Navigating Aviation Liability in Nigeria: Legal Framework, Recourse Procedures, and Jurisdictional Considerations

By Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

Introduction

The Aviation Industry has been a significant driver of economic growth in Nigeria, contributing significantly to the nation’s economic progress. Despite its positive impact, challenges such as flight delays, cancellations, air accidents, and baggage loss persist. [1] While aviation companies are pivotal in facilitating travel and commerce, incidents causing damage to passengers or third parties are unfortunately common. In Nigeria, addressing the liability of aviation companies and providing legal recourse to affected parties are subjects of great scrutiny.

In 2022, the Civil Aviation Act was enacted, followed by the Nigerian Civil Aviation Regulations of 2023, aimed at effectively regulating the Aviation Industry. These regulations govern air service and airline operations under the oversight of the Nigerian Civil Aviation Authority.

This article delves into the legal framework governing the liability of aviation companies in Nigeria and explores how damages resulting from aviation incidents are determined within this legal context.

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Legal framework Governing Aviation Liability in Nigeria

1. The Constitution of the Federal Republic of Nigeria, 1999 (as amended)

The 1999 Constitution of Nigeria serves as the ground norm of the nation and within this constitutional framework, aviation matters are expressly granted under Section 251 of the 1999 Constitution (as amended) to the exclusive jurisdiction of the Federal High Court. This delineation grants the Federal High Court sole authority to adjudicate upon all matters relating to aviation and aircraft safety.[2] By this provision, the Federal High Court is firmly established as the designated legal venue for addressing disputes and issues concerning aviation within the Nigerian legal system.

• Civil Aviation Act, 2022

The Act establishes the Nigeria Civil Aviation Authority [3], which is the primary government regulatory body responsible for overseeing aviation activities within Nigeria. This statutory body is mandated to regulate various aspects of aviation operations, including but not limited to aircraft registration and identification, consumer protection measures, personnel licensing requirements, and airworthiness standards. Through its establishment, the NCAA assumes the critical role of addressing and managing a spectrum of concerns integral to the safe and efficient functioning of the aviation industry in Nigeria.

• Nigerian Civil Aviation Regulations (NCAR), 2023

The Nigerian Aviation Authority is empowered under the Civil Aviation Act of 2022 to make regulations [4] on various issues, including aviation safety and security, commercial air transport, consumer protection and other provisions of allied aviation services

• Montreal Convention of 1999

Nigeria is a participant in the Montreal Convention of 1999, which serves as the main international legal framework for determining an airline’s responsibility for compensating passengers for any harm or loss, including cases of death.[5] This convention replaced the Warsaw Convention of 1929 [6] and has been approved by the Nigerian Legislature in line with Section 12 of the 1999 Constitution of the Federal Republic of Nigeria.[7] As a result, it has been formally incorporated into Nigerian Law through the Civil Aviation Act of 2022.[8]

Categories of Air Carrier Liabilities

Section 55 of the Civil Aviation Act, 2022, unilaterally adopted the resolution of the convention for the unification of certain rules relating to international carriage by Air at Montreal on May 28, 1999. The following are the responsibilities of the carrier and the scope of compensation for damage: [9]

1. Death and Injury to passengers [10]
2. Damage to baggage [11]
3. Damage to cargo [12]
4. Delay in the carriage by air of passengers, baggage or cargo [13]
5. Exoneration from negligence[14]

Passenger Rights and Responsibilities: Obligations of Airlines under Nigeria Civil Aviation Authority Regulations 2023

According to the Nigerian Civil Aviation Authority, travelling via air or utilizing air transport services entails both rights and responsibilities. Passengers should be aware of some of the primary responsibilities of airlines contained in Nigeria Civil Aviation Authority Regulations 2023, Part 19, Consumer Protection, including:

1. The right to 25%–30% compensation for delay in re-routing to their final destination on an alternative flight.[15]
2. The right to reimbursement or to be re-routed to their final destination [16]
3. The right to compensation for delayed, lost and damaged baggage [17]
4. The right to care [18]
5. The right to reimbursement [19]
6. The right to be fully informed about flight status.[20]
7. The right to be treated with respect and dignity, irrespective of physical condition [21]

Legal Recourse Available to Aggrieved Parties and Jurisdiction over Aviation Cases.

In Nigeria, the Federal High Court holds jurisdiction over offences under the relevant aviation laws, regardless of where the offence was started or completed, if certain conditions are met.[22] These conditions include the offence being committed within Nigerian territory, against or aboard a Nigerian-registered aircraft, by a Nigerian national, or involving an aircraft landing in Nigeria with the offender aboard.[23] Additionally, jurisdiction extends to offences involving aircraft leased without crew to a lessee with connections to Nigeria, victims who are Nigerian citizens or residents, and alleged offenders present in Nigeria.[24] The court has the authority to impose penalties for these offenses [25] and can order the forfeiture of property believed to have been used in the offence or derived from unlawful activities.[26] However, penalties may be reduced if the convicted individual assists in identifying other accused persons or facilitates their arrest.[27]

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This legal principle was established in the landmark case of CAMEROON AIRLINES v. OTUTUIZU [28], where the Supreme Court unequivocally affirmed the Federal High Court’s exclusive jurisdiction over aviation matters under Section 251(1)(k) of the 1999 Constitution. Additionally, the Supreme Court endorsed the applicability of the Warsaw Convention as amended by the Hague Protocol of 1955, clarifying that the protocol constitutes an amendment to existing Nigerian law concerning the rights and liabilities of carriers by air, as stipulated in Section 315(1) of the Constitution.

