some important judicial pronouncements on nigerian electricity law

Discos, as stated earlier, are not mere private enterprises. The public nature of their formation means that they owe public duty to the consumers. This is so because beginning from their inception, all the duties, obligations, rights and liabilities of the National Electric Power Authority (NEPA) previously transferred to the Power Holding Company of Nigeria (PHCN) now rest on the present day DISCOs who are the successor companies to the former. Because they are empowered to provide electricity to the public, they owe public duty to their consumers. See Jos Electricity Distribution Company v. Barr Dasat Lengnan John (2020) 1 ELR Page 2 @ 19 para. N.

For the purpose of electricity, a consumer is a person who deals directly with the electricity distribution company and pays all bills and charges thereto. It is immaterial that such a person is not the registered customer. Thus, the tenant of a premises is rightly regarded as a consumer and customer of a Disco notwithstanding that the premises is registered in the name of the landlord or a former Tenant for the purpose of electricity distribution and consumption. Amadi & 5ors v. Essien (2020) 1 ELR page 24 @ 59 – 60 para. N

Yes. An Electricity Distribution Company owes the public the duty to ensure utmost health and safety standard during the installation of their electrical appliances and cables. Where as a result of negligence their cable results in the death of an individual, they will be held liable in damage. NEPA V Mallam Muhammad Auwal (2020) 1 ELR page 150 @ 163 para. D; NERC V AEDC (2020) 1 ELR page 186 @ 216 paras. K – P, A; Condition 18 (1) License terms and Conditions

To successfully establish a case of negligence against an electricity distribution company, you must show that the distribution company owe you a duty of care (for which it would suffice to show that the place is such a place as should be understood that people would get or go through and would be exposed to danger if no such care is taken); that the duty was breached (for which, depending on the actual circumstance, showing that there were no warning signs, no insulating material, no fencing off, etc. etc. could suffice) and that you have suffered some damage as a result of the breach (for which there would be actual injury, either to persons or property). See NEPA V Mallam Muhammad Auwal (2020) 1 ELR Pg. 150 @ 163 - 164 paras G

Yes. However, XYZ Company Ltd will have to secure a license from the Nigerian Electricity Regulatory Commission if it so desires to generate electricity in excess of One megawatt. Petadis Enterprises V HFP Properties Ltd & Anor (2020) 1 ELR page 174 @ 182 paras N

No. This is because there is no competition between both institutions as both play very different roles. Except the NERC exceeds their own powers arbitrarily, the courts will not substitute its own view over the competence of the commission. The Commission is empowered to exercise administer some administrative control, including the first instance judicial function of handling of Arbitration hearing of issues that do so purely relate to NERC’s core mandate of electricity power generation, transmission and distribution. After that parties can freely head to the FHC to ventilate their issues of dispute. LASG V PHCN & Ors (2020) 1 ELR pg 230 @ 264 para. A

Yes. The purpose is to set fair enough tariffs that specify the prices, terms and conditions under which electricity service is to be provided which will ensure sufficient return on investment for the electricity energy providers and also ensure that same does not become unreasonably burdensome on the final consumers, and at the same time prevent the emergence of a monopoly. FUNKE ADEKOYA (SAN) V. VGC MANAGEMENT LTD & ANOR (2020) 1 ELR PAGE 282 @ 300 PARA. B

Not really. Although ‘‘Shango Electricity Distribution Company’’ just like most Discos in Nigeria, may have come to be as a result of privatization, they are however not regarded as mere private enterprises but rather one of successor companies incorporated under the Companies and Allied Matters Act pursuant to the steps taken by the National Council on Privatization after the formation of the initial holding Company. The essence of their formation is to assume jurisdiction over the assets and liabilities of the initial holding company as it relates to distribution of electricity.

However, this does not mean that present day Discos enjoy all statutory rights as enjoyed by the Power Holding Distribution Company of Nigeria previously as they are privately controlled. They are not subjected to rules, policies and practice of public institutions. They are also not entitled to pre-action notice or the public officers’ protection law amongst others. See Jos Electricity Distribution Company v. Barr Dasat Lengnan John (2020) 1 ELR Pg. 2 @ 16 para. G; Sections 1, 8, 24 and 62 Electric Power Sector Reform Act 2005

In order to lawfully disconnect a customer, a Distribution Company must issue a Notice of Disconnection to the customer. This requirement is a statutory one, thus any disconnection otherwise than as outlined is deemed improper. Where the problem is that the DISCOs are unable to read the meter of a customer because it is inaccessible, it must first inform the customer by written notice or by telephone contact about the inaccessibility of the meter and request him to provide access to them so the meter could be accessed and read for billing. Where the customer fails to do so, the Distribution Company must further give the customer a Written Warning that unless he provides the access as required within a given date his electricity supply will be disconnected.

