice-President in his stead, the “Watergate Scandal” was to lead to the Resignation of President Richard Nixon and Gerald Ford, Nixons Vice-President had to be sworn in as the 38th President of the United States of America; his ascendancy to Presidency did not follow the route prescribed by Article II Section I of the Constitution of the U.S.A; infact there is no anticipation by the American Constitution of the possibility of an unelected President; but faced with the demands of reality and history, the doctrine of Necessity which states “Necessitas non habit legem” “Necessity has no law”, had to apply.