Author: Alex Izinyon II

On 16^th August 2022, the Civil Aviation Act 2022 (CAA 2022) was enacted, repealing the Civil Aviation Act of 2006.

The new Act introduced various changes that have recently impacted the aviation industry in Nigeria. However, Section 115 (1) and (2) of the CAA 2022 saves acts done under the now-repealed CAA 2006.

On August 16, 2022, the Civil Aviation Act 2022 (CAA 2022) was enacted, repealing the Civil Aviation Act of 2006 and introducing significant changes to the Nigerian aviation industry. Section 115 (1) and (2) of the CAA 2022 safeguard actions taken under the repealed CAA 2006.

The newly enacted CAA 2022 has a broad scope, encompassing individuals, aircraft, air operators, aerodromes, aeronautical products, and licensed aerodromes validated by the Nigeria Civil Aviation Authority (NCAA), also known as the authority. This expanded application is outlined in Section 2(1)(a)(b)(c) and (d) of the CAA 2022, which was not present in the previous CAA 2006.

1. Establishment, name change and autonomy of the NCAA

In contrast to the Nigerian Civil Aviation Authority established in Section 2(1) of the CAA 2006, the CAA 2022, specifically Section 4(1), establishes an autonomous body called the Nigeria Civil Aviation Authority. This enactment solidifies the autonomy of the NCAA. Additionally, there is a name change, transitioning from “Nigerian” to “Nigeria.”

2. Authority to Regulate Civil Aviation and Functions

According to Section 8(3) of the CAA 2022, the Nigeria Civil Aviation Authority (NCAA) is now exclusively responsible for regulating civil aviation in Nigeria. Regardless of any other laws, the Authority has the sole authority in this regard. In contrast, Section 30(1)(c) of the CAA 2006 only granted discretionary power for making regulations, lacking clear details regarding the functions of the NCAA.

3. Powers of the Authority to prosecute offenders

The powers granted to the Nigeria Civil Aviation Authority (NCAA) in Section 9(1) of the CAA 2022 are not present in the corresponding provisions of the CAA 2006. These extensive powers include:

(a) Conducting investigations into potential offences under the Act involving individuals, organisations, or entities.

(b) Conducting warrantless search and inspections of premises, properties, aircraft, aerodromes, or conveyances as part of its functions under the Act.

(c) Prosecuting offenders under the Act or any other applicable law in Nigeria.

(d) Tracing, seizing, detaining, or retaining custody of property reasonably believed to be involved in the commission of an offence under the Act or any other law, for investigation and prosecution purposes.

(e) Sealing premises when there is a reasonable suspicion of their connection with an offence under the Act.

(g) Expropriating property for aeronautical search and rescue operations in emergency situations, when necessary.

(h) Ensuring coordinated aeronautical search and rescue operations within Nigeria’s territory.

(i) Granting permission to aircraft owners or authorities of the aircraft’s state of registry, subject to the Authority’s control, to provide necessary assistance to distressed aircraft.

In the repealed CAA 2006, Section 63(2) granted the Authority the power to prosecute offenders, but only with the consent of the Attorney General of the Federation. This requirement has been removed by Section 9(1)(c) of the CAA 2022, emphasising the Authority’s ability to prosecute offenders under the Act or any other relevant law in Nigeria without such consent.

Furthermore, the CAA 2022 made amendments to the power to request information. The CAA 2006, in Section 19(1)(a), allowed authorised officers of the Authority to require information from individuals engaged in air transport business, including the carriage of passengers or goods. However, Section 9(1)(f) of the CAA 2022 removed this restriction, granting the Authority the power to seek and receive information from any person, authority, or company without hindrance for enforcement purposes. The repealed Act limited the requirement of information to those involved in the business of aircraft, while the amended provision allows seeking information from a broader range of sources.

Additionally, the power to conduct search and rescue operations was addressed in more detail in the CAA 2022. The CAA 2006, in Section 30(3)(o), did not provide explicit details on this power. However, Section 9(1)(g), (h), and (i) of the CAA 2022 offer specific provisions outlining the Authority’s authority to carry out search and rescue operations.

4. Director-General Civil Aviation in the CAA 2022.

The CAA 2022 introduced changes to the role of the Director-General compared to the CAA 2006. In the repealed Act, only the Director-General was mentioned, as stated in Section 8(1) which read, “There shall be for the Authority a Director General…” However, the CAA 2022, under Section 11(1), modified this provision by specifying that there shall be a Director General of Civil Aviation.

Another significant change is related to the removal of the Director General of Civil Aviation. In the CAA 2022, the power to remove the Director General now requires confirmation by the Senate, as outlined in Section 11(3). This differs from the CAA 2006, where the removal of the Director General was not subject to Senate confirmation, as stated in Section 8(3) of the CAA 2006.

