The aviation industry in Nigeria has come a long way, from an emergency landing in 1925 from a Royal Air Force (RAF) base in Khartoum, Sudan, to a horse race course in Kano, Nigeria, to the present day, in which Nigeria boasts of five international airports, 27 domestic airports and 13 airstrips.2 Nigeria has become a major air hub in Africa, with the Murtala Muhammed International Airport being the fifth busiest airport in the continent, and the busiest in the West African subregion.3
The Minister of Aviation oversees the activities of the regulatory agencies in the industry. The Nigerian Civil Aviation Authority (NCAA) is one of such agencies established by the Nigerian Civil Aviation Act 2006 (CAA). The Act empowers the Authority to not only regulate aviation safety without political interference, but also to carry out oversight functions of airports, airspace and meteorological services, as well as economic regulations of the industry.4 Other agencies include the Nigerian Airspace Management Agency, which provides air traffic services in Nigeria, including air traffic control, and visual and non-visual aid; the Nigerian Meteorological Agency, which is charged with the responsibility of advising the federal government on all aspects of meteorology, project preparation and interpretation of government policy in the field of meteorology, and issuing weather (and climate) forecasts for the safe operations of aircraft, oceangoing vessels and oil rigs;5 and the Federal Airports Authority of Nigeria, which is charged with the responsibility of managing all commercial airports in Nigeria and providing service to both passenger and cargo airlines.6
In keeping up with global safety standards, the CAA has incorporated provisions of Annex 13 to the Convention on International Civil Aviation (the Chicago Convention), which governs investigations of both international and domestic air accidents, and the Convention for the Unification of Certain Rules Relating to International Carriage by Air (the Montreal Convention 1999) and its Protocol. The cumulative effect of these international conventions domesticated in the CAA is to protect passengers onboard, as well as third parties on the ground. It covers the liability of air carriers to passengers and third parties and, through various international instruments, apportions liability and provides compensation for victims of mishaps.7
II LEGAL FRAMEWORK FOR LIABILITY
i International carriage
The general legal regime for the creation, assessment and apportionment of liability of air carriers is the CAA and other extant international conventions that have been ratified and domesticated in Nigeria. Nigeria is a signatory to the foundational legislation on the issue of carriers' liability as codified in the Warsaw Convention 1929 and domesticated by the Carriage by Air (Non-International Carriage) Colonies, Protectorates and Trust Territories Order 1953.8 Furthermore, under the current umbrella legislation in Nigeria, the CAA domesticates the Montreal Convention 1999 by virtue of Section 48 of the CAA in the following words:
The provisions contained in the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Montreal on 28th May, 1999 set forth in Schedule II of this Act and as amended from time to time, shall from the commencement of this Act have force of law and apply to international carriage by air to and from Nigeria, in relation to any carriage by air to which those rules apply, irrespective of the nationality of the aircraft performing the carriage, and shall, subject to the provisions of this Act, govern the rights and liabilities of carriers, passengers, consignors, consignees and other persons.
Claims in which the cause of action arose before 14 November 20069 were adjudged on the basis of the 1953. The CAA has also incorporated provisions of Annex 13 to the Chicago Convention, which governs investigations of both international and domestic air accidents.
ii Internal and other non-convention carriage
The CAA and the Air Transport Economic Regulations 201510 provide guidelines governing liability in Nigeria. It deals with matters concerning the establishment of liability arising from death and bodily injury to passengers in the course of carriage by air within or from Nigeria, limits of liability and insurance coverage for third-party liability.
iii General aviation regulation
Pursuant to Section 1 of the CAA, the Minister of Aviation is vested with powers to formulate policies and strategies for promotion and encouragement of Civil Aviation in Nigeria. Nigeria has incorporated regulations set out by the International Civil Aviation Organisation (ICAO) by way of enacting the Nigerian Civil Aviation Regulations 2009 Vol 1 (Parts 1–11) and 2012 Vol II (Parts 12–20) and the Civil Aviation Air Transport Economic Regulations 2015.11 In 2016, Nigeria also enacted the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2016, with emphasis on accident investigation and reporting, including a voluntary reporting regime.
iv Passenger rights
Regulations have also been enacted to comprehensively deal with passengers' rights and airlines obligations.12 Part 19 of the Nigerian Civil Aviation Regulations (NCARs) 2015 deals with passengers and sets out compensation for overbooking and denied boarding, as well as delays or cancellation.
v Other legislation
The Air Transport Economic Regulations 201513 deal with unfair methods of competition and anticompetitive practices in the Nigerian aviation sector. These regulations impose anticompetition rules with a view to promoting competition in respect of a substantial part of the products and services.
