Regulatory framework

Regulators and primary legislation

Which bodies regulate aviation in your country? Under what basic laws?

The primary regulatory body for aviation in Nigeria is the Nigerian Civil Aviation Authority (NCAA), established under the Civil Aviation Act 2006 (CAA). The CAA empowers the NCAA to make regulations on issues ranging from aviation safety and security, aircraft registration, airworthiness standards, personnel licensing, commercial air transport, aerodrome and airspace standards, air navigation services and the provision of allied aviation services.

The aviation industry in Nigeria is overseen by the Federal Ministry of Transportation (Aviation), which is responsible for the formulation of aviation policies. Other government bodies involved in the provision of aviation services that oversee aspects of air transport in Nigeria are:

  • the Nigerian Airspace Management Agency, established under the Nigerian Airspace Management Agency (Establishment, etc) Act 1999 (NAMA), which provides air traffic and navigation services; and
  • the Federal Airport Authority of Nigeria, established under the Federal Airports Authority Act 1996 (FAAN), which is responsible for the development, provision and maintenance of airports and associated services.

The primary legislation regulating aviation in Nigeria is the CAA. Section 77(2) of the CAA provides that all regulations, by-laws, orders and subsidiary legislations made under the old Civil Aviation Act of 1964 shall continue to be in force until new regulations, by-laws, orders and subsidiary legislations are made pursuant to the CAA of 2006. These subsidiary legislations made under the old Civil Aviation Act were therefore listed as subsidiary legislation under the CAA. They include the following:

  • the Civil Aviation (Aviation Security) Regulations;
  • the Civil Aviation (Air Transport) (Licensing) Regulation;
  • the Civil Aviation (Aircraft Performance) Regulation;
  • the Civil Aviation (Fees) Regulation;
  • the Civil Aviation (Births, Deaths and Missing Persons) Regulation;
  • the Civil Aviation (Rules of the Air and Air Traffic Control) Regulation;
  • the Civil Aviation (Air Navigation) Regulation; and
  • the Nigeria Civil Aviation Regulations.

The NCAA, pursuant to its regulatory powers under the CAA, issued the Nigerian Civil Aviation Regulations (NCARs) in 2009, 2012 and 2015. The NCARs 2015 took effect on 1 July 2016.

The NCARs contain regulations on issues ranging from personnel licensing, aircraft registration and marking, approved maintenance organisation, instruments and equipment, operation, aviation security, environmental protection, aerial work, airworthiness, consumer protection, etc. The NCARs will, to the extent that they cover any aspect of air transport contained in the subsidiary legislation made under the old Civil Aviation Act, be the applicable regulation to govern that aspect.

Aviation operations

Safety regulations

How is air transport regulated in terms of safety?

Aviation safety is regulated by the NCAA by virtue of the CAA and the NCARs 2015. The CAA contains provisions relating to security checks of persons and baggage, obstructions near aerodromes, trespass on aerodromes, duties of operators, airmen and persons generally, the transport of dangerous goods by air, aviation safeguards, etc. The specific regulations under the NCARs 2015 relating to safety are as follows:

  • for crew:
    • Part 2 deals with personnel licensing;
  • for aircraft:
    • Part 4 regulates aircraft registration and marking;
    • Part 5 deals with airworthiness; and
    • Part 7 is concerned with instruments and equipment;
  • for operations:
    • Part 8 regulates operations;
    • Part 9 regulates air operator certification and administration; and
    • Part 10 deals with commercial air transport by foreign air operators within Nigeria;
  • for maintenance:
    • Part 6 provides for approved maintenance organisation;
  • for air traffic control:
    • Part 11 provides for aerial work; and
    • Part 14 provides for air navigation services; and
  • for safety management:
    • Part 20 provides for safety management systems Including the collection and use of safety data, and safety oversight activities.

It is necessary to reiterate here that matters not covered by the NCARs 2015 will be regulated by the applicable subsidiary regulation listed under the CAA.

The NCARs are modelled after ICAO Annexes and are in substantial conformity with ICAO’s international standards and recommended practices. They are additionally supplemented where necessary with sections from the European Joint Aviation Requirements or the United States Federal Aviation Regulations.

