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IN THE HIGH COURT OF LAGOS STATE

IN THE LAGOS JUDICIAL DIVISION


HOLDEN AT IKEJA
Suit

No

LHC/LJD/MH/17/2014
BETWEEN
JACOB MOSES-----------------------------------------------------------PLAINTIFF/CLAIMANT
AND
SWEET
&
SMART
-------------------------------------------DEFENDANTS

AIRLINE

LTD.

TO SWEET & SMART AIRLINE LTD. OF NO.1 AIRPORT ROAD,


ADEBOLA ADENUSI CRESCENT, LAGOS. IN THE IKEJA LOCAL
GOVERNMENT, LAGOS NIGERIA.
You are hereby commanded that within forty two (42) days after the service
of this writ on you, inclusive of the day of such service you do cause an
appearance to be entered for you in an action at the suit of Jacob Moses
and take notice that in default of your so doing the Claimant may proceed
therein, and judgment entered may be given in your absence.
DATED this ...day of20..

Registrar
N.B: This Writ is to be served within six (6) months from the date thereof, or, if
renewed, within three (3) months from the date of the last renewal, including the day
of such date, and not afterwards.
The Defendant may enter appearance personally or by Legal Practitioner either by
handing in the appropriate forms, duly completed, at the Registry of the High Court of
the Judicial Division in which the action is brought or by sending them to the Registry
by registered post.
Indorsements to be made on the before issue thereof-

The Claimant claims for:(1)A DECLARATION that the defendants action resulting to the delay and
subsequent stop at Lesotho amounts to a breach of contract.
(2)AN ORDER for the award of special damages against the defendants to
the ton of one million dollars ($ 1,000,000).
(3)AN ORDER for the award of general damages against the defendants to
the ton of one million dollars ($1,000,000)
(4)AN ORDER that the defendants bear the cost of this trial which is to the
ton of eight hundred dollars ($ 800,000).
(5)And any other order(s) as this honorable court may deem fit.
This Writ was issued by Manaba & CO whose address for service is
Manaba Associates of NO.1 Ikeja Road Lagos, Legal Practitioner for the
said Claimant who resides at NO.1, Gowon Street, Kogi State.
This accompanied by the following documents:(a)A statement of claim;
(b)A list of witnesses to be called;
(c) Written statement on oath of the witness;
(d)Copies of every document to be relied on at the trial.
(e)Pre- action protocol Form 01.
(f) Case Management form 17.
This writ served by me aton theday of
.20..
Indorsed the ..day of .20..
The registry, High Court of Lagos State
In the Ikeja Judicial Division.
A sufficient affidavit in verification of the indorsement on this Writ authorize
the sealing thereof has been produced to me this..day
of.20..


Registrar.

IN THE HIGH COURT OF LAGOS STATE


IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT IKEJA
Suit No HC/LJD/MH/17/2014
BETWEEN
JACOB
MOSES-----------------------------------------------------------PLAINTIFF/CLAIMANT
AND
SWEET & SMART AIRLINE LTD------------------------------DEFENDANTS
STATEMENT OF CLAIM
(1)The Plaintiff is and was at all material times a retired civil servant who has
worked in the Ministry of Aviation and Ministry of Trade and Commerce.
(2)The Defendant is and was at all material times a company who carries out
the business of an airline operator and has offices in many cities of Nigeria.
(3)By a contract made orally some times in 2005 between the Plaintiff and
Defendant, the Plaintiff agreed to book a flight with the Defendant airline
and the Defendant agreed.
(4)The following are the material facts of the contract:(5)The Plaintiff was the customer of the Defendant.
(6)The Defendant was the Vendor.
(7)The consideration for the flight was two thousand dollars ($2000).