Part 16 of the NCARs 2009 deals extensively with environmental protection and sets standards and recommended practices on aircraft noise certification, vented fuel and aircraft engine emissions for aircraft engaged in international air navigation in line with the ICAO standards and recommended practices.
III LICENSING OF OPERATIONS
i Licensed activities
The licensing regime of air transport in Nigeria is governed by Section 32(1) of the CAA, which provides as follows:
no aircraft shall be used by any person in Nigeria for flying, while carrying passengers or cargo for reward, on such journeys or classes of journeys (whether beginning and ending at the same point or at different points) or for such flying undertaking for the purpose of any trade or business, except under the authority of and in accordance with a licence, permit, or other authorization issued to him by the Authority.
The licences contemplated in this statute include:
Air Transport Licence (ATL), Air operators Permit (AOP), Air travellers Organisers Licence (ATOL), Air Operators Certificate (AOC), Certificates of Airworthiness, Certificate of Registration, Personnel Licences and Ratings, Aerodrome licence, Aviation Training Organisations Approvals/Certificates, Aircraft Maintenance Organisation approvals/certificates and all other authorizations and approvals issued pursuant to this Act.14
The application for these licences must be made in writing.15
ii Ownership rules
Section 33(1) of the CAA specifies who may obtain a licence or a permit. Section 33(1) (a)–(c) provides as follows:
Notwithstanding the provisions of Section 17 of the Nigerian Investment Promotion Commission Act No 16, 1995, the Authority shall refuse to grant a licence, permit, certificate or other authorisation in pursuance of an application if it is not satisfied that-
(a) the applicant is i. a citizen of Nigeria, or ii. being a company or a body corporate, is registered in Nigeria and has its principal place of business within Nigeria, and is controlled by Nigerian nationals.
(b) the applicant is, having regard to: i. his and his employees' experience in the field of aviation and his and their past activities generally, and ii. where the applicant is a body corporate, the experience in the field of aviation and the past activities generally of the persons appearing to the Authority to control that body, a fit person to operate aircraft(s) under the authority of the licence, permit, certificate or other authorisation which the Authority considers should be granted to him in pursuance of the application; or
(c) the resources of the applicant and the financial arrangements made by him are adequate for discharging his actual and potential obligations in respect of the business activities in which he is engaged if any, and in which he may be expected to engage if he is granted the licence, permit, certificate or other authorisation which the Authority considers should be granted to him in pursuance of the application.
The NCAA also has the power to issue air operators certificates (AOC) and other certificates relating to the safety of air operations.16
The financial and technical requirements of such operators are within the purview of the NCAA, which is normally set out by regulation.17 The regulation presently governing the requirements for issuance of these licences is Part 18 of the NCARs 2012 Vol II.
iii Foreign carriers
Section 32 (4) (a) (b) of the CAA 2006 provides that:
Nothing in this section shall restrict the right of a designated air transport undertaking, having its principal place of business in any country outside Nigeria, to provide transport for passengers, mail or cargo:
(a) in accordance with the terms of any agreement for the time being in force between the government of the Federal Republic of Nigeria and the government of that country or,
(b) in accordance with the terms of any permission granted by the Minister pending the completion of the negotiations for such an agreement referred to in paragraph (a) above.
The Civil Aviation Act18 encourages regional cooperation in the regulation and administration of aviation safety and permits the NCAA to enter into bilateral agreements for cooperative endeavours with other contracting states to the Convention on International Civil Aviation.19
The CAA sets out regulations in 2012 and 2015 to correspond with the current international aviation safety standards published by the ICAO. The NCAA is required to open lines of communication with the state of design or the state of manufacture, so that the NCAA can receive all safety bulletins and airworthiness directives for each type of aircraft operating in Nigeria.20 The NCAA carries out routine inspections to ensure that the aircraft conforms to type design and is in condition for safe operation. The Regulations prescribe maintenance systems, training and require all persons operating Nigerian-registered aircraft to notify the NCAA when certain events occur such as accidents, unlawful interferences and suspicious activity.
