Phones and accessories shop located at the heart of Lalubu Road, Abeokuta, capital of Ogun State and trading under the name of Bright Daystar Digitals, may be prosecuted for selling malfunctioning device to customer, reports ITREALMS.
The company, ITREALMS gathered allegedly deceived a client, Dimeji Kayode-Adedeji, a media practitioner to purchase a Galaxy 33 5G phone with the International Mobile Equipment Identity (IMEI) 353475121057548 at the cost of N250, 000, and few days later was discovered to be malfunctioning.
ITREALMS also gathered that the client upon this discovery, reported the development to the company on number of times, with expectation to do the needful in complying with the warranty guidelines to no avail.
A legal practitioner with Oso-Ikoyi Chambers, Barrister Benjamin Ogunmodede, representing Mr. Dimeji, in a petition made available to ITREALMS and addressed to the management of the company demanded an immediate refund of the sum of N250, 000 paid by the customer for the purchase of the now malfunctional phone, which is still under warranty.
The solicitor said the company having breached conditions and warranties associated with the contract with the customer, the money should be refunded within next seven days of receipt of the letter or charged to court.
‘We are solicitor to Dimeji Kayode-Adedeji (Founder of Penpushing Media) on whose behalf and firm instruction we write you this letter. Our client has consulted us and our services retained with respect to the Samsung Galaxy A33 5g with IMEI: 353575121057548 he purchase from your company’s store on the 16th day of December, 2022 which turned out to be defective’, the letter reads
"Our client briefed us that he paid the sum of N250,000 for the said phone through an electronic transfer from the First City Monument Bank (FCMB) account of our client’s daughter Olabisi Kayode-Adedeji’, the lawyer wrote.
"Our client informed us that the phone produces a bad, humming sound during a call and worse still, the receiver from the other end is unable to hear anything our client is saying on the phone call, which defeats the essence of having a mobile phone’’ Ogunmodede emphasized.
“Our client told us he has been to your store to lay a complaint on the defect in the phone and was referred to your service centre, which failed woefully to provide a lasting solution to our client. We understand that the defect in the phone has caused our client serious injury because as a renowned journalist, he needs the phone for his vocation.
"But the video interviews he conducted with the phone produces an irritating, humming sound. Please note that this constitutes a breach of the conditions and warranties associated with your contract with our client.
"Under Nigerian law, there is an implied condition that a good will be fit for the purpose for which it was purchased. Section 15(a) of the Sale of Goods Law of Ogun State as provides as follows:
"Where the buyer, expressly or by implication makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller’s skill or judgement, and the goods are of a description which it is in the course of the seller’s business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be fit for such purpose.”
"The above provision was reiterated in the NGC Limited v Ngonadi (1985) LPELR-2017(SC). Accordingly, it is implied that the smartphone our client purchased from your store would be smart and be able to make calls and video recordings without any glitch."
"From our view of the invoice your store provided to our client, it states that ‘please note that warranty does not cover the following: Damage caused by short circuit, moisture, dampness, liquid, chemical or spill of food. However, there is no sign or evidence that the defect in the phone resulted from any these elements."
"Where any right, duty or liability would arise under a contract of sale by implication of law, it may be negative or varied by agreement or by the course of the dealing between the parties or by usage, if the usage be such as to bind both parties to the contract."
"However, under Nigerian Law, the above provision does not apply because there has been a breach of a fundamental term-the inability of a smartphone to make calls and record videos effectively-which goes to the very root of the contract. The Court of Appeal Affirmed this position in Associated Bus Co.PLC v Anyanwu(2020) LPELR-49551(CA) where it held as follows:
"Under the Common Law, a party can only be availed of exclusion clause when such party abides by the terms and condition of the contract…Of course, exemption clause cannot avail a party who is in fundamental breach of contract."
"In view of the above, the inscription on the invoice provided to our client, 'Goods sold in good condition are not returnable. No refund once payment (is)(sic) made’ is not applicable in this instance, considering that the said phone was not in good condition at the time it was sold to our client."
"We have the instruction of our client to demand the immediate refund of the sum of N250, 000 (Two Hundred and Fifty Thousand Naira) being the sum paid to your store, for the purchase of the smartphone which turned out to be useless and worthless.
"And we so demand, this sum should be paid within Seven(7) days of your receipt of this letter, failing which we shall bring legal action against your store in the appropriate court of law for breach of contract and damages."
"By virtue of Section 53 (1) of the Sale of Goods Law of Ogun State, ‘where there is a breach of a warranty by the seller or where the buyer elects or is compelled to treat any breach of a condition on the part of the seller as a breach of warranty in diminution or extinction of the price or b. maintain an action against the seller for damages for the breach of warranty. We shall proceed to court without further Notice to you after the Seven (7) days’ notice given to you elapsed. A word is enough for the wise’ You have been severely warned’ the law firm emphasized.
Ayo Mide/Editor
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