5. The 5% air ticket, contract, charter & cargo sales charge

Section 23(1) of the CAA 2022 introduces a 5% charge on all international and domestic air transportation originating in Nigeria, regardless of the place of sale, ticket issuance, or execution of the contract of carriage. In contrast, the CAA 2006 did not specify where this charge would apply.

The CAA 2022, under Section 23(2), provides detailed provisions regarding the 5% charge. It states that the charge will be applicable to the total amount, excluding statutory fees and taxes, paid by a passenger for airfare, in contracts related to the carriage of persons or goods for hire and reward (excluding air ticket issuance), payments for charter flights, and cargo sales.

Furthermore, Section 23(3) of the CAA 2022 removes the authority of airlines to collect the 5% charge. Instead, the NCAA is empowered to delegate the collection of the charge to any person or body at its discretion.

The CAA 2022 also introduces additional provisions in Section 23 that were not present in the CAA 2006. Subsections (4), (5), (6), (7), and (10) are new additions. Subsection (4) imposes a duty on the authority to regulate the manner and time for remittance of funds collected on its behalf by airlines. Subsection (5) specifies that the 5% charge applies to all operators involved in the transportation of persons by air for hire and reward, regardless of the type of aircraft used.

Subsection (6) establishes an obligation for Air Operator Certificate (AOC) holders to pay a 5% charge management fee for contracts involving fleet management of aircraft other than their own, as specified in their operations specifications or authorisation. This fee may be reviewed by regulations or orders issued by the Authority, as outlined in subsection (7).

Lastly, subsection (10) introduces penalties for failure to remit or pay the 5% charge and management fee to the Authority within the specified time frame. It states that an air operator committing such an offence is liable to a fine of N5,000,000, imprisonment for two years, or both, and the directors of the operator may also face individual liability upon conviction.

7. General power to regulate civil aviation

The CAA 2022 introduces Section 31(1), which grants the Director-General of the Authority the general power to regulate civil aviation. This provision was not present in the CAA 2006. The Director-General can exercise these powers directly or delegate them to others, which was not specified in the CAA 2006.

Additionally, the CAA 2022 includes a novel provision in Section 31(7) that was absent in the CAA 2006. This provision empowers the Authority to take immediate action in response to safety and security emergencies in civil aviation. The Authority can initiate such action based on a complaint or on its own accord, without requiring answers, pleadings, or formal reports from the involved parties. The Authority can issue orders, rules, regulations, or directives deemed necessary to address the emergency and ensure safety and security in civil aviation, with or without notice or a formal hearing.

8. Deletion of the Accident Investigation Bureau

Section 29(1) of the CAA 2006 which established the Accident Investigation Bureau was deleted under the CAA 2022. This is because the Nigerian Safety Investigation Bureau has now been created under the Nigerian Safety Investigation Bureau (NSIB) Act 2022 to carry out the role that the Accident Investigation Bureau was responsible for.

9. Provisions regarding safety, security reporting incidents

Under the CAA 2006, Section 30(2)(r) granted powers to make regulations exempting certain aircraft or persons without considering public safety and interest. However, the CAA 2022, in Section 41(1), empowers the NCAA to grant exemptions while ensuring safety, security, and public interest are not compromised.

The CAA 2006 lacked provisions for the implementation of advanced passenger information and passenger name record data exchange. In contrast, Section 42(1)(d) of the CAA 2022 addresses this specific requirement.

A significant change introduced by the CAA 2022 is the authority given to the NCAA to regulate the standards for the deployment of personnel on aircraft under bilateral or multilateral agreements to ensure in-flight security. This provision is outlined in Section 42(1)(f) and was absent in the repealed Act.

Regarding aviation security policies, the CAA 2022 provides detailed provisions in which the NCAA can develop policies, orders, circulars, or directives consistent with the Act. In contrast, the CAA 2006, in Section 30(3)(s), lacked specific guidelines on policy development in the civil aviation sector.

The repealed Act did not include provisions for incident reporting, investigation, and enforcement of punitive measures. However, these matters are now addressed in Section 46(1) and (5) of the CAA 2022.

10. Right of Access For Inspections

Under the CAA 2006, Section 30(3)(a) granted the Authority the power to have free and unobstructed access to various entities involved in civil aviation for the purpose of inspections. However, the CAA 2022 introduced significant modifications and additions to this provision.

In Section 48(1) of the CAA 2022, the right of access was expanded to include free, unrestricted, unobstructed, and unlimited access to all civil aviation personnel, documents, aircraft, aerodromes, aviation facilities, and other appliances related to air transportation. This access is necessary for the Authority to determine the issuance or granting of certificates of registration or approval.

Furthermore, Sections 48(2), (3), and (4) of the CAA 2022 introduced specific amendments to Section 30(3)(a) of the repealed Act. These amendments provide the Authority with enhanced access rights, such as entering registered or operating aircraft for security inspections, requiring information from aircraft and aerodrome operators, and accessing relevant security documentation and records. The purpose of these expanded access rights is to assess security standards and the implementation of security procedures.