(8)The Plaintiff made full payment of the sum of two thousand dollars ($ 2000)
for the flight.
(9)The Plaintiff was refused a boarding pass even though he came in good
time and joined the queue.
(10) The SSA staff attended to other passengers on VIP list while the plaintiff
was asked to wait for long.
(11) The Plaintiff was downgraded to economy class in the flight.
(12) The Plaintiff resisted but was compelled to accept it.
(13) The Plaintiff and other passengers were informed that the plane developed
some sudden technical problem and would land at Lesotho for few hours
check.
(14) Sequel to the landing at Lesotho, the Plaintiff was at Claud Mackey Airport
throughout that day and nobody attended to him, let alone making some
necessary arrangements for his feeding and accommodation.
(15) The Plaintiff was stranded at the Airport for over two days.
(16) The Plaintiff took another flight to South Africa to see his doctor.
(17) By reason of the defendants breach of contract, the plaintiff has suffered
loss and damage.
PARTICULARS
The plaintiff had to take another flight to South Africa to see his doctor and
paid a fresh consideration for the subsequent flight.
(18)THE PLAINTIFF HEREBY CLAIMS AS FOLLOWS:(a)One million dollars ($ 1,000,000) for breach of contract;
(b)Five hundred thousand dollars($500,000) as the cost of the trial;
(c) One million dollars ($ 1,000,000) for health trauma and pains endured as a
result of the breach;
(d)Such further damages and or reliefs as this honorable court may deem fit.
Dated this..day of .. 20..
Manaba D.A.,

Aisha Yusuf,
Counsel to the Plaintiff/Claimant,
PP: Manaba,D.A.,
No 1 Ikeja Road, Lagos.

Sign
.
Date
For Service on:Defendants,C/O his counsel,
Whose address for service is,
Mariam Fulani & Co
No 20 Bagauda Road, Lagos.

Sign
..
Date
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT IKEJA
Suit No HC/LJD/MH/17/2014
BETWEEN
JACOB
MOSES-----------------------------------------------------------PLAINTIFF/CLAIMANT
AND
SWEET & SMART AIRLINE LTD------------------------------DEFENDANTS
PLAINTIFFS WRITTEN ADDRESS
TABLE OF CONTENT
1.0 Introduction.

2.0 Statement of Facts.


3.0 Issues for Determination.
4.0 Legal Arguments.
5.0 Prayers.
6.0 List of Authorities.
7.0 Name and Address of Counsel.
1.0 Introduction
This is a civil case between Mr. Moses Jacobs (Plaintiff) and Sweet &
Smart Airline (Defendants) bothering on breach of contract. The matter has
been brought to this honorable court by Mr. Moses Jacobs for
consideration.
2.0 STATEMENT OF FACTS
1. The Plaintiff is and was at all material times a retired civil servant who has
worked in the Ministry of Aviation and Ministry of Trade and Commerce.
2. The Defendant is and was at all material times a company who carries out
the business of an airline operator and has offices in many cities of Nigeria.
3. By a contract made orally some times in 2005 between the Plaintiff and
Defendant, the Plaintiff agreed to book a flight with the Defendant airline
and the Defendant agreed.
4. The following are the material facts of the contract:a. The Plaintiff was the customer of the Defendant.
b. The Defendant was the vendor.
c. The consideration for the flight was two thousand dollars ($2000).
The Plaintiff made full payment of the sum of two thousand dollars ($ 2000)
for the flight.
d. The Plaintiff was refused a boarding pass even though he came in good
time and joined the queue.
e. The SSA staff attended to other passengers on VIP list while the plaintiff
was asked to wait for long.

f. The Plaintiff was downgraded to economy class in the flight.


g. The Plaintiff resisted but was compelled to accept it.
h. The Plaintiff and other passengers were informed that the plane developed
some sudden technical problem and would land at Lesotho for few hours
check.
i. Sequel to the landing at Lesotho, the Plaintiff was at Claud Mackey Airport
throughout that day and nobody attended to him, let alone making some
necessary arrangements for his feeding and accommodation.
j. The Plaintiff was stranded at the Airport for over two days.
k. The Plaintiff took another flight to South Africa to see his doctor.
5. By reason of the defendants breach of contract, the plaintiff has suffered
loss and damage.
3.0 ISSUES FOR DETERMINATION
3.1.1 Whether there was a breach of contract by the SSA.
It is settled law that where two consenting parties enter into a
contract, each of the party must fulfill his own part of the contract, failure of
which will result in the breach of contract by the party who defaults.
My Lord, we place reliance on the case of Kaydee Ventures Ltd., v Minister
of F.C.T (2010)5 NWLR p.117 where the court held that;A contract may be determined either in accordance
with the contractual terms such as through performance by the promisor of
the exact terms he undertook to doEqually, a contract can be brought
to termination where the promisor failed to perform thereby breaching.
My Lord, it is clear from the fact of the case that the defendant did not
perform the exact term he undertook in the sense that our client was
denied his right of boarding the particular class of flight he booked and
accordingly paid for. And also, the defendants were unable to convey our
client to South Africa as evident in the delay for over two days wherein
nobody even attended to them.
3.1.2 SUBMISSION
At this point my Lord it is our humble submission that there was a
breach of contract by Smart & Sweet Airline.

