Introduction

The Aviation Industry has in no doubt, contributed greatly to the growth and development of the economy. It in fact, contributed 0.14% to the nation’s GDP in the year 2019,[1] creating jobs, attracting foreign investors, and developing other sectors. Quite unfortunately, this great feat is hindered by various challenges faced by air flight passengers which include flight delays and cancellations, air accidents, loss of baggage among others. This article discusses aviation claims in Nigeria, and how resultant damages are determined.

In line with ensuring that the Aviation Industry is well regulated, the Civil Aviation Act, 2006 and the Nigerian Civil Aviation Regulations, 2015 were enacted to regulate air service, airline operators, among others, with the principal governing body being the Nigerian Civil Aviation Authority.[1]

In the International sphere, considering the global transportation network that aviation provides, Nigeria is a party to the Convention for the Unification of Certain Rules for International Carriage by Air (Montreal Convention) 1999, which is the major international law air treaty governing an air carrier’s liability for damages caused to its passengers, including death. [2] This Montreal Convention of 1999 which replaced the Warsaw Convention, 1929 has been ratified by the Nigerian Legislature in accordance with Section 12, 1999 Constitution of the Federal Republic of Nigeria, and same has been subsequently incorporated into Nigerian Law, via Section 48(1) of the Civil Aviation Act, 2006[3].

Rights of Airline Passengers

Major rights of an air flight passenger include:[4]

1. The right to enjoy the full value for money paid.
2. The right to seek redress for all irregularities during a flight.[5]
3. Right to be given the necessary notice of flight cancellation and/ or rerouting within the requisite time frame as stipulated by the law.
4. Right to receive adequate compensation for damages suffered and inconvenience cause e.g., Delay/cancellation of flights. Loss of baggage etc. except in supervening circumstances.[6]
5. The right to receive a prompt response for complaints lodged with service providers.[7]
6. The right to dignity of human person regardless of race and physical condition.

Aviation claims

As highlighted in the case of Harka Air Services (Nigeria) Ltd v Keazor[8], liabilities of an air carrier to its passengers could arise from a) Injury sustained while onboard or b) Death of a passenger during the course of a journey or c) Loss or damage of goods/baggage or d) Delay or cancellation of flights.[9]

The Consumer Protection Regulations which are contained in Part 19 of Nigeria Civil Aviation Regulations 2015 form the bedrock of liability of air carriers. These regulations are sacrosanct as they fill in gaps left in the Montreal Convention and the Civil Aviation Act.[10] However, victims of air disasters can make claims under the law of torts because most air disasters give rise to tortuous liability.[11]

How Damages are Determined in Aviation Claims.

To a lay man, damages can simply be described as the compensation gotten from the breach of contract of an existing term in a relationship. Damages could either be special or general. For a claim of general damages to succeed, the claimant need not specifically prove fact. However, special damages must be particularly pleaded.

The purpose of general damages is to compensate for damages suffered from wrongful acts, done deliberately. Since the resultant damage arises from the act, it is therefore implied and need not be specifically proved. The court has discretionary power to award general damages. On the flip side, special damages must be specifically proved. [12] The Court in Alhaji Munir Jaa’faru & 2 Ors. v Ethiopian Airlines Limited[13] held that to be excused of liability when a claim of breach of contract of carriage by air exists, such air carrier must have complied with the applicable Laws that govern the contract of carriage by air.

In Emirate Airline v Mekwunye[14] ,the Court held that in the case of loss of baggage, for special damages to be claimed, all losses on the said item must have crystallized regarding their terms and value.[15]

Furthermore, the Courts have reiterated its stance that it would not grant claims that amount to double compensation despite the need to compensate passengers for damages suffered and inconvenience occasioned. The Supreme Court per Aderemi JSC in the case of Tsokwa Motors (Nig.) Ltd v. UBA Plc.[16] held that once compensated under one head of damages, it is improper to award damages under another head, in respect of the same injury.

