Hyacinth Chinweuba/Byron Izuora
The Federal High Court in Lagos on Thursday refused to lift the restraining order on the Nigerian Electricity Regulatory Commission (NERC) from increasing electricity tariff.
Toluwani Adebiyi, an activist and a lawyer has sought a perpetual injunction restraining NERC from implementing any upward review of electricity tariff without significant improvement in power supply for at least18 hours a day.
Justice Mohammed Idris who renewed the order after striking out NERC’s preliminary objection and application to nullify the order saying it did not comply with Order 29 (Rule 4) of the court’s Civil Procedure Rules.
The rule states that any preliminary objection to an originating summons must be filed within 21 days after being served with a suit. The judge said NERC’s lawyer did not comply with this rule.
“The learned Senior Advocate to the defendant holds the view that the provision is discretionary. I honestly and sincerely disagree with that view,” the judge said.
According to him, the Rules use the word “shall”, which connotes a command, making compliance imperative and mandatory.
The judge said by his records, NERC’s objection was filed outside the 21 days prescribed by the rules.
“In the circumstances, I hold that the preliminary objection was filed in breach of the rules of court…The objection filed is therefore in my view incompetent and is hereby struck out,” the judge held.
On NERC’s argument that the motion ex-parte was incompetent ab-initio and so the court lacked jurisdiction to grant it, the judge said the application challenging it also failed to comply with the court’s Order 26 (Rule 11).
The rule states that where a court makes an order based on a motion ex-parte, any person affected by it may apply to vary or discharge it within seven days.
The judge said the order was made on May 28 and served on NERC on June 3, 2015, but “the application to discharge the order was only filed on the 6th day of July 2015 outside the seven days period prescribed by the rules.”
Besides, Justice Idris said there was no relief asking for extension of time.
“It is clear that this second application was also filed in breach of the rules of court and is also incompetent.
“Both applications – the preliminary objection and motion to set aside – are all hereby declared incompetent and are hereby struck out.
“The order of court maintaining status quo remains until further order is made,” the judge held.
Adebiyi hailed the judge for the ruling, saying he did justice to all Nigerians who have been exploited and have been forced to pay exorbitant electricity bills for power not consumed.
“I will continue to be proud of this court my Lord, because this is National Victory Stage One over electricity terrorism and exploitation,” he said.
The court had restrained NERC from implementing the new tariff which was to take effect from June 1.
Justice Idris barred the respondents, including electricity distribution companies, from effecting any increment in electricity tariff until the suit is heard and determined.
NERC had objected to the suit, and urged the court to discharge the restraining order.
NERC’s lawyer, George Uwechue (SAN) argued that the motion ex-parte on which basis the restraining order was granted was an abuse of court process.
The silk said the plaintiff’s failure to file the ex-parte application along with a motion on notice was fatal to his case, adding that Adebiyi lacked the locus standi to file the suit.
Adebiyi is praying for an order restraining the NERC from foisting compulsory service charge on pre-paid meters because consumers should not be paying a flat rate of service not rendered or power not used.
The plaintiff 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.
Adebiyi is further asking for an order of court mandating NERC to generate more power to meet the the country’s power needs, and to develop a multiple long-term financing approach, sourced from the banks, capital market, insurance and other sectors to finance the power sector.
The lawyer is also asking the court to mandate NERC to make available to all Nigerians within two years, prepaid meters as a way of stopping the throat-cutting indiscriminate estimated bills.
In a supporting affidavit, the plaintiff said despite NERC’s mission of “keeping the light on and to meet the needs of Nigeria for safe, adequate, reliable and affordable electricity,” most communities do not get more than 30 minutes of electricity supply daily.
“Poor masses are paying an estimated and indiscriminate bills ranging from N5, 000 to N18, 000, while spending an average of N15, 000 to N20, 000 for fuel to maintain generating set weekly.
“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 bills which they are paying for, yet not getting the benefits of such payment,” Adebiyi stated.
He stressed that the proposed tariff increase 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 populace.
“It is totally absurd and not for the good of the people, and therefore must be stopped,” Adebiyi contended.
Justice Idris adjourned to September 23 for hearing of the plaintiff’s substantive motion.