Court halts hike in electricity tariff

…NLC hails judgement as ‘courageous’, urges NERC, DisCOs to revert to old rates

A Federal High Court in Ikoyi, Lagos on Wednesday annulled the increased tariff in electricity by the Nigerian Electricity Regulatory Commission (NERC).

The presiding judge, Justice Mohammed Idris while relying on Sections 31, 32 and 76 of the Electricity Power Sector Reform Act(EPSRA) 2005, in deciding the substantive suit held that, “NERC acted outside the powers conferred on it by the Act and failed to follow the prescribed procedure.”

The Judge while delivering his judgment, in a suit filed by a lawyer,  Toluwani Adebiyi, described NERC’s action as procedurally ultra vires, irrational, irregular and illegal.

The court was also of the view that “NERC has not shown that it acted in due obedience to the prescribed procedures and that there is no evidence that NERC complied with Section 76(6)(7) and (9) of the EPSRA Act.’

“Of all the legal requirements, it appeared the only one complied with by NERC was that it announced the new tariff in the newspapers.”

The court further held that, “it is clear from the affidavit evidence that the increase in tariff was done by NERC in defiance of the order of this court made on May 28, 2015 which directed parties in the case to maintain the status quo.

“The law is that every person upon whom an order is made by a court of competent jurisdiction must obey it, unless and until the order is discharged and set aside at the Appeal.”

Consequently, the court held that,” the tariff increase from July 1, 2015 was done in breach of the ‘status quo’ order. NERC’s action, was therefore, clearly hasty, reckless and irresponsible”.

Speaking further, Justice Idris said, “This country is in a democracy where the rule of law shall prevail over impunity or whimsical desires. Anything to the contrary will be an invitation to anarchy.

“It is the law that what is done officially must be done in accordance to the law. Investors are free to do business in Nigeria but they shall abide by the law of this country. Nigeria is not a kangaroo State. Nigeria is not a banana Republic.

“It is intolerance and extremely dangerous for any branch of the Executive to create a posture it may not obey certain orders of the court. That is tantamount to Executive recklessness which will lead to lawlessness”.

In view of these, the court while invoking its disciplinary jurisdiction, made the following orders: “the increment in electricity tariff which took effect after the institution of this action and while a restraining order is subsisting is hereby declared illegal and same is hereby set aside.

“NERC is hereby directed to reverse to the status quo and the commission is hereby restrained from further increasing electricity tariff except it complies strictly with the relevant provisions of the EPSRA.

The sum of N50,000 was awarded in favour of the plaintiff.

The court had earlier held that it indeed has the jurisdiction to entertain the matter.

In deciding on the issue of jurisdiction, the court made explanations on four issues: These are: whether or not the suit was properly commenced; whether or not the plaintiff has ‘locus standi’ to file the action; whether or not the suit was statute barred and whether or not the suit disclosed a reasonable cause of action.

On the first issue, the court held that the suit was properly commenced by originating summons.

“Having looked at the affidavit evidence, it is my view that there are no substantial disputes of facts on the materials needed for the determination of this suit. I therefore hold that this suit is properly commenced by an originating summons. The originating summons filed by the plaintiff contains the questions for determination and the reliefs sought from the court in compliance with the rules of the court”.

On the issue of locus standi, the court held that, “the plaintiff is a Nigerian and a registered electricity consumer. There is no doubt that he pays electricity charges and is thus affected by the action of the defendants. The plaintiff, in my view, is entitled to approach the court to enforce the law in compliance with Sections 32 and 76 of the EPSRA Act. It is therefore my view that the plaintiff possess the relevant locus standi to institute this action.

On the third issue, the court  held that the action is not statute barred as it was timeously commenced.

On whether or not, a reasonable cause of action was disclosed by the plaintiff in the suit, the court held that, “having perused the affidavits filed by the plaintiff therein, the plaintiff has sets out the alleged wrongdoing of the defendants and the consequent damage. I therefore hold that the suit discloses a reasonable cause of action against the defendants.

Sequel to the above, the court held that it can validly exercise its jurisdiction over the matter.

Adebiyi, in the substantive suit, is seeking, among others,  an order restraining NERC from implementing any upward review of electricity tariff without a meaningful and significant improvement in power supply at least for 18 hours in a day in most communities in Nigeria.

He also wants an order restraining NERC from foisting compulsory service charge on pre-paid meters not until “the meters are designed to read charges per second of consumption and not a flat rate for service not rendered or power not used.”

Meanwhile, President of the Nigerian Labour Congress (NLC), Comrade Ayuba Waba, has hailed the judgement, describing as courageous deserving of commendation.

Waba said “We (NLC) also consider it victory for the ordinary Nigerian who has been crushed by exploitative bills.”