An Examination Of Consumer Rights Protection In The Nigerian Aviation Industry
By Obiorah Victor Chibuzor
1.0 INTRODUCTION
Loss of baggage in the care of the airline, delayed baggage, damaged baggage, flight delay, flight diversion, flight cancellation, poor in-flight services, discrimination in flight, and uncomfortable flight experiences have been the common trend in the aviation industry in Nigeria. According to reports, out of the 14,662 domestic flights operated in the country, 7,554 which are about 52% were delayed in the first quarter of 2021. In terms of the number of delays, Overland tops the chart at 84%, while Dana Air and Azman came second place with 64%, United Nigeria 63%; Max Air 61%; Arik Air 57%; Air peace 55%; Aero Contractor 54 per%; Green Africa 50% and Ibom Air 26%. Just recently Overland aircraft’s engine caught fire mid-air with 37 passengers on board. The factors fanning the flames of all these unpleasant trends are not far-fetched, the prominent reason being the nonchalant implementation of relevant laws on consumer protection. It’s no gainsaying that air transport is of crucial importance in moving passengers and cargo from one place to another, and has also contributed massively to Nigeria’s Gross Domestic Product (GDP). But then, for nearly three decades, the rights of passengers have largely been blatantly ignored by airlines. This essay examines the rights of passengers, protection of air flight customers and liability of airline operators under International conventions and Nigerian law.
2.0 REGULATORY FRAMEWORKS FOR THE AVIATION INDUSTRY IN NIGERIA
The main legislation governing the rights of air passengers in Nigeria is the Civil Aviation Act 2006. The aviation industry is equally governed by international laws which include the Montreal Convention of 1999 as successor to the Warsaw Convention of 1929. The Montreal Convention was transposed into Nigerian law by Section 48(2) of the Civil Aviation Act 2006 following the provisions of the 1999 Constitution of Nigeria. The Federal Competition and Consumer Protection Act is also a legislation that protects air passengers, Section 104 makes the FCCPA supreme over any other law as regards consumer protection issues in Nigeria.
3.0 AN APPRAISAL OF THE RIGHTS OF AIR PASSENGERS IN THE AVIATION INDUSTRY
According to Black’s Law Dictionary (9th edition, 2009), a consumer “is a person who buys goods or services for personal, family, or household use, with no intention of resale. The term “consumer” for the purpose of this essay means an air passenger. Consumer protection, on the other hand, means “the efforts of the government and private organizations to ensure that consumers are not exploited by the producers.” In addition, the aviation industry means all companies that transport passengers or cargo by air aircraft (carriers).
Consumer protection and the protection of consumer rights are vital in the Nigerian aviation industry where the fundamental rights of air passengers to safety and satisfaction are massively disregarded. Travelling by air confers certain rights to passengers which among others include: the right to the full value of the passenger’s money; right to book and confirm tickets with an airline of the passenger’s choice; right to the provision of a conducive airport environment before, during, and after flights; right to seek redress for all irregularities during flight; right to timely feedback in respect of matters/complaints lodged with service providers; right to be fully informed about flight status; right to be treated with respect and dignity irrespective of race or physical condition. Whether air passengers enjoy these rights is a question we are all afraid to answer. Air passengers often face difficulties such as being denied boarding against their will; delays and cancellation of a scheduled flight, unfair treatment of consumers, e.t.c. Even where an air passenger’s right is breached; it is mostly not addressed satisfactorily by both the existing laws and the regulatory agencies. It is also worrisome to note that even when passengers choose to institute legal action against air carriers, they are faced even by a greater challenge of delays and technicalities of legal proceedings. An example is the unreported case of Aderamola and Others V. ADC Airlines, which has been lingering since 1995 to date and has been handled by eight different judges.
3.1 Air Passengers’ Rights Under The Federal Competition and Consumer Protection Act
The Federal Competition and Consumer Protection Commission (FCCPC) is the apex consumer protection regulatory authority in Nigeria with certain sector-specific authorities in charge of consumer protection issues within the Nigerian Aviation sector. Under the FCCPA, consumers/passengers have the right to enforce their rights or resolve any dispute in respect of services provided by airport operators either by engaging such airport operator or the relevant industry regulators, or the FCCPC. Furthermore, the FCCPA specifies various rights of consumers including a timely performance of services, disclosure of prices and display of information accurately, the right to fair dealings, rights pertaining to the quality and safety of goods and services. Earlier this year, the Federal Competition and Consumer Protection Commission (FCCPC) ordered domestic airline operators to immediately suspend the implementation of airfare increases. This is in accordance with Section 107 of FCCPA which forbids fixing of prices.
