JUDGEMENT: Sunday Babalola v Eko Electricity Disco

IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT COURT NO. 30 GENERAL CIVIL  DIVISION

BEFORE HON. JUSTICE I. O. HARRISON (MRS) JUDGE

TODAY THURSDAY THE 6^TH DAY OF AUGUST, 2020

 

        SUIT NO: LD/3749GCM/2019

BETWEEN:

SUNDAY BABALOLA                                                                    CLAIMANT

AND

EKO ELECTRICITY DISTRIBUTION COMPANY PLC                          DEFENDANT

JUDGEMENT

 

The Claimant filed an Originating Summons dated 11^th December, 2019 pursuant to Originating Summons brought pursuant to under Section 81 and 96 of the Electric Power Sector Reforms Act, 2005 Section 2 of the Nigerian Electricity Regulatory Commission’s customer service standard of performance for distribution companies, 2007, sections 1 & 2 of the Nigerian Electricity Regulatory Commission’s connection and disconnection procedure for electricity services 2007 and Order 5 Rules  4 and 5 of the High Court of Lagos State (Civil Procedure) Rules 2019 and under the inherent jurisdiction of the Honourable Court.

FOR THE FOLLOWING RELIEFS:-

• A declaration that the Defendants has no right to refuse to connect his property being No. 7B, Brown Road, Aguda surulere to Electricity unless the Claimant pays for electricity allegedly consumed on No. 2 Adegunwa Street, Ikate, Lagos State.
• A declaration that the Defendant was wrong to have demanded that the Claimant should pay electricity bills allegedly consumed on No. 2 Adegunwa Street, Ikate Lagos as condition for connecting the Claimant’s property being No. 7B, Brown Road, Aguda, Surulere, Lagos is wrongful, illegal unlawful, extortionate, null and void and of no consequence.
• A declaration that the Defendant was wrong to have demanded that the Claimant should pay electricity bills allegedly consumed on No. 2 Adegunwa Street, Ikate Lagos by the Claimant before connecting No. 7B Brown Road, Aguda, Surulere to electricity mains.
• An Order of this Honourable Court mandating the Defendant to connect the Claimant’s property being. No.7b, Brown Road, Aguda Surulere, Lagos immediately.
• An Order of this Honourable Court that the Defendant should refund the sum of ₦605,120. (Six Hundred and Five Thousand, One Hundred and Twenty Naira) which was received by the Defendant for electricity consumed on No. 2.Adegunwa Street, Ikate ,Lagos.
• General damages in the sun of ₦10,000,000.00 (Ten Million Naira) for the trauma and pains which the Defendant subjects the Claimant to over its refusal to connect the Claimant to electricity.

FOR THE DETERMINATION OF THE FOLLOWING QUESTION:

• Whether having regards to the provisions of SECTION 2 OF THE NIGERIAN ELECTRICITY REGULATORY COMMISSION’S CUSTOMER SERVICE STANDARDS OF PERFORMANCE FOR DISTRIBUTION COMPANIES, 2007, SECTIONS 1 & 2 OF THE NIGERIA ELECTRICITY REGLULATORY COMMISSION’S CONNECTION AND DISCONNECTION PROCEDURE FOR ELECTRICITY SERVICES 2007, the Defendant can refuse to connect the Claimant to electricity supply until and unless the Claimant pay electricity bill consumed on No. 2, Adegunwa Street, Ikate, Lagos.
• Whether having regards to the provisions of SECTION 2 OF THE NIGERIAN ELECTRICITY REGULATORY COMMISSION’S CUSTOMER SERVICE STANDARDS OF PERFORMANCE FOR DISTRIBUTION COMPANIES, 2007, SECTIONS 1 & 2 OF THE NIGERIA ELECTRICITY REGLULATORY COMMISSION’S CONNECTION AND DISCONNECTION PROCEDURE FOR ELECTRICITY SERVICES 2007, the Defendant’s refusal to connect the Claimant to electricity supply until and unless the Claimant pay electricity bill consumed on No. 2 Adegunwa Street, Ikate, Lagos is not  oppressive, unlawful, null and void and of no consequences.
• Whether the demand for and receipt of the sum of ₦605,120. (Six Hundred and Five Thousand, One Hundred and Twenty Naira) from the Claimants by the Defendant over and for electricity consumed on No. 2, Adegunwa Street, Ikate Lagos as a condition for connecting the Claimant’s property at No. 7B, Brown Road, Aguda, Lagos is not oppressive, unlawful, null and void and of no consequences.
• Whether the Defendant can demand payment for electricity consumed at No. 2, Adegunwa Street, Ikate, Lagos from the Claimant whose property is No. 7B Brown Road Aguda, Lagos.

