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03 October 2018
The aviation industry has played a key role in the growth and development of economies worldwide. It has contributed to:
In recent years, aviation has become a preferred mode of transportation due to its convenience and safety.
The Nigerian aviation industry plays a key role in the country's transport system and overall economy. Thus, it is exasperating that air passengers still encounter numerous challenges, such as the delay or cancellation of scheduled flights and lost, stolen or delayed baggage.
Although existing laws and regulations govern passenger rights, key issues relate particularly to the level of passenger awareness regarding such rights and the inadequate enforcement of the relevant laws and regulations.
Proper education of the general public regarding their rights under extant laws and regulations should be as important as enacting new laws and regulations. At present, the primary law governing the rights of air passengers in Nigeria is the Civil Aviation Act 2006.
The Nigerian aviation industry is governed by national and international laws, including the Montreal Convention 1999. The Montreal Convention recognises the liability of airline operators in cases of passenger deaths or injuries, as well as the delay, damage or loss of baggage and cargo. It is a fusion of international treaties which regulates airline liability worldwide. The Montreal Convention was transposed into Nigerian law by Section 48(2) of the Civil Aviation Act 2006.
Section 2 of the Civil Aviation Act establishes the Nigerian Civil Aviation Authority (NCAA) as the regulatory agency responsible for overseeing the Nigerian aviation industry. Its duties include safeguarding the rights of airline passengers in Nigeria. Section 27 bestows on the NCAA the power to:
The act also empowers the NCAA to enact the necessary rules and regulations to protect air passengers, which is why it implemented the Consumer Protection Regulation and established the Consumer Protection Department (CPD).
The CPD was set up in March 2001 to ensure that passengers receive optimum service during air transport. The CPD is responsible for informing, educating and protecting consumers and ensuring the provision of quality services in the aviation industry.
In 2015 the Consumer Protection Regulation was introduced under Part 19 of the Civil Aviation Regulations to enable the CPD to regulate and enforce the rights of airline passengers. The regulation governs passenger rights and airlines' obligations to passengers. It also addresses consumer protection issues and sets out the compensation for overbooking, denied boarding, flight delays and cancellations. However, its scope is limited to passengers travelling from:
Air travel grants basic rights and responsibilities to passengers, including the right to:
Further, where a domestic flight's scheduled departure time is delayed by one hour, the airline must provide passengers with free refreshments and the ability to make phone calls or send text messages or emails.(1) Where a domestic flight is delayed by more than two hours, passengers are entitled to an immediate cash reimbursement of the full cost of their ticket.(2)
In the case of a domestic flight's cancellation, passengers are entitled to compensation of 25% of their fare (unless re-routed or provided an alternative flight)(3) in addition to their right to an immediate cash reimbursement of the full cost of the ticket if the flight no longer serves any purpose in relation to their original travel plan.(4) Passengers affected by flight cancellations or delays of at least one hour are entitled to a written notice stating the procedure for compensation and assistance in accordance with the Consumer Protection Regulation.(5)
Part 1 of the regulation stipulates recommended fines and penalties for violations thereof. For example, it provides for a penalty of N50,000 to N100,000 where an airline staff member is discourteous to passengers. Further, failure to provide passengers with the proper assistance in the case of a cancellation will result in a N100,000 to N200,000 penalty in addition to the prescribed compensation.
The NCAA requires all service providers in the aviation industry to set up a customer service desk to serve as the first point of contact for all complaints.(6) In the absence of a favourable response, the complainant may send further complaints to the NCAA by completing a consumer protection complaint/ suggestion form or writing a letter of complaint to the NCAA director general, including the complainant's particulars and all relevant documents and information required for an investigation.
The NCAA, through the CPD, will investigate complaints and give the airline the opportunity to respond.(7) If a complaint cannot be resolved, it will be transferred to the Administrative Hearing Panel(8) – a semi-judicial hearing in which both parties to the complaint must provide the panel with statements on which they will be heard. Depending on the circumstances of each case, the panel may resolve that compensation be paid to the complainant or make further referrals for criminal prosecution if necessary.
Alternatively, a customer may refer the matter to the Consumer Protection Council (CPC), a body established to redress consumer complaints across all sectors in Nigeria. However, for the CPC to address a complaint, the complainant must have attempted an initial resolution with the relevant airline.
Where a complaint is unresolved or resolved unsatisfactorily, a complaint may be lodged with the CPC stating:
Supporting documents should also be provided to enable the CPC to establish a valid complaint.
In addition to the above procedures, aggrieved passengers always have the final redress of the Nigerian courts.
Although measures exist to protect passenger rights under the Civil Aviation Act and the Civil Aviation Regulations, the enforcement of these rights remains a challenge for the following reasons.
Lack of awareness
Achieving an efficient system for the enforcement of passenger rights in the aviation industry would require the cooperation of both agencies and passengers in ensuring that each party fulfils its obligations to the other. Further, passengers must be made aware of their rights to enable them to be enforced.