See JOS ELECTRICITY DISTRIBUTION COMPANY V. BARR DASAT LENGNAN JOHN (2020) 1 ELR page 2 @ 17 - 18 paras I – N; Para. 9 (a-d) and para. 6 (C) (i – ii) of the Federal Republic of Nigeria Official Gazette No. 103 Lagos 2nd December 2007 Vol. 94 vide Government No. 72 page B485 titled Nigerian Electricity Regulatory Commission Connection and Disconnection Regulations Procedure for Electricity Service 2007 S. I. No. 41 Of 2007 published under the Electric Power Sector Reform Act No. 6 of 2005.

The simple rule is that the Disco cannot lawfully disconnect supply of electricity without first issuing Notices that will communicate to the customer in what way he is deficient, or the reason for which they want to carry out the disconnection exercise. That must still be followed up with a Warning that communicates its intention to execute the actual disconnection. In all of these, the statutory period must be allowed in between Notices and Warnings and the actual execution of the threat of Disconnection.

No. The powers and authorities of Electricity Distribution companies are highly regulated by the Nigerian Electricity Regulatory Commission (NERC) who in turn are empowered by statutes to make regulations in order to ensure an efficiently managed electricity supply industry that meets the supply of consumers. Where there is an allegation that may necessitate the disconnection of a customer, the DISCOs is mandated to comply with the NERC rules See Jos Electricity Distribution Company v. Barr Dasat Lengnan John (2020) 1 ELR pg 2 @ 19 paras N; pg 2 @ 17 para H; sections 80 (1)(f) and (2); Section 81 Electric Power Sector Reform Act 2005

The burden to show that a customer is indebted or owes electricity bill rest squarely on the electricity distribution company alleging same. It will not be enough for the Disco to show that it supplied electricity power to the house, but it must also go further to reconcile this bill charges with the actual amount of electricity consumed by the customer. Barr. Mike Kpemi V BEDC (2020) 1 ELR pg 68 @ 111 paras A – B; Bassey v PHCN & Anor (2010) LPELR-3859 (CA)

No. Where an Electricity Distribution Company estimates the bill of a customer, such customer is not expected to pay same as a matter of fact. For such billing to apply, it must first be subjected to specific computation formula based on verifiable data as provided for in Paragraphs 7 and 8 of the Nigerian Electricity Regulatory Commission (Methodology for Estimated Billing) Regulation 2012. See Barr. Mike Kpemi V BEDC (2020) 1 ELR pg 68 @ 105 paras P

No. it is a duty on the part of the DISCOs to, as a matter of duty and responsibility, provide meters to their customers. This duty is not subject to or affected by the availability or non-availability of meters. It is an obligation that DISCOs must satisfy. Barr. Mike Kpemi V BEDC (2020) 1 ELR page 68 @ 105 paras O-P; Meter Asset Provider Regulations 2018 (Regulation NERC-R-112)

No you can’t. Where the bills are in a form or type of uniform electricity bill sent to every customer, then Alhaji Kabiru, you must do more in order to succeed in your case of defamation. Youe must show that the innuendo you are placing or associating with the bill or the statement therein are indeed defamatory and has lowered your esteem in the presence of right thinking members of the society. Where the print is a normal bill sent to every other customer at the end of the month, same cannot be defamatory irrespective of whether the bill is correct or incorrect. See NEPA V ETIM INAMETI (2020) 1 ELR page 116 @ 135 - 136 para. L

As in all civil matters, this allegation being one of negligence, (except where there is an allegation of a criminal nature), the level or standard of proof needed in the case is one of “balance of probability” or “preponderance of evidence”. NEPA V Mallam Muhammad Auwal (2020) 1 ELR page 150 @ 168 para. J; Alhaji Buba Usman V. Mohammed Taminu Garke (2003) 14 NWLR (pt.840) 261

Yes. The Nigerian Electricity Distribution Company has the power and authority to hear and determine any petition that involves breach of contract in the electricity industry. See LASG V PHCN & Ors. (2020) 1 ELR page 230 @ 257 para. F

The powers of the commission are listed fully in the Electric Power Sector Reform Act 2005. In addition to regulatory functions, it has the power to resolve disputes. It also has the power to conduct hearing that arises as a result of complaints, petition or its own direct investigation of market conduct of industry participants in order to hear all parties before taking decisions. Largely, the commission performs executive, directive and judicial functions Sections 32, 47, 50, 76 and 80 Electric Power Sector Reform Act 2005; LASG V PHCN & Ors (2020) 1 ELR pg 230 @ 261 paras I

