NERC Suit: Appeal Court Orders Re-Assignment Of Case

6 min read 1,156 words 0 views

The Court of Appeal in Lagos has ordered the Chief Judge of the
Federal High Court to re-assign a suit on electricity tariff to a
new judge for adjudication.

The Appeal Court held that Justice Mohammed Idris, who heard the
case, violated the appellant’s right to fair hearing and thereby
committed “a grave error”.

An activist-lawyer Toluwani Adebiyi had sued the Nigerian
Electricity Regulatory Commission (NERC) over the purported planned
increase in electricity tariff.

Justice Idris had made an interim order that status quo be
maintained in the suit. The order, in effect, barred NERC from
increasing the tariff.

NERC, through its lawyer, Anthony Idigbe, however, filed a
motion on notice seeking to discharge the interim order.

In his ruling, Justice Idris dismissed NERC’s application for
being filed outside the seven days prescribed by the court’s
rules.

The judge similarly dismissed NERC’s preliminary objection on
the basis that it was also filed out of time. Dissatisfied, the
Commission appealed to challenge Justice Idris’ ruling.

Delivering judgments in the appeals on Monday, Justice Abraham
Georgewill held that Justice Idris misused his powers of
discretion.

The appeal court held that Justice Idris “approbated and
reprobated” when he heard NERC’s application to regularise its
processes, and still set aside the appellant’s motion to discharge
the interim order.

Justice Georgewill said Justice Idris relied on technicality in
denying NERC of a fair hearing, thereby occasioning a miscarriage
of justice.

“The trial court accorded undue reverence and relevance to
technicality. The era of technical justice is gone in our courts,
substantial justice is key,” the judge said.

Holding that NERC’s motion on notice seeking to discharge the
ex-parte order was competent, Justice Georgewill held: “A breach of
right to fair hearing renders the entire proceedings a
nullity”.

He further held that Justice Idris “engaged in injudicious and
capricious exercise of discretion, which is a flagrant breach of
Section 36 of the 1999 Constitution”.

“This is a clear case of travesty of justice to hear the
plaintiff’s case after striking out the motion on notice to
discharge the order, the law should take its cause. The court below
failed to observe the principle of fair hearing which is a rule of
natural justice. The right to fair hearing is not a cosmetic right,
it is a fundamental right. While justice need not be delayed, it
need not be rushed; the appeal hereby succeeds.

“The case is consequently remitted to the lower court for
another judge to determine the case as may be assigned by the Chief
Judge. Going by the grave error of the court below, the motion on
notice is remitted for same to be heard and determined
expeditiously; the appeal has merit. The entire proceedings of the
lower court are hereby set aside. There shall be no order as to
court,” Justice Georgewill.

The Appeal Court also upheld appeals by NERC and the
Distribution Companies (DISCOs) challenging the dismissal of its
preliminary objection.

It, however, dismissed an appeal filed by Zikglass Networks Ltd,
describing the company as a “meddlesome interloper”.

“That a person is a party to a suit does not mean he has the
right to appeal a decision which has not affected him, that will be
a mere academic exercise. This is a needless appeal which did not
raise any question for determination. The appeal is completely an
abuse of court process and is hereby dismissed,” the judge
held.