‘Why NERC must refrain from illegal takeover of BEDC’

The legal adviser to Vigeo Power Limited, core investors in Benin Electricity Distribution Company (BEDC) Plc., has cautioned the Nigerian Electricity Regulatory Commission (NERC) to refrain from alleged illegal alteration of the composition of the BEDC board of directors.

He gave the warning in a letter signed by Kunle Adegoke (SAN), to NERC; its Chairman, Sanusi Garba and Dafe Akpeneye, with the headline, ‘Re: Notice to the general public on the legitimate and statutorily recognised board of directors/management of BEDC Electricity Plc.’

Adegoke said the letter was BEDC’s response to an unsigned publication, purportedly issued by NERC, and dated September 1, 2022.

He said: “While we have assumed that the contemptuous publication did not emanate from NERC, not least because it is unsigned, and will amount to a direct affront to the court (for the reasons stated below), we are, out of abundance of caution, and for the avoidance of doubt, constrained to state as follows:

“We are aware that the commission is conscious of the fact that NERC is the second defendant in suit No. FHC/ABJ/CS/1113/2022.

“As previously mentioned, we feel certain that no law-abiding public officer or public institution could have authorised the issuance of unsigned contemptuous publication. If the contemptuous publication is being wrongly attributed to the commission, we urge the commission to publicly disassociate itself from the publication.

“However, in the unlikely event that the contemptuous publication was authorised by NERC, the commission should be reminded of the grave consequences that follow disobedience to court orders.”

In the letter, the lawyer reminded the commission of contempt proceedings pending against it for alleged gross violation of orders of court.

“Your counsel was in court when the court directed all defendants in the suit to first comply with the orders of court made on July 22, 2022,” Adegoke said.

The Senior Advocate of Nigeria said his clients were aware of the commission’s alleged plan to “collaborate with some elements to invade the premises of BEDC and forcibly impose the illegal directors on the company, notwithstanding the absence of authority to impose directors on a company regulated by law. We will urge the commission to refrain from such action.”

The letter claimed, among others, that under the Electric Power Sector Reform Act (EPSRA), regulatory instruments issued pursuant to EPSRA and the terms and conditions of the licence issued to BEDC made NERC the primary authority to statutorily recognise the board/management of BEDC as an operator in the Nigerian Electricity Supply Industry (NESI).

Continuing, Adegoke said: “We also note the inaccurate analysis of the effect of the court order in the contemptuous publication. Being a party to the Federal High Court (FHC) action, the appropriate step to be taken by NERC is to ventilate its grievance before the court, and not denigrate it, as has been purportedly done in the publication.

“It is on record that while NERC is represented by counsel in the FHC action, it has not (at least, as of the last sitting on July 22, 2022) filed any process in the suit and neither has it filed any application to seek that the orders of court were wrongly procured or to have the court set same aside.

“We further note the assertion in the contemptuous publication that the security created over the shares of one of our client’s shareholders had been enforced, and that the commission acted in accordance with its business continuity rules.”