A Review of the Nigerian Energy Industry

Electricity tariffs: Judge upbraids NERC chairman over petition


24 September 2015, Lagos – A judge of the Federal High Court in Lagos, Justice Mohammed Idris, yesterday descended heavily on the Chairman of Nigerian Electricity Regulatory Commission (NERC), Dr. Sam Amadi, for having the “audacity and courage” to lie against judicial officers in a petition he addressed to the Chief Judge (CJ) of the court, Justice Ibrahim Auta.

NERC and the electricity distribution companies (Discos) have been pushing for the implementation of cost-reflective electricity tariffs to enable them pay for the electricity provided by generation companies (Gencos) and upgrade and expand aging distribution infrastructure that would lead to less power outages nationwide.

In this regard, the Discos have held consumer consultative forums in their areas of coverage, to agree on the tariffs that will be paid by different classes of electricity consumers nationwide under the Multi-year Tariff Order (MYTO), which is a very critical aspect of the power sector reform programme initiated by the federal government. However, some consumers, without taking into account the salient fact that they are already spending as much as N100 per kilowatt hour running diesel-powered generators, have challenged NERC and the Discos, arguing that operators should ensure that there is an improvement in power supply before tariffs could be hiked.

According to a NERC official, should the Discos go ahead with the tariff increase, the highest class of consumers comprising large manufacturing firms, would spend below N35 per kilowatt hour, relative to what they pay in generating their own electricity with private generators that cause noise and environmental pollution.

But when the legal suit trying to stop the tariff review came up in court yesterday, a visibly irked Justice Idris described Amadi’s action as a reckless, senseless and stupid exercise of executive powers, and an attempt to intimidate and distract the court. Amadi, in a petition to Justice Auta, accused judges of the court of frustrating the reforms in the power sector with various “reckless and ill-informed interim injunctions”.

Amadi had made specific reference to an order made by Justice Idris in a suit filed by a lawyer, Toluwani Yemi Adebiyi, challenging the planned upward review of electricity tariffs. The judge had issued an ex-parte order asking the parties to maintain the status quo in respect of the planned tariff increase pending the determination of the suit.

But Amadi in his petition had quoted a completely different order from the one the court made, a development which enraged the judge. Adebiyi, in response, filed Form 48 (notice of consequence of contempt of court) against Amadi, stating that the NERC boss should be punished for bringing the court to disrepute. When the matter came up yesterday, Adebiyi attempted to brief the court on the developments on the matter since the last adjourned date, but he was frequently interrupted by NERC’s lawyer, Anthony Idigbe (SAN), who urged the court to ignore all the “distractions” and concentrate on hearing the substantive suit.

Idigbe said the suit was very important because it would allow the court to make a judicial pronouncement on the administrative and executive reforms carried out in the power sector so far where the sector had been moved from a monopolistic to market-driven sector. Amadi’s lawyer, Edwin Anikwem, also told the court of his objection to the Form 48 filed against his client, adding that the application should be given priority and be heard first. At that point, Justice Idris intervened and gave his side of the story. The judge said while he was out of the country on vacation, he received a call drawing his attention to newspaper publication about the petition written by Amadi to the CJ.

He said upon returning to the country, the CJ circulated the petition to all the judges of the court and it was at this stage that he thought of where Amadi got the courage and audacity to lie in the petition by quoting an order that was never made by him. He said: “I don’t know where the author of the petition got his information from. The first thing that came to my mind was where did he get the courage and audacity to lie against me and even copying the Vice-President (VP) of the Federal Republic of Nigeria and the Minister of Power in the petition he addressed to the CJ?

“I began to wonder the stupid and reckless audacity of Amadi to write such a petition and copied the VP and Power Minister. I was very upset because it was nothing but a reckless, stupid and senseless exercise of executive powers which was clearly intended to intimidate the court. “But I tell you, this court can never be intimidated. Never! I can never be intimidated and I can never be distracted. Without the Form 48, I can even order Amadi to come and explain the content of his petition. I’m not saying that people cannot complain about what we do here, but certainly not to clearly lie against us.”

The judge however pleaded with Adebiyi to withdraw the Form 48 against Amadi, saying that the polity had been heated up lately about orders of arrest and that he would not like to join the fray. He added: “It is not my style and I want to plead with lawyers to save me from that hurdle. But Amadi should be warned not to play politics with matters in court. They should leave the court out of politics and allow us to deal with substantial justice.” Adebiyi, who was not pleased with the judge’s position on the withdrawal of the Form 48, said the change that Nigerians have been yearning for would not come “if the courts would continue to allow people like Amadi to get away with such acts of contempt”. He said despite the interim order against the hike in electricity tariffs, NERC had been making secret moves to effect the increment, and there was the need for the court to make an example of the defendant. Adebiyi however reluctantly withdrew the Form 48, after which it was struck out. On his part, Idigbe tendered an unreserved apology to the judge for Amadi’s action, adding that he could personally vouch for the integrity of the judge. “I have the greatest confidence in your lordship. The parties to litigation are sometimes emotional and they do things wrongly. I publicly give my apology on behalf of NERC and Dr. Amadi for errors contained in the petition,” Idigbe said, adding that he would personally write the NERC chairman to also apologise to the court.

The court also granted an application by the 11 electricity distribution companies in the country to join the suit as co-defendants. They are the Abuja Electricity Distribution Company, Ibadan Electricity Distribution Company, Eko Electricity Distribution Company, Ikeja Electricity Distribution Company, Kaduna Electricity Distribution Company, Kano Electricity Distribution Company, Jos Electricity Distribution Company, Benin Electricity Distribution Company, Enugu Electricity Distribution Company, Port Harcourt Electricity Distribution Company and Yola Electricity Distribution Company. The matter was adjourned to November 24 for hearing of the substantive suit.

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