Tenaga Nasional Berhad v Restoran Al Ibrahim Maju (WA-12ANCVC-126-05/2018)

This appeal concerns the grant of an interlocutory injunction by the Sessions Court to prevent the Appellant from disconnecting the supply of electricity to the premises known as Block D3-26, Parklane OUG, No. 1, Jalan 1/152, Taman OUB, Parklane, 58200 Kuala Lumpur.

The question that arises is thus whether in the circumstances of this case, the Respondent was rightly entitled to the injunction obtained, albeit as an interim measure pending trial. More specifically, the issue is whether 2 the Respondent has a right, and is therefore entitled, to uninterrupted electricity supply.

On or about 27th of February 2018, the Appellant’s employees inspected the electricity meter at the premises and formed the opinion that the electricity meter had been tampered with, and thus an offence committed under sections 37(1) and 37(3) of the Electricity Supply Act of 1990 (“ESA”).

Having found that the electricity meter at the premises had been tampered with, the Appellant’s employees then proceeded to rectify the meter in question.

By a notice also dated 27th February 2018, issued under the ESA, notification was given by the Respondent that evidence of tampering has been discovered and the supply of electricity to the premises would be disconnected on 27th March 2018.

The Respondent is a tenant in occupation of the premises and runs a restaurant there. The Respondent, however, is not the registered customer of the Appellant. The registered customer of the Appellant in respect of the supply of electricity to the premises is one Mok Kwai Ching. Thus the notice issued by the Appellant dated 27.2.2018 was addressed to Mok 3 Kwai Ching. Mok Kwai Ching, as it turns out, is the Respondent’s landlord. The Respondent itself has not applied to the Appellant for the supply of electricity.

The Appellant maintains that because the Respondent is not its registered customer, the Appellant is not obliged to supply any electricity to the Respondent.

The Appellant further contends that being the case, there is also no contractual relationship between the Respondent and the Appellant. As such, the Respondent does not have any right to require the Appellant to supply electricity to the premises or conversely, to prevent the Appellant from disconnecting the supply of electricity to the premises. In support of this contention the Appellant referred to the case of Ooi Poh Chin v Tenaga National Berhad [2016] MLJU 814.

In Ooi Poh Chin, it was held by the learned High Court judge that the plaintiff was not entitled to an interlocutory injunction to prevent the defendant from terminating the supply of electricity to the premises rented by the plaintiff. It was held that since the plaintiff was not the account holder with the defendant, the plaintiff had no privity of contract with the defendant for the supply of electricity and thus did not have any right to the 4 injunction sought. The material facts in Ooi Poh Chin were therefore no dissimilar to those in this case.

In addition, the Appellant maintains that the decision of the Federal Court in WRP Asia Pacific Sdn Bhd v Tenaga Nasional Berhad [2012] 4 MLJ 296 makes it clear that section 38 of the ESA empowers the Appellant to discontinue the supply of electricity based on the subjective finding of its employee that an offence has been found committed under section 37(1), 37(3) or 37(14) of the ESA (See also Claybricks & Tiles Sdn Bhd v Tenaga Nasional Berhad [2006] 4 CLJ 892). In WRP Asia Pacific Sdn Bhd, Suriyadi FCJ delivering the decision of the Federal Court held very clearly that: “Even though the effect of the letter is quite harsh, S 38 of the Act [the ESA] empowers the respondent to discontinue the supply of electricity based on the subjective finding of its employee if any offence has been found committed under s 37(1), 37(3) or 37(14).”

The Appellant further maintains that even though the meter that is believed to have been tampered with has been rectified, the Appellant still has the right under section 38(1) of the Supply of Electricity Act 1990 to disconnect the supply of electricity to the premises. This is in light of the Court of Appeal’s decision in Karun Klasik Sdn Bhd v Tenaga Nasional Berhad in Civil Appeal No. W-02(NCC)(W)-636-04/2015. Karun Klasik has since overruled the High Court decisions to the contrary in Modernia Plastic Industries (M) Sdn Bhd v Tenaga Nasional Berhad [2015] 3 CLJ 825; Mayaria Sdn Bhd & Anor v Tenaga Nasional Berhad [2015] 6 CLJ 788 and 5 Xin Guan Permier Sdn Bhd v Tenaga Nasional Berhad [2016] 1 CLJ 318. In arriving at the decision of the Court of Appeal, Nallini Pathmanathan JCA in lucid terms held that: “[90] Until the backcharges are paid, the electricity effectively remains consumed but unpaid for and therefore remains an unlawful act or offence under s. 37. Once the backcharges are paid, the consumer remedies the fact of consumption of electricity without payment, meaning that all electricity consumed is then paid for. Only then does it follow that there is no continuing offence of the unlawful abstraction or theft of electricity. In short, the removal of the impugned meter or rectification of the same does not in itself remedy the offence of unlawful abstraction. So the failure to make good the monies due as a consequence of the pilfering, which represents the stolen electricity, warrants the construction that the offence was committed and remains unremedied.

