Justice Mohammed Idris of a Lagos Federal High Court, today, nulified the increment in electricity tariff recently announced by the Nigerian Electricity Regulatory Commission (NERC).
The judge while delivering judgment in a suit filed by an human rights lawyer, Mr. Toluwani Yemi Adebiyi, to challenge the increment described NERC’s action as “procedurally ultra vires, irrational, irregular and illegal”.
The court 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 procedures.
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.
The court further held that “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 also ruled that, “it is clear from the affidavit evidence that the increase in tarriff 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”.
On this issue, the court said, “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”.
Justice Idris further 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 comply strictly with the relevant provisions of the EPSRA.
The court also awarded a sum of N50,000, against the defendants in the suit.
Earlier, the court had 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.
In the substantive suit, Adebiyi is seeking 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 of service not rendered or power not used.”
He also wants the service charge on pre-paid meters not to be enforced until there is visible efficient and reliable power supply like those of foreign countries where the idea of service charge was borrowed.
He also asked the court for an order 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.