Furthermore, in the pursuit of legal recourse in aviation-related lawsuits, parties before the court must be properly identified and established as legitimate parties to the suit to ensure the just and equitable determination of the case.[29] As articulated in Adesina v. Air France [30], “only proper parties can invoke the jurisdiction of the court.” Therefore, for an action to be successful, the parties involved must be recognized as the rightful entities to whom rights and obligations arising from the cause of action are attributed. Ultimately, it is the facts of the case that dictate the identification of proper parties, ensuring that only those directly involved are entitled to initiate legal proceedings or be subject to the outcomes thereof.

It is trite that damages must be proved to secure rights to damages. This principle of general damages was elucidated by the Supreme Court in the case of Mekwunye v. Emirates Airlines [31], wherein it was explained that general damages encompass monetary compensation awarded in lawsuits for various injuries, including pain, suffering, opportunity costs, economic losses, the inability to perform certain functions, or breaches of contract, for which exact monetary values cannot be precisely calculated. General damages are distinct from special damages, which pertain to specific costs, as well as punitive (exemplary) damages, which are awarded for punishment in cases involving malice, gross negligence, or other aggravating factors on the part of the defendant.

Furthermore, it is imperative to know that in matters concerning simple contracts, jurisdiction lies with the State High Court rather than the Federal High Court. This principle was evident in the case of Air France v. Majasan [32], where the respondent initiated legal action at the Ikeja High Court of Lagos State over a dispute involving the purchase of an air ticket and subsequent refund. Although the appellant argued that the contract was an aviation contract, the Court of Appeal determined that it constituted a simple contract based on the terms and conditions outlined in the ticket. As a result, the jurisdictional decision favoured the State High Court, emphasizing the importance of understanding the nature of the contract in legal disputes.

This implies that legal action can only be initiated as an aviation suit if either the passenger or carrier has boarded the aircraft. Furthermore, matters concerning simple contracts, such as the purchase and refund of airline tickets, are under the jurisdiction of the State High Court rather than the Federal High Court.

Identify the jurisdictional indicators

In the case of Delta Airline v. Josef & Anor [33], the Court of Appeal meticulously delineated the criteria for categorizing a matter as an aviation matter. The court pronounced the following:

1. A simple contract falls under the jurisdiction of the State High Court as per Section 227 of the 1999 Constitution.
2. The addition of aviation elements to a simple contract does not automatically elevate it to the jurisdiction of the Federal High Court under Section 251(1) of the Constitution.
3. Analogy: Just as bearing an Ibo name doesn’t make a Yoruba man an Ibo man, adding aviation aspects to a contract doesn’t make it an aviation matter.
4. For a contract to qualify as an aviation matter, it must involve carriage in an aircraft with goods or passengers in the custody of the aircraft.
5. The breach of contract becomes an aviation matter only when the passenger has embarked on the journey by entering the aircraft.
6. Breaches occurring before actual embarkment, such as at the check-in counter, fall under the jurisdiction of the State High Court as a simple breach of contract.
7. Carriage by air only occurs when the passenger has been carried by the aircraft, not just checked in at the counter.
8. Delays, cancellations, or changes before embarkment can be resolved in the State High Court, as carriage by air has not taken place.
9. To fall under the jurisdiction of the Federal High Court, the passenger must have boarded the aircraft; anything less does not confer jurisdiction to the Federal High Court under Section 251(1)(k) of the Constitution.

Statute of limitations for aviation suit

In Nigeria, there are limitations applicable to various litigations, so it is necessary to understand the statute of limitations before going to court. The statute of limitations is a law that defines the period during which a lawsuit can be brought in court. Once the timeframe is outlined in a statute of limitation, it signifies that legal actions can no longer be pursued as it are prohibited by law.[34]

This principle is applicable in aviation lawsuits, as an action against an air carrier for injury or death must be filed within the two-year limitation period stipulated in Article 35 of the Montreal Convention. The cases determined under the Warsaw Convention in Nigeria recognized and upheld the time limit set in Article 29 of the Warsaw Convention and it is envisaged that questions on limitation arising under the Montreal Convention will follow the precedent laid down in these cases. The time limit is not subject to tolling.[35]

Also, in Nigeria, an action is deemed to have been instituted or commenced against a party on the date the originating process is filed in court. In this regard, to determine whether the action was commenced within the time limit stipulated under any limitation law, the courts will usually look at the pleadings of the plaintiff to ascertain the date of the accrual of the cause of action as averred by the plaintiff and compare that with the date of the filing of the originating process. If the time between these two periods is more than the period limited for bringing the action before the courts, the suit is held to be statute-barred and will be dismissed.[36]

Conclusion

The differentiation between simple contracts and aviation matters holds significant importance in determining jurisdictional matters. Specifically, a contract is deemed an aviation matter only if it involves carriage within an aircraft, and any breaches must occur after the passenger embarks on the journey. Conversely, breaches occurring before actual embarkation are subject to the jurisdiction of the State High Court and are treated as simple breaches of contract.

