Emil Phillips v. Theo Franklyn, Trading as T. Mobile Tec.
THE BARBADOS CONSUMER CLAIMS TRIBUNAL
IN THE MATTER BETWEEN
EMIL PHILLIPS Complainant
THEO FRANKLIN Respondent
Fiona Hinds Chairman
Jamila Burgess Member
Anton Lovell Member
Livingstone Trotman Member
HEARING DATE: February 27th, 2019
DATE OF JUDGMENT: February 27th, 2019
1. This Complaint has been brought by Dr. Emil Phillips, as complainant against the Respondent Theo Franklyn for redress under sections 6, 8 and 9 of the Consumer Guarantees Act, Chapter 326E of the Laws of Barbados. The Complainant is represented by the Office of Public Counsel and Mr. Franklyn represented himself.
2. For purposes of this judgement the definitions referenced in Section 2 of the Consumer Guarantees Act Chapter 326E of the Laws of Barbados refer.
3. In particular the below definitions of Consumer and Supplier refer.
Under section 2 of the Act, “consumer” means an individual who acquires from a supplier goods or a service of a kind ordinarily acquired for personal, domestic or household use or consumption and does not acquire the goods or services or hold himself out as acquiring the goods or services for the purpose of resupplying them in trade or consuming them or it in the course of a process of production or manufacture or in the case of goods does not acquire them or hold himself out as acquiring them for the purpose of repairing or treating other goods or fixtures on land”.
Under section 2 of the Act, “supplier” means a person who in trade supplies goods to a consumer by transferring the ownership or the possession of the goods pursuant to a contract of sale, exchange, lease, hire or hire-purchase to which that person is party; or transferring the ownership of the goods pursuant to a gift from that person or supplies a service to a consumer.”
4. At the outset it is noted that based on the evidence given by both the Complainant and the Respondent, the Complainant is duly qualified as a consumer under the Act and the respondent is duly qualified a supplier of goods under the Act.
5. The Complainant’s evidence is that on the 8th day of July 2017 he visited the respondent’s store at Sheraton Mall where he purchased a Samsung S8 phone for $2,100.00. The Respondent depones that he specifically advised the Respondent that he required the 4G LTE feature and was assured by the Respondent that this feature was included in the phone. He was also advised that the pone was under warranty by Samsung for one year and three months from the Respondent directly.
6. The Complainant states that he paid the Respondent a sum of money on account of the phone and the balance the following day but was given the phone on Saturday
7. In his words, the Complainant stated that the phone worked “in the initial states but in December 2017 he noticed that he started losing coverage and was missing calls and that the pone was not accessing 4G LTE.”
8. He investigated the failing to access the 4G LTE feature with his service provider Cable & Wireless Barbados Limited [FLOW] and was advised by FLOW that the phone did not carry the LTE feature.
9. He returned to the Respondent and advised him of what Flow said but was advised that the Respondent that the 3-month warranty had expired but that he would try to get the phone repaired.
10. Following various attempts to rectify the issue, the phone was returned to the Complainant who observed that in January 2018 he continued to be unable to access the LTE feature. The Tribunal notes that in his evidence the Complainant also stated that he sent the phone to Por-Tab Repairs Inc. being the licensed agent of Samsung in Barbados who by letter dated April 16, 2018 wrote to state that “the Samsung S8 + 64 GB Black IMEI #358792087958583 Serial: R58J54C7DZN; is not picking up the LTE Flow Frequency and hence the PBA needs to be replaced”. In the report of Por-Tab Repairs Inc. they further state “the handset is not sanction[ed] for our region”.
11. The Complainant’s claim is therefore for a full refund of the monies paid together with a refund of the amount of $200.00 paid to the Respondent to have the phone reviewed by Por-Tab Repairs Inc.
12. In the Respondent’s evidence he confirms that he sold to the Complainant a Samsung S8 64 GB Black. The Respondent gave evidence to state that he had obtained that phone from a third party, but he acknowledged that the third party was neither party to these proceedings nor was did he have a contractual relationship with the Complainant.
13. The Respondent acknowledges that the purchase of the phone was from him trading as T Mobile Tec and that he therefore was the Vendor of the said phone to the Complainant.
14. The Respondent however denied that the phone’s inability to access the 4G LTE feature was his responsibility.
15. The Tribunal accepts in full, the evidence of the Complainant that the phone was unable to access the 4G LTE feature. The Tribunal in its examination of the phone and the box in which it was sold and the manual with which it was sold, finds that the phone was not marketed for Barbados but was marketed for a European market. The Tribunal finds it instructive that the Phone’s manual clearly stated that it had to be activated in Europe first before it could be used in a non-European market.
16. No evidence was provided as to whether the phone was in fact activated in the European market.
17. The Tribunal also accepts the evidence of the Complainant with respect to the fact that he had specifically required the phone to have the 4G LTE feature
18. There was no dispute as to the amount paid by the Complainant for the purchase of the phone nor was there any dispute as to the amount paid to Por-Tab Repairs Inc. to effect the examination of the phone and to obtain the report dated April 16, 2018.
19. The Tribunal accordingly orders in favour of the Complainant and orders that the Respondent refund to the Complainant the sum of $2,300.00 made up as follows:
– $2,100.00 being the full purchase price of the said phone and
– $200.00 being the fee paid to have the phone examined and to obtain the report of Por-Tab Repairs Inc.
Fiona Hinds Q.C.