As part of its regulatory safety functions, the NCAA, through the provisions of the NCARs, ensures that:

  • every airport, its equipment and technical personnel are accessed in accordance with standards set by ICAO and other international bodies and must be certified by the NCAA;
  • there are operating guidelines and standards based on the standards and recommended practices of ICAO and other stipulated national laws and regulations;
  • there are coordinated procedures to monitor safety standards, issue licences and operating certificates such as the air operator’s certificate (AOC), air transport licence, airline operating permit, permit for non-commercial flight and air travel organisers licence; and
  • aviation safety inspectors conduct unscheduled on-the-spot inspections of the operations of airlines and other service providers to ensure continuous compliance with the regulations guiding their operations.

What safety regulation is provided for air operations that do not constitute public or commercial transport, and how is the distinction made?

There is no separate and distinct safety regulation for private air operators. Part 8 of the NCARs 2015 deals with operations and prescribes requirements for the following:

  • operations conducted by flight crew members certified in Nigeria,
  • the operation of aircraft registered in Nigeria;
  • operations by Nigerian AOC holders of aircraft registered in a state other than Nigeria; and
  • operations of aircraft within Nigeria by flight crew or an AOC holder of another state.

The NCARs 2015 contains provisions applicable to both private air operators as well as operators involved in commercial air transport, although in certain areas different requirements are in force for each type of operation.

For aerial work, Part 11 of the NCARs contain specific requirements for operators and operations considered to be aerial work. All persons who conduct aerial work in Nigeria must comply with certification requirements set out in the regulation.

Market access

How is access to the market for the provision of air transport services regulated?

Access to the market for the provision of air transport services is regulated by the setting of eligibility criteria and screening and approval processes of persons seeking to provide certain types of aviation services. These conditions and requirements are stipulated in the CAA and NCARs.

The NCAA issues licences, permits, certificates and other authorisations to persons who satisfy the stipulated requirements for the issuance of the licences, permits, certificates and other authorisations. A person seeking to provide air transport services in Nigeria must obtain an air transport licence in respect of scheduled journeys, an air operating permit for non-scheduled journeys and an airline tour organiser’s licence for tour organisers.

Ownership and control

What requirements apply in the areas of financial fitness and nationality of ownership regarding control of air carriers?

Financial fitness

Every company seeking to provide air transport services must, in addition to meeting the technical requirements for undertaking air transport operations, show evidence of capitalisation specified as follows:

  • domestic operations: 500 million naira;
  • regional operations: 1 billion naira;
  • international operations: 2 billion naira;
  • air ambulance, fumigation and private jet: 20 million naira; and
  • air transport training: 2 million naira.

The NCAA is expected to continually monitor the financial health of Nigerian-licensed airlines by regular screening of up-to-date monthly management accounts, cash-flow projections and analysis, quarterly balance sheets and annual profits and loss accounts. All Nigerian-licensed airlines must comply with tax regulations and have insurance for hulls, passengers and cargo in accordance with the relevant aviation regulation.

Nationality of ownership

Under the provisions set forth in section 33 of the CAA, the NCAA can refuse to grant a licence, permit, certificate or other authorisation made pursuant to an application if it is not satisfied that the applicant is a Nigerian citizen, company or body corporate, that is registered in Nigeria and has its principal place of business in Nigeria and that is controlled by Nigerian nationals. However, the eligibility criteria specified does not apply to persons seeking to operate an aircraft for private use only.

Licensing

What procedures are there to obtain licences or other rights to operate particular routes?

Domestic routes in Nigeria are liberalised and operators are free to fly any route without a special licence provided that they give notice of their flight schedules to the NCAA, the FAAN and the NAMA.

With regard to rights of Nigerian carriers to operate international routes, an application must be made to the Minister of Aviation for the designation of an air carrier as a flag carrier to operate an international route that is the subject of an air services agreement between Nigeria and another country. The applicant must comply with guidelines set for designation. The application is sent by the Minister to the NCAA for technical evaluation, and if a favourable report is issued by the NCAA, the Minister may, at his or her discretion, designate the aforementioned air carrier as a flag carrier to operate the said route.

For foreign airlines seeking to operate in Nigeria, after the designation of such airline by the relevant contracting state under the air service agreement, the notice of designation is forwarded to the Nigerian Ministry of Foreign Affairs, which transmits the notice of designation to the Minister of Aviation. The Minister of Aviation sends the said documents to the NCAA for assessment, taking into account the suitability of the airline to operate in Nigeria under the terms of the relevant air services agreement.

The process of assessment will involve the evaluation of the documents issued by the applicant’s home country and all other relevant documents that may be demanded by the NCAA from the airline. If the NCAA is satisfied with the documents and other materials provided by the foreign carrier, it will give a favourable report to the Minister, who may then issue the air traffic licence. Generally, the traffic rights specify the amount of slot frequencies granted to such air carriers and the airports of entry. These are usually in accordance with the relevant air service agreements. Additional frequencies can be negotiated under the relevant air service agreement via commercial agreements between the federal government and the air carrier.

