Justice Mohammed Idris of the Federal High Court, Lagos, has voided the 45 percent upward review of electricity tariff by the National Electricity Regulatory Commission (NERC).
He said the entire process leading to the new tariff regime was illegal and directed that the National Electricity Regulatory Commission (NERC) and the Distribution Companies (DISCOs) should revert to the old rates.
The court also restrained NERC to stop from further increasing the tariff except it fully complies will the provisions of the Electricity Power Sector Reform Act 2004 (EPSRA).
In the landmark judgment, Justice Idris awarded a N50,000 cost against the defendants in favour of the plaintiff.
A lawyer and human rights activist, Mr. Toluwani Adebiyi, had filed the suit challenging the hike in electricity tariff by NERC and the industry operators.
On May 28, 2015, Justice Idris had directed NERC in an interim injunction to suspend all actions relating to any increment in electricity tariff pending the determination of the suit, but the commission went ahead to hike the charges on July 1, 2015.
But in his judgement on Wednesday, the judge ruled that “the upward increment in tariff was hasty and procedurally ultra vires. The review was done in a breach of existing order. This again was hasty, reckless and irresponsible. The court has the inherent jurisdiction to undo what has been done by a party in self-help.
“The increment in tariff by the 1st defendant while parties are before the court and there is a subsisting order for status quo is hereby declared illegal.
“The 1st defendant is hereby directed to reverse to status quo. The 1st defendant is further restrained from increasing the electricity tariff except in strict compliance with the provisions of EPSRA and the procedures stipulated in Section 76 of the EPSRA”.
The judge berated NERC for violating its powers by going ahead with the upward review without following due process.
He said: “The 1st defendant violated its powers as contained in EPSRA. The law is clear and unambiguous. The issue of increment in electricity tariff must comply with the provisions of Section 76 of EPSRA. The 1st defendant has not shown that it acted in due obedience to the prescribed procedures.
“There is no evidence that the 1st defendant complied with Section 76, (6), (7) and (9) of the EPSRA. The 1st defendant did not give notice of the increase in official gazette and publish it in a newspaper with wide circulation or give room for the public to make presentations and objections before the increase will be effected.
“Under the law, tariff increment is subjected to a number of factors. Under the Act, customers are to pay for only what they consumed. Of all the requirements, the only one that appeared to have been complied by the 1st defendant is that it announced in the newspapers that it was going to increase the tariff. The recent increase in tariff is procedurally ultra vires. It is irregular. It is irrational and it is illegal,” Justice Idris added.
The judge also cautioned the investing public and admonished them to abide by the laws of the land. He said: “Let me say a word to the investing public. Investors are free to do business in Nigeria but they should abide by the laws of this country. Nigeria is not a kangaroo state. Nigeria is not a banana country. So long as investments are carried out within the ambits of the laws of this country, the courts have no business to intervene.”
The judge did not also spare the executive arm of government as he declared that, “it is intolerable and extremely dangerous for it to embark on actions indicating that it may choose not to obey the orders of the courts.
“That is tantamount to executive recklessness which may lead to lawlessness. Let me warn that no matter how high or low you may be, the law stands above you. Lawlessness, arbitrariness and executive recklessness in exercise of powers conferred by law will never be condoned,” Idris held.
The plaintiff, Adebiyi, in the substantive suit had sought for an order restraining NERC from implementing any upward review of electricity tariff without a significant improvement in power supply.
Reps urge FG to halt planned 100% electricity tariff increase
And in its session yesterday, the House of Representatives urged the Federal Government to halt any plan to increase electricity tariff by 100 percent.
The admonition followed a motion under matters of urgent public importance moved by Hon. Aliyu Madaki (APC-Kano).
Madaki said that the plan by the DISCOs to increase electricity tariff from N24 to N50 per kilowatt for residential consumers was not in the interest of Nigerians.
He expressed worry that the epileptic and erratic power supply by the companies had persisted and stalled both households and commercial activities.
Madaki added that the planned new tariff will amount to disobedience of an injunction by the Federal High Court, Lagos, restraining NERC from any increase in electricity tariff.
In his contribution, the House Majority Leader, Hon. Femi Gbajabiamila (APC-Lagos), said there was a need to review the sale of DISCOs to private individuals.
Gbajabiamila added that the companies lacked financial and infrastructural capacity to deliver quality services to Nigerians.
In his ruling, the Speaker, Hon. Yakubu Dogara, referred the matter to the ad-hoc committee to investigate the sale of power assets.
The committee was also mandated to investigate the rationale behind the last increase in electricity tariff by the DISCOs.