NERC Appeals Court’s Decision Voiding Hike in Electricity Tariff

By Akinwale Akintunde

The Nigerian Electricity Regulatory Commission (NERC) has filed a Notice of Appeal against the Judgment of a Federal High Court in Lagos, which voided its prerogative to increase or regulate electricity tariffs in Nigeria.

Justice Mohammed Idris in his judgment delivered on July 13, 2016 declared as null and void any hike in electricity tariff that did not comply with the provisions of the Electricity Power Sector Reform Act 2004.

The judge declared the decision of the defendants to embark on electricity tariff hike as hasty and ordered immediate reversal to the status quo.

He also awarded a cost of N50,000 against the respondents in favour of the plaintiff in the suit.

The suit was filed last year May by a Lagos-based lawyer, Toluwani Adebiyi, following announcement of proposed electricity tariff hike by the then Chairman of NERC, Dr. Sam Amadi.

Other defendants in the suit with the No: FHC/L/CS/768/2015 were Abuja Electricity Distribution Plc, Ibadan Electricity Distribution Plc, Esco Electricity Distribution Plc, Ikeja Electricity Distribution Plc, Kaduna Electricity Distribution Plc, Kano Electricity Distribution Plc, Jos Electricity Distribution Plc, Benin Electricity Distribution Plc and Enugu Electricity Distribution.

In the Notice of Appeal, filed by counsel to NERC, Chief Anthony Idigbe SAN before the Lagos Division of the Court of Appeal, the appellate (NERC) set out 14 grounds of appeal for determination.

The Appellant’s Counsel is seeking an order staying execution of the judgment delivered by Justice Idris on July 13, 2016 pending the hearing and determination of the 1st Defendant/Applicant’s appeal at the Court of Appeal.

The Affidavit in support of the Motion on Notice for the Stay of Execution as deposed to by Martins Nwankwo states that ‘refusal to grant this application will result in devastating consequences for the nation and indeed the entire electricity consumers in Nigeria as investment in power sector which encourages healthy competition will be discouraged. In the same vein, the entire electricity generation and distribution stands the risk of total collapse in view of the recent devastation caused by vandalisation of power installations with its attendant decrease in power generation and distribution.

“If this application is not favourably considered, there is a high likelihood that the citizens of the Country will be subjected to total blackout while business and investments will be drastically affected. We submit that any attempt to further subject the masses to further hardship will be setting the stage for chaos and anarchy in the society; which effect may be overwhelming.”, they averred.

Some of the grounds of appeal includes, that trial Judge erred in law when he held that the Court had jurisdiction to entertain the 1st Respondent’s originating summons when the processes were incompetent and refused to decline jurisdiction to entertain the 1st Respondent’s originating summons when it was clear that the action was statute barred, having been brought outside the statutory period prescribed under S 2(a) of the Public Officers Protection Act, Cap P41, LFN, 2004.

“The trial judge took the position of the litigant by assisting the 1st Respondent in couching its claim.

“The trial judge erred in law and deprived the Appellant of its constitutional right to fair hearing when he suo motu raised in its judgment issue of compliance of the Appellant’s counter affidavit with provision of the Evidence Act, admissibility of newspaper publication and granting relief to the 1st Respondent not sought without first giving the parties opportunity to address him on the issues raised suo motu.

“The trial judge erred in law when he held that the 1st Respondent is allowed to approach the Court without exhausting the Appellant’s internal dispute resolution mechanism pursuant to Section 45 and 50 of the Electricity Power Sector Reform Act 2005 (EPSRA) because of the use of the word “may” in S50 (1) of the EPSRA 2005 when the clear intendment of the Act was establishment of condition precedents to exercise of jurisdiction by the Federal High Court.

“The trial judge erred in law when he held that Appellant did not comply with the provision of Section 76 of the Electricity Power Sector Reform Act 2005 (EPSRA) in preparing its tariff methodology.

The learned trial judge erred in law when he placed the burden of proof of non-compliance with the Appellant rather than the 1st Respondent.

“The trial judge misdirected himself in law in relying on facts and affidavits occurring after the filing of the Originating Summons and which did not form a part of the Originating Summons argued before the learned trial judge in deciding the substantive relief before the Court”, the appellant stated.

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