What procedures are there for hearing or deciding contested applications for licences or other rights to operate particular routes?

There are no statutory provisions describing the procedures for hearing and deciding contested applications for licences or other rights to operate particular routes.

Competition policy

Is there a declared policy on airline access or competition? What is it?

There is currently no declared policy on airline access or competition in the undertaking of air transport business in Nigeria. The policy in the aviation industry relating to domestic airlines is established on the basis of free enterprise and airlines may operate any route in the country so long as the airline is able to show the technical and financial ability to operate such routes. Foreign airlines operating in Nigeria are limited to the airport of entry specified in the relevant air traffic licence and are not allowed to operate on domestic routes.

Part 18 of the NCARs 2015 contains regulations relating to anticompetitive practices including restrictive and concerted practices, abuse of dominant position, etc and notifications in respect of mergers, acquisitions, combinations and joint ventures.

Requirements for foreign carriers

What requirements must a foreign air carrier satisfy to operate in your country?

Part 10 of the NCARs contains specific regulations for commercial air transport by foreign air operators within Nigeria. This regulation sets forth requirements that must be fulfilled by a foreign air carrier engaged in commercial air transport, and includes requirements such as applying for and obtaining operations’ specifications to be issued by the NCAA and in compliance with the applicable standards contained in the Annexes to the Convention on International Civil Aviation, as well as all other regulations, as may be specified by the NCAA. In addition, a foreign air carrier will operate in accordance with the terms of any agreement for the time being between the government of Nigeria and the government of the country of the prospective air carrier.

Public service obligations

Are there specific rules in place to ensure aviation services are offered to remote destinations when vital for the local economy?

No, there are currently no specific obligations or rules that stipulate that Nigerian aviation services must be offered to remote destinations as aid for the local economy.

Charter services

How are charter services specifically regulated?

Charter services are regulated pursuant to the general applicable regulations in the NCARs 2015. Any air carrier seeking to operate a charter service must obtain the necessary permits and an AOC. Foreign airlines looking to engage in charter services in and out of Nigeria must obtain a flight clearance issued by the NCAA and act in conjunction with a Nigerian air travel organiser licence (ATOL) holder. There are no special regulations applicable to charter services.

Regulation of airfares

How are airfares regulated?

Section 30(4)(d) of the CAA stipulates that the NCAA has and must exercise its power to require that all air carriers (both domestic and foreign) keep their tariffs open for inspection, meaning they must declare rates, fares and charges. Further, the NCAA can approve or reject such tariffs filed if they are deemed inconsistent with the approved rates specified by the NCAA under the CAA, applicable regulations, rules and orders made thereunder. However, the NCAA does not in practice specify if the tariffs and air fares charged by air carriers are determined by economic factors such as the cost of fuel, applicable charges, fees and demand.

Foreign air carriers are expected to file and notify the NCAA of any proposed change in their tariff. In addition, to prevent predatory pricing, and under its general power to regulate tariffs, the NCAA conducts economic audits on airlines offering low prices for air services, should they appear inadequately able to cover their costs, and may impose relevant sanctions or issue directives in situations where such audit discloses predatory pricing.

Drones

How is the operation of unmanned aircraft systems (drones) regulated?

The NCARs 2015 make provisions that guide the certification and operations of unmanned aircraft systems (drones) in Nigerian airspace.

Part 8.8.1.33 NCAR and Part IS.8.8.1.33 of the Implementing Standards NCARs provides that no government agency, organisation or individual is permitted to launch remotely piloted aircraft systems (RPAS) or unmanned aerial vehicles (UAV) in Nigerian airspace for any purpose whatsoever without obtaining the requisite permit for aerial aviation services (PAAS) from the NCAA and office of the National Security Agency.

The NCAA has also put in place guidelines and requirements for the granting of PAAS, which can be obtained from any of the NCAA offices in Nigeria. Holders of permits to operate RPAs and UAVs are required to follow the safety guidelines contained in the NCARs and ensure strict compliance with the conditions stipulated in their PAAS.

Aircraft

Aircraft register

Who is entitled to be mentioned in the aircraft register? What requirements or limitations apply to the ownership of an aircraft listed on your country’s register?

