In this article, Osaze Ogbomo examines the rights available to stranded passengers and other air passengers who are dissatisfied with the services of their airline operators during the COVID-19 pandemic
IT is no longer a surprise that the effect of the coronavirus pandemic has permeated almost all sectors of the global economy. The aviation sector for instance, is among those hard done by the virus partly because it is airborne. It has led various government around the world to issue policies such as air travel restrictions, thereby prohibiting movement of individuals in and around its jurisdiction. Until the successful try out of vaccines on patients or a cure is found, the lockdown imposed by various countries has been accepted as the best measure to curb the spread of the disease.
However, it cannot be denied that the pandemic has created a lot of problems which has left some air passengers stranded in various cities around the world. Some passengers prior to the restriction on air travel never expected that they will have to deal with an extended stay when planning their trip abroad while others are being faced with the challenge of expired passports or visas. No one can be blamed for some of these challenges as the infamous COVID-19 as it is often called is widely regarded as an Act of God. Due to the fact that the cause of it which gives the disease substance is relatively unknown.
The precarious situation which many stranded air passengers now find themselves has made it necessary to enlighten the public regarding their rights under applicable extant laws and regulations. In Nigeria, aviation matters are placed within the exclusive jurisdiction of the National Assembly in its constitution. In exercise of that power the National Assembly, enacted the Civil Aviation Act 2006 (CAA) as the principal law governing the rights of air passengers in the Nigerian aviation industry. The law in section 48(2) of the CAA 2006, integrates some of the resolutions of the Montreal Convention 1999 which protects air passengers’ rights from liability of airline operators in cases of delay, injuries, loss or damage to luggages and cargo. It is the Civil Aviation Act 2006 which establishes and empowers the Nigerian Civil Aviation Authority (NCAA) as the regulatory agency responsible for supervising the Nigerian aviation industry. In section 27 of the Act, the NCAA is authorised to protect the rights of air passengers by investigating, imposing fines on culprits and ensuring compliance with the Act. More so, the Act empowers the NCAA to enact relevant regulatory bodies and guidelines to protect air passengers, that is why it implemented the Consumer Protection Department (CPD). The CPD is responsible for enlightening and protecting consumers while ensuring that quality services within the aviation industry is not munted.
The Consumer Protection Regulation was introduced under Part 19 of the Civil Aviation Regulations to enable the CPD to regulate and enforce the rights of airline passengers. The regulation governs passenger rights and airlines’ obligations to passengers. Also, it addresses consumer protection complaints and sets out the mode of compensation for instances such as flight delays, cancellations, overbooking and denied boarding on airplanes. Moreover, its scope is limited to air passengers travelling from an airport outside Nigeria to a Nigerian airport; or an airport to an airport outside Nigeria and one airport to another.
In addition, the aviation regime under Part 19, of the Civil Aviation Regulations 2015 and the NCAA Consumer Protection Guidelines stipulates the procedure for enforcing air passengers’ rights. It is a mandatory requirement of the NCAA for all service providers in the aviation industry to set up a customer service desk where complaints from airline customers will be received. Customers who are dissatisfied with the service have the option to lodge further complaints to the NCAA by completing a consumer protection complaint form or write a letter of complaint addressed to the director general of the NCAA. The NCAA, through the CPD, will investigate all complaints and notify affected airline operators of its findings requiring them to respond within a specified time. If a particular complaint cannot be resolved, it will be transferred to the Administrative Hearing Panel in which the affected parties will have to provide the panel with statements on which they will be heard. Depending on the veracity of each complaint, the panel in its discretion may decide that compensation be paid to the complainant or if not satisfied direct that further criminal prosecution be made if required.
Furthermore, the NCAA allows customers the opportunity to refer a complaint to the Consumer Protection Council (CPC), a body established to redress consumer complaints across all sectors in Nigeria. It is expected that the complainant using this option have attempted an initial resolution with the affected airline operator before approaching the CPC. A dissatisfied customer who decides to approach the CPC may lodge a complaint stating the following; the name and address of the alleged party who breached the aviation regulations by conduct, the disputed amount which was lost as a result of the airline operator’s conduct and the expected remedy. It is necessary to provide supporting documents to aid the CPC’s investigation so it can establish a valid complaint. However, if these measures fail to resolve the underlying issues complained about, any dissatisfied complainant can resort to taking legal action in a Nigerian court for final redress of the matter.
In a situation where an aggrieved party decides to take legal action against an airline operator or a regulatory body in the Nigerian aviation industry, the law with reference to section 251(k) of the Constitution and section 63 of the CAA 2006, grants the Federal High Court exclusive jurisdiction to hear civil and criminal suits on aviation disputes except where the matter in dispute is a labour matter, then the National Industrial Court becomes the court with appropriate jurisdiction to hear the suit. The service of court processes is guided by the Federal High Court (Civil Procedure) Rules 2019, the Sheriff and Civil Processes Act and the National Industrial Court of Nigeria (Civil Procedure) Rules 2017.
Finally, the pandemic has brought about unpredictable circumstances for air passengers, so far, we have seen the international aviation community, take initiatives over safety concerns to secure the health of millions of passengers which would otherwise be compromised by continuous movement and gathering. It is evident that individuals and businesses have been affected by the pandemic because of the disruption it has caused. However, stranded passengers who are dissatisfied with the service from their airline operators should adopt a cautious approach and seek legal advice from a legal practitioner about their situation to find out possible options such as whether a compensation is possible before taking further action.
Ogbomo is an Associate with Perchstone & Graeys, Benin Office.