Federal Court Decides on Availability of Civil Injunctive Relief in Aid of Statutory Duties and as a Back-Up to Statutory Remedies and Sanctions.

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The Federal Court in Tenaga Nasional Bhd v. Tan Sooi Lek & Ors [2022] 6 CLJ 177   recently ruled that Tenaga Nasional Bhd (“TNB”), as a licensee under the Electricity Supply Act 1990 (“the Act”), may resort to civil injunctive relief in aid of its statutory duties under the Act and as a back-up or in addition to statutory remedies and sanctions provided under the Act.

The appeal arose from a dispute between TNB and landowners who refused to allow TNB to access transmission towers located on their land. TNB intended to enter to carry out maintenance, repair and upgrading works pursuant to s. 13 of the Act. It was further discovered that the landowners rented the rentice area (which is the tract of land reserved for the use of TNB for access to the transmission line, running below and along the length of the transmission lines) to a third party, who was cultivating vegetables and had erected structures without permission from TNB, thereby posing a danger to public safety.

At the High Court, TNB successfully obtained an ex parte interim injunction against the Respondents directing them to allow TNB to enter the land to carry out the works and prohibiting them from conducting any activities within the rentice area. Relying on this order, TNB completed the necessary works, but was not allowed by the Respondents to remove any of the vegetation or structures in the rentice area. At the subsequent inter partes hearing, the High Court dismissed TNB's application for the interim injunctions sought on the basis that they were academic, as the necessary works had already been completed.

On appeal, the Court of Appeal concurred with the decision of the High Court, finding that the application was redundant. The Court of Appeal further found that, in any event, the penal provisions under s. 37(12)(a) and (b) of the Act were sufficient to meet the objective of the injunctions sought and the public interest need.

Leave to appeal to the Federal Court was granted to TNB on the following questions of law:

1. Whether TNB, as a licensee under the Act, may resort to civil injunctive relief in aid of carrying out its statutory duties under s. 13 of the Act, regardless of the possibility of criminal sanction pursuant to s. 37(12)(a) and (b) of the Act?
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2. Whether a public authority (such as TNB) may resort to injunctive relief(s) as a back-up to, or in addition to, statutory remedies/sanctions (such as that in s. 37(12)(a) of the Act) in circumstances where public interest necessitates it and/or where it would harm public interest to await the process of the statutory remedy/sanction?

At the Federal Court, TNB's submissions were, amongst others, as follows:

1. TNB's statutory duty and power to maintain, repair and upgrade its installations are to be exercised to serve the general public purpose of the Act, which is to serve the public interest in the supply of electricity at reasonable prices.
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2. In performing that statutory duty, TNB also has a duty to maintain the area under the supply lines. Thus, TNB's duty is continuous in nature and the injunctions sought were not academic, as such a duty would not be exhausted until the rentice area was cleared, due to the risk to public safety caused by the structures and activities being conducted in the rentice area.
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3. The Court of Appeal erred in holding that the criminal sanctions under s. 37(12)(a) and (b) of the Act were sufficient to meet the objective of the injunctions sought and the public interest need. This is because the existence of a criminal penalty is generally not a bar to the granting of injunctions,  and injunctions may be granted in aid of the performance of statutory duties and the exercise of statutory powers,  as well as where it would be effective in restraining the continuance of unlawful operations.
   

The Federal Court found in favour of TNB, answering both questions of law in the affirmative and remitting the matter to the High Court for the hearing of the application on an inter partes basis. The Court reached its decision on the following grounds:

1. The availability of criminal sanctions under the Act does not preclude TNB from seeking civil injunctive relief in aid of carrying out its statutory duties, and there is no jurisdictional requirement that TNB must first prosecute for the alleged offence. The court has the discretion to grant an injunction immediately when there is a plain breach of the law and the unlawful act seems likely to be repeated or continued.
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2. The inter partes hearing of TNB's application for injunctive relief was not academic because the ex parte injunction was merely interim in nature and could be revoked or set aside. Secondly, there were altogether four (4) main prayers in the application and the High Court only granted one (1) prayer at the ex parte hearing of the application. The question of whether the three (3) other prayers ought to be granted pending the trial of the action remained at large and ought to be decided at the inter partes hearing. Thirdly, and importantly, the ex parte hearing of an application for an interim injunction does not end with the granting of that injunction. It must be followed by the inter partes hearing for the merits of the case to be considered in determining whether the injunction ought to have been granted or not.

Although the decision primarily concerned the interpretation of the Electricity Supply Act 1990 and the role of TNB as a licensee thereunder, it appears from this decision that public authorities may resort to civil injunctive relief to aid the performance of their statutory duties, even if the relevant statutes prescribe criminal sanctions for the acts sought to be restrained. The effect of this is that a public authority would not need to wait for an individual to be prosecuted pursuant to the statutory remedies/sanctions before it may apply for an injunction to stop the continuance of the act complained of. In this connection, the Federal Court held as follows:

“[29] It is quite clear from the above-cited cases that the availability of criminal sanctions or other statutory remedy does not preclude the courts from granting injunctive relief especially when there is a plain breach of a statute. There is no jurisdictional requirement that TNB must first prosecute for the alleged offence. The only jurisdictional requirement is that the court should have material before it from which it can conclude that unless an injunction is granted, the defendant will breach the law or will continue with the breach of the law. It is open to the court in its discretion to grant an injunction straightaway when the breach of the law is plain and the illegal act has been done and seemingly is intended to be repeated or continued.

[30] In cases where public interest is involved, we do not think that the courts should leave it to the criminal law, ie, wait until an offence had been committed, or whether, where it was obvious that a criminal offence would be committed which would involve suffering or serious disadvantage to those which the criminal law was designed to protect. We are of the view that in relation to many statutory functions the power to bring proceedings in court is usually a matter of implication. As such, whenever Parliament has enacted a law and given a remedy for the breach of it, nevertheless, the High Court always has a reserve power to enforce the law so enacted by way of an injunction or declaration or other remedy. The High Court has jurisdiction to ensure obedience to the law whenever it is just and convenient so to do (Attorney-General v. Chaudry [1971] 3 All ER 938 at 947).

[31] For the foregoing reasons, we do not think that the criminal sanctions under sub-ss. 37(12)(a) and (b) ESA 1990 are sufficient to meet the objective of the injunctions sought and the public interest need. If a public utilities provider like TNB is given a statutory responsibility which it is required to perform in the public interest, then, in the absence of an implication to the contrary in the ESA 1990, it is entitled to apply to the courts for an injunction to prevent interference with its performance of its public responsibilities. In short, we are of the view that TNB is not precluded from resorting to the courts for injunctive relief in aid of carrying out its statutory duties under s. 13 ESA 1990.” (emphasis added)‍

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The Firm's Steven Thiru, David Mathew and Priscilla Lim appeared as Counsel for TNB in the Federal Court.

*Written by Priscilla Lim and Prishanth Linggaraj
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<sup>1. Cooper v Whittingham [1880] 15 Ch.D. 501, Stafford BC v Elkenford Ltd [1977] 2 All ER 519.
2. Broadmoor Health Authority v Robinson [2000] 2 All ER 727.
3. Wychavon DC v Midland Enterprises [1998] 1 CMLR 397.
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The content of this article is of a general nature and does not constitute legal or other advice or the provision of legal or other professional services, and shall not be relied upon as such. The opinions and views, if any, expressed in this article, are solely the contributor's and not of Messrs Steven Thiru & Sudhar Partnership. Messrs Steven Thiru & Sudhar Partnership accepts no responsibility for any loss which may arise from reliance on the information contained in this article.‍‍‍