• They grant ‘seeming reckless, inconsiderate injunctions’
The Chairman of the Nigerian Electricity Regulatory Commission (NERC), Sam Amadi has accused judges of working to frustrate Federal Government’s objective of ensuring an efficient and competitive private sector driven electricity industry.
Amadi, who noted that the judges lacked knowledge of the sector’s intricacies, accused them of abusing their powers of “judicial review” by handing out not well thought out injunctions, capable of defeating government’s objective and discouraging investment in the nation’s electricity sector.
The NERC chair said these in a letter to the Chief Judge of the Federal High Court, Justice Ibrahim Auta, dated August 7, this year. The Vice President and Permanent Secretary, Federal Ministry of Power were copied the letter, which The Nation obtained at the weekend.
Amadi, who argued that NERC, by its establishing statute, enjoys some level of independence in its operations, urged the judges to always exercise restraint and defer to his commission in the exercise of its quasi legislative and judicial powers, particularly as it relates to the fixing of tariffs.
“MY Lord, permit me to bring to your notice a subtle threat that can undermine the success of the power sector reforms. This threat is in the form of an increasing spate of seemingly reckless and inconsiderate interim injunctions that have been issued against the commission and electricity distribution companies at the instance of consumers, who have not made out clear case meriting such intervention by the court.
“Without challenging the powers and competence of the court to issue these injunctive reliefs, it would appear that the issuance of such injunctions against legitimate business operations of licensed electricity companies is not well considered.
“They do not seem to have fully considered many principles that have been laid down by the courts on how to manage such delicate situations. For one, far-reaching injunction should not be granted against a party who has not been notified of the application pending the determination of the suit.
“When the court feels compelled to grant such orders, it should endeavour to make the return date early enough to allow the respondent be heard on time so as to avoid damaging its legitimate business. This is more so in a regulated business where every aspect of the operation of the business is regulated by law,” he said.
Amadi cited an instance where a court recently granted an order of interim injunction against NERC and 11 distributing companies from disconnecting electricity supply to them and from charging them higher tariff as contained in the Multi-Year tariff Order 2012 (MYTO-2) and adjourned to September 2015.
He said his decision to write Justice Auta was to seek the establishment of “a possible judicial policy of restraint” which protects the right of electricity consumers to justice without undermining the viability of the nascent electricity market.