Part 4 of the NCARs 2015 details the requirements for registration and marking of civil aircraft under the provisions of the CAA. It provides in subpart 4.2 the registration requirements for aircraft registration. Owners, operators and lessors who meet the eligibility criteria are entitled to be mentioned in the aircraft register.

The general criteria specified by Part 4 of the NCARs 2015 is that no person may operate an aircraft that is eligible for registration in Nigeria unless it has been registered by its owner or operator under the provisions of the applicable laws in Nigeria and issued with a certificate of aircraft registration by the NCAA. An aircraft is eligible for registration under the laws of Nigeria if it is owned by the following:

  • a Nigerian citizen;
  • an individual with permanent residency in Nigeria;
  • a corporation lawfully organised and doing business in Nigeria and with aircraft based and primarily used in Nigeria;
  • a government entity or subdivision; or
  • a foreign person who has leased the aircraft to any of the aforementioned persons.
Mortgage register

Is there a register of aircraft mortgages or charges? How does it function?

Part 4 of the NCARs 2015 requires that the NCAA establishes and maintains ‘legal interests in aircraft’ registry for each aircraft registered in Nigeria. Presently, this aircraft registry has not yet been established and interests such as mortgages, charges, liens or other encumbrances are instead noted by the NCAA in the registration particulars of the aircraft contained in a file opened and kept by the NCAA with respect to each aircraft. This information in the registration particulars of the aircraft may be made available upon application to the NCAA.

The Companies and Allied Matters Act requires a company to register any charges or mortgages created over any part of its assets with the Corporate Affairs Commission (the regulatory body for registered companies) within 28 days of the creation of such charge or mortgage.

Detention

What rights are there to detain aircraft, in respect of unpaid airport or air navigation charges, or other unpaid debts?

Airport and air navigation services are provided by the FAAN and NAMA. The laws that established these agencies do not contain specific provisions empowering them to detain aircraft for unpaid airport or air navigation charges. However, section 27(3) of the CAA empowers the NCAA to take all steps necessary, including the power to ground any aircraft, to ensure compliance with the provisions of the CAA and the orders, rules and regulations made pursuant to the CAA. Subpart 1.3.3.4 of the NCARs 2015 provides that an aircraft that is involved in a violation for which a civil penalty has been imposed or may be imposed on its owner or operator may be subject to detention by the NCAA in accordance with its enforcement procedures. The NCAA also has the power to make regulations regarding charges that may apply in respect of air traffic control, meteorological services, for the use of aerodromes licensed under the regulations and for services provided at such aerodromes.

Maintenance

Do specific rules regulate the maintenance of aircraft? What are they?

The maintenance of Nigerian-registered aircraft operating within or outside of Nigeria is regulated under subpart 8.3 of the NCARs. The regulation provides that the registered owner or operator of an aircraft shall be responsible for maintaining that aircraft in an airworthy condition, including in compliance with all airworthiness directives. The following maintenance and inspection programmes may be used by the owner or operator as deemed appropriate for the aircraft and type of operation:

  • an annual inspection programme;
  • an annual or 100-hour inspection programme;
  • a progressive programme; or
  • a continuous airworthiness maintenance programme.

The owner or operator shall also ensure that a record is kept of all maintenance work carried out on the aircraft.

For operations of aircraft within Nigeria by flight crew or an AOC holder of another state, subpart 8.2.1.2 (a) provides that no person may operate a civil aircraft unless it is in an airworthy condition. There are also other requirements regarding instruments and equipment, flight manual, marking and placards.

Airports

Ownership

Who owns the airports?

Most of the airports in Nigeria are owned by the federal government and operated by the FAAN. There are some privately owned airports, such as the Osubi airport in Warri, Delta state, which is owned and operated by Shell Petroleum Development Company. There has also been a successful concession of an airport terminal in Lagos to a private company.

Licensing

What system is there for the licensing of airports?

Part 12 of the NCARs specifies aerodrome certification. An aerodrome certificate is issued by the NCAA subsequent to the approval of an aerodrome operator’s manual. Under the regulation, certification and licensing have the same meaning when used in the regulations, the CAA as well as the aerodrome standard manual and related guidance materials.

Economic regulation

Is there a system of economic regulation of airports? How does it function?

There is no specific system of economic regulation for airports. However, the NCAA has the power to conduct the economic regulation of airlines, aerodromes, air navigation services, and other allied aviation and services providers.

Access

Are there laws or rules restricting or qualifying access to airports?