3.2 Whether the plaintiff is entitled to damages for the loss he suffered.
My Lord, it is an established principle of law that where a party to a contract
suffers a loss whether physical inconvenience and or discomfort, adequate
damages should be awarded.
We strongly place our reliance on the case of British Airways v Atoyebi.
(2010)14 NWLR p.571 where the court held that;- Physical inconvenience
and discomfort caused by a breach of contract will entitle a plaintiff to
damages.
My Lord, going by the facts of this case, it is evident that due to the partial
performance by the defendant, our client who needed medical attention
spent over two nights at the Lesotho Airport without being given food nor
accommodation and as result, suffered brutal mosquito bites, had flu from
cold and was unable to feed properly owing to the fact that he had no
enough money for such extra expenses which was occasioned by the
breach. In furtherance of this my Lord, it is a trite law under the Warsaw
convention 1929 which is applicable in Nigeria and as held in the case of
British Airways v Atoyebi supra that;- the carrier (airline) is liable for
damages occasioned by delay in the carriage by air of passengers
Going by this my Lord, it is evident that the stop at Lesotho Airport by the
defendants was a blatant breach of the contract which caused our client
immeasurable inconvenience and great discomfort wherein he had to bear
the cost and pay for another flight to south Africa. Equally and most
painfully my Lord, our client missed his appointment with the doctor as a
result of delay caused by SSA.
3.2.1 SUBMISSION
It is our humble submission that the delay occasioned by the defendants
stop at Lesotho Airport caused our client deadly stress, waste of time and
resources and as such, our client is entitled to the damages herein claimed.
6.0 PRAYERS
We pray this honorable court to grant us the following reliefs:(A) One million dollars ($1,000,000) for the breach of contract.
(B) Five hundred thousand dollars ($500,000) as the cost of the trial.

(C)Pay for the subsequent flight from Lesotho to South Africa which is
the
Sum of eight hundred dollars($800).
(D)One million dollars ($1,000,000) for health trauma and pains
endured lay.
(E) And any other order as this honorable court may deem fit.

IN THE HIGH COURT OF LAGOS STATE


IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT IKEJA
Suit
HC/LJD/MH/17/2014
BETWEEN

No:

JACOB
MOSES-----------------------------------------------------------PLAINTIFF/CLAIMANT
AND
SWEET & SMART AIRLINE LTD------------------------------DEFENDANTS
LIST of WITNESSES
(1)Jacob Moses.
DATED This Day.of May 20.
Manaba, D.A.,
Aisha Yusuf,
PP: Manaba D.A.,
Counsel to the Plaintiff/Claimant,
No 1 Ikeja Road, Lagos
.
Signature
.
Date
For Service on:Defendants,
C/O his counsel,
Whose address for service is,
Mariam Fulani & Co.
No 20 Bagauda Road, Lagos
..
Sign
.
Date
IN THE HIGH COURT OF LAGOS STATE
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT IKEJA
Suit No HC/LJD/MH/17/2014
BETWEEN