Its supported by a 17 paragraph affidavit with 4 Exhibits and a 17 paragraph further and better affidavit dated 24^th February, 2020 and a written address and a reply on points of law.

In response the Respondents filed a 21 paragraph Counter-Affidavit dated 4^th February, 2020 with 5 Exhibits and a written address.

Argument were taken on 2^nd July, 2020 by Ademola Owolabi Esq. and Anoba Etomi Esq. Counsel for the Claimant and Defendant respectively and the case was set down for Judgement.

The Court has read the processes filed and listened to the oral submission of Counsel and a brief summary of the salient facts are as follows:-

The Claimant contend that he purchased a premises known as 7B, Brown Road, Aguda, Surulere from Mr. Eni Damien Eni in July 2019.  Upon application to pay for a pre-paid meter for the premises he was informed there was an outstanding bill of ₦755, 320.00 (Seven Hundred and Fifty-Five Thousand Three Hundred and Twenty Naira) for electricity consumed by the previous occupant pursuant to negotiation he paid ₦605,120. (Six Hundred and Five Thousand, One Hundred and Twenty Naira)  in full and final settlement of all claim .

He proceeded to fill all form for a prepaid meter and was not connected to the grid as he was informed by the Defendant that they had discovered another bill that was still outstanding.

It was at this stage the Claimant/Applicant realized the bill he had paid was in respect of premises situate at No. 2, Adegunwa Street Ikate, Lagos while he contends it’s a separate and distinct property the Defendant states from 7B, Brown, Road Aguda  Lagos the Defendant states that the property in question is a corner piece facing both Adegunwa Street, and Brown Road and that the address refers to one and the same premises  and was owned by Eni Damien Eni.

The Defendant further contends that the premises known as 7B, Brown Road in their records belong to different person with no connection to the Claimant’s predecessor in title the said statement of accounts were exhibited C (Exhibit 1, 2 and 4 ).

The Defendant stated that they supply electricity to the property in the name of the owner of the property and they have a contract with him in this case Mr. Eni Damien (the Former owner).

The Defendant contends that the Claimant is bound to clear all outstanding bills before being reconnected to their distribution network.

The Claimants formulates the following issues being questions hedesires should be determined in this case as follows:-

• Whether the Defendant can lawfully and legally demand for and collect money from the Claimant in respect of his property being No. 7B, Brown Road, Aguda, Surulere, Lagos for electricity allegedly consumed by and on No. 2, Adegunwa Street, Ikate Lagos.
• Whether the Defendant is not wrong to have insisted on the Claimant paying for electricity consumed on No. 2 Adegunwa Street, Ikate, Lagos before it can connect the Claimant’s house being No. 7B, Brown Road, Aguda, Suruler, Lagos to electricity.
• Whether the Defendant is not liable to refund the sum of ₦605,120. (Six Hundred and Five Thousand, One Hundred and Twenty Naira) false fully collected from the Claimant in respect of electricity bill consumed in another property different from the Claimant ‘s property.
• Whether the Claimant is not entitled to Damages and cost of action over the Defendant’s action.

THE DEFENDANT FORMULATES THE FOLLOWING ISSUES:

• Whether from the records it is shown that there was electricity supply to the Claimant’s property now known as No. 7B, Brown Road, Aguda, Lagos before the Claimant purchased from one Mr. Eni?.
• Whether for continued supply of electricity supply to the Claimant’s property now know on No. 7B, Brown Road, Aguda, Lagos, the demand for outstanding electricity bills issued in the name of the former owner of the property, Mr. Eni and arising from the previous supply of electricity to the property is lawfully.

THE COURT FORMULATE THE FOLLOWING ISSUE.

