Farmer sues MiDA over privatisation of ECG
Moves by the government to award part of Electricity Company of Ghana’s (ECG’s) shares on concession may suffer a hiccup following the filing of a legal suit at the High Court to challenge the move.
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A farmer, Saaka Salia, is accusing the Millennium Development Authority (MiDA) of illegally authoring documents on ECG tariff methodology and electricity distribution and sale licence without recourse to the Public Utilities and Regulatory Commission (PURC) and the Energy Commission (EC).
He said MiDA, in the process, usurped the powers of the PURC and the EC.
The plaintiff is also claiming that MiDA, in collaboration with its consultant, the International Finance Corporation (IFC), allegedly used the letterhead of the EC in authoring the said document without permission from the commission.
He is, accordingly, praying the High Court to declare as illegal the said circulars on the draft ECG tariff methodology and electricity distribution and sale licence.
Mr Salia wants the court to restrain the Attorney-General, the PURC and the EC from proceeding with, dealing with or participating in any process concerning concession arrangements with which the circulars in contention are associated.
The concession process will be stalled if the plaintiff succeeds in court.
The act
According to the plaintiff, MiDA, acting through the IFC, has initiated, authored and circulated a draft tariff methodology and electricity distribution and sale licence without recourse to the PURC and the EC.
He is arguing that the said documents, which were circulated on April 29 and 21, 2016, respectively, are not only improper but also unlawful, as the said conduct is in flagrant breach of specific laws of Ghana.
“Plaintiff contends that the said conduct regarding said tariff methodology particularly is a grave sin against sections 3 (a) and 16 of the Public Utilities Regulatory Commission Act, 1997 (Act 538), which, among others, makes the PURC the body with exclusive mandate to provide guidelines on rates chargeable for the provision of utility services and to provide guidelines for determining the levels of rates that may be charged by the public utilities for the services provided.
The plaintiff avers that MiDA’s act in authoring those documents is fraudulent because they bear the logo of the EC without the commission’s knowledge or endorsement.
He also contends that the authors and/or circulators of the document know they have no authority to engage in the said conduct, among other infractions.
Reliefs
Thus the plaintiff, through his lawyer, Mrs Anyenini, is asking for a number of reliefs all aimed at halting moves to get a private company to partner the ECG to distribute power in Ghana.
The plaintiff is further asking for a declaration that the complained conduct of the MiDA and its said advisor or consultant in authoring or circulating draft tariff methodology is improper and offends Act 538, particularly sections 3 and 16.
Section 3 of Act 538 states that the PURC shall provide guidelines on rates chargeable for the provision of utility services, examine and approve rates, monitor standards of performance for provision of services, among many other functions, while Section 16 provides the guidelines for fixing rates.
Mr Salia is, therefore, seeking a declaration that the PURC is the body with exclusive mandate by law to provide guidelines for determining tariffs and levels of tariffs and doing so in the manner prescribed by Act 538.
“A declaration that all transactions or processes touching and concerning said concession arrangement for the ECG using said electricity distribution and sale licence document and using electricity sale and distribution licence documents are null and void,” he avers.
MiDA not fit
The plaintiff is praying the court to declare that MiDA and the IFC are not fit to partake in the said concession arrangement for the ECG because they have illegally authored and circulated documents dated April 21 and 29, 2016.
The applicant is seeking a further order directed at the A-G, the PURC and the EC to ensure full compliance with Act 538, the Energy Commission Act, 1997 (Act 541), for any future transaction concerning the ECG.
He is also seeking an order restraining the AG, the PURC and the Energy Commission from proceeding with, dealing with or participating in any processes touching and concerning the said concession arrangement for which the documents in contention have been associated.
Statement of claim
A statement of claim accompanying the writ of summons noted that the government, through the ministries of Power and Finance, had, in concert with MiDA, advertised, received bids and shortlisted six companies in an ongoing private sector participation (PSP) in ECG processes in proposed concession for the management, operation of and investment in the electricity distribution business of the ECG.
“Plaintiff says critical mandatory requirements in said PSP in ECG processes or transactions are a tariff methodology and electricity distribution and sale licence, for which the PURC and the Energy Commission are the two statutory bodies with exclusive mandate to provide and grant,” it noted.