With regard to accidents, the NCAA21 established an Accident Investigations Bureau with the sole objective of the investigation of an accident or serious incident and not to apportion blame or liability. In 2016, the NCAA also set out regulations for Investigation of Air Accidents and Incidents.22 On the basis of the findings of accident investigations, as well as incident reporting, corrective actions are taken to prevent similar accidents in the future.
It is a compulsory requirement that carriers operating air transport services to, from and within Nigeria, aerodrome operators, aviation fuel suppliers or any providers of ground-handling services or other such allied service providers must maintain adequate insurance covering their liability under the CAA 2006 and towards compensation for damages sustained by third parties for an amount to be specified in regulations by the NCAA.23
Section 18.11.7 of the NCAA Regulations 2015 prescribes the minimum third-party liability insurance limit for aircraft engaged in operations in Nigeria, which is in relation to the maximum take-off weight (MTOW) of an aircraft, as provided in the table below:
|Category||A/C MTOW (kg)||Minimum third-party liability limit (US$)|
|Fixed-wing aircraft||Rotary-wings aircraft|
|1||Up to 499||375,000||750,000|
The minimum insurance cover for aircraft engaged in the carriage of passengers, mail and cargo in Nigeria shall be in relation to the aircraft available capacity.
The CAA ensures compliance with the mandatory insurance rules by prescribing that all operators make quarterly returns to confirm that all conditions required to create an obligation on the insurer to provide indemnity in the event of a loss have been fulfilled.24 Operators also have to submit copies of valid insurance certificates, evidence of payment of premium and policy documents.
The CAA gives the NCAA the rights, subject to the approval of the Minister, to make regulations to prohibit and discourage anticompetitive practices. These anticompetitive practices involve charging fares and rates on routes at levels that are in aggregate insufficient to cover the costs of providing the services to which they relate, the addition of excessive capacity or frequency of service, practices that have a serious negative economic effect on or cause significant damage to another airline, and practices that reflect an apparent intent or have the probable effect of crippling, excluding or driving another airline or allied aviation service provider from the market.25
The legal framework for unfair competition and anticompetitive practices in the Nigerian civil aviation sector are encapsulated in the Air Transport Economic Regulations (the Regulations), which were adopted by the NCAA in 2015.26 Section 18.15 of the Regulations makes it unlawful to enter into any contract, arrangement, understanding or conspiracy between two or more parties in the civil aviation industry where such contract, arrangement, understanding or conspiracy constitutes a restraint of competition.
Anticompetitive behaviour is articulated in Section 18.15.2 of the Regulations to include the following:
- directly or indirectly fixing a charge, fee, rate, fare or tariff, or any other trading condition;
- dividing the market by allocating customers, passengers, suppliers, slots, territories or specific types of products or services;
- being involved in collusive action;
- limiting or controlling development or investment in capacity, slots and any other market or operational factor;
- applying dissimilar conditions to equivalent transaction with other service providers, thereby placing the other party at a competitive disadvantage; and
- making the conclusion of an arrangement, understanding or contract subject to acceptance by the other parties of supplementary obligation and which, by nature or according to commercial usage, have no connection with the subject of the contract.
The regulations27 do not apply to any agreement authorised by the NCAA that:
- contributes to the improvement of the availability or distribution of products and services or the promotion of technical or economic progress, while allowing consumers a fair share of the resulting benefit;
- imposes on the airline, service providers or operators concerned only such restriction as are indispensable to the attainment of objectives referred to above; or
- does not afford such airline, service providers or operators the possibility of eliminating competition in respect of a substantial part of the products and services concerned.