In answering the question of whether the claimant must show that the carrier had foreknowledge that the damage would have occurred to his item or passengers onboard, the Court in Emirate Airline v Aforka & Anor[17], citing the prior case of Cameroon Airlines v Jumal Abdul-Kareem[18]posited that it is insufficient to show the damage was caused by the negligence or malicious intention of the air carrier. The Claimant must additionally show that the carrier has prior knowledge of the resultant damage. Thus, the claimant cannot hide under the doctrine of res ipsa loquitor (the thing speaks for itself) but must prove prior knowledge of the resultant damage[19]

Conclusion

Being a thriving industry in Nigeria, the Aviation Industry is one that should guarantee airline safety and an assurance of security of the passengers’ assets. It is likewise important that victims are adequately compensated for damages suffered and airline operators are not negligent in their operations. Likewise, laws and regulations that govern the operations of this industry should be complied with.

RESOURCES

• Joan Monye (Lagos) , Ugochukwu Nwaokike (Lagos) and Sharon Juwah (Lagos) ‘Nigeria: Consumer Protection In The Aviation Industry: Liability Of Airline Carriers Over Lost Baggage’ retrieved from https://www.mondaq.com/nigeria/aviation/1039932/consumer-protection-in-the-aviation-industry-liability-of-airline-carriers-over-lost-baggage on July 30, 2021
• Corporate & Commercial Law Team at Resolution Law Firm, Lagos, Nigeria https://www.resolutionlawng.com/compensation-for-flight-delays-and-cancellations-in-nigeria/

[1] Joan Monye (Lagos) , Ugochukwu Nwaokike (Lagos) and Sharon Juwah (Lagos) ‘Nigeria: Consumer Protection In The Aviation Industry: Liability Of Airline Carriers Over Lost Baggage’ retrieved from https://www.mondaq.com/nigeria/aviation/1039932/consumer-protection-in-the-aviation-industry-liability-of-airline-carriers-over-lost-baggage on July 30, 2021Ibid

[2] Ibid

[3]  Abdulkabir Badmos ‘The Applicability Of The Revised Limits Of Liability Under The Montreal Convention To Civil Aviation Claims In Nigeria’ < 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 August 10, 2021

[4] Ibid

[5] Civil Aviation Regulations 2015, Regulation 19.12.1.

[6] Civil Aviation Regulations 2015, Regulation 19.6.1.

[7] Civil Aviation Regulations 2015, Regulation 19.18

[8]  (2011) LPELR-1353(SC)

[9] Joan Monye (Lagos) , Ugochukwu Nwaokike (Lagos) and Sharon Juwah (Lagos) ‘Nigeria: Consumer Protection In The Aviation Industry: Liability Of Airline Carriers Over Lost Baggage’ retrieved from https://www.mondaq.com/nigeria/aviation/1039932/consumer-protection-in-the-aviation-industry-liability-of-airline-carriers-over-lost-baggage on July 30, 2021

[10] Ibid

[11]  See generally sched. III, Civil Aviation Act (Nigeria)

[12] Alhaji Munir Jaa’faru & 2 Ors. v Ethiopian Airlines Limited FHC/L/CS/657/2018

[13] FHC/L/CS/657/2018

[14] (2014) LPELR-22685(CA)

[15] Shodipo & Co Ltd v Daily Times (1972) All NLR 842

[16]  (2008) 2 NWLR (Pt. 1071) 347 SC

[17]  (2014) LPELR-22686(CA)

[18] (2003) 11 NWLR (Pt. 830)

[19] Joan Monye (Lagos) , Ugochukwu Nwaokike (Lagos) and Sharon Juwah (Lagos) ‘Nigeria: Consumer Protection In The Aviation Industry: Liability Of Airline Carriers Over Lost Baggage’ retrieved from https://www.mondaq.com/nigeria/aviation/1039932/consumer-protection-in-the-aviation-industry-liability-of-airline-carriers-over-lost-baggage on July 30, 2021