For domestic operators, there are no laws or rules qualifying access to airports. Domestic operators may operate in any airport of their choice, subject to availability of slots in such airports for their operations. Foreign carriers operating in Nigeria are restricted to the airport of entry specified for their operations pursuant to the relevant air services agreement between Nigeria and the contracting state designating such air carrier. By-laws made by the FAAN prohibit access by unauthorised persons to certain areas of airports. Such areas are marked as restricted areas.

Slot allocation

How are slots allocated at congested airports?

Most local airports are underutilised and there is no specific regulation for slot allocation in Nigeria. Regarding international operations, slots are allocated largely at the discretion of the FAAN. Slots are allocated on a first-come, first-served basis, and are coordinated by an autonomous committee set up by various airport operators to define the slot allocation system.

Ground handling

Are there any laws or rules specifically relating to ground handling. What are they?

The CAA authorises the NCAA to issue licences to applicants seeking to operate ground handling services in Nigeria. An applicant seeking to operate grounding handling services must clearly spell out his or her name and address, state the type of ground handling services to be provided and the proposed airport in which the applicant intends to provide the services. The NCAA only issues a substantive licence upon satisfaction that the applicant can offer safe and efficient services.

Further to section 72 of the CAA, which makes it mandatory for all persons engaged in the sale, distribution and provision of allied services to obtain a licence from the NCAA, the NCAA, through the Department of Economic Regulation and Facilitation’s ‘allied services unit’, issues guidelines for obtaining a ground handling licence.

Under these guidelines, an applicant seeking a licence to operate ground handling services in Nigeria is required to forward a written application to the director general of the NCAA on or before a date at least six months prior to the preferred commencement of operations.

There are three stages in the application: the pre-qualification stage, the qualification stage and the demonstration stage. At the pre-qualification stage, the applicant is required to pay a 1 million naira non-refundable processing fee, obtain and complete pre-qualification processing forms and then return the said forms to the NCAA with evidence of payment of the non-refundable processing fee with the documents in the guidelines. An applicant company must, among other requirements, have a minimum share capital of 500 million naira.

Upon the receipt and evaluation of these documents, the NCAA is required to invite the directors of the company to a meeting with its officials and seek comments from the airport operator or owner on the proposed operation. Upon a satisfactory fulfilment of the requirements by the applicant, the NCAA will request that the applicant acquires the necessary equipment and demonstrate its capability to carry out efficient services. The applicant will be required to demonstrate its ability to offer efficient services in accordance with the provisions of ICAO Annex 9 on Facilitation and Annex 17 on Security.

A licence granted is valid for five years. Subsequent to the receipt of a licence, a utilisation fee of 100,000 naira shall be paid to the NCAA annually.

Air traffic control

Who provides air traffic control services? And how are they regulated?

The NAMA has the exclusive responsibility for air traffic control services. The NAMA’s activities are carried out by different departments responsible for services such as the air traffic advisory service, alerting service and flight information service. The functions of the NAMA are regulated by the Nigerian Airspace Management (Establishment, etc) Act and the CAA, while the Federal Ministry of Aviation acts as the supervising ministry over the NAMA’s affairs.

Liability and accidents

Passengers, baggage and cargo

What rules apply in respect of death of, or injury to, passengers or loss or damage to baggage or cargo in respect of domestic carriage?

Pursuant to section 48 of the CAA, a modified version of the Convention for the Unification of Certain Rules relating to International Carriage by Air (the Montreal Convention) of 1999, applies in respect of liability for death of, or injury to passengers, or loss or damage to baggage or cargo in domestic carriage.

For liability arising from the death or bodily injury of a passenger, the Convention, as modified, sets the liability limit of carriers at the sum of US$100,000 where the carrier is able to establish that the damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents, or that it was solely owing to the negligence or other wrongful act or omission of a third party.

The carrier is also required, in the event of death or injury to passengers, to make an advance payment of US$30,000 within 30 days from the date of the accident to the victim or persons who are entitled to claim compensation on his or her behalf in order to meet the immediate economic needs of such persons. This advance payment does not imply an admission of liability and it may be offset from sums subsequently paid, as damages, by the carrier.

Surface damage

Are there any special rules about the liability of aircraft operators for surface damage? What are they?

There are no special rules for liability for surface damage. Nigeria was party to the Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface (the Rome Convention) of 1952 until 2002. Currently, the general rules of tort apply with regard to liability for surface damage caused by aircraft.

Accident investigation

What system and procedures are in place for the investigation of air accidents?

The Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 2016 (the Air Accident Regulations) extensively provide for the investigation of accidents and incidents relating to the operation of aircraft in Nigeria and set out the additional functions of the Accident Investigation Bureau (AIB), created under section 29 of the CAA. The Air Accident Regulations provide for notification timelines and procedures, removal of damaged aircraft, custody and preservation of evidence, form and conduct of investigations, publication of Information and AIB reports, opening and reopening of investigations, etc.

Accident reporting

Is there a mandatory accident and incident reporting system? How does it operate?

Yes. The Air Accident Regulations provide that the pilot of an aircraft (or where the pilot is fatally injured or incapacitated, the aircraft owner or operator), other crew members or any person having knowledge of an accident or incident and, in the case of an aerodrome accident or an incident occurring on or adjacent to an aerodrome, the operator of the aerodrome, must within 24 hours give notice to the AIB by the quickest means of communication available. The notification must contain as much of the following information as is immediately available:

  • the identifying abbreviation (ACCID for accidents or INCID for incidents);
  • the manufacturer, model, nationality and registration marks and serial number of the aircraft;
  • the name of the owner, operator and hirer (if any) of the aircraft;
  • the qualification of the pilot of the aircraft and nationality of the crew and passengers;
  • date and time of the accident or Incident;
  • the last point of departure and the point of intended landing of the aircraft;
  • the position of the aircraft with reference to some easily defined geographical point and latitude and longitude;
  • the number of killed or seriously injured crew, passengers or other persons;
  • the number of crew and passengers on board; and
  • the nature and extent of the accident or incident, etc.

A police officer for the area in which the accident or Incident occurred is also required to be notified.

The AIB and the NCAA are also required under the Air Accident Regulations to maintain an Incident Reporting and Systems Accident and Incident Database. The database includes:

  • serial number;
  • aircraft operator;
  • type of aircraft;
  • registration mark;
  • place of occurrence;
  • date of occurrence;
  • fatalities: and
  • nature of accident or incident.

Competition law

Competition law

Do sector-specific or general competition rules apply to aviation?

Yes, there are sector-specific and general competition rules that apply to aviation. Pursuant to Part 18.15 of the NCARs 2015, the NCAA guards against anticompetitive practices that include, but are not limited to, price-fixing, predatory pricing, restraint of competition, restrictive and concerted practices, collusion or deceptive and unethical advertising. Part 18.15 of the NCARs sets the prohibited restrictive practices for airlines, airports and air navigation service providers and agents and tour operators. It further provides for exempted agreements and makes provision for notifications in respect of mergers, acquisitions, combinations and joint ventures.

By virtue of section 30(4)(i) of the CAA, the NCAA is empowered to investigate and determine upon its own initiative or upon receipt of complaint from any carrier or relevant person, whether any air carrier or entity in the aviation sector has been or is engaged in unfair or deceptive practices or unfair methods of competition in air transport. In conducting its investigations, the NCAA may request relevant documents and hold hearings and obtain testimony from parties, as may be required. Whistle-blower protections are also provided for persons who are cooperative and assist in detecting and proving anticompetitive conduct.

Any infraction by operators attracts a fine of 1 million naira or suspension of the operating authorisation, or a complete revocation of the operating authorisation in the case of a persistent violator. In addition, the NCAA may prescribe the payment of compensation to any person adversely affected by the violation or direct the violator to take appropriate corrective measures.

With respect to general competition rules, the Federal Competition and Consumer Protection Act (FCCPA), which came into force on 23 February 2019, applies to all undertakings and commercial activities taking place or having effect In Nigeria. The FCCPA establishes the Federal Competition and Consumer Protection Council (FCCPC) to have concurrent jurisdiction with sector-specific regulators on competition and consumer protection matters, with the FCCPC taking precedence over the relevant regulator. The FCCPC mandates the sector-specific regulators to negotiate the rules to its sector with the FCCPC within a year of the act coming into force.

The FCCPA prohibits and voids restrictive agreements between business entities. Restrictive arrangements are those that are likely to prevent, restrict or distort trade. The scope is very wide-ranging, and includes direct or indirect price-fixing, collusive tendering, withholding supply of goods and services from a dealer, exclusionary contractual provisions, etc.

Regulator

Is there a sector-specific regulator, or are competition rules applied by the general competition authority?