Yes. Even though the Commission may be in possession of all the facts as the case may be, the principle of fair hearing cannot be eroded. Before the commission takes any further directive on the issue, it must afford all parties affected the opportunity to be heard. LASG V PHCN & Ors (2020) 1 ELR pg 230 @ 261 - 262 paras J; Section 36 Constitution of the Federal Republic of Nigeria 1999 (as amended)

Yes. All qualified persons engaged in electricity business in Nigeria are subjected to the regulations of the Commission. The Commission is empowered under the Act to license and regulate any form of electricity transmission, system operation, trading, generation in excess of 1Megawatt and distribution in excess of 1Kilowatt. It is immaterial that the Agency engaging in such electricity power distribution is a Federal Government Agency. LASG V PHCN & Ors. (2020) 1 ELR pg 230 @ 262 - 263 paras M

The Nigerian Electricity Regulatory Commission (NERC) conducts hearing not only for the purpose of resolving disputes but also to enable it monitor the market as well as propose executive or legislative actions in order to curb any abuse found as a result of the hearing. LASG V PHCN & Ors (2020) 1 ELR page 230 @ 264-265 para. C

Electricity distribution occurs when:

(1) there is conveyance of electricity;

(2) where the conveyance occurs over low voltage (less than 132 KV) electric lines and;

(3) when the electricity is supplied from the grid supply point over low voltage electricity line to the ultimate consumer. Section 100 Electric Power Sector Act 2005; FUNKE ADEKOYA (SAN) V. VGC MANAGEMENT LTD & ANOR (2020) 1 ELR page 282 @ 296 Paras. I – N

Yes. While distribution of electricity entails ownership, operation and maintenance of a distribution undertakings, i.e. low voltage wires and other facilities with which the electricity is delivered, electricity trading on the other hand, requires none of the above. At best, an electricity trader may merely be an intermediary who buys electrical energy from the seller (Generation or Distribution Company) and then proceeds to sell same to whoever requires the energy who could be the end user or a market participant who buys to resell. FUNKE ADEKOYA SAN V. VGC MANAGEMENT LTD & ANOR (2020) 1 ELR PAGE 282 @ 297 - 298 PARAS F – H

No. This is because during the privatization of PHCN, before any distribution company is issued a license to operate, that company must first have accomplished the transfer of assets, liabilities and obligation process as outlined in Section 23 of the Electric Power Sector Reform Act (EPSR ACT) 2005. This means that the Discos by the transfer Order which preceded its license have undertaken to bear such responsibilities. This transfer releases the initial holding company from any form of liability. This implies that the acquirer of a power asset must comply with all existing contractual obligations. See Jos Electricity Distribution Company v. Barr Dasat Lengnan John (2020) 1 ELR page 2 @ 16 para. G; Sections 10(7)(1) and 23 Electric Power Sector Reform Act 2005’ Aba Power Ltd & Anor v. Bureau of Public Enterprise & Anor (2020) 2 ELR page 44 @ 101 – 102 para. I

By Section 136 of the Evidence Act 2011, the duty to prove a fact rest on the party alleging that fact. So the burden of proof will rest with you, the customer. After you would have laid out a prima facie case in support of your allegation, the evidential burden shifts to Shango Disco and it will rest on it saying otherwise to disprove same. This is particularly so because Shango Disco has custody of the most of the vital data of supply and consumption with which to establish the truth of the matter. In this instance, the burden to disprove an arbitral charging of billing will rest on the distribution company. See Barr. Mike Kpemi V BEDC (2020) 1 ELR page 68 @ 95 paras A – D

No. Such electricity distribution arrangement is not only improper but illegal. Except where otherwise allowed, a distribution company cannot lease out or subcontract its functions under it license to another company under any pretext. Doing same will be tantamount to such Disco carrying out the function of the Nigerian Electricity Regulatory Commission who has the duty to issue license for that purpose. See Petadis Enterprises V HFP Properties Ltd & Anor (2020) 1 ELR Pg. 174 @ 182 paras. K – L

Yes. The Electric Power Sector Reform Act 2005 empowers the NERC to give directions on the delivery of power and enforcement of procedures for supply, connection and disconnection of consumers and potential consumers. LASG V PHCN & Ors (2020) 1 ELR pg 230 @ 258 paras I