We are therefore unable to concur with the decisions in Modernria and Mayaria that the power to disconnect electricity under s. 38(1) cannot be utilized when tampering has been rectified and there is only an amount due and outstanding by the consumer to the licensee.”

Procedurally, the Appellant also complained that the Respondent had stolen a march. It did so by breaching Order 29 Rule 1(2A)(c) of the Rules of Court 2012 when it failed to provide any reason for not giving notice of its ex parte application. 6

The prayers in the Respondent’s Statement of Claim consist of claims for declarations and damages. The reliefs sought are the following: “a) Suatu Perintah deklarasi bahawa Plaintif tidak pernah mengusik dan/atau mengubahsuai pepasangan meter milik Defendan di premis Block D3-26, Parklane OUG, No. 1, Jalan 1/152, Taman OUG Parklane, 58200 Kuala Lumpur (“premis tersebut”); b) Suatu perintah deklarasi bahawa Plaintif tidak pernah terhutang apa-apa jumlah tuntutan terhadap Defendan berhubung hasil pemeriksaan bertarikh 27.2.2018 di premis tersebut; c) Suatu perintah deklarasi bahawa Notis Pemotongan Bekalan Elektrik di bawah Subseksyen 38(1) Akta Bekalan Elektrik 1990 bertarikh 27.2.2018 bagi akaun nombor 220104462702 yang dialamatkan kepada premis tersebut adalah tidak sah dan terbatal; d) Ganti rugi am; e) Gantirugi teruk dan tauladan; dan f) Lain-lain perintah atau relif yang difikirkan adil dan suaimanfaat oleh Mahkamah yang Mulia ini; dan g) Kos. ” 7

The declarations sought are to the effect that the Respondent did not tamper with the electricity meter at the premises, the Respondent itself had never owed the Appellant any monies and the notice issued by the Appellant to disconnect the supply of electricity is null and void.

There is also a claim for general damages, including a claim for exemplary damages.

The Respondent maintains that regardless of the absence of any contract between the parties, the Respondent’s rights will be adversely affected if the supply of electricity is discontinued. Its business and reputation would be affected and it would suffer loss and damage.

The Respondent relies on the case of Tenaga Nasional Berhad v Chan Lee Fun & Anor [2017] MLJU 1345. In that case, in similar circumstances, relying on QSR Brands Bhd v Suruhanjaya Sekuriti & Anor [2006] 3 MLJ 164 and Order 53 of the Rules of Court 2012, the learned Judicial Commissioner held that locus standi was established by the respondent.

In addition, the Respondent contends that during the inspection of the electricity meter, no authorized representative of the Respondent was present. The Respondent, it is said, was never served with any notice of demand for payment. 8

The Respondent also relied on the trilogy of High Court cases referred to above and maintained that the power to discontinue electricity supply under section 38(1) of the ESA ended when the meter was corrected.

In view of the factors raised and circumstances, the Respondent maintains that it has satisfied the requirements of Keet Gerald Francis Noel John v Mohd Noor Bin Abdullah & Ors [1995] 1 MLJ 193. Serious issues to be tried have been demonstrated and the learned Sessions Court Judge was correct in allowing the interlocutory injunction sought.

This Court does not agree that the Respondent has established any serious issue to be tried that entitles it to the interlocutory injunction sought.

The declarations sought are not the bases upon which the power to disconnect the supply of electricity under section 38(1) of the ESA is premised.

Although there is a declaration sought that seeks to nullify the notice issued for the cessation of electricity supply, no plausibly tenable reason for its invalidity has been given, bearing in mind, in particular, the 9 decisions of the Federal Court in WRP Asia Pacific Sdn Bhd v Tenaga Nasional Berhad [2012] 4 MLJ 296 and Claybricks & Tiles Sdn Bhd v Tenaga Nasional Berhad [2006] 4 CLJ 892.

As for the trilogy of High Court cases relied on by the Respondent, and the basis which they held that power to disconnect electricity supply under section 38(1) of the ESA ceases – they have since been overruled by the Court of Appeal in Karun Klasik.

The Respondent’s contentions that its representative was not present at the inspection of the electricity meter and the fact that there was no demand made upon it are again, not the bases upon which the power to disconnect is premised. The fact that no demand was made on the Respondent by the Appellant is simply because the Appellant has no monetary claim against the Respondent. The Respondent is not its registered customer. The Appellant is not even accusing the Respondent of the tampering. In that sense, the declaration sought to the effect that the Respondent did not tamper with the electricity meter or that it does not owe the Appellant any money, even if granted, would not entitle the Respondent to uninterrupted supply of electricity by the Appellant and thus, the injunction it obtained.