The FCCPC acts as the regulator on all competition and consumer protection matters in Nigeria. The NCAA, however, acts as the specific sector regulator for air transport in Nigeria. By virtue of section 30(4)(i) of the CAA, the NCAA is empowered to investigate and determine upon its own initiative whether any air carrier has been, or is engaged in, unfair or deceptive practices or unfair methods of competition in air transport, the sale of tickets thereof or the provision of other allied aviation services. The NCAA carries out this function through the fares and tariffs unit of its Department of Commercial and Statistics. The decision of the NCAA Is liable to review by the Tribunal established under the FCCPA.

Market definition

How is the relevant market for the purposes of a competition assessment in the aviation sector defined by the competition authorities?

‘Relevant market’ is defined under the interpretation paragraph, Part 18 of the NCAR 2015, as the area of effective competition within which an airline or service provider operates and includes geographic area, route, substitutability, close competitors and such other factors that may affect consumer choice. The FCCPA does not define relevant market but we expect this will be defined in the rules that will be published at the conclusion of negotiations between the FCCPC and the NCAA discussed in question 29.

Code-sharing and joint ventures

How have the competition authorities regulated code-sharing and air-carrier joint ventures?

Neither the NCAA nor the FCCPC regulate code-sharing in Nigeria. Most air services agreements signed by Nigeria include code-sharing terms but there are no code-share agreements between foreign and domestic airlines in Nigeria. Air-carrier joint ventures are prohibited where they substantially increase the ability to exercise market power either by giving the ability to a company or group of companies acting jointly to profitably maintain prices above competitive levels for a significant period of time or by any other anticompetitive means.

Assessing competitive effect

What are the main standards for assessing the competitive effect of a transaction?

The NCAA and FCCPC are primarily concerned with identifying whether a transaction will constitute a restraint of competition in the relevant market.

Remedies

What types of remedies have been imposed to remedy concerns identified by the competition authorities?

Not applicable.

Financial support and state aid

Rules and principles

Are there sector-specific rules regulating direct or indirect financial support to companies by the government or government-controlled agencies or companies (state aid) in the aviation sector? Is state aid regulated generally?

There are no sector-specific rules regulating any form of financial support by governments or government-controlled agencies or companies in Nigeria and there are also no general state aid rules.

What are the main principles of the state aid rules applicable to the aviation sector?

Nigeria has no state aid rules for the aviation sector.

Exemptions

Are there exemptions from the state aid rules or situations in which they do not apply?

Not applicable.

Clearance of state aid

Must clearance from the competition authorities be obtained before state aid may be granted? What are the main procedural steps for doing so?

Not applicable.

Recovery of unlawful state aid

If no clearance is obtained, what procedures apply to recover unlawfully granted state aid?

Not applicable.

Consumer protection

Passengers

What rules regulate denied boarding, cancellation or (tarmac) delay?

The NCARs 2015 regulate denied boarding, cancellation or delay and provide for compensation pursuant to Part 19.8 of the NCARs 2015. Part 19.6.1 of the NCARs 2015 requires operating air carriers, in the event of any delay, to inform the passengers (for domestic flights) with reasons for the expected delay within 30 minutes after the scheduled time of departure, after a period of two hours to offer refreshments, after a period of three hours to offer reimbursement and when the airport is closed at point of departure to offer hotel accommodation and transport. Part 19.6.2 of the NCARs 2015 deals with international flights, and typically provides for the same form of compensation. Part 19.7 of the NCARs 2015 deals with cancellation, as it provides for assistance and compensation to be granted to passengers by the operational air carriers and airport authorities for both domestic and international flights.

Package holidays

What rules apply to the sale of package holiday products?

Organisers of package holiday products are required to obtain an ATOL and are obliged to have current and adequate bank or insurance bonds to cover their operations and ensure that their passengers are catered for and are treated in accordance with the contracts or agreement of sale and provisions of the NCARs.

Other consumer legislation

Is there any other aviation-specific consumer legislation?

Part 19 of NCARs prescribes the minimum rights and duties of passengers and the obligation of airlines. Obligations of airlines relate to cases of no-show and overbooking, denied boarding against the will of the passenger and delayed and cancelled flights in the case of scheduled operation.

The scope of application extends to the following:

  • carriage of passengers between two airports within Nigeria;
  • carriage of passengers from an airport outside of Nigeria to an airport in Nigeria, unless the passengers received compensation or assistance at the point of departure in the case of a Nigerian air carrier; and
  • non-stop flight segments originating at a point in Nigeria (foreign air transportation).

In addition, every air carrier shall develop a procedure for the handling of cases of oversold flights and the manner in which persons having confirmed tickets on a flight can be involuntarily denied boarding. The carrier must also develop priority procedures considering, among other things, persons with reduced mobility or unaccompanied minors.

