By Muhammad Nazir Faruk
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The Aviation Industry has been playing an important role in the development of global economy for a very long time. It serves as an avenue for different job opportunities; the source of attraction of foreign investors; and the development of other areas of human endeavors. In recent years, aviation has become a preferred mode of transportation due to current Nigerian security challenges; its convenience, and safety.
In the same vain, the Nigerian Aviation Industry plays a key role in the country’s transport system and the economy at large. Thus, it is astonishing that air passengers continue to encounter a lot of challenges, such as recurrent delays or cancellation of scheduled flights and the issues of lost, stolen or delayed baggage.
Although there are existing laws and regulations governing passengers rights which many passengers are not aware of, the enforcement of such relevant laws and regulations is very rare.
Historically, since the Nigerian Aviation Industry has always been governed by both national and international laws,
it may be illogical to assume that such municipal as well as international laws have not adequately protected the rights of airline passengers although the legal regime have some adequately specified airline obligations that tackle the issues of flight oversold; luggage mishandling; flight delays on tarmac and any form of discrimination to air passengers on ground of differences in race, disability, skin color, religion, region or ancestry.
The most popular international Convention as regards to this writing is the United Nation’s Montreal Convention of 1999, which categorically spell out the liability of airline operators in cases of passenger’s death or injuries, as well as delay, damage, or loss of luggage, and similar stuff. The Convention equally represents the international treaty that regulates airline liability.
Even though the Montreal Convention was domesticated into Nigerian law by virtue of Section 48(2) of the Civil Aviation Act 2006, Section 2 of the said Act establishes the Nigerian Civil Aviation Authority (NCAA) as the regulatory agency responsible for overseeing the Nigerian Aviation Industry. Therefore, its duties include safeguarding the rights of airline passengers in Nigeria. Since the power of the NCAA is to receive complaints and carry out proper investigation into those complaints lodged, the said regulatory agency has derived it authority from the provision of Nigerian Civil Aviation Act under Section 27 of the Act which empowers the NCAA to: carry out investigations into complaints and occurrences; and take all steps reasonably necessary to ensure compliance with the Civil Aviation Act. The Act also empowers the NCAA to enact the necessary rules and regulations to protect air passengers, and that was why the need to implement the Consumer Protection Regulation and establish the Consumer Protection Department (CPD) arises.
The proper education of the general public regarding their rights under these extant laws and regulations should be as important as enacting new laws and regulations. Presently, the primary law governing the rights of air passengers in Nigeria is the Civil Aviation Act, 2006.
Now, it is pertinent to embark on a journey to Consumer protection under the Nigerian civil Aviation Regulations, 2012. The Regulation has a wide effect on both domestic and international airlines. For example, under the Nigerian Civil Aviation Regulations particularly part 19, air passengers right and airlines’ obligation to passengers have been spelt out. It makes provisions for compensation to passengers for overbooking, boarding denial, delays and concellations of flights. Air passengers’ rights have been taken care of by the regulations. Meanwhile, where an air carrier perceives any flight delays beyond its initial schedule, it should provide the passengers the necessary assistance below:
(1)Immediately after one hour, the assistance specified under section 19.8.1(refreshment) and section 19.8.2 (Telephone calls, SMS and Emails);
(ii) At a time between 10 pm and 4 am or at a time
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 and / or recommends fines and penalties for violation thereof. For example, it provides for a penalty of N50,000.0 to N100,000.0 where an airline staff member is discourteous to a passenger. Further, failure to provide passengers with the proper assistance in the case of any cancellation will result in a N100,000.0 to N200,000.0 penalty in addition to the prescribed compensation.
Procedures for enforcing passenger rights:
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 by 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 that 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 panel will be constituted to 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.
In addition to the above procedures, aggrieved passengers always have the final redress of the Nigerian courts.
Problems militating against enforcing passenger rights:
Although measures exist to protect passengers’ 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
as highlighted earlier. Many air travelers are either not aware of their basic rights against air carriers or they are reluctant to seek remedies for legal remedies. Therefore, passengers must be made aware of their rights to enable them enforce them.
In a bid to achieve an efficient system for the enforcement of passenger rights in the Aviation Industry, it would require the cooperation of both agencies and passengers in ensuring that each party fulfils its obligations to the other.
Similarly, 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 very crucial. Further to this, air 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 the proper court in which to seek 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:
territorial jurisdiction; and subject matter jurisdiction. As regards to 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 of Nigeria in Cameroon Airlines v. Mr. Mike E Otutuizu (2011) 4 NWLR 512
Moreover, the aforementioned exclusive jurisdiction of the Federal High Court is not applicable in all aviation-related matters, more especially those that can be termed as simple cases with respect to a contract or damages for negligence, as was decided in Adelekan v Ecu-line. (2006) 12 NWLR (Pt 993) 33.
Further to this, my lord Justice Orji-Abadua of the Court Of Appeal held in KLM Royal Dutch Airlines v. Taher [2014] 2 NWLR (Pt 1393) 137, that for the Federal High Court’s jurisdiction to be invoked: there must have been a carriage of the passenger or the goods by the airline; and a breach must have happened. 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.
In the rest position of the law as was decided in the unreported 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.
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.
Difficult enforcement procedures:
The accessibility of the procedures in place for the enforcement of passenger rights is difficult and provides no incentive to passengers. It is ironical that the CPD has across the country only two offices in Abuja and Lagos for lodging complaint.
Unfortunately there has been serious outcry that complaint can only be lodged at the Lagos office located in the Ikeja Airport as a result of the inefficiency of the other CPD branches. Therefore,it will only be wise for the CPD to establish additional branches across the country.
Conclusively, in cases of a breach of air passenger’s right 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.
By Muhammad Nazir Faruk, A Kano based legal practitioner, Email: lordevershed@gmail.com
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