Regulation 19.13.1 of the Consumer Protection Regulation requires airline operators to display a notice at check-in stating that passengers can ask airline officials for a written statement of their rights in the event of denied boarding or a flight cancellation, particularly with regard to compensation and assistance. Regulation 19.13.2 also provides that an airline operator that denies boarding or cancels a flight should provide each passenger with a written notice of the procedure for compensation and assistance in line with the Civil Aviation Regulations. The ability of the NCAA or the CPD to ensure compliance with the Civil Aviation Regulations is of utmost importance. Further, carriers should have a functioning customer service desk at each airport where they operate for ease of receiving and referring complaints from customers to the necessary authority.
Uncertainty over correct court for redress
The issue of jurisdiction is important in determining the extent to which a court can exercise its adjudicatory powers. There are two main types of jurisdiction under Nigerian law:
As regards aviation, the general premise is that the Federal High Court has exclusive jurisdiction under Section 251(k) of the Constitution 1999.(9) This was further confirmed by the Supreme Court in 2011 in Cameroon Airlines v Mr Mike E Otutuizu (Judge Rhode-Vivour)(10) and in 2010 in British Airways v Atoyebi.(11) Nonetheless, this exclusive jurisdiction of the Federal High Court does not apply in all aviation-related matters, especially those that can be classified as simple cases regarding a contract or damages for negligence, as determined in Adelekan v Ecu-line NV.(12)
Further, Judge Orji-Abadua of the Court Of Appeal held in KLM Royal Dutch Airlines v Taher(13) that in order for the Federal High Court's jurisdiction to be invoked:
The court further stated that for there to be carriage of a passenger by air, the passenger must have entered or boarded the aircraft and be in the process of being carried or conveyed.
The Court of Appeal also held that consumers can seek the redress of the Federal High Court for the enforcement of their rights where no carriage has actually occurred. According to the court,(14) when an airline issues a ticket to a passenger, it enters into a contract with that passenger. If the airline breaches this contract of carriage, the passenger may bring an action against the airline.
In subsequent cases, the courts have adopted a conservative approach to the judgment in KLM Royal Dutch Airlines v Taher, as demonstrated in the unreported 2017 case of Maryam Shettima v Azman Air Services Ltd, where the passenger had been issued a ticket, cleared and given a boarding pass, but was subsequently denied boarding by airline officials. The court held that the facts of the case did not suggest that it concerned a simple breach of contract and that it therefore fell under the Federal High Court's exclusive jurisdiction, contrary to KLM Royal Dutch Airlines v Taher. In summary, the court's position as to the court of competent jurisdiction for aviation matters remains unclear and has contributed to the inability of passengers to enforce their rights against airline operators.
Cumbersome enforcement procedures
The accessibility of the procedures in place for the enforcement of passenger rights is cumbersome and provides no incentive to passengers. For example, the CPD has offices in Lagos and Abuja, but it has been asserted that complaints can be filed only at the Lagos office located in the Ikeja Airport as a result of the inefficiency of the other CPD branches. Thus, it will be beneficial for the CPD to develop additional branches across the country. Further, in cases of a breach of passenger rights by airline providers, particularly domestic airline providers, the compensation available is considered to be too low compared with the effort involved in enforcing such rights.
The introduction of the CPD and the Consumer Protection Regulation under the Nigerian Civil Aviation Regulations 2015 is a step in the right direction. In addition, the Consumer Protection Council (CPC), which is now under new leadership, has been instrumental in protecting consumer rights across all sectors in Nigeria. This is partly due to social media, which has proved to be a useful tool for communicating with consumers and instantly bringing prevalent issues to light. For example, in response to several complaints, the CPC opened an investigation into the cancellation of Air France AF 104 CDG TO LOS (Paris Charles De Gaulle to Lagos), which left several passengers stranded at the airport. However, despite steady improvements, the NCAA must be more proactive in educating passengers on their rights against airline operators.
In order to improve the protection of passenger rights, the NCAA must undertake awareness campaigns (eg, distributing posters, leaflets and videos) in cooperation with media outlets. Similar to the approach adopted by the European Commission, the NCAA and respective airlines should develop a platform where passengers have easy access to a synchronised version of all passenger rights and obligations, along with all relevant information necessary for the enforcement of those rights. For example, the development of an application for passengers to lodge complaints directly with the NCAA as an alternative to the tedious process of filing forms or submitting letters. Further, airline operators should be scrutinised and regularly assessed to ensure full compliance with the extant regulations on passenger rights. Finally, more stringent penalties should be administered to defaulting airlines.
For further information please contact Ochuwa Dirisu or Michelle Wakama at George Etomi & Partners by telephone (+234 1 462 1660) or email (firstname.lastname@example.org or email@example.com). The George Etomi & Partners website can be accessed at www.geplaw.com.
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