Public Utilities, Consumers And Legal Implications

By Stanley Maduabuchi Ofoegbu Esq.

Generally, most consumers act like patients who are in dire need of accessing medical treatment in different medical facilities. A typical patient who is sick and taken to the hospital will only be interested in getting well and better. In other words, he is only interested in recovering from the said illness and nothing more. At that point, he is not aware or interested in knowing any legal rights accruing to him as a patient. Even when he is aware, ensuring that those legal rights are protected to him, will to him, occasion delay and may affect the kind of treatment he may be given considering the level of the legal knowledge of our Medical practitioners here in Nigeria where most of them turn hostile the moment you try to show that you as a patient have some medical rights to be protected. Accordingly a typical Nigerian patient, will not want to bother himself with the legal rights provided he will be attended to and remedies proffered to him to get well soon. In the same vein, a typical Nigerian consumer of public utilities will only be interested in the acceptance of the services being rendered without minding the mode at which the said services were or was rendered. No doubt, many consumers of public utilities are not even aware of their legal rights and so, how can they be enforced? Little wonder they say, knowledge is power. The essence of this shot essay is to x-ray the nature of some public utilities and their legal implications.

The ideology that consumers are usually the king does not hold any water within the operation of public utility treatment of the consumers in Nigeria. This essay focus attention on the obligation of some public utilities providers such as electricity distribution companies, water board of various states and the telecommunication companies among others.

Who then is a consumer of public utilities? The term consumer encompasses such category of persons as hirers, buyers, hotel guests, commuters, medical patients, legal practitioners and all users of goods and services in one way or the other. These group of persons, deals with business and persons who are assumed to be superior or higher to them in technical know –how, knowledge and complexities of the goods and services in question. Accordingly, it is safe to say that a consumer is a person who purchases, uses and maintains or disposes product or services.

A public utility is a business concerned with the interest of the public, the most conventional, which is regulated by statutes or judicial decisions and common laws. Although the Utilities charges commission decree does not expressly define the term, in its second schedule, it enumerates some public utilities within the regulatory mandate of the commission. However, it is not proper to say that others not listed in the utilities charges commission decree are not considered as part of public utilities for which legal rights of consumers accrues.

The principles of Economics which is governed by common law and statutes is that a consumer is entitled to derive satisfaction from the goods and services rendered or delivered to him for which money is paid by him or another on his behalf. Accordingly, since utility means the amount of satisfaction a consumer derives from the usage of goods and services, he is bound to furnish some amount of consideration directly or indirectly.

The question then is, what happens when goods or services are poorly rendered to the public who usually make payments for the provisions of those services? Note that the services here need not necessarily mean essential services as usually undertaken by the states it includes both services rendered by private firms to which large number of the public subscribes to.

The supply of water which is an essential commodity is undertaken mostly by various states water board. In some states, there exists a ministry of water resources that over sees the affairs of the water board. Their major duty is to ensure that water is made available to individuals who subscribe to the supply of water especially for a reasonable fee. What happens if the water is not supplied or adequately supplied? It is not in doubt these days to see water boards supplying water with different colours against human consumption. Colourful water can never be palatable for human consumption. What then is the way out if water board supplies such type of water to the public who subscribes to the supply of water? What about the disconnection of water supply from a building without adequate notice? What about the shortage of water supply without adequate notice being given to members of the public even when considerations usually in monetary terms are furnished for the supply of the water?

It has been the law from time immemorial that consideration is an element of a valid contract either between persons or persons and state government see CURRIE V MISA {1875} L.R 10 Exch 153 at p. 162. Where there is no consideration, there is no valid and operational contract that can be enforced between parties. Unfortunately, members of the public who subscribe to the supply of water by water board for a fee or other forms of consideration are not aware that a valid contract has been established in the absence of other vitiating elements which gives them the right to commence an action against the ministry of water resources and water boards for poor or no supply of water which a reasonable fee is usually paid for. In other words, in the absence of statutory provisions mandating the ministry of water resources including water board to supply adequate and palatable water to members of the public who subscribe to them, contractually, they are bound by law to so supply adequate water to members of the public. They are legally and duty bound to issue adequate notices when water will not be supplied or where there is shortage of the said supply. However, issuance of the notice does not absolve them from legal liabilities when they fail to supply water.

Failure to supply water which is being paid for, amount to breach of contract same, which is actionable in court no matter how minute the breach may appear. It is unfortunate, that 90 percent of Nigerians are not even aware that state water boards and ministry responsible for the supply of water can sue and be sued where and when necessary. It is recommended here that ministry of water resources and states water board should try as much as possible to live up to expectations irrespective of whether members of the public know and understood the fact that they have rights which ought to be respected and capable of been enforced.

