The Nigerian Electricity Regulatory Commission (NERC) has appealed against the judgment mandating it to reverse the 45 per cent increase in electricity tariff.
It has also filed a stay of execution of the judgment, warning that total blackout looms if the application is not granted.
In a Motion on Notice, NERC is seeking an order staying execution of the judgment pending the hearing and determination of its appeal.
In a supporting affidavit deposed to by Martins Nwankwo, it said: “Refusal to grant this application will result in devastating consequences for the nation and indeed the entire electricity consumers in Nigeria as investment in power sector which encourages healthy competition will be discouraged.
“In the same vein, the entire electricity generation and distribution stands the risk of total collapse in view of the recent devastation caused by vandalisation of power installations with its attendant decrease in power generation and distribution.
“If this application is not favourably considered, there is a high likelihood that the citizens of the country will be subjected to total blackout while business and investments will be drastically affected.
“We submit that any attempt to further subject the masses to further hardship will be setting the stage for chaos and anarchy in the society; which effect may be overwhelming.”
Justice Mohammmed Idris of the Federal High Court in Ikoyi, Lagos had on July 13, in a judgment on a suit by activist-lawyer, Toluwani Adebiyi, declared that the electricity tariff increase was illegal. He ordered that it should be reversed immediately.
NERC, in its Notice of Appeal filed by its counsel Chief Anthony Idigbe (SAN) based on 14-grounds, said Justice Idris erred in law when he held that the court had jurisdiction to entertain Adebiyi’s originating summons when the processes were incompetent and statute barred, having been brought outside the statutory period prescribed under Section 2(a) of the Public Officers Protection Act of 2004.
NERC said the trial judge took the litigant’s position by assisting him in couching his claim, adding that Justice Idris deprived the appellant of its constitutional right to fair hearing by granting a relief on newspaper admissibility not sought by the plaintiff, without hearing from the appellant.
The appellant claims Justice Idris erred in law when he held that Adebiyi is allowed to approach the court without exhausting NERC’s internal dispute resolution mechanism pursuant to Section 45 and 50 of the Electricity Power Sector Reform Act 2005 (EPSRA).
NERC also faulted the judge for holding that it did not comply with Section 76 of the Electricity Power Sector Reform Act 2005 (EPSRA) in preparing its tariff methodology, adding that the judge erred in law when he placed the burden of proof of non-compliance on the appellant rather than on the plaintiff.
The appellant further said the judge misdirected himself in law in relying on facts and affidavits occurring after the filing of the Originating Summons, and in holding that Adebiyi had locus standi to institute the action when, from the reliefs sought, no personal right was put in issue.
NERC said the reliefs sought by the activist-lawyer did not raise any issue for determination of his rights or liabilities, did not raise any reasonable cause of action and were incapable of execution.
Other respondents in the case include Distributions Companies (DISCOs) across the country, as well as a company, Ziklagsis Network Ltd.
