Vigeo Legal Advisers Caution NERC Against Illegal Takeover Of BEDC

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

In a letter written to NERC and attention to Chairman of NERC Eng. 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,” Kunle Adegoke, SAN, noted that, “We represent Vigeo Power Limited (VPL), the core investor in BEDC Electricity Plc, and we write this letter upon its instructions, and in connection with an unsigned publication with respect to the above caption, 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 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.”

“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.”

In an unsigned letter purportedly emanating from NERC with the headline: NOTICE TO THE GENERAL PUBLIC ON THE LEGITIMATE AND STATUTORILY RECOGNIZED BOARD OF DIRECTORS/MANAGEMENT OF

BEDC ELECTRICITY PLC, it noted that the attention of the Nigerian Electricity Regulatory Commission (NERC) has been drawn to public notices signed by Mr. Lucky Ayomoto purportedly acting on behalf of the erstwhile board/management of BEDC Electricity Plc (BEDC).

According to it, “the public notices published on 9 August 2022 sought to reassure the general public on the legitimate and statutorily recognized board of directors/management of BEDC and described the appointment of Messrs Henry Ajagbawa, K.C.Akuma, Adeola Ijose, Charles Onwera and Yomi Adeyemi as directors of BEDC as an unlawful misrepresentation and unfortunate misadventure.”