The Regulations further list certain agreements that are exempted from the application of the Regulations, namely:
- a contract or an arrangement where the only parties are or will be wholly owned subsidiary and holding companies;
- a contract of service or a contract for the provision of services insofar as it contains provisions by which a person, not being a body corporate, agrees to accept restrictions as to the work, whether as an employee or otherwise, in which that person may engage during or after the termination of the contract;
- a contract for the sale of a business or shares in the capital of a company carrying on business insofar as it contains a provision that is solely for the protection of the purchases in respect of the goodwill of the company;
- a contract or an arrangement in as much as it contains a provision that relates to the remuneration, conditions of employment, hours of work or working conditions of employees;
- any act done otherwise than in trade, in concert by passengers, consumers of products and services against the suppliers of those products and services;
- any act done to give effect to a provision of a contract or an arrangement referred to in points (a) to (e) of this list; and
- any act done to give effect to any intellectual property right, which shall mean a right, privilege or entitlement that is conferred as valid by or under any enactment in force.28
There is no specific criminal liability for the breach of these anticompetition provisions in the regulations, however, the CAA29 imposes penalties for offences against the regulations, including the suspension or revocation of certificates, licences and authorisations, and in cases of any particular offence such fine as may from time to time be prescribed by the Authority or imprisonment for at least six months, or both.
VII WRONGFUL DEATH
The Nigerian courts, in assessing liability and awarding compensation for wrongful death claims, will consider and apply the provisions of the Nigerian Civil Aviation Act and the Montreal Convention 1999. The relevant provisions are contained in Article 17 of the Montreal Convention, which is reproduced below as follows:
Article 17- The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place onboard the aircraft or in the course of any of the operations of embarking or disembarking.
In assessing compensation, the courts will apply the provisions of Article 21, reproduced below, which prescribes the right of the carrier to limit its liability:
Article 21- For damages arising under paragraph 1 of Article 17 not exceeding 100,000.00 United States Dollars for each passenger, the carrier shall not be able to exclude or limit its liability.
The carrier shall not be liable for damages arising under paragraph 1 of Article 17 to the extent that they exceed for each passenger 100,000 United States Dollars if the carrier proves that: Such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or Such damage was solely due to the negligence or other wrongful act or omission of a third party.
However, the Nigerian courts will not apply the limits to the carrier's liability where the claimant can successfully prove the wilful misconduct30 or negligence of the carrier. In that circumstance, the courts will award either general damages31 or special damages after considering the extent to which the carrier has taken all necessary measures to avoid the damage.
VIII ESTABLISHING LIABILITY AND SETTLEMENT
The Federal High Court of Nigeria32 is vested with the jurisdiction to hear and determine matters and offences under the Act, particularly where:
- offences are committed onboard aircraft registered in Nigeria;
- the aircraft onboard which the offence is committed lands in Nigeria with the alleged offender still onboard;
- the offence is committed onboard an aircraft leased without crew to a lessee who has his or her principal place of business in Nigeria or, if he or she has no principal place of business, his or her permanent residence is in Nigeria; and
- the offence is committed onboard a non-Nigerian registered aircraft while the aircraft is within the territory of Nigeria.
The Federal High Court of Nigeria, in establishing liability and settling claims, adopts the mechanisms set out in international conventions such as the Montreal Convention 1999.33 The Montreal Convention provides for a two-year limitation period for bringing claims 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.
However, the jurisdiction of the Federal High Court does not cover every situation where the subject matter relates to aviation, particularly carriage by air. For the jurisdiction of the Federal High Court to be invoked, there must have been an actual carriage of such goods and or passengers.34
In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under the Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as set out in the Montreal Convention without prejudice to the question as to who are the persons who have the right to bring suit and what their respective rights are. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.35 However, in a recent decision of the Supreme Court in Mekwunye v. Emirates, the Court, overruling the decision of the Court of Appeal, held that an airline who breached a contract of carriage by refusing passenger boarding for no reason cannot rely on the Montreal Convention, which limits the liability of an airline towards its passengers when it has breached a fundamental term of the contract.
