Daily Law Tips (Tip 748) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Introduction:
You probable have seen several publications on compensations for cancelled flights in Nigeria and how to access such compensation. You should also note that there are conditions and circusmntaces that will allow an airline not pay any compensation for cancelled flights in Nigeria. Whether local flight or international flight, airline operators are protected from paying any compensation for cancelled flights under such circumstances. So, this leads to the doctrine of “All are for cancelled flights but not all are for Compensation”, where all passengers of cancelled flights are denied the opportunity to fly the cancelled flight but not all passengers of cancelled flights are entitled to compensation.

Doctrine of “All are for cancelled flights but not all are for Compensation”:
There are several reasons that may prompt an airline to genuinely cancel a flight. Ordinarily, once there is a cancellation of flight, there should be a payment of compensation to customers that have booked for such flights. After all, the customers have lost the opportunity of buying tickets from alternative airlines at a given cost and time and more importantly, customers must suffer chains of direct and indirect incionveience. Well, this is the general thinking and the definition of justice in the eyes of most customers (especially, customers with no investment/interest in airline business in Nigeria).

Nigerian airspace is highly regulated, like any other natural resource (water, land, crude oil, gas, gold, plants, animals and human beings) in Nigeria. Aside the constitution of Nigeria, the next most important federal law in the Nigerian civil aviation sector is the Civil Aviation (Repeal and Re-enactment) Act 2006. It is the federal law that created and empowers all stakeholders, regulators and participants in the civil aviation sector in Nigeria, including the Federal Ministry of Transportation and the Nigerian Civil Aviation Authority (NCAA).

It is the duty of the Nigerian Civil Aviation Authority (NCAA), a federal government agency to regulate technical and safety issues in the entire Nigerian civil aviation sector. Also, there is the Federal Ministry of Transportation empowered to handle policies and strategies in the Nigerian civil aviation sector. In exercising its powers to make regulation on aviation safety and security, commercial air transportation and other related services, the NCAA made a regulation in 2015 (the Nigerian Civil Aviation Authority Regulations).

Among other things, the Nigerian Civil Aviation Authority Regulations made provisions for consumer protection issues (rights and obligations of airlines to their customers (passengers). This includes the right of customers to compensation for overbooking, delayed flight, cancelled flight both for domestic and international flights as well as for DELAYED, LOST AND DAMAGED BAGGAGE. By the Regulations, generally, where an airline cancels its flight, all passengers are obviously denied the opportunity to fly the cancelled flight but not all the passengers are entitled to compensation from the airline. This gives rise to the doctrine of “All are for Cancelled Flights but not all are for Compensation”

By the Nigerian Civil Aviation Authority Regulations 2015, where an airline cancels its flight, the passengers of the cancelled are stopped from boarding the cancelled flight but not all the passenger of the cancelled flight are entitled to compensation from the airline. So, this is why you (or any passenger) can’t get compensation for cancelled flights in Nigeria, including domestic and international flights. However, an airline must inform its passengers of every cancellation of flight as well as offer alternative transportation. The duty to prove that an airline sent notice of cancelation of flight to a passenger rests on the airline. Details or circumstances that determine passengers to be compensated and passengers not to be compensated for their cancelled flights are shown below.

There will be no compensation of passenger of cancelled flight (whether local or international flight), where;
1. The passenger is traveling free of charge or at a reduced fare/cost that is not open to the general public. This refers to passengers that fly without any cost or at reduced cost due to their internal relationships with the airline and not because of any public bonanza or spacial ticket programms.
2. The passenger does not have a confirmed reservation on the cancelled flight (may be the passenger has a mere unpaid reservation)
3. The passenger is under a packaged tour and there is a cancellation of the packaged tour for any other reason apart from due to cancellation of flight by the airline.
4. The cancellation of flight by the airline was due to extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Extraordinary circumstances include mechanical, technical, operational, climatic, socio-political or any other conditions beyond the actual control of the airline.
5. The airline will not provide care where the airline communicated the passenger, informing the passenger about the cancellation of flight, at least within 24 hours before the departure time of the flight for domestic flights and 7 days before the departure time of the flight for international flights. Passengers of international flights can also be informed with 3 to 7 days before the departure time so far as they are offered a re-routing, a re-routing that allows not more than 2 hours earlier departure from the departure time of the cancelled flight and to reach final destination within not more than 4 hours from the earlier scheduled arrival time of the cancelled flight. Also, passengers of international flights can also be informed within less than 7 days before the departure time, so far as they are offered a re-routing, a re-routing that allows not more than 1 hour earlier departure from the departure time of the cancelled flight and to reach final destination within less than 2 hours from the earlier scheduled arrival time of the cancelled flight. The care mentioned above to be offered by the airline are; free refreshment including water, soft drinks, confectionaries or snacks; a free meal, a free hotel accommodation, free transportation between the hotel and the airport, free two telephone calls,SMS or e-mails.