The Discrimination against Persons with Disabilities (Prohibition) Act (DPDA), which came into force on 23 January 2019, requires airport service providers to make provisions for the physically, visually and hearing impaired and all persons howsoever challenged. The DPDA imposes a fine of 1 million naira for corporate bodies and 100,000 naira for individuals or a term of six months’ imprisonment. The DPDA provides for a five-year transitional period within which airports are to be modified to be accessible to and usable by persons with disabilities, including those in wheelchairs.

Insurance and security

Insurance for operators

What mandatory insurance requirements apply to the operation of aircraft?

Aircraft operators are required to maintain or provide the following:

  • adequate insurance covering any liability that may be incurred under the CAA;
  • liability towards compensation for damages that may be incurred by third parties; and
  • quarterly returns to the NCAA under section 74(3) of the CAA, showing that adequate insurance is maintained and that all conditions necessary to create an obligation on the insurer to provide indemnity in the event of a loss have for the time being been fulfilled.

Absence of adequate insurance is sufficient ground for refusal, suspension or revocation of the permission to operate in Nigeria. The NCAA may from time to time determine if service providers in the aviation sector are maintaining adequate insurance policies.

Service providers that contravene the provision of the section are liable to a fine of at least 10 million naira and its principal officers shall be liable to imprisonment for a minimum term of two years.

Aviation security

What legal requirements are there with regard to aviation security?

Sections 42 and 43 of the CAA stipulate that an aerodrome operator and an airline operator must have in place a security programme approved by the NCAA, and every breach of the provisions of the security programme by the aerodrome or airline operator, his or her representatives or personnel will attract a monetary fine of at least 200,000 naira. The NCAA may also conduct surveys and inspections of security measures relating to passengers, baggage, cargo and other goods, as well as access controls and aerodrome design. The CAA in section 45 makes it mandatory to search every person entering an aerodrome or before they board an aircraft. Both accompanied and unaccompanied baggage are screened or subjected to a prescribed security check before being placed on board an aircraft. Every breach of the provisions relating to the security check of persons and baggage attracts a fine of at least 50,000 naira.

The NCAA issued Aviation Security Regulation: Part 17 of the NCARs. The several parts of the regulation deal with issues such as:

  • security programme;
  • aerodrome security;
  • aircraft operator security;
  • cargo and regulated agent security;
  • flight catering operator security;
  • tenant-restricted area security; and
  • quality control.

This regulation covers specific service providers in the aviation sector such as flight catering, aerodrome security and cargo operators.

Serious crimes

What serious crimes exist with regard to aviation?

Nigeria is a signatory to the Tokyo Convention, ratified by Nigeria on 7 April 1970, the Montreal Convention, ratified on 3 July 1973, and its associated protocol, and the Hague Convention, which Nigeria has domesticated in line with constitutional requirements. The Tokyo Convention establishes a uniform approach to acts on board aircraft that are offences against penal law, or that may or do jeopardise the safety of aircraft and persons or property on board, or good order and discipline on board. In addition, the CAA and the NCARs provide for serious crimes as well as regulatory offences. Some of the serious crimes covered in the CAA (sections 54-60) include the following:

  • hijacking and interference of an aircraft either on ground or in flight;
  • dangerous flying;
  • violence against a person on board an aircraft;
  • endangering safety;
  • intentionally destroying or damaging an aircraft in flight;
  • possession of explosives at screening point or in sterile areas with no intent to board a flight;
  • artful concealment of a firearm or deadly weapon; and
  • prohibition of unruly and indecent conduct.

Section 63 of the CAA vests jurisdiction to try offences committed under the act on the Federal High Court. Penalties include fines of up to 10 million naira or sentences ranging from one month’s imprisonment to life imprisonment.

Update and trends

Emerging trends

Are there any emerging trends or hot topics in air transport regulation in your jurisdiction?

Emerging trends46 Are there any emerging trends or hot topics in air transport regulation in your jurisdiction?

Nigeria signed the African Continental Free Trade Area (AfCTA) Agreement on 7 July 2019. The AfCTA Agreement seeks to create a single continental market for goods and services in the member states, with free movement of businesspersons and investments using a single currency. The implementation of the AfCTA Agreement is expected to have a significant business impact on the aviation sector of the Nigerian economy.

The provisions establishing the FCCPC as the primary regulator on competition and consumer protection matters in Nigeria over sector-specific regulators is seen as encroaching on and dominating regulatory bodies.