ii Carriers' liability towards passengers and third parties
The carriers' liability to passengers and third parties in the course of carriage by air within or from Nigeria is governed by the provisions of the CAA, its regulations and the Montreal Convention 1999.36
The carriers' liability is strict, as gleaned from Section 49(2) of the NCAA 2006, which provides that as follows:
Where injury, loss or damage is caused to any person or property on land or water by an article or a person in or falling from an aircraft while in flight, taking off or landing, then, without prejudice to the law relating to contributory negligence, damages in respect of the injury, loss or damage shall be recoverable without proof of negligence or intention or any other cause of action, as if the injury, loss or damage had been caused by the wilful act, neglect or default of the owner of the aircraft. Provided that where the injury, loss or damage is caused as aforesaid in circumstances in which
(a) damages are recoverable from the owner in respect of the injury, loss or damage by virtue only of the foregoing provisions of this subsection; and
(b) a legal liability exists in some person other than the owner to pay damages in respect of the injury, loss or damage; the owner shall be entitled to be indemnified by that other person against any claim in respect of the said injury, loss or damage.
These laws hold the carrier liable for any death and injury to passengers, provided that the accident that caused the death or injury took place onboard the aircraft or in the course of any of the operations of embarking or disembarking.37 The carrier is also liable for damage sustained in case of destruction, loss or damage to checked or unchecked baggage and to cargo sustained during the contract of carriage or onboard the aircraft and in its charge.38 The carrier is not able to exclude or limit its liability for claims arising from death and injury to passengers not exceeding 100,000 special drawing rights (SDR) for each passenger.39 For delay, baggage and cargo claims, the carriers' liability can be limited to 1,000 SDR for each passenger.40
The trend in awards granted by the courts, as evidenced in Emirates Airlines v. Aforka,41 show that the courts will apply the limits of liability as set by the Montreal Convention once all conditions stated therein are satisfied.
iii Product liability
The CAA and other legislation do not provide a regime for manufacturers' and owners liability to passengers and operators.
In awarding damages to a claimant against the carrier in accordance with the CAA and the Montreal Convention, the Nigerian courts42 lay emphasis on proof of injury, or loss or damage to person or property. However, where the intent is to recover in excess of the carriers' limits of liability, there is a higher burden of proof on the plaintiff or claimant to show that the carriers' conduct was reckless and done with the knowledge that damage would probably result in enabling the trial court to award damages outside the limits of liability.43
In cases of air accidents resulting in death or injury of passengers, Article 28 of the Montreal Convention provides that the carrier shall make advance payment to persons entitled to compensation if required by its national law. In Nigeria, the CAA44 makes provision for advance payments to be made by the carrier to the natural person or such natural persons who are entitled to claim compensation in cases of aircraft accidents resulting in death or injury to passengers. Advance payments of at least US$30,000 are to be made by the carrier within 30 days from the date of such accident, to meet the immediate economic needs of such persons. It must, however, be noted that such advance payments made will not constitute recognition of liability and may be offset against any amounts subsequently paid as damages by the carrier.
The Montreal Convention45 prescribes the types of losses and damages that may be compensated; these include any action for damages, however founded, whether under this convention, in contract, in tort or otherwise. It should be noted that these actions or claims can only be brought subject to the conditions and such limits of liability that are set out in the Convention, without prejudice to the question as to which persons have the right to bring suit and what their respective rights are. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.46
Recent events in Nigeria have revealed the challenges faced by claimants in receiving compensation for death and bodily injury. The failure of air carriers to comply with compensation provisions usually results in class action lawsuits against the air carriers by families of victims. Families of the victims of the Dana Airline plane crash of 2012 instituted actions in 2014, at which time a considerable number of persons entitled to advance payments were still unpaid.47
The Regulations48 provide that the NCAA will facilitate the establishment of a family assistance programme, which shall provide succour to aircraft accident victims and their families in accordance with the ICAO Doc 9998 (ICAO Policy on Assistance to Aircraft Accident Victims and their Families). However, this is yet to be established in Nigeria.
