Lawyers representing board members of the Electricity Company of Ghana (ECG) are contesting a hefty GH₵5.8 million fine imposed by the Public Utilities Regulatory Commission (PURC). 

The fine was levied due to the alleged failure to establish a consistent load-management schedule.

According to the legal team, the PURC overstepped its bounds by targeting individual board members, arguing that the Commission's authority extends only to imposing fines on the company itself, not its board members.

They argue that board members, who are not directly involved in day-to-day operations, cannot be held personally responsible for the company's actions.

The PURC defends the fine, citing the board's responsibility for providing strategic direction to ensure service quality. However, the lawyers counter that this responsibility doesn't entail day-to-day management, which falls under "principal officers" as per the Public Utilities Regulatory Commission Act. They stress that only principal officers can be held personally liable under the Act.

Moreover, the legal representatives raise concerns about due process violations, asserting that the board members weren't given the chance to present their case before the fine was imposed, violating principles of natural justice.

The board members, represented by their legal team, reject the fine and its implications, claiming that the PURC acted unlawfully and lacked proper authority.

They emphasise that the Commission can only impose regulatory charges on a public utility, not its officers. 

They argue that holding board members personally liable exceeds the Commission's jurisdiction, as outlined in relevant sections of The Public Utilities Regulatory Commission Act, Act 538,1997.

The lawyers state that board members of ECG are not responsible for day-to-day administration and cannot be considered principal officers liable for penalties.

They conclude by labeling the Commission's order as unlawful and void, alleging it oversteps jurisdiction and breaches natural justice by imposing personal liability on board members without due process.

“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".

“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."