While water board are busy acting in their own whim and caprices, the electricity distribution companies are not left out. In fact, they are birds of a feather with the various states water boards. They are govern by the same principles of law. In other words, besides the statutory provisions such as the Electric power sector reform Act, the relationship between the various distribution companies and the public who subscribe to the supply of power to their various homes are contractual. This is because; the relation contains all the essential elements of a valid contract which includes, offer and acceptance including consideration among others. Accordingly, where there is a breach in the contractual relation such as wrongful disconnection occasioning damages to properties, disconnection without adequate notices, poor power supply or no supply at all, rationing of the power supply as a result of inefficient functioning of transformers, illegal and skyrocketed bills not commensurate with power consumption, forcing of new intakes to pay or clear the bills consumed by previous users who relocated among others. All these, are various ways by which the distribution companies breach the terms of contract between them and the public users for which any affected individual can approach the court for an action and for a redress which most times, warrant the payment of monetary damages go the affected victim or user.

This however, is not to say that the distribution companies on their own have no cause of action. Just like every individuals with his contractual rights, the distribution companies are treated like human being in the eyes of the Law. They too can sue a subscriber who breach the terms of the contract. It is immaterial that the terms of the contract are not written down. Where a party erects a house or even rent an apartment and invites an electricity distribution company to supply power or even proceed to apply for a metre and same was granted, a contractual relation immediately exist between the duo and any of the parties can enforce same when breached as contract can be entered orally, in writing or by conduct of the parties.

It is interestingly interesting to know that over the years, Nigerians now understood the fact that electricity distribution companies can be sued for wrong doings. We have recorded series of cases emanating from High courts of different jurisdiction and even getting to the court of Appeal against various distribution companies. This is a welcome development as it helps to keep the companies on their toes. It is recommended here that Nigerians should not just keep mute over the anomalies of the electricity distribution companies alone, the water boards of various states should be given their own portion of food when they misbehave either by breaching statutory provisions of the law or contractual relations.

What about telecommunication companies such as MTN Nigeria, GLO, AIRTEL, ETISALAT and others? Just like the commercial banks, where an adult approach the bank and make an offer to have an account opened in his name and same is accepted, he automatically becomes a customer of the bank and a contractual relationship begins to run between him as the customer and the bank with each party entitled to enforce his own rights in the event of breach. In the same vein, an adult who purchase and registered a sim card with any of the network providers, has automatically becomes a customer to the said network company by virtue of such purchase and registration. In Nigeria, telecommunication network is regulated by the Nigerian Communication Act which is the major law. Others includes the Constitution of Nigeria, Federal Competition and Consumer Protection Act, the NESREA Act among others. All the relevant Acts have provision depending on each case where subscribers can safely rely to enforce a right accruing to him or her.

In line with the principles of economics, a subscriber to any network who has complied with the necessary requirements is bound by law to enjoy good and quality service. A subscriber who has sufficient credit in his registered line should be able to make calls and send out messages. A subscriber who subscribes to data usage, should be able to surf the net using the said data. A subscriber, who is not under any impediment, should be able to receive calls and messages using his phone lines. Where any of the above and more is lacking, a subscriber who suffers damage as a result of inefficient network service, the network provider will be liable for breach of contractual relation depending on the circumstances of each case. This also includes unsolicited text messages from network providers and secret extortion of credit balance and data. It is immaterial that a public apology will or was tendered by a chief executive officer of the company. Breach of contract, remains a breach irrespective of the magnitude of the apologies. The law is trite that parties are bound to perform their obligation under the contract they have entered into. Accordingly, where the telecommunication company fails to live up to expectations, an affected subscriber can approach the court for a redress see MTN NIGERIA LIMITED V CHINEDU (2018) LPELR 44621 CA, MTN NIGERIA LIMITED V AMADI (2012) LPELR-21276 (CA), ANDREW V MTN NIG LTD (2016) LPELR 41181 (CA), MTN NIG LTD V ANENE (2018) LPELR -44447 (CA), EZUGWU EMMANUEL ANENE V AIRTEL NIG LTD among others.

In summary, it is expected that providers of public utilities should try as much as possible to live up to expectations. The idea of Nigerian mentality in allowing things to go as a usual practice should be jettisoned. A closed mouth they say is a close destiny. Where a customer or subscriber keeps mute following the anomalies committed by a service provider, the service provider will extend same anomalies to other customers until it becomes a daily norm and Nigeria continue to get worse. Hence, we are the cause and the solutions to our problems.

Stanley Maduabuchi Ofoegbu Esq.