Additionally, a thorough comprehension of the statute of limitations is imperative when initiating legal proceedings in aviation-related cases. It is crucial to file lawsuits within the prescribed time limit, as failure to do so may lead to the dismissal of the case.

Snippet: In Nigeria, The Federal High Court holds jurisdiction over offences under the relevant aviation laws, regardless of where the offence was initiated or completed, if certain conditions are met.

Keywords:  aviation, jurisdiction in aviation lawsuits, Civil Aviation Act 2022, Nigerian Civil Aviation Regulations 2023, NCAR, CAA, limitation of time in aviation lawsuits.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)

Mr. Oyetola Muyiwa Atoyebi, SAN, is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and vast knowledge of Aviation Law and Practice, and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng  

CONTRIBUTOR: Chikezie Iwu

Chikezie is a member of the Dispute Resolution Team at OMAPLEX Law Firm. He also holds commendable legal expertise in Aviation Law and Practice.

He can be reached at chikezie.iwu@omaplex.com.ng

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[1] Kenna Partners, Determination of Damages in Aviation Claims in Nigeria. Available at https://kennapartners.com/determination-of-damages-in-aviation-claims-in-nigeria/ accessed on 22 March 22, 2024

[2] Sec. 251 (k) CFRN 1999 (as amended)

[3] Sec. 4 CAA, 2022

[4] Part III CAA, 2022

[5] IATA, The Montreal Convention 1999 (MC99) Available at: https://www.iata.org/contentassets/fb1137ff561a4819a2d38f3db7308758/mc99-full-text.pdf, accessed on 22 March 22, 2024

[6] Abdulkabir Badmos, Nigeria: The Applicability Of The Revised Limits Of Liability Under The Montreal Convention To Civil Aviation Claims In Nigeria, available at https://www.mondaq.com/nigeria/aviation/898134/the-applicability-of-the-revised-limits-of-liability-under-the-montreal-convention-to-civil-aviation-claims-in-nigeria accessed on 22 March 22, 2024

[7] ONOMRERHINOR: A Re-Examination of the Requirement of Domestication of Treaties in Nigeria, available at file:///C:/Users/USER/Downloads/ajol-file-journals_479_articles_136236_submission_proof_136236-5653-364828-1-10-20160527.pdf, accessed on 22 March 22, 2024

[8] Sec. 55 CAA 2022

[9] Chapter III, Second Schedule, CAA, 2022

[10] Article 17(1), Chapter III, Second Schedule, CAA, 2022

[11] Article 17(2), Chapter III, Second Schedule, CAA, 2022

[12] Article 18, Chapter III, Second Schedule, CAA, 2022

[13] Article 19, Chapter III, Second Schedule, CAA, 2022

[14] Article 20, Chapter III, Second Schedule, CAA, 2022

[15] PART 19.8 NCRA

[16] 19.9 NCAR

[17] 19.18 NCR

[18] 19.10 NCAR

[19] 19.14 NCRA

[20] 19.6–19.7 NCAR

[21] 19.12 NCAR

[22] Sec. 86 CAA, 2022

[23] Sec. 86 (1) CAA, 2022

[24] ibid

[25] Sec. 86 (2) CAA, 2022

[26] Sec. 86 (3) CAA, 2022

[27] Sec. 86 (4) CAA, 2022

[28] (2011) LPELR-827 (SC)

[29] Chidi Llogu, Imperative of aviation law report to legal research (The Guardian), July 7, 2020, available at Imperative of Aviation law report to legal research — Features — The Guardian Nigeria News: Nigeria and World News, accessed on March 22, 2024

[30] [2022] VOL. 35 W.R.N 1

[31] [2019] VOL. 23 W.R.N 1

[32] (2017) LPELR-43500 (CA)

[33] (2019) LPELR-46921 (CA)

[34] Resolution Law Firm, LIMITATION OF ACTIONS IN NIGERIA. Available at LIMITATION OF ACTIONS IN NIGERIA (resolutionlawng.com), accessed on 22 March 22, 2024

[35] Etigwe Uwa SAN, Queenette Hogan and Chinasa Unaegbunam, ‘Aviation Liability in Nigeria’. Available at: https://www.lexology.com/library/detail.aspx?g=ab7603b1-1a40-4d24-a3c1-088ede0ef573, accessed on 22 March 22, 2024

[36] Ibid