The statutory right to disconnect electricity supply under s 38 of the Electricity Supply Act 1990 is valid even if tampering is rectified, as long as the power is exercised with a formed opinion of prior tampering.

Introduction

[1] This appeal arises from the dismissal of both the plaintiff's and the defendant's claims in the High Court of Malaya at Kuala Lumpur, after a full trial.

[2] The defendant is the appellant and the plaintiff the respondent in this appeal.

[3] In the course of hearing this appeal, we were constrained to deal substantively with the appeal lodged by the defendant, ie the appellant, relating to the dismissal of its counterclaim in the Court below, notwithstanding that the substance of the trial in the High Court dealt with the respondent's, ie the plaintiff's claim for monies owed to it as a consequence of the unlawful consumption or abstraction of electricity.

[4] The appellant will be referred to as the defendant and the respondent as the plaintiff in this appeal.

[5] After the decision of the High Court had been handed down on 16 March 2015, the defendant filed an appeal challenging the decision to dismiss its counterclaim, within the requisite one month period, ie on or by 15 April 2015.

[6] The defendant's appeal dealt with the losses and loss of profits stated to be suffered by it as a consequence of the cutting off of its electricity supply by the plaintiff.

[7] The plaintiff, who also sought to challenge substantively the dismissal of its claim, did not however lodge a separate notice of appeal on or by 15 April 2015. Instead, the plaintiff lodged a cross-appeal in respect of its claim for monies owed to it. Moreover this cross-appeal was filed on 19 June 2015, ten days after the memorandum of appeal of the defendant was served on it.

[8] Pursuant to the decision of the Federal Court in Kabushiki Kaisha Ngu v. Leisure Farm Corporation Sdn Bhd & 2 Ors, [2015] 4 MLJ 543 ('Leisure Farm'), the cross-appeal was struck out by this Court on 7 November 2016, prior to the hearing of the full appeal, on the application of the defendant. This was because the cross-appeal did not raise issues emanating from the primary appeal lodged by the defendant, but instead sought to raise separate substantive issues relating to the liability of the defendant for unpaid monies due to the consumption of electricity supplied by it. The cross-appeal as stated above, was premised on the plaintiff's claim of monies for the unpaid abstraction or consumption of electricity. It could not be said that the cross-appeal arose out of issues raised in the appeal. (See also Pengerusi Suruhanjaya Pilihanraya Malaysia v. See Chee How & Anor; 2015 MarsdenLR 1428 ; [2015] 8 CLJ 367; [2015] 6 AMR 837 CA ('See Chee How').)

[9] In Leisure Farm, it was determined inter alia, as follows:-

(i) The Federal Court agreed with the Court of Appeal's finding that r 5 of the Rules of the of Appeal (RCA) 1994 provided for an appeal to be lodged against the whole or part of any judgment or order of Court, and such an appeal in contrast to a cross-appeal is by way of a re-hearing. The word "re-hearing" used clearly anticipated a review or regurgitation before the appeal Court of all the points and arguments taken at the Court below. Hence, if it was the substantive finding of the Court that was intended to be attacked, the party aggrieved should file a proper notice of appeal;

(ii) The Federal Court held that the litigant in that case ought to have filed an independent notice of appeal as a notice of cross-appeal does not provide for a complaint to be re-heard. Under r 8 of the RCA 1994 the first defendant cannot set aside the substantive finding of facts made by the High Court by way of notice of cross-appeal. The first defendant may only set aside the substantive findings of the High Court by way of filing a notice of appeal under r 5 of the RCA 1994. Only an appeal by way of a notice of a