BY OLUGBENGA SOYELE, Lagos
The Lagos Division of Court of Appeal yesterday directed the Chief Judge of the Federal High Court, Justice Ibrahim Auta to re-assign a suit, challenging the 2015 hike of electricity tariff by the federal government through the Nigeria Electricity Regulatory Commission (NERC).
The appellate court in an unanimously decision held that the trial judge, Justice Mohammed Idris violated the appellant’s right to fair hearing and thereby committed “a grave error”.
A Lagos lawyer, Toluwani Adebiyi had filed the suit in April 2015 seeking an order restraining NERC from implementing any upward review of electricity tariff without a meaningful and significant improvement in power supply at least for 18 hours in a day in most communities in Nigeria.
Justice Idris based on the application on May 28, 2015, directed NERC to suspend all actions relating to any increment in electricity tariff pending the hearing and final determination of the suit filed by the lawyer.
However, despite the subsisting court’s order, NERC in conjunction with the Electricity Distribution Companies commence the implementation of the new electricity tariff on February 1, 2016.
On July 13, 2016, in his judgment, Justice Idris declared hike as illegal, null and void, holding that the increment is procedurally, irrational, irregular and illegal.
While the judge ordered the government to revert to the old tariff with immediate effect, he also restrained it from further increasing electricity tariff except it comply strictly with the relevant provisions of the Electricity Power Sector Reform Act (EPSRA) 2005.
But before the judgment was delivered, NERC, through its lawyer Chief Anthony Idigbe (SAN) had filed a motion on notice seeking to discharge the interim order.
Justice Idris, in his ruling, 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.
Apparently dissatisfied with the verdict, the commission appealed, challenging Justice Idris ruling.
The Appeal Court in its lead judgments delivered by Justice Abraham Georgewill held that Justice Idris misused his powers of discretion.
The two other Justices on the three man panel are Mohammed Garuba and Tijani Abubakar.
The appellate 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.
The upper court further stated that Justice Idris relied on technicality in denying NERC of 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 court held.
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.”
The appeal court also upheld appeals by NERC and 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.