JACOB
MOSES----------------------------------------------------------PLAINTIFF/CLAIMANT
AND
SWEET & SMART
DEFENDANTS

AIRLINE

OF

LAGOS------------------------------

WITNESS STATEMENT ON OATH


I Moses Jacob, a Christian, a Nigerian, of full age, a retiree, residing at NO:
1 Gowon Street of Kogi State, having experienced the incidence hereby
state as follows:1. That I am a retired civil servant.
2. That since my retirement, I have been actively engaged in politics
and a member of PSS in my home town in Kogi State.
3. That in August 2005 I intended travelling to South Africa for urgent
medical treatment.
4. That I contacted Sweet & Smart Airlines Ltd for the possibility of
getting a business class seat in a flight to South Africa to see my
doctor at Chris Haris Specialist Hospital in Soweto, South Africa.
5. That I was assured by the said airline and I made the full payment of
two thousand dollars ($2000) for my e-ticket.
6. That my e-ticket was sent to my e-mail containing my details which
included my ticket number, issuing airline and booking reference.
7. That on the 23rd of June, I left Kogi for Kano for my flight and in
stayed in Honolulu Hotel for two (2) nights in a room reserved for me
by my friend who is currently the Deputy Governor of Kano State.
8. That on the 24th of June 2005, I called the SSAs Kano office to
confirm my booking which the office confirmed and issued me a
confirmation slip and my luggage was even checked-in online on the
same date.
9. That on the 26th of June 2005 at the Airport in Kano, I was told to
wait for long in order to be cleared for boarding when it was my turn
even though I came in good time and joined the queue.

10.
That to my utmost dismay and surprise, a staff of the said
Airline informed me that I was downgraded to economy class in the
flight.
11.

That I resisted at first but I was compelled to take it.

12.
That before we left for South Africa at about 11; 00 pm that
same day, I left a letter of protest with the Manager.
13.
That at about 5:00 am on 27th of June 2005, I was informed
that the plane had developed some sudden technical problem and it
would land at Lesotho for few hours check.
14.
That I was left at Claud Mackeys Airport for over two days with
other passengers with nobody attending to us.
15.

That I was stranded at the Airport for the said days.

16.
That by reason of the disappointment and glaring inability of
SSA to convey me to South Africa, I took another flight to South
Africa for my treatment.
17.
That I deposed to this affidavit believing the content to be true
and correct and in accordance with the Oath Act 1990.
.
Deponent
Sworn to at the High Court Registry, Lagos state.
This day of ., 20..
Before me:

Commissioner for Oath

IN THE HIGH COURT OF LAGOS STATE


IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT IKEJA
SUIT NO-HC/LAG/17/2014
BETWEEN
JACOB
MOSES..PLAI
NTIFF/CLAIMANT
AND
SWEEET AND SMART AIRLINES LTD--------------------------------DEFENDANTS
PRE-ACTION PROTOCOL FORM ONE
We Manaba D.A., & CO make oath and say as follows:
(1) We have complied with the direction of the pre-action protocol as set out in
Order Rule 1 (4) (ii) (e) of the High Court Rules.
(2)We have made attempts to have this matter settled out of court with the
defendants and such attempts were unsuccessful.
(3)We had several failed meetings with the defendants on the 1 st Jan., 2008,
1st Jan.,2012 after which I reported to FAAN Disciplinary and Mediation
Committee and a meeting was slated for 1st of January 2013 but the
Defendants refused to attend the meeting .
(4) We have by a written Memorandum to the Defendant set out our claim and
options for settlement.
Dated at Lagos this-----------Day of--------------20.
Before me

..
COMMISSIONER FOR OATHS.

IN THE HIGH COURT OF LAGOS STATE


IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT IKEJA
SUIT NO-HC/LAG/17/2014
BETWEEN
JACOB
MOSES..PLAI
NTIFF/CLAIMANT
AND
SWEEET AND SMART AIRLINES LTD--------------------------DEFENDANTS
TO JACOB MOSES AND SWEEET AND SMART AIRLINES LTD
Take notice that you are required to attend court No. 1 at the high Court of
Lagos State at the Lagos Judicial division, on the 13 th Day of may, 2014at
9 Oclock in the forenoon, for a Case Management Conference for the
purposes set out hereunder:
(1) (a)disposal of non-contentious matters which must or can be dealt with on
interlocutory application.
(b) giving such directions as the future course of the action as appear best
adopted to secure its just, expeditious and economical disposal.
(c) promoting amicable settlement of the case or adoption of ADR
(2) please answer the questions in the attached Case Management
Information Sheet on a separate and submit seven (7) clear days before
the above mentioned date.
Take notice that if you do not attend in person or by legal practitioner at the
time and place mentioned, such proceeding will be taken and such order will
be made at the Judge may deem just and expedient.
DATED thisday of20
Signed .

