An Analysis of Consumer Rights Protection in the Nigerian Aviation Industry

By Temiloluwa Olowoyo

Who is a consumer?

The Nigeria Civil Aviation Regulation[1] defines a consumer as a consumer of civil aviation services, which in a simple sentence would mean a consumer’s purchase of ticket for the sole purpose of taking a flight.[2] Airport security is constantly evolving. Today, it is not just about safely moving people from one place to another, but also making sure that passengers have a smooth experience and that day to day operations run like clockwork. [3]. The statement above points to the fact that consumer protection cuts across passengers’ safety, alongside the available restitutions for denied bookings, delays and cancellation of flights[4]

The Nigeria Civil Aviation Authority (the “authority”) is the body that is primarily responsible for the regulation of aviation in Nigeria which was established pursuant to the provisions of the Civil Aviation Act.[5] The Act vests the NCAA with the authority to perform an oversight function in the aviation industry, regulation of airspaces and airports with performing economic advisory function as it relates to aviation. It is worthy of note that the authority may be sued in its corporate name[6], however, not without some qualifications in section 24(1) and (2) of the Act[7] as it relates to notice of suit and limitation.

CONSUMER RIGHTS PROTECTION.

Section 30 of the Civil Aviation Act gives the ‘authority’ power to regulate air navigation, especially in the following subsections;

30 (2). Without prejudice to the generality of subsection (1) of this section, the powers     conferred therein shall include power to make regulations:

1. as to conditions under which passengers and goods may be carried by air and under which aircraft may be used for other gainful purposes, and for prohibiting the carriage by air of goods of such class or classes as may be prescribed
2. generally for securing the safety, efficiency and regularity of air navigation and safety of aircraft and of persons and property carried in aircraft and for preventing aircraft from endangering other persons or property.
3. for regulating or making of signals and other communications by or to aircraft and persons carried in aircraft[8]

It is in the holistic interpretation of the sections listed above and others that are likewise provided in the act[9] that the authority has come up with a regulation known as Nigeria Civil Aviation Regulation (NCAR) which expressly and succinctly, in its part 19, provides for Consumer Protection Regulations.

Part 19 deals with passenger’s right and responsibilities and airlines obligation to passengers. This part addresses consumer protection issues, including, compensations for denied boarding, delays and cancellation of flights.[10]

By the provision of the NCAR, it has gone ahead, under its applicability session[11], to provide meaning for who a complainant is

Complainant means

1. An air passenger
2. One or more air passengers, where there are numerous air passengers having the same interest or
3. In case of the death of an air passenger, his legal heirs or representatives making or continuing a complaint.

This provision proves necessary in the event that a consumer is aggrieved or his right under the regulation has been breached, the term ‘complainant’ encapsulates him and gives him the locus standi to make a complaint. Complaint under the regulation means an allegation in writing made by an air passenger, a group of passengers or their legal heirs or representatives.

The scope of the application under the regulation appears to apply to three classes of individuals:[12]

1. To passengers departing from an airport located within the Nigerian Territory to another airport within Nigeria.
2. To passengers departing from an airport located in another country to an airport situated with Nigeria, unless they received benefits or compensation and were given assistance in that other country.
3. To passengers on foreign air transportation with respect to flight segments originating at a point in Nigeria.

This means that any individual that falls under the categories above can validly lay claim to the rights under the Consumer protection regulation. The provision in this part is not applicable to individuals travelling free of charge or at a reduced fare not available directly or indirectly to the public. However, it shall apply to passengers having tickets issued under a frequent flyer programme or other commercial programme by an air carrier or tour operator.[13]

RIGHTS OF THE CONSUMERS IN THE EVENT OF A DELAY OR CANCELLATION.

The NCAR does not, under the introductory session[14] explain what delay means but according to Wikipedia, a flight delay is when an airline flight takes off and/or land later than its scheduled time[15], inference can also be made from the wordings in the opening sentence of part 19.6.1.1 which states; ‘for domestic flights, when an operating air carrier reasonably expects a flight to be delayed beyond its scheduled time of departure’. It however provides a meaning for ‘cancellation’, it is the non-operation of a flight which was previously planned and on which at least one seat was reserved. By this provision, a consumer that has suffered a delay has to be given the reasons for the delay within 30 minutes after the scheduled departure time and the assistance specified below[16]:

1. After two hours, refreshments as specified in section 19.10.1(i)[17] and telephone calls, SMS and E-mails as specified in section 19.10.2[18]
2. Beyond three (3) hours, reimbursement as specified in section 19.9.1(i)[19] and
3. At a time beyond 10pm till 4am, or at a time when the airport is closed at the point of departure or final destination, the assistance specified in sections 19.10.1(iii) and 19.10.1(iv) (hotel accommodation and transport)

The provisions above applies to domestic flights as well as international flights only that for international flights, it placed further onus on the flight carrier to go a step further in assisting the passenger.[20]

Part 19.7 provides for cancellation, it states that in the event of cancellation, the passengers concerned shall

i.) Be offered assistance by the operating air carrier in accordance with section 19.6[21]

ii.) Be offered assistance by the operating air carrier in accordance with sections 19.9.1(i) and 19.9.2 as well as, in the event of rerouting when the reasonably expected time of departure of the flights is at least the day after the departure as it was planned for the cancelled flight, the assistance specified in sections 19.9.1(ii) and 19.9.1(iii).

iii.) In respect of domestic flights, have the right to compensation by the operating air carrier in accordance with section 19.10 unless they are informed of the cancellation at least twenty four hours before the scheduled time of departure; and

iv) In respect of international flights, have the right to compensation by the operating air carrier in accordance with section 19.10.

