How to Establish Breach of Duty of Care in Negligence against Electricity Distribution Companies and other regulatory agencies in the Power sector in Nigeria.

Introduction:

Breach of duty of care in negligence occurs when a duty of care exists and was not followed. Breach of duty of care is an important component in negligence cases and to establish breach of duty of care, the underlisted court cases as well as sections of the EPSR Act, 2005; NERC Regulations and Consumer Protection Council Act, have been considered with respect to the duties of electricity distribution companies (Discos), NERC and minister of power in the power sector in Nigeria.

Who are Electricity Distribution Companies?

Electricity distribution companies are responsible for the network of power lines, underground cables, substations and low-tension cables that get electricity to home or business in the area where you live. They can be in breach of duty of care to individuals and businesses by virtue and pursuant to the following provisions of these relevant sections of laws guiding the electricity and power industry:

a.        Section 67 of the Electric Power Sector Reform Act, 2005 which states as follows:

“Subject to such terms and conditions as the Commission may fix in the licence, a distribution licence shall authorize the licensee to construct, operate and maintain a distribution system and facilities, including, but not limited to, the following;

The connection of customers for the purpose of receiving a supply of electricity; The installation, maintenance and reading of meters, billing and collection; and

Such other distribution services as may be prescribed for the purposes of this section.”

b.       Section 7 (3) (h) of the NERC reporting compliance regulations, 2009 which states as follows:

“Distribution licensee (h) Customer Complaints

“Distribution licensee shall submit to the Commission a monthly customer complaints report and a monthly customer register in accordance with the requirement on Schedule 4A and Schedule 4B to these regulations.”

c.        Most times electricity distribution companies are in violation of NERC, Customer Service Standards of performance for Distribution Companies Regulations No. 40 2007 pursuant to section 32 (e) of the Electric Power Sector Reform Act, 2005 which states as follows:

“To ensure the safety, security, reliability and quality of service in the production and delivery of electricity to consumers.”

Who is Nigerian Electricity Regulatory Commission (NERC)?

NERC is an independent regulatory body with authority for the regulation of the electric power industry in Nigeria. In some circumstance, this regulatory body can be held in breach of the following sections of the laws:

a.       “Section 80 of the Electric Power Sector Act, 2005 which states as follows:

“The Commission shall develop in consultation with the licensees, the following materials –

Customer service standards; Customer complaint handling standards and procedures…etc”

b.       Section 81 of the Electric Power Sector Act, 2005 which states as follows:

“The Commission shall develop, in consultation with the licensees and other interested parties, the following performance standards and codes –

Standards of overall performance in connection with the provision of electricity supply services and in connection with the promotion of the efficient use of electricity by consumers.”

Where an electricity consumer suffers damages or loss of property due to the negligence and breach of duty of care as a result of faulty electricity supply or installation, such an individual or company could seek legal redress in court against the electricity distribution company, Nigerian Electricity Regulatory Commission (NERC) and the Minister for Power by virtue and pursuant to section 9 and 12 (b) of the Consumer Protection Act CAP C25, Laws of the Federation of Nigeria, 2004 which states as follows:

Section 9 – Unforeseen hazard and duty to inform public:

(1)      “it shall be the duty of the manufacturer or distributor of a product, on becoming aware after such product has been placed on the market, of an unforeseen hazard arising from use of such product, to notify immediately the public of such risk or danger and cause to be withdrawn from market such product.”

Section 12 – Contravention of enactment protecting consumer:

“Any person who, in contravention of any enactment whatsoever for the protection of the consumer –

(b)     Provides any service or proffers any information or advertisement thereby causing injury or loss to a consumer,

is guilty of an offence under this Act and liable on conviction to a fine of N50, 000.00 or to imprisonment for a term of five years or to both such fine and imprisonment.”

The above statutory provisions exist in addition to the right of affected electricity consumers to institute civil suits for compensation and restitution, which the Consumer Protection Council guarantees. Furthermore, section 8 of the Consumer Protection Council Act, CAP C25, LFN, 2004 states as follows:

“Whereupon an investigation by the Council or State Committee of a complaint by a consumer it is provided that –

A consumer’s right has been violated; or

That a wrong has been committed by way of trade, provision of services, supply of information or advertisement, thereby causing injury or loss to the consumer, the consumer shall, in addition to the redress which the State Committee, subject to the approval of the Council, may impose, have a right of civil action for compensation or restitution in any competent court.”

