Case Review is a publication by the Litigation and ADR Department of Perchstone & Graeys, a leading commercial law firm based in Lagos, Nigeria. The publication analyzes decisions of the Supreme Court and Court of Appeal on various aspects of the Law as they impact on contemporary issues.
When the Electric Power Authority shall not be made liable/accountable for loss, damage or inconvenience caused to any consumer as a result of the suspension, failure, discontinuance or interruption in the power supply.
A review of the decision in AMADI & ORS V ESSIEN (1993) LPELR-14644 (CA)
Facts of the Case
Engr. Essien, the plaintiff, instituted an action against the defendants, the National Electric Power Authority (NEPA) and some of its employees in their personal capacity, for N1,000,000 in damages on the ground that he suffered losses as a result of the defendants’ acts of cutting off his electricity supply and for the confusion, embarrassment, tumults and insults exhibited to the plaintiff’s customers. He also claimed for an order compelling the defendant to immediately install metre and supply electricity to the plaintiff’s restaurant/ club which the defendant had unjustifiably disconnected.
The matter proceeded to trial and upon conclusion; judgment was accordingly entered by the trial Court in favour of the plaintiff. Whereupon the defendants, aggrieved by the decision, went on appeal to the Court of Appeal.
Holding of the Court of Appeal
The defendants’ appeal was predicated on 4 grounds:
Whether the learned trial judge was right in entering judgment for the respondent notwithstanding the provision of section 12 of the National Electric Power Act.
Whether the plaintiff, the occupier of the premises could by himself and without joining his landlord, the registered consumer, maintain an action against the defendants for losses suffered by the plaintiff arising from the act or conduct of the defendants.
Whether on the totality of the evidence before the court it was proper to enter judgment for the defendant.
Whether there was proper proof of damages awarded by the trial court.
On the first issue, the Court of Appeal held that the provisions of section 12(2) of the National Electric Power Authority Act exonerates the National Electric Power Authority created under it from any liability for damages for loss, damage or inconvenience caused to its consumers as a result of the interruption of electric power supply to him. In this regard, the Court held that NEPA cannot be made liable to pay damages for compensation to any consumer in respect of loss damage or inconvenience through any suspension, failure, discontinuance, whole or partial interruption of the supply of electricity.
On whether the plaintiff, the occupier of the premises could by himself and without joining his landlord, the registered consumer, maintain an action against the defendants for losses suffered by the plaintiff arising from the act or conduct of the defendants, the Court of Appeal was of the opinion that although the existence of a contractual relationship would enable the parties thereto maintain an action inter se, the legal position is that even a third party who is reasonably proximate and who suffered injury, damages or loss, consequent to the conduct of one of the contracting parties may successfully maintain an action if the said conduct arose from the negligence or carelessness of the party who has so conducted himself in breach of the duty which he owes the third party. Such action is properly founded in the tort of negligence. The respondent in the instant case comes within the ambit of this rule and the 6th defendant (NEPA) owes him a duty of care and a breach of that duty entitles the plaintiff to maintain an action against the defendants.
On the third issue and the fourth issue, the Court of Appeal held that the term strict proof of damages means no more than that the evidence led must show the same particularity as is necessary for its pleadings. It should consist of evidence of particular losses which are exactly known or accurately measured before the trial court. Applying the law to the facts of the instant case, the Court held that the plaintiff failed to prove his claim before the lower court, and was therefore not entitled to the award made in his favour by the trial court.
Commentary/Review of Judgment
The decision of the appellate court in Amadi’s case was premised on the provisions of Section 4(b) of the Electricity Act, 1990 and particularly on 12(1) & (2) of the National Electric Power Act. In summary, the said provision of National Electric Power Act confers the right to suspend the supply of electricity for such periods as may be necessary for carrying out inspection, test, repairs and for making new connection. The appellant’s argument was that the electricity supply of the respondent was disconnected pending investigation and by the provisions of this section, they were right in doing so.
Section 12 (2) of the Act went further to state that the Authority shall in no case be under any obligation to pay damages or compensation for loss, damage or inconvenience caused to any consumer as a result of the suspension, failure, discontinuance or interruption in the power supply no matter how caused. Going by the provisions of this section, the Court easily arrived at its conclusion and overturned the decision of the trial court. For some reason, the drafters of the NEPA Act saw the need to relieve the Authority of any liability of any loss or damage caused by their disruption of power albeit grave. The immunity given to the appellant was absolute. It may not be made liable “however caused”. The Authority can disconnect or interrupt or out rightly fail to supply electricity for whatsoever reason it deems fit and would not be held liable for whatever the result of their action is.
The trial judge initially in a bid to interpret subsection 2 of the section, read it in conjunction with subsection 1 to the effect that “however caused” must only be limited to “carrying out
inspection, test, repairs and for making new connection” and that disconnection for any other reason would render the Authority liable. The appellate Court while admitting the possibility of that provision working hardship, rejected that line of reasoning and maintained that, the subsection was clear enough; the Authority would not be on any ground liable.
The provision of the law, as well as the restrictive interpretation afforded the Authority in not being made liable for any loss, damage or inconvenience caused to any consumer as a result of the suspension, failure, discontinuance or interruption in the power supply, is- with respect- unfortunate. Little wonder the Authority’s performance was at an all-time abysmal low.
Happily, with the present era/regime of privatization/’unbundling’ of NEPA, it is doubtful that the successor companies would be afforded such statutory protection.
This Case Review is provided for your convenience and does not constitute legal advice. It is prepared for the general information of our clients and other interested persons.
For further information, comments/advice/permission to use, please contact the Case Reviewer, Ms. Telemi Adejoorin at 'email@example.com; or the Editor, at firstname.lastname@example.org
This Case Review is protected by copyright. Material appearing herein may be reproduced or translated with appropriate credit.
Amadi v Esssien