Monkey with a screwdriver, Image Credit: https://www.youtube.com/watch?v=E-r6f_3kEF8
Electricity is an ethereal concept. The conveyance of matter possessing an electrical charge thereby leading you to be able to read this? Simply put: magic.
Interestingly, the earliest generation of electricity in Malaysia was brought-about in 1894 by Indian and Chinese immigrants (to power their tin mines).
In Malaysia, electricity is operated under a monopoly by TNB.
Meter tampering
As with human ingenuity, so comes meter tampering.
Meter tampering involves the unlawful act of meddling with a meter to display reduced consumption rates. This would then lead to (theoretically) lower bills.
The jurisprudence of the Electricity Supply Act 1980 is interesting. Via Section 38, it empowers TNB to disconnect the supply of electricity to owners found to have a tampered meter (with a caveat, as discussed below).
The Act does not require TNB to prove that the owner actually tampered with said meter.
The CA, speaking via Nantha Balan JCA in TNB v Big Man Management Sdn Bhd (Civil Appeal No.: J-02(NCVC)(W)-1948-10/2019, comprehensively set-out the current legal position with regard to meter tampering.
The facts
Big Man owned 2 factory lots. Both lots had their own TNB meters.
A company named Ice Man Sdn Bhd (which was closely-related to Big Man) operated an ice-making undertaking at the 2 lots. Big Man and Ice Man had a Management Contract executed to regulate their relationship. They both agreed that Big Man would handle all electricity-related matters.
The inspection by TNB
TNB carried out inspections in 2013 and 2014 on the meters. Pursuant to these inspections, TNB rectified the meters. TNB then issued 2 Notices of Disconnection.
Electricity was then disconnected on 01.07.2014. It was only reconnected on 01.10.2014 (3 months’ disconnection).
Big Man sued TNB for, inter alia, the wrongful disconnection of electricity, interference with business and defamation.
At trial
At trial, a preliminary objection was raised by Big Man. Big Man maintained that TNB never put to Big Man that there was tampering, nor did TNB cross-examine Big Man’s witnesses on the same (issue of meter tampering).
The learned trial Judge upheld the PO. His Lordship further held that TNB was liable to pay damages for the wrongful disconnection of electricity and exemplary damages for their conduct in withholding electricity (paragraphs 25-49, GOJ of the CA).
On appeal
On appeal, the CA reversed almost the entirety of the HC’s findings. Crucially, the findings on the Mayaria principles were maintained, which would be a boon for consumers.
The CA’s findings
The CA firstly held that the upholding of the PO was wrong. TNB could not be deemed to have abandoned its claim solely due to these issues not being put to the witnesses of Big Man.
Nantha Balan JCA recognised that the rule in Browne v Dunn is a nuanced rule. It is not rigid and inflexible. The CA held that when TNB adduced documentary evidence and led eyewitness evidence to prove meter tampering, it would be incumbent upon the HCJ to assess the evidence in toto.
A significant factor would probably also be S. 38 ESA 1990, which leads meter tampering to be actionable per se. TNB need not prove that Big Man tampered with the installation; TNB need only prove that tampering has taken place.
In-line with this, the learned HCJ’s upholding of the PO was an error (paragraphs 76-89, GOJ).
The Mayaria principles
His Lordship then discussed the Mayaria principles (which were distilled from TNB v Mayaria [2019] 2 MLJ 801 (CA)]. The Mayaria principles recognise that when TNB has rectified the meter tampering, it is not at liberty to disconnect the supply of electricity.
Importantly, the CA held that there are no exceptions to the Mayaria principles. It was Parliament’s intention that once the tampering had been rectified, TNB would continue supplying electricity. Disconnection would be an egregious abuse of its powers (paragraphs 90-93 GOJ).
Damages
Despite the findings above, the CA held that Big Man had failed to prove its damages. With TNB having been in breach of the Mayaria principles, it was incumbent upon Big Man to prove damages.
Big Man claimed that it had to rent (and then purchase) generators and diesel to enable operations to continue at the factories.
The CA analysed the basis for this claim and held that the only evidence tendered by Big Man were invoices and payment vouchers. Conclusive evidence in the form of receipts would be necessary.
The failure of Big Man to produce receipts (coupled with the scanty evidence produced at trial) led to the CA determining that Big Man had failed to prove its damages. The claim for exemplary damages was also dismissed and the CA determined that as a matter of law, exemplary damages are not claimable in a breach of contract (paragraphs 94-105 GOJ).
Breach of statutory duty and defamation
As a final consideration, the CA held that the breach of statutory duty had been insufficiently pleaded (the specific section breached had not been pleaded). It would fail.
Finally, on the issue of defamation, there was insufficient judicial appreciation of the facts. The CA held that this too, should fail.
The appeal was ultimately allowed, with the CA holding that TNB was incorrect on the Mayaria principles.
Key takeaways
With the above, it is clear that TNB is not at liberty to play loose and fast with the disconnection of electricity. Should any tampering be discovered and should TNB proceed to rectify said tampering, it (TNB) will only be entitled to sue for damages. Any disconnection of electricity will be unlawful and an abuse of its powers.
The CA in Big Man was with it. However, the dearth of evidence to substantiate its claim for damages ultimately led to Big Man’s downfall.
GAVIN JAYAPAL
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