Lawyers representing the board members of the Electricity Company of Ghana (ECG) have contested the GH₵5.8 million fine imposed by the Public Utilities Regulatory Commission (PURC) for failing to provide a consistent load-management schedule.
The Public Utilities Regulatory Commission (PURC) has issued a six-week ultimatum to the Board Members of the Electricity Company of Ghana (ECG) to pay a fine of GHC5,868,000.
The Board members of the Electricity Company of Ghana (ECG), who served from January 1st to March 18th, 2024, are required to pay the regulatory charge for overseeing power outages without notifying consumers during this period.
The Public Utilities Regulatory Commission (PURC) issued this directive in a letter to ECG on Monday, April 15.
In a letter to the PURC dated April 17, 2024, the lawyers argue that the PURC exceeded its authority by targeting the board members. They assert that the Commission’s legal mandate allows it to impose fines on the company (ECG) as a public utility, not on individual board members.
They further argue that board members, who are not directly involved in day-to-day operations, cannot be held personally responsible for the company’s actions.
While the PURC justified the fine by citing the board’s responsibility for strategic direction and ensuring quality service, the lawyers counter that only “principal officers” directly involved in day-to-day management can be held personally liable under the Public Utilities Regulatory Commission Act.
“It is patently clear that under the said provision, the Commission can only impose a regulatory charge on a public utility. The Commission does not have the power/authority to purport to impose any regulatory charge on officers of the public utility. The Commission in purporting to impose the said regulatory charges on the Board Members of ECG clearly exceeded their jurisdiction as it is not within their powers/authority to do so.
“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 veil 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,” a part of the letter read.
The lawyers also raised concerns about due process, claiming that the board members were not given an opportunity to be heard before the fine was imposed, which they argue violates the principles of natural justice.
The board members, through their legal representatives, reject the fine and its implications, maintaining that the PURC acted unlawfully and without proper authority.
“The Commission’s basis for holding the Board Members personally liable is because “These Board Members were at all material times responsible for providing strategic direction to ensure the provision of safe, adequate, efficient, reasonable and non-discriminatory service to consumers”
“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.”