Quite clearly, there is no contractual obligation between the parties. Furthermore, the Respondent could have but did not seek to apply to, and therefore contract directly with, the Appellant for the supply of 10 electricity. If there had been such an application followed by a refusal by the Appellant to supply electricity, there might be some basis to contend that the Appellant is in breach of a statutory duty – but this was not the case.

The claim in this action is for private law remedies. It is not an application for judicial review under Order 53 of the Rules of Court 2012. Therefore the test as to whether the Respondent has any locus standi, in the public law sense, is not applicable. The real issue is whether the Respondent has any cause of action that might entitle it to a remedy in the form of the injunction sought – whether in temporary or permanent form.

Perhaps the point is more poignantly portrayed if the circumstances here are compared to a claim to uninterrupted supply of electricity by a trespasser in occupation of premises who dutifully pays the electricity bills of the owner but does not have any legal relationship with the supplier of the electricity. Such a person too, would not be entitled to uninterrupted supply of electricity. It is not the incidence of the occupation of the premises that is the determinant factor. In both instances, there is a lack of legal relations between the parties upon which any right to continuous supply of electricity may be mounted and sought to be enforced. 11

Having regard to the circumstances of this case, I find that the Respondent has not established that it has any serious issue to be tried that, if successful, would entitle it to either a temporary or permanent injunction to preclude the Appellant from exercising the statutory powers conferred under section 38 of the ESA.

I therefore allow the Respondent’s appeal. The order of the Sessions Court of 16.5.2018 in respect of the Respondent’s Notice of Application in Enclosure 5 of 22.3.2018 is set aside. Dated this 4th day of July 2018. sgd (YA TUAN DARRYL GOON SIEW CHYE) Judicial Commissioner High Court Civil NCVC 2 Kuala Lumpur CASES CITED Tenaga Nasional Berhad v Chan Lee Fun & Anor [2017] MLJU 1345 Malaysian Trade Union Congress & Ors –v-Menteri Tenaga, Air dan Komunikasi & Anor [2014] MLJU 92 12 Keet Gerald Francis Noel John v Mohd Noor bin Abdullah & Ors [1995] 1 MLJ 193 Tenaga Nasional Bhd v Teobros Development Sdn Bhd [2008] 6 MLJ 391 Xin Guan Premier Sdn Bhd vTenaga Nasional Berhad [2016] 10 MLJ 788 My Seven Vacation Sdn Bhd & Anor v Tenaga Nasional Berhad [2017] MLJU 987 Tan Yeong Kim v Tenaga Nasional Berhad [2000] MLJU 447 Claybricks & Tiles Sdn Bhd v Tenaga Nasional Berhad [2007] 1 MLJ 217. Modernria Plastic Industries (M) Sdn Bhd v Tenaga Nasional Berhad [2015] 3 CLJ 825. Mayaria Sdn Bhd & Anor v Tenaga Nasional Berhad [2015] MLJU 276 Lian Keow Sdn Bhd & Anor v Overseas Credit Finance (M) Sdn Bhd. & Ors [1982] CLJ (Rep) 182 Tong Kok Chai v Ocean Front Pte Ltd & Anor [1988] 3 MLJ 125 Karun Klasik Sdn Bhd v Tenaga Nasional Berhad, Court of Appeal Putrajaya, Civil Appeal No. W-02(NCC)(W)-636-04/2015 Ooi Poh Chin v Tenaga Nasional Berhad [2016] MLJU 814 Pentadbir Tanah Daerah Petaling v Swee Lin Sdn Bhd [1999] 3 MLJ 489 WRP Asia Pacific Sdn Bhd v Tenaga Nasional Berhad [2012] 4 MLJ 296 Motor Sports International Ltd (Servants or Agents at Federal Territory of Labuan) & Ors v Delcont (M) Sdn Bhd [1996] 2 MLJ 605 Arthur Anderson & Co v Interfood Sdn Bhd [2005] 6 MLJ 239 13 University of Malaya Medical Centre v Choo Chee Kon & Anor [2008] 3 MLJ 278 LEGISLATION AND LEGAL TEXT CITED Section 37 and 38 and Section 37 and 38 (pre-amendment) of the Electricity Supply Act 1990 Order 29 Rule 1(2A) of the Rules of Court 2012 Regulation 3(2) of the Licensee Supply Regulations 1990 COUNSEL FOR THE PLAINTIFF: Maizura Mohd Amin (Mohanadass Partnership B-21-8, The Vertical, Avenue 3 Bangsar South City No.8, Jalan Kerinchi 59200 Kuala Lumpur Tel : 03-2242 3395 Faks : 03-2242 3392) COUNSEL FOR THE DEFENDANT: Irna Shanana bt Samshudin (CK Ling, Izzaida & Irna NW 2-39, Cova Square, Jalan Teknologi Taman Sains Selangor 47410 Petaling Jaya Selangor Darul Ehsan Tel : 03-6148 0216 Faks : 03-6148 0217)