Representatives of the board members of the Electricity Company of Ghana (ECG) are challenging the substantial GH₵5.8 million penalty imposed by the Public Utilities Regulatory Commission (PURC) for the company’s failure to establish a consistent load-management schedule.
The legal team argues that the PURC exceeded its authority by targeting the board members directly. They assert that the Commission’s legal mandate allows it to levy fines on the company itself (ECG) as a public utility, rather than on its board members.
The attorneys contend that since board members are not directly involved in the day-to-day operations, they cannot be held personally accountable for the company’s actions.
The PURC defends its decision by stating that the board bears responsibility for providing strategic guidance to ensure quality service. However, the legal team counters that this responsibility does not extend to day-to-day management, which falls under the purview of “principal officers” as defined in the Public Utilities Regulatory Commission Act. According to the Act, only principal officers can be held personally liable.
Furthermore, the legal team raises concerns about due process violations, asserting that the board members were not afforded an opportunity to present their case before the fine was imposed, which they argue violates the principles of natural justice.
The board members, represented by their legal counsel, firmly reject the fine and its implications. They maintain that the PURC acted unlawfully and exceeded its authority.
“It is evident that under the provision in question, the Commission can only levy a regulatory charge on a public utility. The Commission lacks the power or authority to impose regulatory charges on officers of the public utility. By attempting to impose regulatory charges on the Board Members of ECG, the Commission clearly overstepped its jurisdiction.
“The Electricity Company of Ghana Limited is a separate legal entity from its Board Members, as established by Company Law. Officers of the company cannot be held liable for the actions of the company.
“Lifting the corporate veil to pursue officers of the company can only be justified in exceptional cases and must be done by a competent court. The Commission’s lack of jurisdiction to lift the corporate veil in this instance to impose regulatory charges personally on the Board Members of ECG is reinforced by the provisions of Sections 38 and 42 of The Public Utilities Regulatory Commission Act, Act 538, 1997.
“The Commission’s justification for holding the Board Members personally liable is because ‘These Board Members were responsible for providing strategic direction to ensure the provision of safe, adequate, efficient, reasonable, and non-discriminatory service to consumers.’
“However, under Section 38 of Act 538, a default in penalty payment by a public utility may result in the personal liability of a principal officer. According to Section 49 of Act 538, a principal officer is defined as the individual responsible for the day-to-day administration of the public utility.
“Board members of ECG are not responsible for the day-to-day administration of ECG and therefore do not qualify as principal officers under Act 538 to be held liable for a public utility ECG default.
“The Commission’s order imposing regulatory charges on the board members is unlawful, null, and void as it lacks jurisdiction. By issuing this order, the Commission has unlawfully assumed the powers of the High Court and imposed a sentence on the Board Members without affording them the opportunity to present their case, which constitutes a breach of the principles of natural justice. Our clients therefore reject the contents of the regulatory order regarding any personal liability on their part.”