Whether the Defendant rightfully refused to connect the Claimant to it’s distribution network and if answered in the negative whether the Claimant is entitled to determination of question raised and reliefs sought in his application.

As stated above the Defendants contend that they will only connect the Claimant to their distribution network if he pays the bills as they contend No. 2, Adegunwa Street and 7B Brown Road are one and the same property.

The Claimant contends his property is 7B Brown Road and he should not be liable to pay for electricity untilised by the former owner of No. 2, Adegunwa Street before his property 7B, Brown Road is connected to the Defendants distribution network and that the monies he paid before (i.e.the sum of ₦605,120.00 Six Hundred and Five Thousand One Hundred and Twenty Naira) were in respect of 2, Adegunwa Street and should be refunded to him.

The Claimant further contends that the 2 premises are separate and distinct and that he did not consume electricity in either of the buildings.

He also contends the Defendants have the records of whom they supplied electricity and he as at now has no contract with the Defendant in respect the premises 7B, Brown Road Aguda  Surulere, and that it was Mr. Eni who failed to pay the bill.

The Claimant contends that there can not be a contract between a corporate body and a premises/building it must be with a recognized legal entity whether human or artificial.

The Court observes that the National Electricity Regulatory Commission (NERC) is empowered by the Electric Power Sector Reform (EPSR) Act 2005 to ensure an efficiently managed electricity supply industry and under the consumer rights and obligations its to ensure that operators amongst other things provide quality service delivery some  of the numerous rights of customers relevant to this case are

• All customers have a right to refund when over billed.
• It’s the customers right to contest any electricity bill.

It is also part of the obligations of electricity consumers to notify the Disco Serving them of any outstanding electricity bill before moving into a new premises in this case it was the Disco that notified the Applicant of the outstanding bill.

Consumer has been defined as any end user of electricity who is a customer of a distribution licensee (disco).  For purposes of filing a complaint with the commission and for any other reason that the Commission may determine a person who is temporarily disconnected or otherwise without service is also a consumer.  A person who had applied for but is yet to receive service shall also be deemed to be a consumer Section 99 EPSR N.6 2005.

The Applicant herein is thus a consumer as he is a prospective customer.

The Nigerian Electricity Regulatory Commission’s Connection and Disconnection Procedure for Electricity Services 2007 provides for express contractual obligation between Discos and consumers or customers.

Both parties have parts to play in the exercise:-

Disco is bound to connect the customer if the latter has fulfilled his own part:

• It there was no connection to the distribution system in the premises
• Customer will submit an application for electricity supply in the approved form (paragraph 2(b) Regulation).
• The authority assesses and approves the premises for the purpose of connection to the premises.
• Capital contribution connection charge and security charge required by the Disco shall be paid by the customer.
• Disco to connect customers supply address within 48 hours.

Regulations 1 and 2 of the said Connection and Disconnection Procedures for

• Electricity Services provides:

Regulation (1) states the protocol for the supply of electricity to an existing supply address

• Application is his (customers) name as per approved format
• Terms and condition of Disco approved by commission to be accepted
• To Pay connection charge or security deposit required by Disco and approved by Commission.
• To Provide Disco with acceptable identification and all information necessary to enable the Disco to arrange to supply electricity to the address

(a) The Disco shall  provide the customer in writing terms and condition of supply approved by Commission.

(b)     The Disco shall connect customers supply address as soon as practicable latest 48 hours after application.

(c)      Unless otherwise agreed with the customer: the Disco shall ensure that all future electricity bills for the address shall be issued in the name of the customer.

The regulation also provide rights for consumers; Regulation 4.2.1 Right to expeditious and easy connect and right to freedom from unjustified disconnection.

The connection and disconnection procedure Regulation set out the procedure for the connection of a consumer who has applied for the supply of electricity.

Regulation 2(c) of the Regulation actually seeks to forestall cases where tenants move into new premises formerly occupied by another tenant who is indebted to a disco and is now required to clear the debt incurred by the former tenant.

Regulation 5 also  provides that Disconnection is subject to certain conditions which  include reasonable notice of the  amount owed date of proposed disconnection where based on outstanding bills.   No notice is required if there is an illegal connection or the installation is dangerous to health and the integrity of the network.