IX VOLUNTARY REPORTING
As the result of a reform and the enactment of new regulations in 2016,49 there is now established a statutory framework and protection for voluntary reporting for incident and accidents in the aviation industry. This represents the highest level of protection and comfort for voluntary reporting aimed at encouraging the reporting of incidents in the aviation community, with a view to improving safety while avoiding backlash from such voluntary provision of information on aviation safety. The supervisory arm for such voluntary reporting regime is the Accident Investigation Bureau50 established, pursuant to the CAA, as an autonomous agency. Under this voluntary reporting regime, the Bureau is empowered to support a voluntary incident reporting system of the relevant authority to facilitate the collection of information that may not be captured by a mandatory incident reporting system. It further provides that a voluntary incident reporting system shall be non-punitive and afford protection to the sources of the information.51
X THE YEAR IN REVIEW
In 2016, the NCAA commenced Aerodrome Certification of Lagos and Abuja airports, and also the completion of phase three of the Aerodrome Certification programme, as well as certification of air navigation service providers. The NCAA also concluded the audit of aerodromes and heliports in the country, and was successful in the ICAO universal safety oversight audit programme.
The NCAA is accredited as the only helicopter flying school in the subregion to offer the air transport pilot licence, holds certification of aviation security screeners at the nation's airports and has also attained level three in the state safety programme implementation process, such that Nigeria is now on the same level as the United States and United Kingdom for safety rating.52
The year 2016 also witnessed the review and amendment of the NCARs, which create statutory backing and protection for voluntary reporting of accidents and incidents.
In 2017, however, the aviation sector rebounded, resulting in a growth rate of 12.8 per cent (according to the National Bureau of Statistics (NBS)) such that by the end of 2017, the government had offloaded all the funds of foreign airlines trapped in Nigeria owing to the devaluation of the naira and scarcity of foreign exchange in 2015–2016.53 This marked a significant turnaround in the fortunes of the airlines in the aviation sector.
Air transport increased by 19.8 per cent in 2018, the majority of which was from domestic air travel (23 per cent for domestic and 13 per cent from international travel). The NBS noted that air transport contributed about 137.9 billion naira to the GDP.
In 2017, Lagos and Abuja Airports were aerodrome certified and the aerodrome certification of Port Harcourt and Kano Airports are in the final phases. The government has also removed duty on the importation of aircraft and spare parts into Nigeria for use in Nigeria. Value added tax on shared transportation (which covers air transportation) was also removed and tax waivers introduced to aid ease of doing business in Nigeria (these incentives are available to operators). The aviation fuel challenge still exists as it is still not refined in Nigeria, which remains a challenge because approximately 40 per cent of operating costs go towards aviation fuel.
The Nigerian government attempted to float a national carrier, Nigeria Air, but all plans relating to this have been put on hold after its initial announcement. Also, C checks on Boeing 737 aircraft can now be conducted in Nigeria. This development will save Nigerian operators millions of dollars spent on offshore maintenance.
In December 2018 the International Civil Aviation (ICAO) inaugurated its global security training centre in Nigeria, which will handle all aviation security training in West and Central Africa under the management of the Federal Airports Authority of Nigeria (FAAN).
The year 2018 also saw the birth of the Single African Air Transport Market (SAATM), which is a project of the African Union aimed at unifying and liberalising the air transport market in Africa. Nigeria is one of the 23 countries out of the 58 members of the African Union set to implement the SAATM.
A new Civil Aviation Act has been proposed. The draft bill has been approved by the Federal Executive Council and will soon be submitted to the legislature for consideration. The new Act seeks to remove regulatory powers from certain agencies (e.g., the Federal Airports Authority of Nigeria), leaving the NCAA with the sole regulatory powers as required by the ICAO. It also seeks to address the effects of Sections 21 and 22 of the Fiscal Responsibility Act 2007, as amended in 2011, which stipulate that all government agencies must remit 25 per cent of their revenue to the government.
Eligibility to access the Power and Airline Infrastructure Fund
The Central Bank of Nigeria, in conjunction with the Bank of Industry, set up a 300 billion naira Power and Airline Infrastructure Fund in a bid to catalyse financing of the real sector of the Nigerian economy. Any airline duly incorporated under Nigerian law and operating in Nigeria, or any company registered and operating in Nigeria in aircraft hangar projects capable of servicing existing commercial jets and next generation aircraft series for 'C' and 'D' checks in Nigeria, is eligible to access the fund.54
The global aviation market recorded moderate growth in 2018 and the same was true for the Nigerian aviation industry as a result of the economic downturn. The following two factors played a major role: the unavailability of foreign exchange (forex) and the decline in demand for airline services.
