Ooi Poh Chin vs Tenaga Nasional Berhad

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2016 MarsdenLR 818

HIGH COURT (ALOR SETAR)
CHOO KAH SING, J
Ooi Poh Chin – Plaintiff
Versus
Tenaga Nasional Berhad – Defendant
GUAMAN SIVIL NO. 22-NCVC-50-07/2016

Important Points

A tenant or occupant lacks locus standi to challenge the termination of electricity supply by a utility company if the supply contract is held by another party, as the doctrine of privity of contract prevents strangers to the contract from enforcing its terms.

Subject

Civil Law - Contract Law

Act Referred

Electricity Supply Act 1990: S.38(1)
Companies Act 1965
Electricity Act 1989
Electricity Act 1990: S.38(1)

Headnote

(A) Electricity Supply Act 1990 - Section 38(1) - Locus standi - Privity of contract - Utility company's contractual duty to supply electricity is owed only to the account holder, regardless of whether the account holder is the owner of the premises (Paras 21, 22) - The doctrine of privity of contract dictates that a contract cannot confer rights or impose obligations on strangers to it; therefore, a tenant or occupant who is not the account holder is not privy to the contract between the utility provider and the account holder (Para 23).

(B) Interlocutory Injunction - The appropriate party to file an action to stop a utility company from terminating the supply of electricity is the account holder of the premises, as they are the party with the contractual relationship and the legal standing to oppose such action (Para 27).

Facts of the case:
A tenant of a premises sought an interlocutory injunction to restrain a utility company from terminating the electricity supply after the company discovered the electricity meter had been tampered with. The utility company had issued the notice of termination to the owner of the premises, who was the registered account holder. The tenant argued that as the occupant of the premises, they would be the aggrieved party if the electricity supply were terminated and thus possessed the standing to seek a remedy.

Findings of Court:
The court found that the contract for the supply of electricity was exclusively between the utility company and the account holder. The tenant, not being the account holder, was not a party to the contract and therefore had no locus standi to bring the action against the utility company.

Issues: Whether a tenant or occupant of a premises has the locus standi to seek an injunction against a utility company to prevent the termination of electricity supply when the supply contract is held by the owner or another account holder.

Ratio Decidendi: The court ruled that a utility company owes a contractual duty to supply electricity only to the account holder. Under the doctrine of privity of contract, a party who is not a party to the contract cannot enforce its terms or seek remedies for its breach. Consequently, only the account holder has the legal standing to challenge the termination of electricity supply.

Result: Application dismissed with costs.

Advocates:
KC Ang Tetuan C.P. Ang & Company for the Plaintiff’s.
Rusmin Alwani Shukery Tetuan Rusmin Ida & Taryna for the Defendant’s.

CHOO KAH SING

DECISION

(Enclosure 4)

Introduction

[1]This was an application (encl. 4) filed by the plaintiff seeking for an interlocutory junction to restrain the defendant or its agents from terminating the supply of electricity to the premises known as No. 247, Kilang Ais, Jalan Suasa 2/2, Taman Suasa, 09000 Kulim, Kedah Darul Aman (hereinafter referred to as ‘the premises’) pending the disposal of the main suit.

[2]The defendant had raised a preliminary point for this Court to consider before hearing the substantive argument of the application of the plaintiff. The preliminary point which the defendant raised was that the plaintiff has no locus standi in this main suit, and that, flowing from this, this court need not entertain the plaintiff’s application.

[3]On 28.8.2016, this Court dismissed the plaintiff’s application. The plaintiff was not satisfied with the decision of this Court and filed an appeal to the Court of Appeal. This Decision serves as the grounds for this Court’s decision, and the reasons are set down as below.

Brief Background Facts The proceedings (Encl. 4)

[4]The parties had filed their affidavits and submissions in the following chronological order as below:

Plaintiff	Defendant
Notis Permohonan Interlokutori Injunksi (Ex-Parte) dated 17.7.2016 (encl. 4)
Afidavit Sokongan – Ooi Poh Chin affirmed on 15.7.2016 (encl. 5)
Plaintiff obtained an Ex-Parte Order dated 17.7.2016 (encl. 7)
Inter-Parte hearing fixed on 31.7.2016
	Afidavit Jawapan – Hafizah Binti Md Desa affirmed on 26.7.2016 (encl. 13)
	Afidavit – Mohd Faizul affirmed on 26.7.2016 (encl. 12)
Afidavit Jawapan – Ooi Poh Chin affirmed on 8.8.2016 (encl. 16)
	Afidavit Jawapan – Hafizah Binti Md Desa affirmed on 23.8.2016 (encl. 20)
Afidavit Tambahan – Ooi Poh Chin affirmed on 24.8.2016 (encl. 18)
	Afidavit Jawapan (Kepada Afidavit Tambahan) – Hafizah Binti Md Desa affirmed on 26.8.2016 (encl. 19)
Plaintiff’s Written Submission (Inter-Parte) (encl. 21)	Hujahan Bertulis Defendan (encl. 15)

[5]The application was initially fixed for inter-partes hearing on 31.7.2016, but the hearing was adjourned as the parties had yet to exhaust their respective affidavits. The application was heard inter-partes on 28.8.2016.

The background facts of the main suit

[6]The plaintiff is a sole proprietor who is trading in the name and style of ‘NCP Ice Enterprise’. The plaintiff averred that she has rented the premises from one Superior Ice Sdn Bhd (hereinafter referred to as ‘the owner’).

[7]On 9.6.2016, the defendant’s personnel carried out a random inspection of the electricity meter installed at the premises. The defendant’s personnel discovered that the electricity meter had been tampered. They immediately fixed it to prevent further losses being incurred by the defendant.

[8]On the same day, a Notice of Termination was issued to the owner of the premises. The owner was informed that the defendant will terminate its service to supply electricity to the premises on 21.7.2016 pursuant to s. 38(1)Electricity Supply Act 1990

[9]The plaintiff, being the purported tenant of the premises filed this Writ action against the defendant. In the Writ action the plaintiff sought, inter alia, a declaration that the alleged tampering of the electricity meter was not caused by the plaintiff, the alleged tampered electricity meter could have been caused by faulty installation or faulty meter.

[10]It was on the above premise that the plaintiff had filed the application for an interlocutory injunction to stop the defendant or its agent from terminating the supply of electricity to the premises pending the disposal of the Writ action.

The Finding

[11]The defendant submitted that the customer who applied to the defendant for the supply of electricity to the premises is one Superior Ice Sdn. Bhd. (the owner).

[12]The application was made on 3.4.2008 (see exhibit ‘HMD-1’ the affidavit Hafizah Binti Md Desa – encl. 13).

[13]The defendant accepted the application and allocated an account for Superior Ice Sdn. Bhd. bearing Accoun