The pertinent question before the Court is has the Applicant fulfilled all necessary conditions to qualify him to have electricity connected to his premises.

The Applicant appears to have fulfilled all the conditions laid down in the above stated Regulation.

The Defendant however contends he is yet to fulfill one condition i.e payment of another outstanding bill.

The Court agrees with the Defendant that the premises 2 Adegunwa Street, and 7B, Brown Road are  one and the same premises  as the account Numbers are the same from a perusal of the bill and they are issued in the name of the former landlord  Eni Damien Eni. Which debunke the contention of the Applicant.

The next question is

• Whether payment of an outstanding bill in a premises is a precondition for electricity connection.
• Is the Claimant liable to pay the outstanding bill of a former landlord before he can be connected.

The Defendant contends that Regulation 1b of the NERC Connection and Disconnection Procedures for Electricity Services 2007 state clearly that for supply of electricity to an existing supply address the customer shall accept the terms and conditions supply of the Distribution Company approved by the Commission.

They further contend that payment of outstanding bills in respect of the premises is one of the terms and conditions given to the Claimant and same is approved by (NERC) Nigeria Electricity Regulatory Commission.

Regulation 12 of the Connection and Disconnection Procedure Regulation for Electricity Services 2007 provides as follows:-

Every Disco shall reconnect electricity within the period stipulated in the customer service standards of performance in the following circumstances:-

(1a)  whenever a customer disconnected for non payment of electricity bills pays all the Disco’s charges approved by the Commission.

They contend the demand that the Claimant pay outstanding bills in respect of the premises is lawful.

The question that will then arise is who is a customer or consumer.

As stated earlier in this Judgment a Consumer means any person supplied with electrical energy by a licencee.

Section 99 ESPR No. 6 2006) any end user of electricity who is a customer of a distribution licencee. The following persons are also deemed to be consumers it the person is temporarily disconnected or otherwise without service or a person who applied for or is yet to receive service.

Is the Claimant truly the customer of the Defendant in relation to the outstanding bill in respect of the premises.  He is definitely a customer/consumer as per the definition in Section 99 of ESPR but not in relation to the outstanding bills Mr. Eni Damien Eni  is the person who falls within the said definition  as he consumed and utilized the electricity services supply that resulted in the un paid bills.

The Court finds that in this case there are two consumers/customers in respect of the premises in question, first we have the previous landlord Mr. Eni Dameni Who consumed electricity and failed to pay his bills which obviously resulted in disconnection secondly we have the Claimant who is applying for and is yet to receive service, both in respect of the same premises, which is known as either 2, Adegunwa Street, or 7B, Brown Road.

The Court finds that just as Regulation 2 (c) of the Connection/Disconnection protocol  states that unless otherwise agreed with the customer, it must ensure that all future electrical bills for the address shall be issued in the name of the customer.

This must mean that for the new customer /consumer, tenant the said Regulation was to forestall cases where a new occupant  in a premises formerly occupied by another occupant who is indebted  to a   disco, required to clear the debt incurred by the former occupant or as in this case the former landlord and a new landlord.

The Court finds that the Claimant in more or less a new consumer and the Disco  is not entitled to require from him the payment of outstanding arrears left unpaid by the former consumer (Landlord) unless the incoming landlord (consumer) has undertaken with the former landlord (consumer) to pay or exonerate him from the payment of the arrears where such an agreement exists the Disco is entitled to require payment of the arrears  from the new consumer as a condition of continuing the supply of electricity to the premises  but it has no personal nemedy against the incoming landlord /consumer.

CANNON BREWERY CO. VS. GAS HIGHT COKE CO. 1904  A. C. 331

HALSBNRY’S LAWS OF ENGLAND PARA 140 PAGE 84 4^TH EDITION VOL 16

In the case since there was no evidence of any such agreement between the two consumer the Court finds that the refusal to connect the Claimant to the electricity grid until further payment of a bill owed by Mr. Eni Dameni Eni. (The former landlord) has been paid is unlawrul.