During the 2016–2017 aviation challenges, foreign airlines were unable to repatriate revenue as the scarcity of dollars trapped their funds in naira, rendering them essentially unusable for certain periods. There was also the creation of an artificial scarcity of Jet A1 fuel because of the non-availability of forex. The bigger domestic airlines struggled to stay afloat, despite the increased patronage from Nigerians. However, this is no longer the case as things have now stabilised .
The future health of the aviation industry is affected by the direction of global economic performance coupled with the decline in global oil prices. It is predicted that the global economy will see a growth of 3.1 per cent, higher than the 2011–2015 average of 2.61 per cent. The global aviation sector is expected to reflect this trend and expand marginally.
The domestic market will also record marginal improvements based on the following, which we are beginning to witness:
- Improved forex liquidity: the Central Bank is committed to solving the repatriation crisis by keeping airlines as top priority for forex allocation as a short-term measure. In the medium to long term, when the benefits of effective forex policy and export diversification begin to come to fruition, the problem of non-repatriated funds will disappear.
- Regulation and monitoring: the NCAA is beginning to take note of the uncontrolled unreliability of Nigerian operators. Thus, the agency is aggressively educating its stakeholders on its intentions to impose penalties for unnecessary delays and flight cancellations.
Beyond the challenges, Nigeria's air transport industry has retained its attractiveness and experienced an increase in bilateral air services agreements. Nigeria currently has bilateral air services agreements with 90 countries. More countries have requested additional and more frequent flight schedules, such as the UAE, the Netherlands, Turkey, Brazil, Qatar and the Ivory Coast.55
The NCAA is also promising to sustain the safety oversight and engage in more regular surveillance and stringent enforcement measures on operators, as well as ensuring airlines' operational books are sighted with increased regularity. It is expected that Nigeria will continue to maintain high safety standards and culture that earned it the FAA Category 1 recertification. New airlines such as Max Air were established in 2018 and it is expected that even more domestic carriers will start flying in 2019, as more companies are in the process of getting their AOCs.56 It is hoped that with increased competition will come improved services and more options for customers.
1 Anthony Nkadi is a senior associate and Kemi Oluwagbemiro and Omobola Bakare are associates at F O Akinrele & Co.
2 Michael M Ogbeidi, The Aviation Industry in Nigeria: A Historical Overview, 2006.
4 CAA 2006.
7 Adejoke O Adediran, 'Current Regulation Of Air Carriers' Liability And Compensation Issues In Domestic Air Carriage In Nigeria', 81 J. Air L. & Com. 3 (2016) available at http://scholar.smu.edu/jalc/vol81/iss1/22016.
8 This has since been repealed by the CAA 2006. However all regulations, by-laws, orders and subsidiary legislation made therein continues to be in force.
9 This was the day when the law was assented to by the President.
10 S.I. No. 36 Vol. 102.
11 Nigeria (2015) Air Transport Economic Regulations, Government Official Gazette No. 175, Volume 102, Notice No. 128 , pages B2495-2589, dated 14 December 2015.
12 See Part 19 of the Civil Aviation Regulations 2012 Vol II.
13 S.I. No. 36 Vol 102.
14 Section 78 (1) CAA 2006.
15 Section 35 (1) CAA 2006.
16 Section 34 (2) CAA 2006.
17 Section 34 (3) CAA 2006.
18 Section 68 CAA 2006.
19 A case in point is the Banjul Accord Group Aviation Safety Oversight Organisation (BAGASOO), which has its headquarters in Abuja. It is one of the agencies of the Banjul Accord Group, which is made up of seven West African countries (Gambia, Ghana, Guinea, Liberia, Nigeria, Cape Verde and Sierra Leone) and was created to harmonise policies and procedures on civil aviation, and foster the development of international civil aviation through cooperative arrangements between Member States. Another regional initiative is the Banjul Accord Group Accident Investigation Agency, which was created to investigate aviation accidents in Member States.