To ensure market efficiency and competitiveness of the electric power market, the Nigerian Electricity Regulatory Commission ensures that consumers pay only a reasonable price for what is consumed. It ensures that such prices so paid are reflective of the current society rate such that while consumers pay reasonable price for what they consume, suppliers also would make profit and recover cost expended on the project and remain afloat and in business. LASG V PHCN & Ors. (2020) 1 ELR page 230 @ 258 paras L

No. in fact, one of the functions of the Nigerian Electricity Regulatory Commission is to prevent the abuse of electricity supply market by any participant. Thus, the NERC ensures that no electricity distributor or licensee receives payments for electricity not supplied or used. LASG V PHCN & Ors (2020) 1 ELR pg 230 @ 258 paras L

Not really. This is because, a contract for the supply of electricity is one which is public in nature. Statutory bodies performing regulatory functions would normally not succumb to the private contract of parties, subject however to regulation by which these private parties seek to resolve their dispute of sensitive public impact by arbitration. In the case of LASG V PHCN & Ors (2020) 1 ELR page 230 @ 275-276 para. H, it was held that the commission had the jurisdiction to hear and determine the petition of the Lagos State Government notwithstanding the provision of an Arbitration Clause in the Agreement between the Parties. See LASG V PHCN & Ors. (2020) 1 ELR page 230 @ 272 para. K

No. Any such agreement will be illegal. Tariffs control are within the prerogative of the Nigerian Electricity Distribution Commission and none other. The essence is to ensure market competitiveness as well as prevent unreasonable charges on the final consumers. FUNKE ADEKOYA (SAN) V. VGC MANAGEMENT LTD & ANOR (2020) 1 ELR PAGE 282 @ 307 PARA. O

No. Where a body established and regulated by statute is empowered to provide public utility for citizens, the relationship created is not exactly contractual but merely a provider–consumer relationship. This is because, apart from the fact that consumers pay for the electricity they use, no other element of contract exist. However, the breach of same under some certain circumstances like giving them notice of whatever shortcomings or grievances, doing all they direct that you should do, and failure on their part to do what will be considered reasonable in the prevailing circumstances, will constitute a ground for action against them. Jos Electricity Distribution Company v. Barr Dasat Lengnan John (2020) 1 ELR pg 2 @ 16 – 19 paras. G & N

For the purpose of privatizing government assets, the Bureau of Public Enterprise acts as agent of the Federal Government. Thus, when a suit is against the action of the Bureau of Public Enterprise as a result of privatization, it becomes unnecessary to add the Federal Government as a party to the suit seeing that the Bureau of Public Enterprise as an agent of the Federal Government is already made a party. See ABA Power Ltd & Anor v. Bureau of Public Enterprise & Anor (2020) 2 ELR page 44 @ 98 para. L; @ 103 para K.

No. By Section 63 and 67 of the Electric Power Sector Reform Act 2005, Distribution companies are statutorily required to connect customers for the purpose of receiving the supply of electricity subject to terms and conditions as the Nigeria Electricity Regulatory Commission (NERC) may fix in its license. Once it is shown that a potential customer has satisfied the necessary requirement to be connected, the Distribution Company has no discretion on the matter, it must connect the customer-applicant. Jos Electricity Distribution Company v. Barr Dasat Lengnan John (2020) 1 ELR page 2 @ 17 para. H

Where a distribution company deliberately and without regards to due process disconnect the power supply to your property, you can approach the court for an Order directing and compelling it to reconnect you. Apart from the other legal approaches open to you on the basis of the quasi-contractual relationship (that could be made to ripen strong relationship of Provider-Customer), the Order of Mandamus compelling the DISCOs to reconnect your light irrespective of the fact that DISCOs are not under government control, is one of the several options. Jos Electricity Distribution Company v. Barr Dasat Lengnan John (2020) 1 ELR page 2 @ 18 para. N and @ 19 para. N

Yes, it is the Tenant that has this right to maintain an action in this case and not the landlord as long as he is the one who consumes the electricity and pays directly to the DISCOs for the supply of the electric current. In some instances, like this, the main test for what constitutes locus standi is whether the party suing has sufficient interest in the suit. Thus it is usually the facts and circumstances of each case that is of utmost importance in determining the matter of locus standi. Amadi & 5ors v. Essien (2020) 1 ELR page 24 @ 45 para. J

Yes. What matters is that the new tenant is dealing directly with the electricity company and paying his due accordingly. It will be ridiculous to say that a person who deals directly with an electricity distribution company, pays his bills and other charges will be unable to hold an electricity distribution company accountable in the event of a breach simply on the pretext that such a person who can show that he is the person that has been paying the bills using the Meter Number as the link or nexus, is not the registered customer. Amadi & 5ors v. Essien (2020) 1 ELR page 24 @ 49 – 50 paras. N – O

