Lawyers representing the board members of the Electricity Company of Ghana (ECG) are contesting the GH₵5.8 million fine levied by the Public Utilities Regulatory Commission (PURC) for failing to provide a consistent load-management schedule. They contend that the PURC’s legal authority extends to imposing penalties on the company itself as a public utility, rather than on its board members, who are not directly engaged in day-to-day operations.
While the PURC argues that the board plays a pivotal role in providing strategic direction to ensure top-notch service, the attorneys counter that this responsibility does not equate to day-to-day management, which falls under the purview of “principal officers” as defined by the Public Utilities Regulatory Commission Act. According to the Act, only principal executives bear personal accountability for compliance.
The board members, represented by their legal counsel, are vehemently rejecting the fine and its associated implications. They assert that the actions of the PURC were unlawful and executed without proper authority.
“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
Source: Energy Ghana