Who qualifies as a consumer of electricity?

The courts have held in Amadi v. Essien (1994) 7 NWLR (Pt.354) 91 that for a person to qualify as a consumer of NEPA (electricity distribution companies), he needs not to be a registered consumer of the National Electric Power Authority. Thus, the court held as follows:

“To entitle a person to invoke judicial power, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediately danger of sustaining an injury to himself”

It is not in every case whether there is no direct contractual relationship between the consumer and electricity distribution company that an action cannot be founded. The relationship may not be contractual in nature, but the law will be correct to read into the relationship of the parties an implied undertaking on the part of the electricity distribution company not to injure the consumer.

Sufficient interest to ground locus to the consumer to sue is an interest which is peculiar to the consumer, an interest which he does not necessarily share with the members of the public. The interest in the subject matter must be over and above what the ordinary members of the society have. The interest must be unique and proprietary. See also the case of Center for Oil Pollution Watch v. NNPC (2019) 5 NWLR (Pt. 1666) 518.

However, section 100 (1) (10) of the Electric Power Sector Reform Act, states that:

“Consumer” means any end-user of electricity who is a customer of a distribution licensee that is not an eligible customer and, for the purposes of filing a complaint with the Commission and for any other reason that the Commission may determine, a person who is temporally disconnected or otherwise without service, provided that a person who has applied for, but had yet to receive, service shall also be deemed to be a consumer”.

However, the word “customer” and “consumers” are used interchangeably though accorded different meanings under the EPSR Act and Regulations. For instance, the NERC, Regulation 2 (8) on Customer Complaints Handling: Standards and Procedure 2006, defines a CUSTOMER as:

“Any person or organization supplied with electricity for his own use by a distribution licensee or by any other person engaged in the business of supplying electricity to the public under the Electric Power Sector Reform Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity from a distribution licensee or such other person as the case may be”.

The above cited section of the law seeks to protect electricity consumers from defects in electricity services by licensees and other electricity trading companies. Though the Act does not define what constitutes ‘a defect’ in the electric power sector, however, the definitional gaps have been filled by the NERC, Regulation 2 (1) on Customer Complaints Handling: Standards and Procedure 2006 which defines “defect” for the purpose of Consumer Protection as:

“a fault, imperfection or shortcoming in the quality, standards of service, equipment or material which is required to be by or under any law or regulation for the time being in force or under any contract or as claimed by the customer in relation to electricity service”.

The regulation under section 2 (12) also defines deficiency in relation to the Electric Power Sector as:

“Any fault, imperfection, shortcomings or inadequacy in the quality of service which is required to be maintained by or under any law or regulation or has been undertaken to be performed by a distribution licensee in pursuance of a contract agreement or otherwise in relation to electricity service or performance standards, viz; interruptions, failure of power supply, voltage complaints, metering problems of power supply to the customer in contravention of the EPSR Act, 2005.”

What causes electric spark on electricity cables?

Having established, the customer relationship between consumer and electricity distribution company, our next issue is to highlight the possible causes of electric cable spark that is capable of cutting a high-tension or low-tension wire.

Sparking cables, loose connections and snapping wires have been identified as some of the major causes of damages or injuries to customers of electricity distribution companies. To curb such incidents from occurring, electricity distribution companies always provided 24/7 customer care lines to report faulty cable and sparking light from their installations, but unfortunately, there is always slow pace in response or feedback from the electricity distribution companies.

It is also not in doubt that the electricity distribution companies usually experience bureaucratic bottlenecks in getting the necessary approvals or materials from their high ranks to salvage situation or fix repairs which might lead to injuries or damages to customer.

The causes of electric spark are:

a.        Deterioration of component due to elongated period of spark:

Electricity is generated at various power stations and then sent through transmission lines which provide electric power to homes and businesses. The flow of electricity and electrical current is supplied through electrical wiring which begins the path that allows the flow of electrical power through each circuit. The flow of electricity is referred to as “LOAD” which describes the amount of electricity that is flowing through the circuit. This amount of electricity can be measured in watts and amperes also known as amps.

