Daily Law Tips (Tip 756) by Onyekachi Umah, Esq., LL.M, ACIArb(UK)
Introduction:
Like any other sector, the commercial airline sector is regulated. The Nigeria Civil Aviation Authority (NCAA) regulates commercial airlines in Nigeria and has a robust 2015 Regulations on consumer protection issues. The Nigeria Civil Aviation Authority (NCAA) Regulations 2015, covers issues of rights and obligations of airlines to their customers (passengers). This includes the rights of customers to refund and compensation for overbooking, delayed flight, cancelled flight both for domestic and international flights as well as for delayed, lost and damaged baggage.
However, some commercial airlines have institutionalized their continued breach and violation of the 2015 federal regulation made by the Nigeria Civil Aviation Authority (NCAA) for commercial airlines and related service providers. This work reveals and condemns the unlawful refund policy and practice of “Aero Contractor” (a commercial airline in Nigeria); by disclosing how the airline violates the provisions of the 2015 Nigeria Civil Aviation Authority Regulations under the nose of its regulator (Nigeria Civil Aviation Authority) and reiterates the recommended sanctions for such infraction.
Aero Contractor, NCAA and the Refund Illegalities:
Aero Contractor claims to be “West Africa’s 61 years old Aviation Company …, a well-respected aviation service provider in scheduled commercial and helicopter offshore oil and gas sector operation”. According to information on its official website, the airline is “Headquartered in Lagos, Nigeria, Aero operates a combined fleet of around 3 helicopters and 4 fixed wing aircraft ranging from 50 seat Dash 8-300 to 140 seat Boeing 737-400/500, employing about 700 personnel.”
The Nigeria Civil Aviation Authority (NCAA) is a federal government agency empowered to regulate technical and safety issues in the entire Nigerian civil aviation sector. Also, there is the Federal Ministry of Transportation empowered to handle policies and strategies in the Nigerian civil aviation sector. In exercising its powers to make regulation on aviation safety and security, commercial air transportation and other related services, the NCAA made regulations in 2015 (the Nigerian Civil Aviation Authority Regulations). It is actually a series of amendments since 2006 that led to the 2015 regulations.
The 2015 Nigeria Civil Aviation Authority Regulations made provisions for consumer protection issues (rights and obligations of airlines to their customers [passengers]). This includes the rights of customers to compensation for overbooking, delayed flight, cancelled flight both for domestic and international flights as well as for delayed, lost and damaged baggage.
The 2015 federal regulation mandates airlines to offer passengers the options of refund of air fares or re-routing, where there is a cancellation of flight by air line. The refund must be the full cost of unutilized ticket at the price at which it was bought. So, a passenger is to choose from receiving refund of full air fare or a re-routing, once there is a cancellation of flight by airline.
More importantly, the regulation mandates airlines to refund air flight fares immediately for domestic flights and within 14 days for international flights. Also, the refund is to be made in cash or by electronic bank transfer or bank orders or bank cheques or, with the signed agreement of the passenger, in travel vouchers or other services. Well, many airlines will not in reality refund air fares without delays or forcing passengers to expend more money in seeking refunds, in clear violation of federal laws/regulations.
Businesses, individuals and groups are allowed to pursue lawful ventures. In doing such, they must obey laws and adhere to regulations. The supremacy of the constitution of Nigeria and other laws and regulations in Nigeria dwarfs both local and international businesses and their policies, guidelines, plans, protocols and procedures. Contrary to the 2015 Regulation that compels airlines to refund air fares where there is flight cancellation, the “Aero Contractor” has a refund policy that delays refund for over 14 days.
Specifically, from the website of Aero Contractor, the “Cash Ticket Refund Request Form” of Aero Contractor suggests that refunds from Aero Contractor only become due after 14 days from the date of submission of request for refund. The text on the Aero Contractor’s “Cash Ticket Refund Request Form”, reads; “Cash refund for unused ticket will be ready after 14 days from submission”. The “Cash Ticket Refund Request Form” of Aero Contractor stating that passengers are to wait for 14 working days before receiving a refund, contrary to the 2015 Nigeria Civil Aviation Authority Regulations can be accessed via <http://www.flyaero.com/refund/ticket-refund-form.pdf>.