20 Part 5 of the NCAA Regulations 2012.
21 Section 29 of the CAA 2006.
22 The Nigerian Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2016.
23 Section 74 of the CAA 2006.
24 Section 74(3) of the CAA and Article 50 of the Montreal Convention 1999.
25 Section 70 CAA 2006 LFN.
26 Nigeria (2015) Air Transport Economic Regulations, Government Official Gazette No. 175, Volume 102, Notice No. 128, pages B2495-2589, dated 14 December 2015.
27 Section 18.15.4 of the Air Transport Economic Regulations 2015.
28 Section 18.15.11 of the Air Transport Economic Regulations 2015.
29 See Section 30(9) of the CAA 2006.
30 The concept of wilful misconduct as defined in the English case of Horabin v. BOAC (1952) 2 All ER 1016 as: 'to be guilty of wilful misconduct, the person concerned must appreciate that he is acting wrongfully, or is wrongfully omitting to act, and yet persists in so acting or omitting to act regardless of the consequences, or acts or omits to act with reckless indifference as to what the result may be; all the problems . . . must be considered in the light of that definition.'
31 Ogunbiyi JCA in Harka Air Services Ltd v. Keazor (2006) 1 NWLR pages 193–194: the issue of general damages is that perceived as a direct and immediate result from the deductive circumstance of the nature of the injury. Also, in the recent Supreme Court judgment in Mekwunye v. Emirates (2019) LPELR 46553 (Supreme Court) general or special damages may now be awarded in aviation matters.
32 Section 56(6) and 63 of the CAA 2006.
33 Nigeria is a party to this Convention and is implemented and domesticated under the CAA 2006.
34 KLM Royal Dutch Airlines v. Taher (2014) 3 NWLR Pt. 1393 page 137 , Harka Air Services, supra, pages 193–194.
35 Article 29 of the Montreal Convention 1999.
36 Nigeria operates the modified Montreal Convention 1999 to suit its domestic circumstances. The CAA Act contains two versions of the Montreal Convention (the original document and the modified version. Nigeria currently operates with the modified version).
37 Article 17 of the Montreal Convention, 1999.
38 Article 18 of the Montreal Convention, 1999.
39 Article 21 of the Montreal Convention, 1999, Schedule II and III of the CAA 2006.
40 Article 22 of the Montreal Convention, 1999.
41 (2015) 9 NWLR Pt.95. The trial court had initially failed to apply the limits of liability provided under the Montreal Convention as domesticated in the Nigeria Civil Aviation Act. However, the Court of Appeal upturned the judgment and sought to apply the limits based on the inability of the claimant to prove the exception of wilful misconduct of the carrier.
42 In cases such as Harka Air Services Limited v. Keazor (2006) 1NWLR page 167, Cameroon Airlines v. Jumai Abdul-Kareem (2003) 11 NWLR (pt 830) 1 at page 22, paragraphs D-E and Emirate Airline v. Aforka (2015) 9 NWLR p. 95
43 Per Chukuma-Eneh JCA (as he then was) in Cameroon Airlines v. Jumai Abdul-Kareem (2003) 11 NWLR (pt 830) 1 at page 22, paragraphs D-E.
44 Section 48(3) of the CAA 2006.
45 Article 29 of the Montreal Convention, 1999.
47 Dana Air Crash: Consortium of Lawyers Breaks New Grounds in Aviation Litigation, BUS. DAY (25 June 2015), http://businessdayonline.com/2015/06/dana-aircrash-consortium-of-lawyers-breaks-new-
48 Section 18.11.12 of the NCAA Air Transport Economic Regulations, 2015.
49 Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2016, which came into force on 25 February 2016.
51 Sections 8(2) b-c of the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2016.
52 See the NCAA DG scorecard in its 2017 press conference held at the NCAA headquarters annex conference hall on 30 January 2017.
53 The US$575 million owed to the airlines in 2016 was reduced to US$175 million, and by the end of 2017 all the foreign airline operators had repatriated their funds.
54 See the Central Bank of Nigeria guidelines: 'The CBN 300 Billion Naira PAIF Revised Guidelines (Amendment 8) of June 2016'.
55 ibid. 49.
56 18 firm applications, ibid. 49.