Chief Registrar

IN THE HIGH COURT OF LAGOS STATE


IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT IKEJA
SUIT NO-HC/LAG/032/2014
BETWEEN
JACOB
MOSES..PLAI
NTIFF/CLAIMANT
AND
SWEEET AND SMART AIRLINES LTD--------------------------DEFENDANTS
COUNTER AFFIDAVIT IN OPPOSITION TO MOTION ON NOTICE
I Manaba Daniel, male, Christian, of full age, principal counsel of Manaba
Associates, a Nigerian of No. 1 Ikeja Road, Lagos do hereby make an oath
and state as follows;
(1) That I am the Legal Practitioner of the respondent.
(2) That I am executing this counter affidavit as a reply to the affidavit in
support of the motion on notice by the defendant/applicant.
(3) That I have authority of the Plaintiff/Respondent to depose to this affidavit.

(4) That I have read the affidavit of the Defendant/Applicant in support of the
motion on notice dated 15 th day of May, 2014 for dismissing the suit on the
ground that the suit is statute barred.
(5) That my client after coming back from South Africa for his medical
treatment contacted sweet & Smart Airline Ltd due to the protest letter he
left with them.
(6) That since then, different negotiations without prejudice has been going on
between my client and the management of SSA Ltd as well as myself.
(7) That the negotiations took up to seven (7) years without any positive result.
(8) That due to this, my client decided to institute an action in this honourable
court.
(9) That the reason set out in paragraph three (3) of the defendants claim is
immaterial for the purpose of applicability in this case due to the fact that in
a cause of action where negotiations are made without prejudice, time
begins to run only when the negotiations has failed.
(10) That I deposed to this affidavit believing the content to be true and correct
and in accordance with the Oath Act 1990.
.
Deponent
Sworn to at the High Court Registry, Lagos state.
This day of ., 20..

Before me:

Commissioner for Oath

MINUTE OF THE MEETING BETWEEN MR JACOB MOSES AND THE


MANAGEMENT OF SWEET AND SMART AIRLINE LTD ON THE 1st OF
JANUARY 2008.
The meeting started at about 10 am with the opening prayer led by Mr.
Jacob Moses.
MATTERS ARISING
Mr. Jacob Moses pleaded with the management of Sweet & Smart Airline Ltd
to amicably pay him special and general damages for the damage he incurred
as well as pay the cost of the flight he had to take from Lesotho to South Africa
when Sweet & Smart Airline Ltd failed to convey him to South Africa in terms of
the contract between them.
To this effect, the management of Sweet & Smart Airline Ltd refused and
maintained that they were not liable to pay Mr. Jacob Moses anything as they
were not in breach of contract.
The meeting ended at about 12pm in deadlock as both parties failed to
come to terms and it was slated for the 1st of January, 2013.

IN THE HIGH COURT OF LAGOS STATE


IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT IKEJA
Suit

No

LHC/LJD/MH/17/2014
BETWEEN
JACOB MOSES-----------------------------------------------------------PLAINTIFF/CLAIMANT
AND
SWEET
&
SMART
-------------------------------------------DEFENDANTS

AIRLINE

WRITTEN ADDRESS IN SUPPORT OF COUNTER AFFIDAVIT


TABLE OF CONTENT
1. INTRODUCTION
2. STATEMENT OF FACTS
3. ISSUES FOR DETERMINATION
4. LEGAL ARGUMENT
5. CONCLUSIONS/PRAYERS
6. LIST OF AUTHORITIES
7. COUNSEL ADDRESS

1. INTRODUCTION:

LTD.

