NERC Suit: Appeal Court Orders Re-Assignment Of Case

The Appeal Court held that Justice Mohammed Idris, who heard the case, violated the appellant’s right to fair hearing and thereby committed “a grave error”. An activist-lawyer Toluwani Adebiyi had sued the Nigerian Electricity Regulatory Commission (NERC) over the purported planned increase in electricity tariff. Justice Idris had made an interim order that status quo be maintained in the suit. The order, in effect, barred NERC from increasing the tariff. NERC, through its lawyer, Anthony Idigbe, however, filed a motion on notice seeking to discharge the interim order. In his ruling, Justice Idris 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. Dissatisfied, the Commission appealed to challenge Justice Idris’ ruling. Delivering judgments in the appeals on Monday, Justice Abraham Georgewill held that Justice Idris misused his powers of discretion. The appeal 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. Justice Georgewill said Justice Idris relied on technicality in denying NERC of a 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 judge said. 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,” Justice Georgewill. The Appeal Court also upheld appeals by NERC and the 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.]]>