BusinessDay 12 Apr 2018

26 BUSINESS DAY C002D5556 Thursday 12 April 2018
INDUSTRYFILE
DCS hosts stakeholders in infrastructure
and real estate at 7th Detail Business
Nigeria’s first commercial
solicitor firm, specializing
in non-court
room practice, Detail
Commercial Solicitors
(DCS), last week organised the
7th edition of its Business Series in
Lagos.
The event, which took place at
the firm’s purpose-built office in
Lekki brought together key players
in infrastructure, who had in-depth
discussions on how to drive policy
changes in the real estate sector to
aid its growth.
Speakers and panelists at this
event include, Andrew Nevin, Partner
and Chief Economist, PwC,
Sonnie Ayere CEO Dunn Loren
Merrifield, Toyin Ajose, associate
partner heading Detail’s real estate
and construction practice, Dolapo
Omidire, founder and team lead,
Estate Intel. See BusinessDay Newspaper,
on Monday April 9th, 2018 for
the full story.
POWERPERSPECTIVE
MBAH ALPHEUS ANAYO ESQ.
The Lagos State Electricity Power
Sector Law is a product of Governor
Akinwunmi Ambode
people orientated policy to provide
direct state intervention for a stable,
affordable and reliable power supply
in Lagos State. The legislation is the
legal frame works that give legal backing
to the Light-Up-Lagos program
designed to add on incremental basis
3000MW of electricity to Lagos State.
This policy backed by this beautiful
piece of legislation came at a time
when direct government intervention
has become the last resort to provide
the much needed stimulant to unlock
private investments into the Nigeria
Power Sector.
The objectives of the law as prescribe
by Section 2 are inter alia;
provide for the development and
management of a sustainable power
supply in the Lagos State; facilitate
the development and management
of electricity infrastructure within the
state; ensure availability of cost reflective
tariff; provide support in the
collection of tariffs and revenue from
embedded power end users; collaborate
with Federal, State, Energy and
Electricity Power related Agencies to
promote and support investment in
the electricity power projects within
the state.The Bill which received
the ‘No Objection’ of the Nigeria
Electricity Regulatory Commission
before being passed into law has
now become a reference point that
States can indeed contribute their
own quota towards bridging the gap
of electricity supply to the people.
The Law has received so many
encomiums from power industry
players and greeted with the same
frenzy that came with the privatization
of power sector with majority of
power investors now turning to Lagos
State as an investment destination. It
is to be noted that until the relevant
stakeholders envisaged by the law
to implement the Light Up Lagos
program, carry out their functions in
L-R, Dolapo Kukoyi, Partner, DETAIL; Sonnie Ayere, CEO, Dunn Loren Merrifield; Tosin
Ajose, Associate Partner DETAIL participating at the 7th DETAIL Business Series.
L-R: Femi Williams, CEO, Chams Plc; Abdulmalik Mahdi,
Director, Sales, Brains & Hammers; Tosin Ajose, Associate
Partner DETAIL; Dolapo Omidire, Founder & Team Lead,
Estate Intel speaking as panellists at the 7th DETAIL Business
Series.
Andrew S. Nevin, Partner
and Chief Economist,
PwC Nigeria speaking at
the 7th DETAIL Business
Series.
Lagos state electricity power sector law
2018: understanding the role of the state,
distribution companies and NERC
accordance with the law and regulatory
framework, the law and purpose
of the Light Up Lagos program will
remain a political statement that will
not see the light of the day.
The Law itself is just the path to
the end and not the end itself, a conscious
and committed effort is therefore
required from Lagos State, the
Distribution Companies in Lagos
(Eko Electricity Distribution Plc and
Ikeja Electricity Distribution Plc)
and the Nigeria Electricity Regulatory
Commission to achieve the
much desired effects of the law.
Each stakeholder as envisaged
by the law must restrict itself to
its role under the law and other
regulations governing the electricity
industry in Nigeria for there to
be meaning achievement of the
Limitation of actions: Time freezes while litigation is pending
Continued from last week
Court’s Judgment and Rationale
The Supreme Court held that the main
issue between the parties was “when did
the Respondents’ cause of action arise and
whether the time spent at the Federal High
Court should not be counted? In deciding
this issue, the Supreme Court agreed with the
Respondents that the cause of action accrued
when the Respondents obtained the certified
true copies of the incorporation documents
of the 5th Appellant from the Corporate Affairs
Commission.
Augie JSC relying on the Supreme Court’s
decision in UBN v. Umeoduagu (2004) 13
NWLR (Pt. 890) 352that it is only reasonable
that a party can only sue when he becomes
aware that this right has been tampered with,
held as follows: “…they (the Respondents)
went in search of the truth from the right
source. I also agree that this truth triggered
their right to take necessary action. The truth
they sourced from CAC confirmed that…the
Appellants went behind the Respondents to
incorporate the 5th Appellant.”
On the second issue, the Supreme Court
held that nothing was said in the Judgment
of the Court of Appeal to alter Respondents’
case to a shareholders’ dispute.The Court
of Appeal merely narrated the facts in the
Respondents’ pleadings to trace what triggered
their right to take necessary action.
Furthermore, referring to the foreign book
relied on by the lower Courts, the Supreme
Court agreeing with its decision in Araka
v. Egbue (2003) 17 NWLR (Pt. 848) 1 at
20, held that‘there is nothing in our laws
that says the Nigerian Courts cannot rely
upon foreign decisions…they are useful in
the expansion of the frontiers of our jurisprudence’.
As such, where there has been
no decision on whether limitation period
shall count or not during the pendency of
an earlier suit, the lower Court was right
to ‘…look around for principles in decided
cases that will proffer answers thereto’.