There are instances where the operating air carrier will  not be liable to pay compensation to the passenger, for example where they are informed of the cancellation at least seven days before the scheduled time of departure, [22] or where they are informed of the cancellation between three and seven days before the scheduled time of departure and are offered rerouting, allowing them to depart not more than two hours before the scheduled time of departure and to reach their final destination less than four hours after the scheduled tie of departure[23], or they are informed of the cancellation less than seven days before the scheduled time of departure  and are offered rerouting allowing them to depart not more than one hour before the scheduled time of departure and to reach their destination less than two hours after the scheduled time of arrival.[24]

Passengers are to be given an explanation concerning possible alternative transport when being informed of the cancellation.[25] It should be noted that an operating airline will not be obliged to pay compensation for cancellation if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

The regulation under the introductory part explains what makes up an extraordinary circumstances; ‘any mechanical, technical, operational, climatic, socio-political or any other conditions beyond the actual control of the party involved.[26]  The burden of proof concerning any question as to whether and when the passenger has been informed of the cancellation of the flight shall rest with the operating airline.[27]

As part of the rights of a consumer, the NCAR also made provisions for compensation to the passengers by returning 25% and 30% of the tickets price for national and international flights respectively[28]. Consumers also have the right to reimbursement or rerouting[29] and right to care[30]. A very important right is the one which relates to persons with reduced mobility or special needs where the NCAR states that they shall be given priority and to anybody accompanying them, also to unaccompanied minors and families where at least one child is aged five years or under.[31]

To further emphasize how important these rights are, the NCAR makes it mandatory that passengers are informed of their rights at check-in by making available clearly legible notice visible to the passengers containing the following text, ‘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.’[32]  Passengers also have the right to compensation for delayed, lost and damaged goods.[33]

Where a passenger wants to lodge a complaint, he may do so with the consumer protection directorate, or any other competent person designated by the authority about an alleged infringement of this part.[34]

The Federal Airport Authority of Nigeria Act makes provisions under its functions for acts which will further ensure the safety of the consumers of the aviation service.[35] The Constitution of the Federal Republic of Nigeria vests the Federal High court with jurisdiction to entertain matters on aviation.[36]

CONCLUSION.

The NCAR is a body of rights which passengers are entitled to in order to have a seamless travel experience and, of course, to raise the standards of the aviation industry. It is therefore imperative that proper implementation of these rights is enforced when the need arises so as to ensure a constant reflection of the desire to turn the Nigeria aviation industry to a world class enterprise. The Nigerian Aviation Industry was estimated to have contributed to the nation’s Gross Domestic Profit (GDP) by 0.49 per cent in the year 20191 alone. Undoubtedly, Aviation identifies as the most preferred means of transportation in Nigeria, owing to the safety and speed it affords consumers.[37]

Temiloluwa  is a law student of the Faculty of Law Ekiti State University. He has strong interest in Intellectual property law, Space law and Tax law. belladonistemiloluwa@gmail.com

REFERENCE

• CFRN, 1999.
• FAAN, 1999.
• Civil aviation act, 2006
• Nigeria civil aviation regulation
• Omaplex.com/An Analysis Of The Nigerian Aviation Industry Viz-A-Viz Consumer Protection
• Genetic.com – security center for airports: 7day online course
• http://en.m.wikipedia.org/wiki/Flight_cancellation_and_delay

Footnotes

[1] Part 19, 19.1.2.1(6)

[2] Omaplex.com/An Analysis Of The Nigerian Aviation Industry Viz-A-Viz Consumer Protection

[3] Genetic.com – security center for airports: 7day online course.

[4]  Nigerian Civil Aviation Authority <https://Ncaa.gov.ng/about/>

[5] Section 2, Civil Aviation Act, 2006.

[6] Part 2, section 2(2)b of the Civil Aviation Act.

[7] Section 24, Civil Aviation Act, 2006, limitation of suits against the authority.

[8] This speaks to safety in emergency situation

[9] Section 30(1)(2) of the Civil Aviation Act.

[10] Introduction, part 19-Consumer protection regulations, Nigeria Civil Aviation Regulations.

[11] 19.1

[12] 19.2.1

[13] 19.2.3

[14] 19.1.1

[15] http://en.m.wikipedia.org/wiki/Flight_cancellation_and_delay

[16] 19.6

[17] Water, soft drinks, confectioneries.

[18] In addition to section 19.10.1 passengers shall be offered free to charge, two telephone calls, SMS or emails.

[19] Where reference to reimbursement or re-routing is made in this section, passengers shall be provided any of the following choices

19. Immediate reimbursement in cash for domestic flights and reimbursement within fourteen days for international flights, by means provided for in sections 19.8.3.(mode of payment) of the full cost of the unutilised ticket at the price at which it was bought, for the part or parts of the journey not made, and for the part or parts already made if the flight is no longer serving any purpose in relation to the passenger’s original travel plan, together with, when relevant, a return flight to the point of departure, at the earliest opportunity
20. Rerouting, under comparable transport conditions, to their final destination at the earliest opportunity.

• Rerouting, under comparable transport conditions, to their final destination at a later date at the passenger’s convenience, subject to availability of seats.

[20] 19.8.1

[21] Provisions made available above.

[22] 19.7.1(iv)a

[23] 19.7.1(iv)b

[24] 19.7.1(iv)c

[25] 19.7.7.2.

[26] 19.1.2.1(17)

[27] 19.7.4

[28] 19.8.1

[29] 19.9

[30] 19.10

[31] 19.12

[32] 19.16.

[33] 19.17.

[34] 19.20

[35] Section 3, part II, FAAN 1999.

[36]  Section 251 CFRN 1999 [as amended]

[37] Omaplex.com/An Analysis Of The Nigerian Aviation Industry Viz-A-Viz Consumer Protection