An Accra High Court, presided over by Her Ladyship Justice Sedina Agbemava, has dismissed the Energy Commission’s request to set aside a suit filed by Zuriel Carbon Products Limited.
Christine Antwi Frimpong represented Zuriel Carbon Products Ltd., while Frederick Kenneth Appiah, the Energy Commission’s Deputy Director for Renewable Energy Regulations, represented the Commission.
Julius Nketiah and Ewurabena Takyi were the legal representatives for Zuriel Carbon Products Ltd., with Michael Nii Amui Amui and Doe Kwabena Aziavor representing the Energy Commission.
Background to the Case and Court Ruling
Zuriel Carbon Products Ltd., a prominent Ghanaian company under the One-District-One-Factory (1D1F) initiative, filed a suit against the Energy Commission, alleging regulatory negligence, unlawful actions, and significant financial harm.
The suit stems from an accusation in 2023 that Zuriel Carbon Products had illegally exported charcoal. As a result, the Commission allegedly refused to grant export permits for the company’s briquettes and natural hardwood charcoal—products the company claims were legally produced.
Furthermore, the Energy Commission declined to renew the company’s production licenses, despite having received renewal fees, and subsequently fined the company for allegedly exporting charcoal without permits.
Zuriel Carbon Products denies all allegations, accusing the Energy Commission of incompetence and negligence. The company claims the Commission conducted a poor investigation into the supposed illegal exports and further asserts that its actions caused reputational damage, stifled business operations, and led to unfulfilled international contracts, resulting in significant financial losses.
The Writ of Summons was served on the Energy Commission on November 7, 2024.
Rather than defending itself, the Commission filed a motion requesting the court to set aside the Writ of Summons and the accompanying Statement of Claim, contending that Zuriel Carbon Products did not follow the proper dispute resolution procedures outlined in Section 17 of the Renewable Energy Act, 2011 (Act 832).
Arguments by Legal Counsels
The Energy Commission’s lawyer, Mr. Michael Nii Amui Amui, argued that the word “may” in Section 17(1) of the Renewable Energy Act, 2011 (Act 832) does not allow discretion for an aggrieved person to decide whether to lodge a complaint with the Minister for Energy. He contended that once a person challenges the Commission’s decision to refuse or renew a license, the individual must first approach the Minister.
However, when the presiding judge asked Mr. Amui Amui for a precedent to support his interpretation, he was unable to provide one, stating that this was simply how the Energy Commission interprets the provision. The judge noted, “Counsel has been unable to refer me to any such decision which has interpreted Section 17(1).”
In contrast, Zuriel Carbon Products’ lawyer, Mr. Julius Nketiah, argued that the word “may” in Section 17(1) is discretionary. As such, his client, aggrieved by what he described as the Energy Commission’s “reckless and incompetent regulatory decision,” was not obligated to complain to the Minister before seeking relief in court.
Ruling by the Court
After considering both sides, the High Court, led by Justice Sedina Agbemava, refused to set aside the Writ of Summons and Statement of Claim. Justice Agbemava ruled that Zuriel Carbon Products Ltd. had indeed followed the proper dispute resolution procedures under Section 17 of Act 832.
She explained, “It is trite that the word ‘may’ is permissive, while the word ‘shall’ is mandatory. I am of the opinion that the drafters of the Act knowingly used the word ‘may’ for the complainant, giving them the choice or discretion to first make a complaint to the Minister if they so wished.”
The judge further emphasized that once a complaint is made, the Minister is required to investigate or set up an arbitration panel, which prevents the Minister from arbitrarily ignoring an aggrieved party.
Justice Agbemava concluded, “I will refuse to set aside the Writ of Summons against the 1st Defendant, as I am of the view that it is not mandatory for the Plaintiff to first resort to any internal dispute resolution mechanism before seeking any other relief in Court. The application is hereby refused and dismissed.”
With the motion denied, the substantive case against the Energy Commission will proceed to trial.
Energy Commission’s Reluctance to File Defense
In a surprising turn of events, the Energy Commission, which is responsible for regulating Ghana’s energy sector, including renewable energy, has shown reluctance to defend its regulatory actions in court.
Despite accusing Zuriel Carbon Products of illegally exporting charcoal, the Commission has yet to file a defense or present evidence in support of its claims. This has left industry observers and members of the public questioning whether the Commission is uncertain about its case or lacks legal footing.
Zuriel Carbon Products continues to face reputational damage and legal uncertainty as the Energy Commission avoids presenting its defense. Meanwhile, other renewable energy stakeholders are growing concerned about the Commission’s competence and ability to fulfill its regulatory responsibilities.
The question remains: If the Energy Commission truly believes Zuriel Carbon Products violated any laws or regulations, why not present the necessary evidence in court? Until then, the company and industry watchers are left waiting for clarity as the legal battle unfolds.
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