Legal advisers to Vigeo Power Limited, the core investors in Benin Electricity Distribution Company, BEDC Plc have cautioned the Nigerian Electricity Regulatory Commission (NERC) to refrain from “illegal means to alter the composition of the board of directors of the company (BEDC).”

INFO DAILY had reported that NERC, in a letter issued September 1, 2022, had said it had affirmed a new Board of Directors and Management of the Benin Electricity Distribution Company, BEDC, headed by Henry Ajagbawa

The NERC in the said statement had reiterated that the BEDC “is a distribution licensee of NERC and by virtue of powers vested in the Commission by 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 that is vested with powers to statutorily recognise the board/management of BEDC as an operator in the Nigerian Electricity Supply Industry (NESI)”.

The Commission further stated that the BEDC is a jointly owned venture with Vigeo Power Ltd holding an equity of 60% and 40% being held by BPE on behalf of the Federal and State Governments.

The statement disclosed that “One of the shareholders in Vigeo Power Ltd, Vigeo Holdings Ltd, subscribed to its shares vide a loan from Fidelity Bank Ltd”, adding that “In the light of a default in servicing the said loan, the bank has exercised its rights to repossess these shares that were provided as security for the acquisition of the loan”.

READ ALSO: NERC Constitutes New Board For BEDC, Says It Has Power To Regulate Distribution Companies

But in a letter written to NERC and attention to Chairman of NERC, Engr. Sanusi Garba and Mr. 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,” a copy of which was made available to INFO DAILY, Kunle Adegoke, SAN, said though the letter said to have emanated from NERC was unsigned, it is contemptuous for the regulatory body to have done any publication when the matter is already in a court of competent jurisdiction.

Adegoke, SAN, noted in the letter: “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 between Vigeo Power Limited v. Fidelity Bank Plc; National Electricity Regulatory Commission and 6 Ors. which is pending before the Honourable Justice Emeka Nwite of the Federal High Court, Abuja (the FHC Action) and in which orders of injunction have been granted restraining your Commission from: altering or taking further steps towards altering the management and Board of BEDC; registering or recognising the appointment of Messrs K. C. Akuma, Adeola Ijose, Henry Ajagbawa and Yomi Adeyemi as directors of BEDC pending the determination of the Motion on Notice which is scheduled to be heard on the 5th day of October, 2022.”

Adegoke SAN further argued that, “It is self-evident that the said interim orders are extant and have continuous effect, and none of the acts restrained thereby can be said to have been completed, particularly in view of the present and futuristic effect of the orders.”

According to him, “As NERC is very well aware, the pendency of the FHC Action is sufficient to compel any law-abiding institution (particularly a public institution under the administration of President Muhammadu Buhari, who seeks to promote the primacy of Rule of Law) to act with restraint, and not to project an image of lawlessness to the general public by acting contrary to the orders of the court and violating the sanctity of pendency of proceedings which both amount to contempt of court.

“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.

READ ALSO: BEDC Management Faults Takeover, Assures Customers Of Continuous Operations

“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.

“In this regard, the Commission should also be reminded of the contempt proceedings that are currently pending against it in the FHC Action for gross violation of the orders of court and 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.”

The lawyer noted that, “We should mention that we are not unaware of the Commission’s 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.”