Yes. By an order titled ORDER ON THE CAPPING OF ESTIMATE BILLS IN THE NIGERIA ELECTRICITY SUPPLY INDUSTRY made on the 20th day of February 2020, the Nigerian Electricity Regulatory Commission made it mandatory that every customer must be metered. Thus customers with faulty meters; customers without meters and customers whose meters cannot be read must be provided with new working and functioning meters otherwise such customer will not be invoiced for the consumption of energy where they fall within the category of R2 and C1 customers. The implication of this is that by this regulation, it is permitted for a customer to refuse to pay for electricity consumed if he is not metered where the circumstances allows. **Barr. Mike Kpemi V BEDC (2020) 1 ELR Pg. 68 @ 107 - 110 paras H-P & A – L; Paragraph 5 – 10 and 18 of the ORDER **

Yes. Where the directives of NERC is not fully complied with, such noncompliance is deemed to be an actual breach of the terms and conditions stipulated in the Electricity Distribution License. See NERC V AEDC (2020) 1 ELR Page. 186 @ 222-223 para. C

Yes. As long as such functions relates to the power sector and regulated electricity supply business. Section 251(1) of the CFRN, 1990 as amended has to do with the jurisdiction of the Federal High Court, and if after NERC has done its bit and any affected party still desires to further pursue the matter in Court, then and only then will the issue of which should exercise jurisdiction arise. See LASG V PHCN & Ors. (2020) 1 ELR page 230 @ 263 para. P

Yes. Where the electricity capacity is less than 100KW, electricity distribution license will not be required. FUNKE ADEKOYA SAN V. VGC MANAGEMENT LTD & ANOR (2020) 1 ELR PAGE 282 @ 297 PARA. B

Generally, the Nigerian Electricity Regulatory Commission makes tariff regulation for the purpose of price control. Where however, there is a charge over and above the approved price rate which is made part of the surcharge for the delivery of electricity, then electricity trading has occurred. FUNKE ADEKOYA SAN V. VGC MANAGEMENT LTD & ANOR (2020) 1 ELR PG 282 @ 299 PARA M

Where the terms and conditions of an agreement to which the Nigerian Electricity Regulatory Commission consents require that the agent of an electricity distribution company installs vending machine to replace existing meter already installed by the distribution company, the Commission will consider the following;

i. The need to protect the final consumers from unnecessary and double cost which may arise if the consumer is made to pay for another Pre-Paid Meter (PPM) even though same had been previously paid for by them.

ii. The need to ensure that the distribution licensee does not abdicate its obligation on the pretext that it has delegated its service obligation. See FUNKE ADEKOYA (SAN) V. VGC MANAGEMENT LTD & ANOR (2020) 1 ELR PG 282 @ 308 PARA F-H

Yes. Apart from the fact that it provides resident of a particular estate with assurance of greater reliability of power supply, it also reduces the cost of delivery of electricity and collection on the part of the distribution company. It equally provides the Disco with the opportunity to charge slightly above the normal rate that it would ordinarily charge an individual consumer. FUNKE ADEKOYA (SAN) V. VGC MANAGEMENT LTD & ANOR (2020) 1 ELR PAGE 282 @ 309-310 PARA. N

Yes. DISCOs in whatever name called are legal personalities which can sue and be sued in their own names. Where a regulation of NERC makes it a precondition that an action cannot be maintained by DISCOs against NERC until alternative dispute resolution has been explored, such condition will not extend to shareholders or directors who sue NERC in their own private capacity as shareholders and directors. Except where specifically stated, a law made to restrict a company cannot extend to preventing the shareholders or directors of that company from exercising their right. See IBADAN ELECTRICITY DISTRIBUTION COMPANY & ORS V. NERC (2020) 2 ELR PAGE 2 @ 24 PARA K; @ 26-27 PARAS. N-B

The license can be likened to a contract entered between the Disco and the NERC. The fact that NERC has the power to grant a license pursuant to an Act of the National Assembly does not make it a law unto itself. See IBADAN ELECTRICITY DISTRIBUTION COMPANY & ORS V. NERC (2020) 2 ELR PG 2 @ 25 PARA L

