NERC Loses Bid To Vacate Order On Electricity Tariff Hike

NERC Loses Bid To Vacate Order On Electricity Tariff Hike

An attempt by the Nigerian Electricity Regulatory Commission (NERC) to get a Federal High Court in Lagos to lift an order of the court restraining the commission from increasing electricity tariff in the country has failed.

NERC yesterday failed to convince Justice Mohammed Idris of the validity of its case as the court struck out a preliminary objection filed by the commission against a suit filed by a lawyer, Toluwani Adebiyi against the proposed hike in electricity tariff across the country.

NERC had filed the objection to challenged the locus standi of the lawyer to file the suit, insisting that the suit disclosed no reasonable cause of action, and that the applicant failed to comply with relevant provisions of the law, as the suit was wrongly instituted.

The commission had also maintained in its application to set aside the interim order that the lawyer misrepresented facts thereby misleading the court to grant same.

However, in his ruling, Justice Idris, who first dealt with the preliminary objection challenging his jurisdiction to hear the case, held that from the processes before him, the defendant (NERC) failed to comply with the mandatory provision of Order 29 Rule 4 of the Federal High Court Civil Procedure Rules to the effect that such objection must be filed within 21 days after service.

Justice Idris also rejected the argument of NERC’s counsel that the provision was discretionary, stating that the operating word “Shall” makes it mandatory for the court to observe the provision.

The court held, “The objection is incompetent and it is hereby struck out having been filed outside the 21 days stipulated by Order 29 Rule 4”.

On motion to discharge the interim order, the court similarly held that it was not filed within seven days as stipulated by Order 26 Rule 11, and no order for extension of time was sought.

According to the judge, this error rendered the motion incompetent, and he accordingly struck it out.

“The ex-parte order of this court restraining hike in electricity tariff is valid and still subsisting, Justice Idris held.  

The court has adjourned the matter  to September 23, 2015 for hearing of the substantive suit.

Adebiyi had in the suit urged the court for 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.

The lawyer had also asked the court for 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 of service not rendered or power not used."

He also prayed the court to bar NERC from further  enforcing the collection service charge on pre-paid meters until there is visible efficient and reliable power supply like those of foreign countries where the idea of service charge was borrowed.

Adebiyi is further asking for an order of court mandating the NERC to do the needful and generate more power to meet the electricity use of Nigerians, adding that the needful should include and not limited to a multiple long-term financing approach, sourced from the banks, capital market, insurance and other sectors of finance to power the sector.

Finally, the lawyer is asking the court to mandate the NERC to make available to all Nigerians within a reasonable time of maximum of two years, prepaid meters as a way to stop the throat-cutting indiscriminate estimated bill and which must be devoid of the arbitrary service charge, but only chargeable on power consumed.

In an affidavit in support of the suit personally deposed to by the applicant, the lawyer lamented that despite the motto and mission of

NERC which were expressly stated as "keeping the light on and to meet the needs of Nigeria for safe, adequate, reliable and affordable electricity," most communities in Nigeria do not get more than 30 minutes if electricity supply, while the remaining 23 hours and 30 minutes were always without light and in total darkness.

"Nigeria poor masses are paying an estimated and indiscriminate residential bills ranging from N5, 000 to N18, 000, spending an average of N15, 000 to N20, 000 for fuel to maintain generating set.

 "Businesses have collapsed, industries have closed down, and residents cannot sleep comfortably at night due to inefficiency of our power industry".

"Companies and commercial Houses are groaning under throat-cutting power bill which they are paying for, yet not getting the benefit for such payment," Adebiyi stated.

He stressed that the proposed increase in electricity tariff was coming amidst the tangled web of poor power supply with no reasonable proof of improvement.

"The situation is self evident, it readily speaks for itself because everyone is suffering from poor power outrage.

"Bringing further increase amidst this tangled web of hardship and without any improvement in power supply, will be highly unjustifiable and will be an economic burden on Nigeria populace. It is totally absurd and not for the good of the people, and therefore must be stopped," Adebiyi submitted.