On the effect of a statute of limitation,
the Supreme Court relied on its decision
in Asaboro v. Pan Ocean Oil Corporation
Nigeria Ltd (2017) LPELR-41558, where it
held that the statute bars the action and not
the cause of action. The cause of action refers
to facts the Claimant must adduce to be
entitled to any relief, while the action is the
medium through which he ventilates those
facts. As such, Amina Augie JSC held: “I
agree; earlier Suit filed by the Respondents
cannot be dead; it is alive and so it can be
resuscitated, which is what Respondents
achieved, when they filed this Suit at the
incremental power as envisaged by
the Light-Up-Lagos program. The
ability of the law to support real
investment and mobilize the much
needed private funds into the Lagos
State electricity market will depend
largely on the legal regulatory
compliance by the stakeholders as
early controversy and/or disagreement
regarding the violation and/
or undermining of the law in the
implementation of the program will
totally destroy the good intention of
the policy and erode the confidence
of foreign and local investors who
will not risk investing in a process
that may be successfully challenged
in the court of law.
All Stakeholders must be willing
to limit itself to the powers conferred
on it by the law and other relevant
laws governing the power sector. It
is in this regard that we analyze the
roles of various stakeholders under
the law with a view of charting a
proper road map for the implementation
of the law and policy towards
achieving the targeted 3000MW
incremental power in the state.
THE ROLES OF LAGOS STATE
GOVERNMENT
The Role of Lagos State under
the Lagos State Power Sector Law
2018 is to formulate relevant policies
that will support the development
of embedded generation,
the distribution of the electricity
and ensuring collections from the
customers.
Section 5 of the Law rightly provides
that the Lagos State Ministry
of Energy and Mineral Resources
shall among other things be responsible
for the initiation, formulation
and coordination of power sector
reform policies and programs of
the state; supervise, monitor and
evaluate the implementation of all
power policies and programmes in
the state; create an enabling environment
for private investment in
the power sector; provide support in
the collection of tariffs and revenue
from embedded power end users.
Section 4 of the Law vested on
the Lagos State Ministry of Energy
and Mineral Resources the rights
to issue licenses to the feedstock
Merchants (Gas suppliers) while the
Nigeria Electricity Regulatory Commission
retains issues license to the
Embedded Power Providers.
The Law established Lagos State
Embedded Power Commission with
the responsibility to collaborate with
Nigeria Electricity Regulatory Commission
to make certain regulations
for the embedded power project in
the state. The Lagos State Embedded
Power Commission is also empowered
to appoint licensed entities to
trial Court with the requisite jurisdiction
to entertain this matter, and the time spent
at the wrong Court cannot be counted; it
was suspended.”
Therefore, the fact that the Respondents
quickly filed the action at the High Court
(within 2 months) signified that the Respondents
did not sleep on their rights.
Lastly, the Supreme Court held that based
on the statement by Appellants’ counsel
that the livewire before the trial court is the
incorporation of the 5th Appellant, the issue
of non-joinder is a non-issue. Additionally,
that the Court of Appeal was right that the
non-joinder of the Nigerian Ports Authority
and the Bureau of Public Enterprises is not
fatal to the Respondent’s suit.
The appeal was dismissed with costs ofN300,
000.00 awarded in favour of the Respondents.
Comments
Notwithstanding the foregoing, this laudable
Judgment is a reminder that novel
decisions can and are still being delivered
in Nigerian courts, in order to meet up with
legal developments worldwide. The term
‘frozen period’ allows for suspension of the
limitation period due to certain supervening
circumstances. This is the first time such a
situation would be considered and decided
by the Supreme Court in Nigeria.
As was recognised by Augie JSC: “The truth is
that so far there has been no decision of this
Court on the issue of whether limitation period
shall not run during the pendency of an
earlier suit.” Thus, the issue and the Judgment
are novel and have become a locus classicus
on the point that the time spent in a wrong
Court in an earlier suit cannot be counted,
as it was ‘suspended’ or ‘frozen’.
The Supreme Court has thus shown its
readiness to support the growth of Nigerian
law and jurisprudence. As was held by
Oguntade JSC in Amaechi v. INEC (2008) 5
NWLR (Pt. 1080) 227 at 315E-H and relied
on Packer v. Packer (1954) P. 15 at 22“…If we
never do anything which has not been done
before we shall never act anywhere. The law
will stand still whilst the rest of the world
goes on and that will be bad for both.” The
Supreme Court in Nigeria has followed the
same approach…”
Chief Wole Olanipekun, SAN, Gani Adetola-Kazeem,
SAN, A.B. Ogunba, SAN,
Bolarinwa Awujoola Esq, Adelani Ajibade,
Esq(for Appellants)
Mr. M. I. Igbokwe, SAN, Mr. Chioma Okwuanyi,
Sir Adolphus Nwachukwu KSJI
and Mrs. Winifred Tayo-Oyetibo (for the
Respondents).
procure aggregate feedstock (gas)
for utilization under the Embedded
Power Scheme; collaborate with Distribution
Companies to pre-qualify
Embedded Power providers under the
Embedded Power Scheme.
The Law also established the
Lagos Embedded Power Council
with responsibility among others to
address consumer complaints in the
state; provide input in the determination
of end-user tariffs to ensure costreflective
tariffs for embedded power
and carry out such other activities as
are conducive to the discharge of its
duties under the Law.
The Law established a Power
Task Force with responsibility for the
enforcement of the provisions of the
law with powers to make arrest and
prosecute any person for offences
committed under this law especially
offences on power theft, electricity
asset vandalization and unauthorized
use of electricity in whatever form.
The Law also empowers the Lagos
State Ministry of Finance and
the Lagos State Debt Management
of Office pursuant to the approval
of the Governor to issue payment
Guarantee to the Embedded Power
producers and Feedstock Merchants
to backstop their payment.
To be continued next week