The Board Members of the Electricity Company of Ghana (ECG), have, through their lawyers, responded to the regulatory order of the Public Utilities Regulatory Commission (PURC) saying it lacks authority to sanction them.
This comes on the back of a regulatory order by the PURC imposing a GHC5.8million fine on the Board of Directors of the ECG for failing to inform Ghanaians of its load-shedding schedule between August 2023 and March 2024.
The PURC in March 2024 warned that it would be compelled to issue regulatory sanctions against the power distribution company over the erratic power supply otherwise known as dumsor.
This came after the regulatory body observed that the ECG had failed to comply with its directive to release a load-shedding timetable corresponding with the timelines and duration for each transformer injection.
The regulator said it had not seen any evidence of the publication of the load management timetable despite being ordered to do so. In that regard, the Commission said it “is finalizing regulatory action on the above.” Thus, the fine imposed on the Board members.
But in a letter written by the lawyers of the ECG Board to the PURC Wednesday, April 17, 2024, it says the Board is a separate entity that is not responsible for the day to day running of the company and cannot be charged for not performing an administrative duty.
It says further that the PURC lacks jurisdiction and power to perform that function which can only be exercised by a competent court of jurisdiction, a role the Commission has assumed outside its mandate.
In the ECG Board’s letter from its lawyers, they emphasised that:
“It must also be stated that, the Electricity Company of Ghana Limited as a corporate body has a legal personality that is distinct from its Board Members. This is the very foundation of Company Law. The officers of the company cannot be held liable for the acts of the company. Lifting the veil of incorporation to go after the officers of the company can only be done in exceptional cases and can only done by a court of competent jurisdiction.
“The Commission’s lack of jurisdiction, power and/or authority to lift the vail of incorporation in the instant matter to purport to impose regulatory charges personally on the Board Members of ECG is strengthened by the provisions of Sections 38 & 42 of The Public Utilities Regulatory Commission Act, Act 538,1997.
Sections 38 & 42 of The Public Utilities Regulatory Commission Act, Act 538,1997 provides as follows:-
38. Offences and penalties
A public utility which
(a) fails to comply with the required standards of performance in the provision of utility services,
(b) refuses to provide its utility service contrary to section 15 (1),
(c) charges or demands for its services rates not approved by the Board contrary to section 18(1)
“As stated above, under Section 38 of Act 538 a default on the part of a public utility in the payment of a penalty may lead to the personal liability of a principal officer of the public utility. Under Section 49 of Act 538 a principal officer means the person responsible for the day-to-day administration of the affairs of the public utility.
“Board members of ECG are not responsible for the day-to-day administration of ECG and, therefore, are not principal officers within the intendment of Act 538 to be able to be held liable for a default on the part of the public utility ECG.
“The Commission’s Order imposing regulatory charges on the members of the Boards is unlawful, null and void as same is without jurisdiction. By this Order, the Commission has unlawfully clothed itself with the powers of the High Court, and imposed a sentence on the Board Members, without having been given the opportunity to be heard which amounts to a breach of the rules of natural justice. Our clients, therefore, reject the contents of the regulatory order relative to any personal liability on their part.”
