Court dismisses NERC’s application to set aside restraining order

Justice Idris of the Federal High Court sitting in Lagos in a ruling delivered today, the 23rd of July 2015 dismissed both the Notice of Preliminary Objection and the motion seeking to set aside the ex parte orders made by the court on the 28th of May 2015 filed by the Nigerian Electricity Regulatory Commission (NERC) in the suit challenging the upward review of electricity tariff in the country.

A lawyer and activist, Toluwani Adebiyi in a suit filed in May 2015 is seeking a perpetual injunction restraining the NERC from implementing any upward review of electricity tariff without significant improvement in power supply for at least 18 hours a day. He is also seeking an order of court mandating the NERC to generate more power to meet the country’s needs, and to develop a multiple long-term financing approach sourced from the banks, capital market, insurance and other sectors to finance the power sector as well as an order mandating the NERC to make prepaid meters available to all Nigerians within two years in order to stop indiscriminate estimated electricity bills. On the basis of a motion ex parte filed along with the Originating Summons, the court had on the 28th of May 2015 restrained the respondents, including the electricity distribution companies from effecting any increment in electricity tariff until the hearing and determination of the suit.

In response, NERC filed a Notice of Preliminary Objection to the suit as well as a motion seeking to set aside the ex parte orders made by the court on the 28th of May 2015. NERC’s challenge to the ex parte orders is that the motion ex parte  upon which the orders were granted amounted to an abuse of court process as the Plaintiff/Applicant failed to file a motion a notice along with it. NERC also challenged the ex parte orders and the substantive suit on the ground that the Plaintiff lacked the locus standi to institute the suit.

In his ruling, Hon. Justice Idris found both the motion seeking to set aside the ex parte orders and the Notice of Preliminary Objection filed by NERC  incompetent and struck them out. He held that both applications were filed in breach of the Federal High Court (Civil Procedure) Rules 2009. Order 29 Rule 4 of the Rules provide that any preliminary objection to an Originating Summons shall be filed within 21 days after being served with the Originating Summons. The Honourable Justice held that the said provision is not discretionary as the use of the word ‘shall’ in the provision connotes a command which makes compliance imperative and mandatory. From the records of the court, the Notice of Preliminary Objection filed by NERC was filed outside the 21 days prescribed by Order 29 Rule 4 of the Rules. The motion seeking to set aside the ex parte orders faced similar fate as the court found that it failed to comply with the provisions of Order 26 Rule 11 of the Rules which provides that any party affected by an order made ex parte may apply to discharge or vary it within 7 days of being served with such order. The records of the court show that NERC was served with the order on the 3rd of June 2015 but filed its application to set aside the ex parte orders on the 6th of July 2015. NERC did not seek any order of court for extension of time.

The court stated that the order of court directing that status quo be maintained remains in force until further orders in the suit are made and adjourned the suit to the 23rd of September 2015 for hearing of the Originating Summons.

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