A spark occurs when power is turned on or off. When a device or equipment is connected to an electrical circuit and is in the ON position, there is an electrical load that is being produced which causes the flow of electricity. When the flow is started or stopped, it can produce a spark of electricity between the two components which provide the connection of electricity.

Common components that provide electricity where a spark may be produced are circuit breakers, switches, outlet and cord plugs or any two components which complete the circuit and provide the flow of electricity.

An electric spark which can over time, cause deterioration between the points of contact, which can then produce a failure of connection which was necessitated by the inefficiency of the electricity distribution company to replace the bad receptacle outlet where the contacts wear out due to this electrical spark, which is also known as arcing.

It is important to note that the higher the electrical load, the bigger the spark and faster the deterioration of the joint of the two components. For instance, the size of an electrical spark that is produced when a device or equipment is turned on or off will depend on the amount of electricity that will be required by the device or equipment. Thus, a switch that turns on a light fixture with a standard 60watt light bulb will produce a smaller spark than 11KV electric cable and the resultant effect will ultimately be fatal on any person or appliance it comes in contact with.

b.       Old outlets and electrical components:

Furthermore, old electrical outlets pose serious problems to smooth distribution of power by electricity distribution companies. Some of these electricity poles, aluminum conductors/cable and installations must have been around for over 30 years and as a general rule, electrical outlets gradually wear out over time. As the years pass, the connections will gradually loosen, increasing the chances that a short circuit will occur and start a fire or give off a spark. Thus, the electric cables and installations which some of the electricity distribution companies are currently making use of are obviously old, worn out and pose serious hazards which is susceptible to causing injuries and damages to consumers.

Under section 32 (2) (b) (c) and (d) of the Electric Power Sector Reform Act, NERC is empowered to undertake the following objects and functions –

For the furtherance of the objects referred to in subsection (1) of this section, the Commission shall perform the following functions –  

“(b)   Establish or, as the case may be, approve appropriate operating codes and safety, security, reliability and quality standards;

(c)      Establish appropriate consumer rights and obligations regarding the provision and use of electric services;

(d)     Licence and regulate persons engaged in the generation, transmission, system operation, distribution and trading of electricity.”

Other penalties that electricity distribution companies may face as a result of breach of duty of care and negligence would be where the Minister of Power pursuant to section 26 (3) (c) (i) (ii) (iii) and (d) of the EPSR, Act may issue direction to terminate, suspend or restrict electricity distribution company’s right to participate in the electricity and ancillary services within the power distribution sector for breach of duty care and non-compliance with the NERC regulations and the extant provisions of the Act. NERC may also be penalized by the minister of power for breach of monitoring the activities of electricity distribution companies and as empowered by its establishing Act.

How to establish breach of duty of care in negligence?

Negligence is any conduct that falls below the standard established to protect others against unreasonable risk of harm and to establish liability for breach of duty in negligence and placing reliance on the cases of Donoghue v. Stevenson [1932] A.C. 562 at 577 and Merchantile Bank v. Abusomwan (1986) 2 NWLR (Part 22), a plaintiff must prove:

a.        The defendant owed a duty of care to the plaintiff.

b.       The defendant breached that duty.

c.        The breach caused harm to the plaintiff.

d.       The plaintiff suffered an injury/damage.

The above principles highlight the standard of what a “reasonable person” would have done in the circumstances of the case in order to decide whether a person has broken his/her duty of care in the tort of negligence.

Finally, in situations where the electricity distribution companies or NERC are investigated and found to be in breach of duty of care or negligent in the discharge of their obligations to consumers pursuant to sections 32 (e) and 67 (b) of the EPSR, Act, 2005 which was expressly couched to ensure the safety, security, reliability and quality of service in the production and delivery of electricity to consumers, they will be liable to pay damages commensurable to the quantum of loss that the consumer have suffered where there is sufficient proof of evidence to back up such losses.

For further legal assistance on topical legal issues, do not hesitate to contact the author:

Kingsley Izimah, Esq.

Principal Partner,

SK Solicitors 

0806-809-5282 

www.sk-solictorsng.com

sksolicitors.ng@gmail.com or

info@sk-solicitorsng.com

SK Solicitors

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