On a personal complaint for refund for cancelled domestic flight, made via email, the Customer Service Advisor of Aero Contract, sent a reply on 11 February 2021, and stated; “If you would like the money to be sent to your account, it would take between 14-28 working days.” However, Aero Contractor agreed to make an immediate cash refund, on the condition that the affected passenger should suffer more hardship aside the cancelled flight, by traveling down to the airport office of Aero Contractor or by engaging the services of a third party to receive the cash payment. This contradicts the 2015 Nigeria Civil Aviation Authority Regulations which compels airlines to refund passengers of cancelled domestic flight immediately whether in cash or by any electronic means.
Obviously, Aero Contractor’s refund policies and procedures are in violation of the 2015 Nigeria Civil Aviation Authority Regulations. The illegality of the airline in refunding air fares for cancelled flights is institutionalized and publicly made available on the official website of the airline. Hence, the airline should be called to order by its regulator (the Nigeria Civil Aviation Authority).
There are sanctions (civil and criminal punishments) for violation of the Nigeria Civil Aviation Regulation 2015. Unlawful refund policies and practices of airlines have severe punishments, too. Generally, the maximum punishment for an airline is N5, 000,000.00, the moderate is N2,000,000.00 and the minimum is N500,000.00. The maximum punishment for staff of an airline is N200,000.00, the moderate is N100,000.00 and the minimum is N50,000.00. The punishment for any airline that fails to obey the directives of Nigeria Civil Aviation Authority (NCAA), or to investigate any case of passenger on compensation, is moderate penalty of N2,000,000.00 or suspension of license. Where there is a cancellation of flight, the sanction for failure to render assistance is moderate to maximum civil penalty. And failure to process ticket refund within time is also punishable with refund of the ticket and an additional 5% of the ticket value.
Conclusion:
Aero Contractor like any other commercial airline is bound by the 2015 Nigeria Civil Aviation Authority Regulations. The airline cannot be more powerful than the regulator; Nigeria Civil Aviation Authority. The airline and its legal team are called to do the needful and end its shameful unlawful refund policy and practice. The airline must adhere to its sector regulations and the laws of Nigeria at all times. The Nigeria Civil Aviation Authority must ensure that all operators are aboveboard at all times. Also, the unlawful refund policy and practice of Aero Contractor airline must be stopped in the interest of consumer protection
My authorities, are:
1. Sections 1, 2, 3, 4, 5, 6 and 16 of the Constitution of the Federal Republic of Nigeria, 1999.
2. Sections 1, 2, 27, 30, 31, 54, 61, 63, 71, 78 and 79 of the Civil Aviation Act, 2006.
3. Sections 1.1.1.2, 1.3.3.1, 1.3.3.2, 19.1, 19.2, 19.7, 19.8, 19.9, 19.10, 19.13, 19.14, 19.16 and 19.20 (Parts 1 and 19) of the Nigeria Civil Aviation Regulations, 2015. Accessible for free via https://ncaa.gov.ng/media/aubd0slk/ncaa-regulations-2015.pdf
4. Table 1- Table of Civil Penalties of the Nigeria Civil Aviation Regulations, 2015.
5. Sanctions VII, Para 5, 10 and 11 of Table 2- Recommended (Part 1) of the Nigeria Civil Aviation Regulations, 2015.
6. Aero Contractors, “Cash Ticket Refund request Form” (Aerocontractor) <http://www.flyaero.com/refund/ticket-refund-form.pdf> accessed 10 March 2021.
7. Onyekachi Umah, “Deadline for Refunds for Cancelled Flights” (LearnNigerianLaws.com, 11 March 2021) <https://learnnigerianlaws.com/deadline-for-refunds-for-cancelled-flights/> accessed 13 March 2021.
8. Onyekachi Umah, “Why You Can’t Get Compensation for Cancelled Flights” (LearnNigerianLaws.com, 3 March 2021) <https://learnnigerianlaws.com/why-you-cant-get-compensation-for-cancelled-flights/> accessed 10 March 2021.
9. Onyekachi Umah, “The Two (2) Rights Of Any Person Whose Local Or International Flight Is Cancelled In Nigeria” (LearnNigerianLaws.com, 27 November 2018) <https://learnnigerianlaws.com/the-two-2-rights-of-any-person-whose-local-or-international-flight-is-cancelled-in-nigeria/> accessed 2 March 2021.
10. Onyekachi Umah, “Dangerous Flying” Is An Offence In Nigeria” (LearnNigerianLaws.com, 21 September 2018) <https://learnnigerianlaws.com/dangerous-flying-is-an-offence-in-nigeria/> accessed 2 March 2021
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