Airlines should take advantage of bilateral agreement – Elema, SAN
Airlines should take advantage of bilateral agreement – Elema, SAN

There have been several complaints about the shortcomings of airlines operating in Nigeria which has affected the growth of the aviation sector. Sylvester Elema, SAN, tells BABATUNDE TITILOLA the various issues disturbing the sector and why the Nigerian government needs to do more for the aviation industry.

How would you rate the state of Nigeria’s aviation sector in terms of performance?

The aviation sector of Nigeria is not performing well. In the local scene, we have seen the rise and fall of several domestic airlines – Nigeria Airways, Okada Airlines, Chanchangi Airlines, Kabo Air, Arik Air etc.

These airlines ought to have grown bigger instead of going under. Presently, the few domestic airlines in operation are also showing the same signs and symptoms that led to the collapse of the previous ones mostly in terms of unreliable and chaotic flight schedules. On the international scene, the situation is even worse. We do not have Nigerian-registered airlines that are taking advantage of the reciprocity provisions in the Bilateral Air Services Agreement signed between Nigeria and various countries. So, we have a one-sided aviation flow whereby foreign airlines come to Nigeria but we don’t have Nigerian airlines that can fly into those countries in reciprocity.

The Federal Government recently announced that it’s in talks with Ethiopian Airlines to make it a core investor of Nigeria Air. What is the legal implication of this partnership if it pushes through?

The legal implication of the proposed arrangement between Ethiopian Airlines and Nigeria to float Nigeria Air will depend on the legal structure of such an arrangement. If Nigeria has majority shares, it can still qualify as a Nigerian carrier and may therefore be eligible to take advantage of BASA between Nigeria and various countries.

What are those problems you can highlight as facing the aviation sector?

The problems facing the aviation sector in Nigeria include a lack of capacity on the part of the airline operators and the absence of technical capacity to service aircraft in Nigeria. The amount of foreign currency the airlines spend in servicing their aircraft abroad is mind-boggling.

There have been complaints over foreign airlines introducing restrictions such as selling tickets in dollars, reducing inventories, etc. Should these airlines have such power without consulting the Nigerian Civil Aviation Authority?

Foreign airlines are still not allowed to sell their tickets in dollars. They sell in naira. They are also not allowed to use the autonomous exchange rate in charging their fares in naira. That is why they insist that they be allowed to repatriate their funds based on the same exchange rate they use in calculating their fares and the CBN is not able to provide the funds as and when needed. It is, therefore, not true that foreign airlines are selling their tickets in dollars without the approval of the Nigerian Civil Aviation Authority.

Is the NCAA equipped with enough policy formulation and implementation to be the absolute authority in aviation operations in the country?

Yes, the Nigerian Civil Aviation Authority is adequately equipped by law to be the regulator in the aviation industry. A new Aviation Act has just taken effect this year (2022).

What are possible legal issues that may arise in the aviation sector?

Several legal issues can arise in the aviation sector. Some of them are in respect of the aircraft used by airlines. Most of the aircraft are on the lease, either wet lease or dry lease. In a wet lease, the owner of the aircraft provides the aircraft, crew, maintenance and insurance.

In a dry lease arrangement, the owner of the aircraft provides the aircraft only. Legal disputes may arise over the performance of certain obligations in the contract, which sometimes lead to the repossession of the aircraft by the aircraft owners, etc. The Cape Town Convention governs the transactions in this area of aviation law. Legal disputes may also arise between the airlines and passengers by way of accidents, delays in baggage delivery, loss of baggage, delayed flights, etc. These are ventilated under the provisions of the Montreal Convention 1999.

There have been comments on the welfare of aviation workers. Can the aggrieved workers seek redress by suing the Nigerian Aviation authorities?

The aviation workers have contracts of employment with the particular government parastatals that employed them. Each worker can only seek redress against his employer but not against the aviation authorities as a whole because of what we refer to as “privity of contract” in legal parlance.

What is the possibility of successfully handling legal issues in the sector through alternative dispute resolution, and should ADR be encouraged over litigation?

Legal issues in the aviation sector can be successfully handled through Alternative Dispute Resolution. It all depends on the terms of the contract and the willingness of parties to submit to alternative dispute resolution. The Nigerian Civil Aviation Authority also has an Alternative Dispute Resolution desk. But courtroom litigation remains the next option if ADR fails.

The aviation sector should have rights enjoyed by passengers too. What are these passenger rights, and how can they be enforced upon infringement?

Passengers of aviation sector services have several rights which are protected by the Civil Aviation Act and International Protocols Conventions, etc, such as the Montreal Convention 1999. Passengers are entitled to financial compensation in the event of flight delays, delay in delivery of luggage, loss of luggage or accidents on board the aircraft that lead to bodily injury or death. Such rights can be enforced through legal intervention in the event of a breach.

Does the aviation sector have enough legislation or is there a need for law reforms to improve the sector?

We have brand new legislation in the aviation sector, the Civil Aviation Act 2022. For now, we have all we need in terms of legal infrastructure for the aviation industry in Nigeria.

  In this article:

Leave a Reply

Your email address will not be published. Required fields are marked *