Vigeo legal advisers caution NERC against llegal takeover of BEDC
The legal advisers to Vigeo Power Limited, the core investors in Benin Electricity Distribution Company Plc, BEDC, have cautioned the Nigerian Electricity Regulatory Commission, NERC, to refrain from alleged illegal means to alter the composition of the BEDC board of directors.
They gave the warning in a letter by Kunle
Adegoke, SAN, to NERC, its Chairman, Sanusi Garba and Dafe Akpeneye.
Adegoke in the letter entitled Re: Notice to the
general public on the legitimate and statutorily recognised board of directors
/management of BEDC Electricity Plc,” said they were reacting to an unsigned publication in the media.
He contended that, "Whilst 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 2nd 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 of court
orders."
The letter reminded the Commission of the
contempt proceedings pending against it for alleged gross violation of the
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 on the 22nd day of July, 2022," Adegoke said.
The lawyer said his clients were aware of
the Commission's alleged plan to "collaborate with some elements to invade
the premises of BEDC and forcefully 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 unsigned letter referenced by Adegoke
was titled: Notice to the general public on the legitimate and statutorily
recognized board of directors/management of BEDC Electricity Plc.
It 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,
NERC is the primary authority to statutorily recognise the board/management of
BEDC as an operator in the Nigerian Electricity Supply Industry (NESI).
"We also note the inaccurate analysis
of the effect of the court order in the Contemptuous Publication. Being a party
to the FHC Action, the appropriate step to be taken by NERC is to ventilate its
grievance with the order before the court, and not denigrate it, as has been
purportedly done in the Contemptuous Publication.
"It is on record that whilst NERC is
represented by counsel in the FHC Action, it has not (at least as of the last
sitting of the Court on the 22nd day of July, 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.
"In connection with the issue of the
security over the shares, we wish to reiterate that the matter is currently the
subject of an action before Justice Bogoro in FHC Lagos, and the
Commission will do well not to comment on an issue that is sub judice. And with
respect to the putative powers of NERC to remove directors of licensees, the
Commission should be reminded that the power was struck down and declared
unlawful in the case of FHC/ABJ/653/2018 - Ibadan Electricity Distribution
Company v Minister of Power & NERC."
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