The NERC cannot have a say in the internal affairs of a duly registered company in Nigeria as it is only the Companies and Allied Matters Act that regulates the internal functions and affairs of the company ranging from minute of meetings to appointment and removal of directors. But it, the NERC, has its own statutory functions to discharge, which includes regulating the operations of Discos not as controlling their internal operations, but ensuring proper and due observance of the relevant statutes and Regulations that dictate how business in the electricity power subsector gets done. See IBADAN ELECTRICITY DISTRIBUTION COMPANY & ORS V. NERC (2020) 2 ELR PAGE 2 @ 33-34 PARA. J; LONGE V. FBN PLC (2010) 6 NWLR PT.1189 PG. 1

The powers of the Commission is limited to and confined within the provision of the Electric Power Sector Act 2005. It does not extend to the regulation of the internal domain of Discos except as stipulated under the license agreement. Thus, the Commission cannot as a result of its regulatory powers derived from the Act seek to control the internal affairs of company simply because of the license it issued it. IBADAN ELECTRICITY DISTRIBUTION COMPANY & ORS V NERC (2020) 2 ELR PAGE 2 @ 39 PARA. O

No. It is not the function of NERC to investigate criminal offences as this is the function of the Nigerian Police. The Nigerian Electricity Regulatory Commission cannot usurp the powers of the police under any guise. IBADAN ELECTRICITY DISTRIBUTION COMPANY & ORS V NERC (2020) 2 ELR PAGE 2 @ 39 - 40 PARAS. O – P

No. A Disco cannot disconnect a customer’s supply of electricity on the ground of non-payment when the customer has written a complaint about the alleged unpaid bills in accordance with the customer’s complaint procedure and the complaint remains unresolved. A disconnection in this instance will be illegal, void and of no effect. O.S. OLUWABIYI V AEDC PLC (2020) 2 ELR PAGE 112 @ 132 PARAS. A-B; SECT1ON 10 (1)(D) NERC Connection & Disconnection Procedure for Electricity Services 2007

No. The court will not grant an application of this nature as it would mean restraining an Electricity Distribution Company from performing its statutory duties. O.S. OLUWABIYI v AEDC PLC (2020) 2 ELR PAGE 112 @ 134 PARA. L

No. The essence of this procedure is not only to decongest the court but also to provide a simple, easy, quick and less costly avenue for dispute resolution. It is merely a method outlining how an aggrieved person can seek remedy and nothing more. COMAG STEEL AND CONSTRUCTION COMPANY LTD V ENUGU ELECTRICITY DISTRIBUTION COMPANY PLC (2020) 3 ELR PAGE 2 @ 15 PARA. P

No. As long as it is shown that the right person has been brought to court the omission of the word “PLC” has no effect on the personality of the company. DR. N. NWAKA V ABUJA ELECTRICITY DISTRIBUTION COMPANY (2020) 3 ELR PAGE 42 @ 54 PARAS. O - P

No. This is because it is not the place of the judiciary to interfere with the legislative or executive function of an institution established by the provisions of law. BARR TOLUWANI YEMI ADEBIYI V. NERC & 12 ORS (2020) 3 ELR PAGE 78 @ 172 PARAS. L-M; SECTION 50 ELECTRIC POWER SECTOR REFORM ACT 2005

Regulation of price is usually in accordance with one or more of the following methods adopted by NERC;

i. Tariff methodology shall allow a distribution company that operates efficiently to recover the full cost of its business including a reasonable return on the capital invested in the business.

ii. It shall provide incentive for the continued improvement of technical and economic efficiency with which the services are provided

iii. Give to consumers economically efficient signals regarding the costs that their consumption imposes on the liecensee’s business

iv. Avoid undue discrimination between consumer and consumer’s categories

v. Phase out cost subsidies or reduce it substantially BARR TOLUWANI YEMI ADEBIYI V NERC & 12 ORS (2020) 3 ELR PAGE 78 @ 174 PARAS. E - L

Yes. Increase in electricity tariff is subject to the following;

i. Sound tariff technology in accordance with section 76 of the Electric Power Sector Reform Act 2005

ii. Actual metering of consumers (not estimation) to enable consumers pay for only what is consumed as well as manage their consumption level

iii. Power Consumption assistance Fund (PCAF)

iv. Extensive Consultation with categories of consumers and other stakeholders to be done by the regulator the NERC and not DISCOs as judge in their own cause as provided under section 76 of the Electric Power Sector Reform Act 2005 BARR TOLUWANI YEMI ADEBIYI V NERC & 12 ORS (2020) 3 ELR PG 78 @ 176 PARAS

