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We shall be discussing the application of aviation law and the relevant legislation in Nigeria.
It is no doubt that aviation
law is faced with a myriad of complex legal and socio-economic issues which
tasks the intellectual capacity of practitioners and calls the interpretative
functions of our domestic courts into questioning.
In relation to the question of applicable law, there are several issues which have arisen. The first issue relates to the precise law which ought to govern the transaction of the parties. This question is vital because it is tied to the options available to the court in the award of damages. The incidence of divergences of laws in the countries involved in the carriage of goods and persons by air travel often results in a great deal of uncertainty and confusion as to the applicable law.
In relation to the question of applicable law, there are several issues which have arisen. The first issue relates to the precise law which ought to govern the transaction of the parties. This question is vital because it is tied to the options available to the court in the award of damages. The incidence of divergences of laws in the countries involved in the carriage of goods and persons by air travel often results in a great deal of uncertainty and confusion as to the applicable law.
The primary domestic legislation governing the aviation industry
in Nigeria includes the Civil Aviation Act 2006 and the Nigeria Civil Aviation
Regulations of 2015.
The
Civil Aviation Act (the “Act”) was enacted by the Nigerian National Assembly in
2006. Section 48 (1) and (2) of the Act provides that the provision of the
Montreal Convention shall from the commencement of the Act have the "Force of law
and apply to international carriage by air to and from Nigeria, in relation to
any carriage by air to which the Rules as contained in the Convention." It
provided further that its "Application is irrespective of the nationality of the
aircraft performing the carriage, and shall, subject to the provisions of the
Act, govern the rights and liabilities of Carriers, passengers, consignees and
other persons."
Pursuant to Section 251(k) of the 1999 Constitution of the Federal Republic of
Nigeria, only the Federal High Court has the jurisdiction to entertain aviation-related cases in Nigeria. However, this pertains to either the interpretation of the legislation enacted by
the National Assembly or commercial disputes arising from aviation interactions
and safety of aircraft. The Federal High Court does not have jurisdiction over purely "Contractual matters" even with an element of aviation.
This has often time proved problematic for legal practitioners and claimants as the time and resources pulled into seeking recourse in court proves futile.
This has often time proved problematic for legal practitioners and claimants as the time and resources pulled into seeking recourse in court proves futile.
To this end, the Nigeria Civil Aviation Regulations has a dispute resolution mechanism for
passenger complaints against airlines (Part 19 of the regulations).
How this works is that upon complaints by a passenger, the Nigerian Civil Aviation Authority investigates and then dismisses the complaint or recommends the complaint for mediation or to its administrative hearing procedure.
At the conclusion of an administrative hearing, the Authority may make directives, such as for the payment of compensation. An authority directive can still be challenged at the Federal High Court.
Other alternatives for dispute resolution may also be via contracts made during the course of carriage which may include other dispute resolution mechanisms (e.g, Arbitration, Mediation). However, this does not stop parties from seeking injunctive reliefs at the Federal High Court to maintain status quo.
How this works is that upon complaints by a passenger, the Nigerian Civil Aviation Authority investigates and then dismisses the complaint or recommends the complaint for mediation or to its administrative hearing procedure.
At the conclusion of an administrative hearing, the Authority may make directives, such as for the payment of compensation. An authority directive can still be challenged at the Federal High Court.
Other alternatives for dispute resolution may also be via contracts made during the course of carriage which may include other dispute resolution mechanisms (e.g, Arbitration, Mediation). However, this does not stop parties from seeking injunctive reliefs at the Federal High Court to maintain status quo.
TYPES OF AVIATION DISPUTES AND CAUSES
Aviation-related disputes which typically arise include:
Aviation-related disputes which typically arise include:
- Disputes
resulting from aviation lease agreements;
- Challenges
by airlines or airport operators to regulatory actions by sector
regulators; and
- Passenger
claims against airlines, especially in relation to carriage of goods and
delayed or denied boarding.
The issues which frequently arise for determination in this
regard are:
- Negligence;
- Limitation
of liability;
- Application
of international conventions; and
- Breach of contract.
In conclusion, it is necessary that legal practitioners attend to each case on its peculiarity so appropriate recourse to the competent court of jurisdiction is optimized.
Thank you for taking the time to read and share this post. Should you have any questions, comments or suggestions, do not hesitate to use the comment box.
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Please follow my discussions on my LinkedIn account at https://www.linkedin.com/in/ayomide-a-jide-omole-062633112
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