Legal advisers to Vigeo Power – core investors in Benin Electricity Distribution Company (BEDC) Plc – have cautioned Nigerian Electricity Regulatory Commission (NERC) to refrain from altering composition of BEDC board of directors.
They warned in a letter signed by Kunle Adegoke to NERC, its Chairman Sanusi Garba and Dafe Akpeneye: “Re: Notice to the public on the legitimate and statutorily recognised board of directors/management of BEDC Electricity PLC,”
Adegoke said the letter was BEDC’s response to an unsigned publication, purportedly issued by NERC (the commission), and dated September 1.
He said: “While we have assumed the contemptuous publication did not emanate from NERC, not least because it is unsigned, and will amount to affront to the court (for the reasons stated below), we … state as follows:
“We are aware the commission is conscious of the fact that NERC is the second defendant in Suit FHC/ABJ/CS/1113/2022
“As previously mentioned, we feel certain no law-abiding public officer or public institution could have authorised the issuance of unsigned contemptuous publication.
“If the contemptuous publication is wrongly attributed to the commission, we urge the commission to publicly dissociate itself from the publication.
“However, in the unlikely event the contemptuous publication was authorised by NERC, the commission should be reminded of the grave consequences that follow disobedience of court orders.”
The letter reminded the commission of the contempt proceedings pending against it for alleged gross violation of the orders of court.
“Your counsel was in court when the court directed defendants in the suit to first comply with orders of court on the July, 22,” Adegoke said.
The lawyer said his clients were aware of the commission’s alleged plan to “collaborate with some elements to invade the premises of BEDC and impose illegal directors on the company notwithstanding the absence of authority to impose directors on a company regulated by law. We will urge the commission to refrain from such action.”
The unsigned letter referenced by Adegoke was: “Notice to the public on the legitimate and statutorily recognised board of directors/management of BEDC Electricity Plc.”
It claimed, among others, that under the Electric Power Sector Reform Act (EPSRA), regulatory instruments issued pursuant to EPSRA and terms and conditions of the licence issued to BEDC, NERC is the primary authority to statutorily recognise the board/management of BEDC as an operator in Nigerian Electricity Supply Industry (NESI).
“We also note the inaccurate analysis of the effect of the court order in the contemptuous publication.
“Being a party to the FHC Action, the appropriate step to be taken by NERC is to ventilate its grievance with the order before the court, and not denigrate it, as has been purportedly done in the contemptuous publication.
“It is on record that while NERC is represented by counsel in the FHC Action, it has not (at least as of the last sitting of the court on July 22) filed any process in the suit and neither has it filed any application to seek that the orders of court were wrongly procured or to have the court set same aside.
“We further note the assertion in the contemptuous publication that the security created over the shares of one of our client’s shareholders had been enforced, and that the commission acted in accordance with its business continuity rules.
“In connection with the issue of the security over the shares, we wish to reiterate that the matter is the subject of an action before Justice Bogoro in FHC, Lagos, and the commission will do well not to comment on an issue that is sub judice.
“And with respect to the putative powers of NERC to remove directors of licensees, the commission should be reminded that the power was struck down and declared unlawful in the case of FHC/ABJ/653/2018 – Ibadan Electricity Distribution Company v Minister of Power & NERC.”