Air passengers` rights under International air law and Nigerian law : issues on protection and dispute resolution

Abstract

The key tripartite players in international and domestic air transportation are the regulators, air carriers and air passengers. While the government provides the legal and regulatory framework and air carriers offer air transportation service, the air passengers are the travellers constituting an important organ of air carriage. Although both the international and Nigerian legal regime provides for some air passengers’ rights, airlines in Nigeria are insensitive to and violate these rights. For instance, the obligation of informing air passengers of their rights by airlines is merely in the books, delays and cancellation of scheduled flights are common with no enforcement. Currently, there is an unresolved institutional conflict between the Nigerian Civil Aviation Authority (NCAA)/Consumer Protection Directorate (CPD) and the Nigerian Consumer Protection Council (CPC) on the jurisdiction of protecting air passengers’ rights. Legally, air passengers can sue airlines before the Federal High Court (FHC) to enforce their rights, but this option is characterised with shortfalls such as technicalities, cost and delays. The research work explored these problems and suggests ways of strengthening the judicial option. Similarly, the lack of efficient Alternative Dispute Resolution (ADR) mechanism limits air passengers’ options. It is against this background that the research examined the International and Nigerian legal regime on air passengers’ rights and analysed the practices of the United States of America (USA) and the European Union (EU). The reason for selecting these jurisdictions is to draw lessons on the International Best Practices (IBP) for improving air passengers’ rights in Nigeria. The research employed both Doctrinal and Non-doctrinal methods and examined the relevant international and Nigerian legal and institutional regime on air passengers’ rights. The research also interviewed the staff of the NCAA/CPD, CPC, some air carriers, air passengers and legal practitioners and evaluated their responses. The research finds that both the international and Nigerian legal and institutional regime are weak and lacks effective enforcement mechanism. The terms and conditions in a standard flight ticket are unilaterally issued by the airlines to passengers on a “take it or leave it” basis. The limiting and exclusion clauses in such tickets is an abuse of the principle of freedom of contract. It is found also that Islamic law has comprehensively provided for the rights and compensation of parties to contract and air passengers have adequate protection therein. The research also finds that the CPD is not a creation of any law, ADR mechanism and air passengers’ complaint procedure are not clearly defined. The research recommends for harmonization of the Nigerian institutional framework to break the inherent institutional conflict to have synergy in their operations. The Constitution of the Federal Republic of Nigeria, 1999 and the Civil Aviation Act, 2006 be amended to confer jurisdiction to state high courts to determine aviation matters, formally adopt ADR scheme, legally establish the CPD and create an independent Air Passengers’ Dispute Resolution Committee (APPDRC) to protect, enforce and resolve air passengers’ rights disputes. A mandatory, uniform, simple, fast and practical method of determining complaints be put in place. Finally, improved air passengers’ education, enhanced regulatory supervision, adequate sanctions and positive engagements with airlines should be entrenched to strengthen air passengers’ rights protection and dispute resolution in Nigeria.