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Vigeo legal advisers caution NERC against illegal takeover of BEDC

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The legal advisers to Vigeo Power Limited – core investors in BEDC Electricity Distribution Company Plc – 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 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 with, purportedly issued by the Nigerian Electricity Regulatory Commission (NERC or the Commission) and dated the 1st day of September 2022 (the Contemptuous Publication).

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 The Hon. 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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