The Mayaria principle establishes that once a tampered meter is rectified, TNB cannot lawfully disconnect electricity supply under the Electricity Supply Act 1990, as no ongoing offence exists.

Introduction

[1] This is an appeal by Tenaga Nasional Berhad ("TNB") against the decision of the learned Judge of the High Court at Johor Bahru ("the learned Judge") (after a full trial) delivered on 30 September 2019. By the said decision, the learned Judge allowed all but one of the reliefs sought by Big Man Management Sdn Bhd, the Plaintiff, in Johor Bahru High Court Suit No. JA-22(NCVC)-138-07-2016, against TNB. The judgment of the High Court that has given rise to the present appeal is reported as Big Man Management Sdn Bhd v. Tenaga Nasional Berhad 2020 MarsdenLR 329 . The suit was originally filed on 29 February 2016 in the Kuala Lumpur High Court and registered as Suit No. WA-22(NCVC)-116-02-2016 ("Suit 116"). By an order dated 28 June 2016, Suit 116 was transferred to the Johor Bharu High Court and re-registered there as Suit No. JA-22(NCVC)-138-07-2016 ("Suit 138").

[2] In this judgment, we shall refer to the Appellant as "TNB" and the Respondent as "the Consumer". The Consumer had two contracts with TNB for the supply of electricity to the premises at Lot No. 140216 (MSB1) and Lot No. 140216-1(MSB2), Jalan Berjaya 8/1, Perindustrian Taman Berjaya, 81200 Skudai, Johor (collectively, "the Premises").

[3] For purposes of the supply of electricity to the Premises, the Consumer is registered as TNB's consumer under two separate TNB accounts, i.e., account numbers 0340-0082532201 ("Meter A") and 0340-0082532408 ("Meter B"). Unless otherwise stated to the contrary, the said Meter A and Meter B shall be referred to collectively, as "the TNB meters".

[4] A company which was closely connected to the Consumer known as Ice Man Sdn Bhd ("Ice Man") operated an ice-making factory at the Premises. Ice Man was the previous consumer for the supply of electricity to the Premises. The Consumer and Ice Man had a Management Contract dated 1 October 2013, pursuant to which the Consumer handled all matters relating to the supply of electricity to the Premises. The Consumer only provided management services and were not involved in the operations of the ice-making factory. Significantly, the Consumer did not operate the ice-making factory. Rather, it was Ice Man which operated the ice-making factory.

[5] The issue which lies at the heart of the case is the alleged tampering of the TNB meters which were situated in the (locked) meter room and located within the compound of the Premises. It was alleged that only TNB had access to the meter room. The issue of no access to the meter room was a major part of the Consumer's stand where they contended (per the pleadings and oral testimony of their key witnesses) that they had no access to the meter room and, as such, disavowed any knowledge of, or responsibility for any alleged tampering of the TNB meters. On the other hand, as far as TNB is concerned, upon inspection of the meter room on various dates, they discovered that the TNB meters had been tampered with.

[6] As such, TNB claimed that they were entitled to invoke their powers under s 38(1) of the Electricity Supply Act 1990 ("the Act") and disconnect the supply of electricity to the Premises. Section 38(1) of the Act provides as follows:

(1) Where any person employed by a licensee finds, upon any premises, evidence which, in his opinion, proves that an offence has been committed under subsection 37(1), (3) or (14), the licensee or any person duly authorised by the licensee may, up