A Federal High Court, Lagos, yesterday struck out a preliminary objection filed by the Nigerian Electricity Regulatory Commission, NERC, challenging a suit filed by a lawyer, Mr. Toluwani Yemi Adebiyi, against the proposed hike in electricity tariffs across the country.
The court, headed by Justice Muhammed Idris, also struck out an application seeking to discharge an order of court restraining NERC in concert with electricity Distribution Companies, DISCOs, from increasing electricity tariff pending the determination of the suit.
NERC had 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 lawyer misrepresented facts before the court, and misled the court to grant same.
Justice Mohammed Idris, in his ruling, while dealing 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 that the provision was discretionary, adding that the operating word “Shall” makes it mandatory for the court.
“The objection is incompetent and it 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, Justice Idris, held that the motion 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.
Reacting, Adebiyi praised the judge for the verdict and described it as a victory for the Nigerian people who have been terrorised for years by NERC and its allies with estimated billing and frequent hike in electricity tariff.
The matter was consequently adjourned to September 23, 2015 for hearing of the substantive suit.
Adebiyi, 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 prepaid 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 prepaid 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 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.
The lawyer is also urging the court to mandate the NERC to make available 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.