Federal court strikes out NERC’s objection to electricity tariff hike

Justice Mohammed Idris of the Federal High Court, Lagos yesterday struck out a preliminary objection filed by the Nigerian Electricity Regulatory Commission (NERC) challenging the suit against the proposed hike in electricity tariff across the country.

The court also struck out an application seeking to discharge an order of court restraining NERC in alliance with electricity distribution companies (discos) from increasing electricity tariff pending the determination of the suit.

A lawyer, Toluwani Yemi Adebiyi‎, had filed the action against NERC.

In its response, NERC filed a preliminary objection challenging the locus standi of the lawyer to file the suit.

The commission had also argued 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.

Also, in the motion to set aside the interim order against electricity hike, NERC had equally argued that the plaintiff misrepresented facts before the court, and misled the court to grant same.

But in his ruling yesterday, Justice Idris, who first dealt with the preliminary objection, 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.

The judge disagreed with NERC’s counsel that the provision was discretionary, adding that the operating word “Shall” makes it mandatory for the court.

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

On motion to discharge the interim order, the judge equally 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.

The development, according to the judge, equally rendered the motion incompetent, and 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 matter was consequently adjourned to September 23, 2015 for hearing of the substantive suit.

The plaintiff in the suit 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.

The plaintiff 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, he is asking the court to mandate the NERC to makeavailable 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.