4.0 THE JURISDICTION OF THE COURT ON AVIATION MATTERS
According to Section 251(1) (k) of the 1999 Constitution (as amended), the Federal High Court has exclusive original jurisdiction to entertain matters relating to aviation. This was further confirmed by the Court in the case of Otoakhia v. Aero Contractors Nigeria Limited, In order to invoke the jurisdiction of the Federal High Court, the Court of Appeal in KLM Royal Dutch Airlines v Taher stated that;
- there must have been a carriage of the passenger or the goods by the airline;
- And a breach must have occurred.
5.0 THE LIABILITIES OF AIR CARRIERS IN NIGERIA
All airlines in Nigeria are subject to the provisions of the regulations which prescribe the minimum liabilities and the obligations of air carriers to the air passengers, they are discussed below.
5.1 Destruction and Loss of a Baggage
The carrier is liable for damage sustained in the event of the destruction or loss of, or damage to baggage upon condition only that the event which caused the damage took place during the carriage by air. However, the carrier is not liable if and to the extent that the damage resulted from the inherent defect quality or vice of the baggage. The liability of a carrier in respect of damage suffered by a passenger caused by the loss, damage, delay or destruction of baggage would be unlimited if it is proven that the damage resulted from an act or omission of the carrier, its servants or agents, and specifically done with the intent to cause damage or recklessly and with the knowledge that damage might probably occur, provided that at the time of the commission of the act or omission such servant or agent was acting within the scope of its employment. This was the bone of contention in the case of Emirate Airline v Aforka & Anor, the court held that it is not enough for the claimant to show that the damage was occasioned by the negligence, recklessness or malicious intention but he must also show that the carrier had prior knowledge that damage would probably result. Furthermore, the carrier will not be held Iiable if and to the extent it proves that the destruction or loss of, or damage to, the cargo resulted from one or more of the following:
- Inherent defect, quality or vice of that cargo;
- defective packing of that cargo performed by a person other than the carrier or its servants or agents;
- An act of war or an armed conflict;
- An act of public authority carried out in connection with the entry, exit or transit of the Cargo.
5.2 Death of a Passenger
In the case of death or injury of a passenger, Article 17 of the Montreal Convention provides that a carrier is liable for any damage resulting from the injury or death of a passenger, as long as such passenger was still aboard the aircraft or in the process of embarking or disembarking from the aircraft. Section 48(3) of the Civil Aviation Act pronounces the carrier liable to the sum of at least $30,000, payable within 30 days from the date of said accident. While the word accident is defined in the Montreal Convention, the most widely adopted interpretation is the one enunciated by the Supreme Court in Baks v France, under this definition, an accident is an unexpected or unduly event or happening that is external to the passenger.
5.3 Delay and Cancellation of Flight
The carrier is liable for damage occasioned by delay in the carriage by air of passengers, baggage or cargo. Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures. Where the flights have been delayed, airlines must provide the passengers with refreshments, access to free calls, emails or text messages, hotel accommodation or even reimbursement, subject to the length of the delay. When a flight is cancelled, passengers are entitled to be informed of such proposed cancellation 24 hours in advance for local flights and between 3 to 7 days for international flights, with an explanation of alternative transport. If the airline does not comply with this requirement, the passengers will be entitled to compensation. If the carrier proves that the damage was caused or contributed to by the negligence or other wrongful act or omission of the person claiming compensation, the carrier shall be wholly or partly exonerated from its liability to the claimant to the extent that such negligence or wrongful act or omission caused or contributed to the damage.
It’s important to note that the right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped. For example, in Dawson v. Thomson Airways Ltd the court dismissed the claimant’s case for being statute barred having been instituted more than two years after the cause of action arose.
6.0 RECOMMENDATIONS AND CONCLUSION
From the foregoing, consumer education needs to be aggressively pursued to raise effective awareness about consumer rights and responsibilities under extant laws and regulations. In order to improve the protection of passenger rights, the NCAA must undertake awareness campaigns (e.g. distributing posters, leaflets and videos) in cooperation with media outlets. Also, a verifiable methodology for determining delay and cancellation should be statutorily provided. The regulator of the aviation sector should streamline the issue of determining a cancelled flight. Announcements of changes in departure time by airlines should be independently verified. Non-availability of pilots, crew members or other internal administrative challenges of the air carrier should not be a justifiable reason for delay and cancellation of scheduled flights. There is a need for a higher compensation regime. A mere provision of meals, refreshments, SMS and phone calls as compensation for delay are the reasons passengers, especially in Nigeria, rarely activate the redress procedure against air carriers. Every delay affects passengers, most of which cannot be remedied by mere provisions of refreshment.
Also, airline operators should be scrutinized and regularly assessed to ensure full compliance with the extant regulations on passenger’s rights. The establishment of more airlines to compete and end irregularities in the aviation sector is necessary, this would address the issue of incompetence among airlines operating locally as that would make others sit up in providing the best because there will be competition. Finally, 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.
ABOUT THE AUTHOR
Obiorah Victor Chibuzor
Phone: 08103613308
Email: obiorahgabriel35@gmail.com
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