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Court Dismisses Suit Against Electric Companies

A Federal High Court sitting in Lagos has dismissed a suit filed by the Incorporated Trustees of Human Rights Foundation (ITHRF) seeking, among others, to set aside the appointment of external inspectors to conduct a regulatory open book review of the records of electricity distribution companies in Nigeria.

Justice A. Lewis-Allagoa, in his judgment delivered last Wednesday, agreed with the arguments of counsel to the Nigerian Electricity Regulatory Commission (NERC), Harry Ukaejiofor of Ukiri & Lijadu, as well as that of counsel to the Nigerian Bulk Electricity Trading Plc (NBET), Ugochukwu Eze of Bloomfield LP, that the ITHRF lacks the competence to commence the suit as there is no nexus between its objects and public interest litigation.

The Court further agreed with the respective counsel that ITHRF failed to show how the appointment of the external inspectors and the payment for their services by the World Bank will prejudice its rights and interests, those of its members, or even the rights and interests of the public.

The Court, therefore, held that ITHRF’s claims are not founded in the realm of public law in that no breach of statutory or constitutional provisions is in issue, rather the claims are within the realm of private law and a person can only bring an action in the realm of private law when the subject matter of the claim affect the rights and interests of that person.

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The Court specifically held that only the Attorney-General of the Federation or a person acting by his fiat is permitted to pursue the claims brought by the ITHRF in this suit. The Court, therefore, dismissed the suit in its entirety and awarded the sum of One Million Naira (₦1,000,000.00) each to NERC and NBET against ITHRF.

ITHRF had commenced the action against NERC seeking declaratory and injunctive reliefs regarding the appointment of KPMG Professional Services, PricewaterhouseCoopers Limited and Deloitte and Touche Consulting Limited as inspectors to conduct a regulatory open book review of the records of companies in the Nigerian Electricity Supply Industry. Other Respondents in this suit include NBET, KPMG Professional Services, PricewaterhouseCoopers, Deloitte and Touche, Abuja Electricity Distribution Company Plc, BEDC Electricity Plc, Enugu Electricity Distribution Company Plc, Ibadan Electricity Distribution Company Plc, Ikeja Electricity Distribution Company Plc, Jos Electricity Distribution Company Plc, Kaduna Electricity Distribution Company Plc, Kano Electricity Distribution Company Plc, Port Harcourt Electricity Distribution Company Plc, Eko Electricity Distribution Company Plc, Transmission Company of Nigeria, Nigerian Gas Company Limited and the Honourable Minister, Federal Ministry Of Power.

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In the suit, commenced by originating summons, the foundation also prayed the Court to restrain the electricity distribution companies from making available their financial, administrative and technical records to the inspectors and to order NBET to furnish ITHRF with the details of all power generation licensees that currently have subsisting Power Purchase Agreements with NBET, details of the wholesale power procurement tariff in the Power Purchase Agreements including their daily capacity declaration and availability, as well as the income that accrued to NBET from the power sector licences between 2015 and 2020.

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