Yes. Generally, the Commission (NERC) will not allow the unregulated participation of an individual in regulated activity such as this. However, there are instances where the Commission would grant an application of this nature after considering the merit of the case. Where the situation warrants, the parties agree and upon proper documentation, the Commission may consider an application to appoint an agent or contractor to undertake part of a regulated licensee’s function. FUNKE ADEKOYA (SAN) V. VGC MANAGEMENT LTD & ANOR (2020) 1 ELR PAGE 282 @ 310 PARA. A

Yes. Any unlawful entry into the premises of another is an actionable trespass and there will be no need for the owner of the trespassed property to prove that he suffered actual damage. O.S. OLUWABIYI V AEDC PLC (2020) 2 ELR PAGE 112 @ 132 - 133 PARAS. C-I

Yes. General damage in tort covers all forms of losses which are not capable of exact quantification. Items of general damage need not be specifically pleaded however some evidence will be required in order to succeed. Where an electricity consumer has his power supply disconnected unlawfully, it will create hardship, inconvenience and distress. O.S. OLUWABIYI v AEDC PLC (2020) 2 ELR PAGE 112 @ 134 para. K

Yes. As a matter of fact, where a party is aggrieved with how his electricity affairs with a distribution company is handled, such a party must first explore the laid down alternative dispute resolution method before seeking redress in court. A party who has a compliant must first make that complaint in writing addressed to the Customer Complaint Unit of the Electricity Distribution Company. In fact, where a customer indeed makes a written complaint but ends up addressing it to the Managing Director of the distribution company, he cannot be said to have satisfied the requirement. This condition must first be satisfied with before an action in court will suffice. See COMAG STEEL AND CONSTRUCTION COMPANY LTD V ENUGU ELECTRICITY DISTRIBUTION COMPANY PLC (2020) 3 ELR PAGE 2 @ 14-15 PARAS. H – O

Where a complaint of this nature is lodged, such complaint must be accorded utmost attention and the complainant called so that his grievance will be heard and possibly remedied. However, where the complainant got no feedback having first satisfied this condition, this condition no longer becomes binding on him. He can then proceed to approach the court. DR. N. NWAKA V ABUJA ELECTRICITY DISTRIBUTION COMPANY (2020) 3 ELR PAGE 42 @ 55 PARAS A

No. Aside the requirement of writing a complaint to the Customer Complaint Unit, no other specific procedure is outlined. Writing and addressing the complaint to the appropriate source is enough satisfaction of the condition. It need to be said that although the NERC Customer Complaints Handling Standards and Procedure outlines the method for dispute mechanism and the need to approach same, no specific section or portion of the regulation makes it a condition precedent that must be satisfied before an aggrieved party approaches the court. LIBERTY HOLDING HOTEL V. ABUJA ELECTRICITY DISTRIBUTION COMPANY (2020) 3 ELR PG 62 @ 72-73 PARAS. I - L. Similarly, in BARR TOLUWANI YEMI ADEBIYI V. NERC & 12 ORS (2020) 3 ELR PG 78 @ 166 -167 PARA. M, the court held that an aggrieved party does not need to exhaust the internal dispute resolution mechanism before he can approach the court.

Yes. Where an aggrieved electricity consumer desires the court to interpret the nature of his electricity service contract in the orbit of the provision of the Nigerian Electricity Regulatory Commission (Methodology for Estimated Billing), he may approach the court by way of originating summons irrespective of the fact that he may seek damages in his reliefs. Besides, it is trite that a party may approach the court by way of originating summons in instances like this except there is a specific provision regulating that particular nature of matter that says otherwise. LIBERTY HOLDING HOTEL V. ABUJA ELECTRICITY DISTRIBUTION COMPANY (2020) 3 ELR PG 62 @ 74-75 PARAS. E-J; BARR TOLUWANI YEMI ADEBIYI V. NERC & 12 ORS (2020) 3 ELR PG 78 @ 147-148 PARAS C

No you cannot. For a party to successfully maintain a fundamental right action on the basis of freedom from discrimination, such a party must show that he suffers discrimination as a result of a government law. He must show that there is an existing law directed at him insinuating or aiming at preventing him from enjoying full power supply. Although the indiscriminate outage of power supply may be wrong, it is not itself a discrimination as envisage under section 42 of the Constitution of the Federal Republic of Nigeria 1999(as amended). Fundamental right enforcement provision is a wrong procedure to take. DR. N. NWAKA V ABUJA ELECTRICITY DISTRIBUTION COMPANY (2020) 3 ELR PAGE 42 @ 55-58 PARAS. F-A