In this case the new consumer the Claimant herein and the  Defendant had reacted  an agreement in respect the outstanding bill.  the Court finds that the claim for refund of ₦605,120. (Six Hundred and Five Thousand, One Hundred and Twenty Naira) paid pursuant to voluntary negotiation between the parties is not tenable, t both parties are estopped from renenging on the agreement reached, which was pay the said amount and the premises will be reconnected to electricity supply.

The Court observe the main reason why the Claimant want a refund, was when he was under a misconception that he paid the bills incurred in a a separate premises the Court has however found that the addresses 2 Adegunwa Street and 7B Brown Road  refer to one and the same premises  Estoppel as defined in Blacks Law Dictionary 9^th Edition  page 629 as a bar that prevents one from asserting a claim or right that contradicts what one has said or done before or what has been legally established

ASIRU VS. ASIRU (2013) LPELR 22075 (CA)

The Court finds that outside of the strict provisions of the  law/regulations, the parties had reached an agreement whereby the Claimant had negotiated the  outstanding electricity  bills, the amount had been agreed by both parties and that when the Claimant pays the Defendant he will be connected to the electricity grid.

Neither party can renenge/resile on this voluntary contract as they are bound by the contract or agreement

SEE MINAJ HOLDINGS LTD VS. ASSET MANAGEMENT CORPORATION OF  NIGERIA  AMCON 2015 LPELR 204050

The Court thus finds that the Defendant is to connect the Claimant pursuant to their voluntary agreement and pursuant to the provisions of the Connection and Disconnection procedure  for electricity services 2007 of NERC.

The next issue is the question for determination and reliefs sought.

THE COURT THUS ANSWER THE QUESTION FOR DETERMINATION AS FOLLOWS:

• In respect of question 1 the Defendant can refuse to connect the Claimant to electricity supply if the unpaid electricity bill was consumed by the Claimant in respect the premises but if by a 3^rd party the Defendant cannot refuse to connect the Claimant to electricity supply unless  there is private agreement stating
• In respect of question 2 it will only be unlawful in the latter instance as the provisions  allow the Defendant disconnect for non-payment of dues charges, bills etc. provided  requisite pre-conditions are complied with

EHINIEN VS. BENIN DISCO 2016 LPEKR 40814 (CA)

• In respect of question 3 as stated above the negotiation and agreement between the parties for the payment of ₦605,120. (Six Hundred and Five Thousand, One Hundred and Twenty Naira) was voluntary and both  parties are estopped from reneging from same thus it was not unlawful, null and

In respect of question 4 the Court has found that the 2 addresses 2 Adegunwa Street, Ikate, Lagos and 7B Brown Road Aguda Lagos relate to one and the same premises.

The reliefs 1, 2, and 3 are based on the premises that the two (2) addresses relate to separate and distinct premises whereas the Court has found that the two addresses 2, Adegunwa Street and 7B, Brown Road relate to one and the same premises and are thus based on wrong premises.

In respect of relief 4, by virtue of the regulations and the voluntary agreement between the parties the Claimants premises should be connected to the electricity grid as he has fulfilled all lawful precondition.

As regards relief 5 for the refund of monies the Court has already found that the payment of the monies was pursuant to a voluntary agreement between the parties and they are stopped from renenging from same, thus the Claimant will not be entitled to the said refunds.

General damages means what the law premises to have accrued from the wrong complained of they do not need to be specifically pleaded or proved by evidence

SEE SALITU ABDULAZIZ & ANOR VS. HON. A. G. OF THE FED. 2013 EPELR 22128 (CA)

The Court finds the Claimant is entitled  to general damages for failure of the Defendant to connect the Claimant’s premises to  electricity after fulfillment  all pre-condition voluntarily agreement between the parties.

THE COURT ORDERS AS FOLLOWS:-

• Reliefs (i), (ii) and (iii) are refused and hereby dismissed
• Order mandating the Defendant to connect the Claimant property known variously as 7B Brown Road Aguda and 2 Adegunwa Street Ikate to the electricity grid immediately.
• Relief (v) is refused and hereby dismissed.
• General damages in the sum of ₦1 Million (One Million Naira) for the trauma and pain which the Defendant subjects the Claimant to over its refusal to connect the Claimant premises to electricity.

This shall be  the Judgement of Court.

HON. JUSTICE I. O. HARRISON (MRS)

JUDGE

6/8/2020