The continuous attempt by Nigerian Electricity Regulatory Commission (NERC) to increase electricity tariff met another brick wall last week as the Federal High Court sitting in Lagos, reaffirmed its earlier ruling restraining the electricity regulatory body from increasing electricity tariff.
The order was renewed by the presiding judge, Justice Mohammed Idris, after striking out NERC’s preliminary objection and application to nullify the order.
A Lagos-based lawyer and human right activist, Toluwani Adebiyi instituted the suit, seeking a perpetual injunction restraining NERC from implementing any upward review of electricity tariff without significant improvement in power supply for at least 18 hours a day.
Justice Idris struck out NERC’s objection to the suit because it did not comply with Order 29 (Rule 4) of the court’s Civil Procedure Rules.
According to the judge, the rule states that any preliminary objection to an originating summons must be filed within 21 days after being served with a suit. The judge said NERC’s lawyer did not comply with this rule.
The judge said: “The learned Senior Advocate to the defendant holds the view that the provision is discretionary. I honestly and sincerely disagree with that view.”
Justice Idris held that the Rules use the word “shall”, which connotes a command, making compliance imperative and mandatory.
He said by his records, NERC’s objection was filed outside the 21 days prescribed by the rules.
“In the circumstances, I hold that the preliminary objection was filed in breach of the rules of court. The objection filed is therefore in my view incompetent and is hereby struck out,” the judge held.
On NERC’s argument that the motion ex-parte was incompetent ab-initio and so the court lacked jurisdiction to grant it, the judge said the application challenging it also failed to comply with the court’s Order 26 (Rule 11).
The rule states that where a court makes an order based on a motion ex-parte, any person affected by it may apply to vary or discharge it within seven days.
The judge said the order was made on May 28 and served on NERC on June 3, 2015, but “the application to discharge the order was only filed on the 6th day of July 2015 outside the seven days period prescribed by the rules.”
Besides, Justice Idris said there was no relief asking for extension of time.
“It is clear that this second application was also filed in breach of the rules of court and is also incompetent.
“Both applications – the preliminary objection and motion to set aside – are all hereby declared incompetent and are hereby struck out.
“The order of court maintaining status quo remains until further order is made,” the judge held.
Adebiyi hailed the judge for the ruling, saying he did justice to all Nigerians who have been exploited and have been forced to pay exorbitant electricity bills for power not consumed.
“I will continue to be proud of this court my Lord, because this is National Victory Stage One over electricity terrorism and exploitation,” he said.