All complaint must be resolved and the customer notified within 15 working days from the date of the written complaint being received by the customer complaint unit or within 15 working days until the complaint is resolved where additional time is required for instance in the case of testing the accuracy of a meter. O.S. OLUWABIYI V AEDC PLC (2020) 2 ELR PAGE 112 @ 131-132 PARAS M-P; @ 132 PARAS B; SECTION 3(5) NERC Customer Complaint Handling Standard & Procedure 2006

It is the duty of an electricity consumer to keep his meter safe. O.S. OLUWABIYI v AEDC PLC (2020) 2 ELR PAGE 112 @ 136 PARA. J

Firstly, it is the duty of the DISCOs to provide meters to their customers as a matter of fact. However, where this option is unavailable, the DISCO is expected to bill a customer by estimate in accordance with Clauses 7 and 8 Methodology for Estimated Billing 2010 or Formula for Billing Unmetered Maximum Demand Customers.

Thus, customers in this category will be billed based on the “weighted average cluster load”. This method involves the subtraction of the entire metered load from the energy supplied to the feeder and the application of an appropriately determined factor and correction of loses which is usually aggregated. By Clause 7, the unmetered Maximum Demand Customers is billed based on the load measurement of the voltage and current on the customer premises for a specific period (usually between one to twenty four hours) during normal operations. ERNEST NWOYE V AEDC PLC (2020) 2 ELR PG 154 @ 166-167 PARAS A – J

No. By virtue of the Methodology for Estimated Billing 2012 particularly clause 4.1 under meter reading, estimated billing is only allowed for customers with faulty meters; customers whose meter cannot be read or existing customers without meter. Ernest Nwoye v AEDC PLC (2020) 2 ELR pg 154 @ 166 paras K – P

No. In fact, Regulation 18 of the Electricity Industry (Enforcement) Regulations 2014 has been held to be ultra vires the Company and Allied Matters Act and the Electric Power Sector Reform Act 2005. While it is legal for the NERC to make regulations for the effective and efficient running of the power supply market, such regulations cannot be made ultra vires the Act of the National Assembly. The procedure for removing a director of a company can only be in accordance with the Company and Allied Matters Act. Similarly, for an electricity distribution license to be withdrawn, same must be as stipulated by the Electric Power Sector Reform Act 2005. Any other methods are illegal and cannot stand. Ibadan Electricity Distribution Company & ors V NERC (2020) 2 ELR pg 2 @ 37 Para H; @ 36 para G; Ogboru v. Ibori (2005) 13 NWLR Pt.942 Pg. 319 CA; AG Lagos State v Eko Hotels & Anor (2006) LPELR-3161 (SC)

No. Notwithstanding the provision of Paragraph 18 of the Electricity Industry (Enforcement) Regulations 2014 any sanction imposed by the Commission without fair hearing is illegal, void and of no effect as it breaches the principle of natural justice. See IBADAN ELECTRICITY DISTRIBUTION COMPANY & ORS V NERC (2020) 2 ELR PAGE 2 @ 30 - 31 PARA. O

No. Just like in the conventional courts, issues not raised at trial cannot be raised for the first time on appeal except it has to do with jurisdiction. See the appeal by nicon management company plc against the decision of the Nigerian Electricity Regulatory Commission reported (2020) 3 ELR page 22 @ page 36 paras M

At any point, a taxpayer who is a Nigerian and a registered electricity consumer has the locus standi to approach the court to ensure that his tax is used frugally and prudently. Thus any person in Nigeria can approach the court to compel the NERC and DISCOs to comply with the provisions of the Electric Power Sector Reform Act 2005. BARR TOLUWANI YEMI ADEBIYI V. NERC & 12 ORS (2020) 3 ELR PG 78 @ 153 PARA. K; SECTION 50 ELECTRIC POWER SECTOR REFORM ACT 2005

No. Unless an aggrieved party is questioning NERC’s power to approve tariff methodology or challenging the process leading up to the tariff increase, such a party cannot be granted an order restraining NERC or the DISCOs from performing their legitimate function. BARR TOLUWANI YEMI ADEBIYI V NERC & 12 ORS (2020) 3 ELR PAGE 78 @ 172 PARAS. M

The Nigerian Electricity Regulatory Commission is empowered by the Electric Power Sector Reform Act 2005 to change tariff methodology. However, any such change cannot be made arbitrarily neither can it be made without NERC first publishing the notice of change on its official gazette or in more than one newspaper having wide national coverage and indicating the period within which representation can be made on the proposal. Upon taking the above representation, the commission may confirm the change. BARR TOLUWANI YEMI ADEBIYI V NERC & 12 ORS (2020) 3 ELR PAGE 78 @ 175-176 PARA. M