This is a counter affidavit brought before this honourable court


opposing the motion on notice filed by the Defendant/Applicant in
consequence of which the Respondent has filed a ten (10) paragraphs
affidavit. The Claimant/Respondent hereby filed this counter affidavit to
strike out the application made by the Defendant/Applicant.
2. STATEMENT OF FACTS
1.0 Mr. Jacob Moses is a retired civil servant. He served in various federal
ministries like the ministry of aviation, ministry of Commerce and Industry.
He retired as a director with the FCDA, Abuja. Since his retirement, he has
been actively engaged in politics, of course with the ruling party PSS in his
home town Kogi State.
2.0 Sometimes in 2005, Mr. Jacob Moses wanted to travel to South Africa for
medical treatment. He therefore contacted sweet & smart Airline (SSA),
through their Kano office for the possibility of getting a business class seat
in a flight to south Africa, to see his doctor at Chris Haris Specialist
Hospital, Soweto, South Africa. SSA has many offices in Nigeria including
Kano. The SSA confirmed him that the earliest date business class would
be available on the 29th August 2005.
3.0 Mr. Jacob accepted the date and upon SSAs assurances he paid the sum
$ 2000(two thousand dollars) for hid e-ticket. The ticket was sent to his email containing his details, ticket number, issuing airline, booking reference,
etc.
4.0 On 23rd June 2005, relying on the SSAs assurances and booking
schedule, Mr. Jacob left Kogi for Kano for his flight which was scheduled
for 25th June 2005 at Aminu Kano International Airport. He stayed in
Honolulu Hotel for two nights. The room was reserved for him by his old
friend who currently is the deputy of Kano State who paid for everything for
him.
5.0 On 24th June, 2005,Mr. Jacob called the SSAs Kano office for confirmation
of his booking which the office confirmed and issued him a confirmation slip
and his luggage was even checked in online the same date.
6.0 0n the 26th June 2005 at the Airport in Kano, when it was Mr Jacobs turn to
be cleared for boarding he was refused boarding pass even though he
came in good time and joined the queue. To his uttermost dismay and
surprise, while the SSAS staff were attending to other passengers on VIP

list, he was asked by one of their staff to wait for long and finally informed
him that he was downgraded to economy class in the flight. He resisted but
he was compelled circumstantially to take it. He left a letter of protest with
the manager. The left for South Africa at about 11pm that day.
7.0 The flight scheduled to South Africa would route through Angola, Lesotho
and finally South Africa. At around 5am on the 27 th of June, 2005, all the
passengers were informed that the plane developed some sudden
technical problem and it will land at Lesotho for few hours check. All the
passengers would take up to South Africa by 7am. To the dismay of all, all
the passengers were at Claud Mackey Airport throughout that day and
nobody attended to them, let alone making some necessary arrangements
for their feeding and accommodation. They were stranded at the airport for
over two days. Disappointed with this, Mr. Jacob got another flight to South
Africa to see his doctor.
8.0 upon his return, Mr. Jacob institutes a civil action for breach of contract
against SSA at the Kano State High Court.
ISSUES FOR DETERMINATION
1. Whether the issue is statute barred as acclaimed by the defendant.
LEGAL ARGUMENT
My Lord, it is a settled principle of law that an action will be statute barred
where the time within which it should be brought has lapsed.
However, this principle will only come effect where the action has
been instituted and the cause of action arise. My Lord, we place reliance on
the case of NDIC v Governing Council I.T.F (2012)9 NWLR @ 258. Where
the court held that;
The period of limitation begins to run at the time the cause of action
accrued or from the moment the cause of action arose
Furthermore, my lord the same locus classicus also holds that
in determining whether or not an action is statute barred, the period
limited must be strictly calculated with mathematical accuracy.

It is evident my lord,that from our affidavits there was initial negotiation


which lasted for about six years. My client came to court when he realized
the negotiation was not yielding any positive result. As such my lord,the
cause of action arose at the time my client came to court. Also in
calculating the years with mathematical accuracy, it means the action is not
yet barred,since the normal limitation period is 6yrs in this kind of contract.
In conclusion my lord it is evident that my client has not been affected by
the statute of limitation.
SUBMISSION
At this point, it is my humble submission that my client has filed his case
within the time stipulated. As such this suit cannot be dismissed as
acclaimed by the defendant counsel.
CONCLUSION/PRAYERS
We therefore urge this honorable court to refuse this application. We
respectfully submit.

LIST OF AUTHORITIES
1. NDIC V. GOVERNING COUNCIL I.T.F (2012)9 NWLR @258