Crisis brews as Benin Disco sues NERC, ADL
There is conflict between the Benin Electricity Distribution Company (BEDC), and industry regulator, the Nigeria Electricity Regulatory Commission (NERC), over the issuance of an Independent Electricity Distribution Network (IEDN) licence to Asaba Distribution Limited (ADL).
BEDC had petitioned against the granting of an independent distribution licence to ADL, which came up for hearing and determination at NERC yesterday (Tuesday).NERC said: “In compliance with Section 45 of EPSRA and Section 17 of the Business Rules, the Commission has resolved that the petition/objection filed by BEDC against the grant of the application of ADL, shall be heard by a panel of three Commissioners as stipulated in section 17 (3) of the Business Rules.”
Prior to the hearing, The Guardian gathered that BEDC had approached the court for reprieve on the matter, which it believes challenges its capacity to supply adequate electricity to customers in its area of jurisdiction, and the NERC was served the court proceedings of Suit No. (FHC/ABJ/CS/36/2021) filed at the Federal High Court on January 15, against the Commission and ADL.
BEDC averred in the suit that it has the capacity to, and has in fact been supplying adequate and sufficient electricity that meets the demand of the Delta State Government for whom the IEDN licence is purported as being procured for within the BEDC electricity distribution area, including the designated area.
BEDC sought the following reliefs in the suit – “a declaration that the conditions stipulated in Regulation 8(1)(a) and (b) of the Independent Electricity Distribution Networks (“IEDN Regulations”) 2012 are conditions precedent for the issuance of an IEDN licence by the Commission. Other reliefs are: “A declaration that ADL is not entitled to the grant of an IEDN licence to operate anywhere within the BEDC electricity distribution area.
“An order of perpetual injunction restraining the Commission from granting ADL an IEDN licence to operate within the BEDC electricity distribution area.”
“An order of perpetual injunction restraining ADL from distributing electric power in any guise or manner to the areas covered under BEDC’s distribution licence, including but not limited to core areas of Asaba, Delta State, namely Summit Road, Anwai Road, Government House, Cabinet Road, New General Hospital Area, Okpanam Road and NTA Road.
“An order of perpetual injunction restraining ADL from approaching any of the customers of BEDC or from taking any steps or actions towards the supply of electricity to any of the customers of BEDC in the BEDC electricity distribution area.
“An order mandating ADL to forthwith, at its own cost and without any disturbance to BEDC’s business or destruction of any of BEDC’s equipment or structure, remove the parallel overhead distribution lines, underground cables, and every other structure(s) or fixture(s) constructed or installed within the BEDC electricity distribution area for the purpose of distributing electricity or carrying out any activity exclusive to a holder of an IEDN licence within the BEDC electricity distribution area.
But NERC retorted that Section 71(6) of EPSRA provides that “unless expressly indicated in the licence, the grant of a licence shall not hinder or restrict the grant of a licence to another person for a like purpose, and, in the absence of such an express indication, the licensee shall not claim any exclusivity, provided that the Commission may allow a licensed activity to be exclusive for all or part of the period of the licence, for a specific purpose, for a geographical area, or for some combination of the foregoing.”
It also noted that EPSRA recognises the public interest test as a critical factor for the consideration of all applications for licences, and also provides administrative remedies that must be explored within the framework of the Act prior to seeking external redress.
“The Commission acknowledges that the matter is now subject to judicial review and hereby notifies the general public that the hearing shall no longer hold as scheduled as the parties are now required to present their respective positions to the court in a manner that respects the independence of the judiciary.
“The Commission regrets any inconvenience this indefinite postponement may cause to the public.”