By the Nigerian Civil Aviation Authority Regulations 2015, where there is a cancellation of flight, the airline is to provide several forms of assistance to passengers, except for the passengers listed above. The assistance to be provided by airlines include; monetary compensation, re-routing, reimbursement and provision of free care (food, shelter, transportation and access to communication). In details, below are

Monetary Compensation for Cancelled Flight:
Where there is to be a compensation to a passenger for cancelled flight (whether domestic or international flight), the monetary compensation will be;
1. 25% of the passengers ticket price for all domestic flights
2. 30% of the passenger ticket price for all international flights..
3. If a passenger is offered a re-routing to his final destination in an alternative flight, the compensation provided above will reduce by 50%. So, for domestic flights the compensation will be 12.5% and the arrival time of the alternative flight must not be 1 hour above the arrival time of the cancelled flight. And, for international flights, the compensation will be 15% and the arrival time of the alternative flight must not be 3 hours above the arrival time of the cancelled flights.
4. Compensation (including reimbusirment/refund) to a passenger is to be made in cash or by electronic bank transfer or bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers or other services. If a voucher, the voucher must be redeemable at all sales outlets of the airline.

Refund and Re-routing for Canceled Flight:
Where there is to be a refund or re-routing to a passenger for a cancelled flight, (whether domestic or international flight), the airline is to provide following options to the passenger;
1. An immediate refund in cash for domestic flight or refund within 14 days or international flights. And, the payment is to be made in cash or by electronic bank transfer or bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers or other services. A refund is the full cost of the ticket at the price at which it was bought, for the part or parts of the journey not made. Also, where any part of the journey has been made, there will be a refund of the journey made including a return flight, where the journey made is not serving any purpose in the entire original travel plan of the passenger.
2. Re-routing to the final destination of the passenger, under a comparable transport condition, at the earliest opportunity
3. Re-routing to the final destination of the passenger, under a comparable transport condition at a later date, at the passenger’s convenience, subject to availability of seats. Where an airline offers to transport a passenger to an alternative airpot, the airline must bear the cost of transferring the passenger to the original desired airpot of the passenger or to another close-by airpot with the agreement of the passenger.

Free Care for Cancelled Flights:
Where there is a cancelled flight and the passengers where not timely informed about the cancellation, among other assistance that the airline must provide, the airline must provide free care and welfare. An airline is deemed not to have provide timely notice of caneclleation of flight to passengers, where;
1. For domestic flights, there is not at least within 24 hours before the departure time of the flight
2. For international flights, there is not at least 7 days before the departure time of the flight. Passengers of international flights can also be informed with 3 to 7 days before the departure time so far as they are offered a re-routing, a re-routing that allows not more than 2 hours earlier departure from the departure time of the cancelled flight and to reach final destination within not more than 4 hours from the earlier scheduled arrival time of the cancelled flight. Also, passengers of international flights can also be informed within less than 7 days before the departure time, so far as they are offered a re-routing, a re-routing that allows not more than 1 hour earlier departure from the departure time of the cancelled flight and to reach final destination within less than 2 hours from the earlier scheduled arrival time of the cancelled flight.

Where there is no timely communication of cancellation of care, the airline must provide the following care to its passengers;
1. Free refreshment including water, soft drinks, confectionaries or snacks;
2. A free meal,
3. A free hotel accommodation,
4. Free transportation between the hotel and the airport,
5. Free two telephone calls,SMS or e-mails.

Conclusion:
Every airline in Nigeria is mandated to inform passengers of their rights. Every airline has an obligation to display a text urging passengers to request for details of their rights and to issue a written statement of rights. The text must read; “If you are denied boarding or if your flight is cancelled or delayed for at least one hour, ask the airline officials for a written statement of your rights, particularly with regard to compensation and assistance.”

Airlines are often big corporations but in the eyes of law, there are like any other business that can sue and be sued. Where there is a violation of right or breach of any law, the concerned airline can be sued in court. The appropriate court to handle cases of airline and related matters is the Federal High Court. There are also, available administrative mechanisms within the Nigerian Civil Aviation Authority (via its, Consumer Protection Directorate) that can be employed to seek justice. Above all, nothing stops a passenger from approach a court to seek justice against any airline.

What is comepnsation

My authorities, are:

1. Sections 1, 2, 3, 4, 5, 6 and 16 of the Constitution of the Federal Republic of Nigeria, 1999.
2. Sections 1, 2, 27, 30, 31, 54, 61, 63, 71, 78 and 79 of the Civil Aviation Act, 2006.
3. Sections 19.1, 19.2, 19.7, 19.8, 19.9, 19.10, 19.13, 19.14, 19.16 and 19.20 of the Consumer Protection Regulations of the Nigeria Civil Aviation Regulations, 2015. Accessible for free via https://ncaa.gov.ng/media/aubd0slk/ncaa-regulations-2015.pdf
4. Onyekachi Umah, “The Two (2) Rights Of Any Person Whose Local Or International Flight Is Cancelled In Nigeria” (LearnNigerianLaws.com, 27 November 2018) accessed 2 March 2021.
5. Onyekachi Umah, “Dangerous Flying” Is An Offence In Nigeria” (LearnNigerianLaws.com, 21 September 2018) accessed 2 March 2021.

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