Overall, the CAA 2022 significantly broadened and clarified the Authority’s right of access for inspections, ensuring comprehensive oversight and enforcement in the civil aviation sector.

13. Power To Proactively Prevent Flight

Section 49(1) of the CAA 2022 introduces significant changes to the power to proactively prevent flight, granting the NCAA specific authorities. This provision empowers the Authority to direct operators or airmen not to conduct flights in various circumstances, including when the aircraft is deemed unfit for operation, the airman is unqualified or unfit, or there is a risk of imminent danger to individuals or property on the ground.

In contrast, the CAA 2006 did not include provisions regarding the Authority’s power to proactively prevent flight in these specific situations.

The CAA 2022 expands the Authority’s capacity to ensure flight safety by enabling the proactive prevention of potentially hazardous flights, safeguarding both aircraft airworthiness and the well-being of individuals on the ground.

14. Domestication Of More International Conventions

Section 30(1)(a) of the CAA 2006 referenced the Chicago Convention 1947 as the international convention being domesticated. However, Section 31(1)(a) of the CAA 2022 brings significant alterations to this provision by vesting the authority to effect the provisions of the convention on the Director-General of the authority. The CAA 2022 also expands the domestication of international conventions by introducing three additional conventions: The Tokyo Convention 1963, The Montreal Convention 1971, and The Montreal Convention 1991. These new conventions were not included in the CAA 2006. The incorporation of these conventions is stipulated in Section 50 of the CAA 2022.

15. Security Surcharge fee

The addition of the security surcharge fee in the CAA 2022 is highlighted through the introduction of Section 51(2) and (3). These provisions state that a security surcharge must be paid on each passenger ticket for international air travel originating from Nigeria. The specific amount of the surcharge is determined by the Authority. Furthermore, all funds collected from this surcharge must be paid to the Authority and kept in a separate account solely for the enhancement of aviation security in Nigeria. These provisions were not present in the repealed 2006 Act.

16. Bilateral Agreements

Section 68(1) of the CAA 2006 allowed for the exchange of functions and duties with another country regarding registered aircraft under specific articles of the Convention on International Civil Aviation. However, Section 54(1) of the CAA 2022 has modified this provision. It now adopts Article 83 bis of the Convention and expands the scope to include additional articles such as aircraft radio equipment. Article 83 bis of the Convention provides a mechanism for resolving disagreements between contracting states through the Council. The CAA 2022 also introduces Article 30 (Aircraft Radio Equipment), which was not present in the CAA 2006.

17. Automatic Review Of Compensation Rates And Liability Limits

In Section 55(4) the CAA 2022 added a new provision for the advance payment and limitation of liability for international air travel which will be automatically reviewed every five years by Nigeria when they receive a notification from the International Civil Aviation Organisation (ICAO).

18. Registration of Aircraft

In the CAA 2006, Section 30(2)(a) allowed the Authority to make regulations for the registration of aircraft in Nigeria. However, in the CAA 2022, Section 59(1) grants the Authority the power to regulate and make provisions specifically for the registration of civil aircraft or any interest therein in Nigeria. Additionally, Section 60(1) of the CAA 2022 introduces the requirement to record aircraft, aircraft engines, propellers, or appliances intended for use in Nigeria in a national civil aircraft register.

19. Establishment of SSP and implementation of SMS

Section 62(1) and (2) of the CAA 2022 introduce the establishment of a State Safety Programme (SSP) and Safety Management System (SMS). These additions, absent in the CAA 2006, prioritise proactive safety measures and risk management in the aviation industry. The SSP enhances national safety oversight, while the SMS ensures individual organisations implement robust safety management processes tailored to their operations. These provisions aim to foster a culture of safety, reduce incidents, and enhance public confidence in aviation.

20. Limitation on Establishment of Waste Disposal Facilities

Section 77 of the CAA 2022 introduces a restriction on the construction of a refuse disposal facility or site within a distance of 13 kilometres from the vicinity of an aerodrome. This provision aims to ensure the safety and operational efficiency of aerodromes by minimising potential hazards and risks associated with waste disposal. It is noteworthy that such a provision was absent in the repealed CAA 2006, indicating an important development in aviation regulations to safeguard aerodrome operations and surrounding areas. By implementing this limitation, authorities can better manage and mitigate potential conflicts between waste management activities and aviation operations, prioritising the safety and welfare of air travellers and airport personnel.

21. Liability limits for injury, loss or damage to persons/property on land

Section 79(5)-(12) of the CAA 2022 replaces the previous Section 49(2) in the repealed CAA 2006. These new provisions expand on the liabilities faced by aircraft owners and operators in cases of injury, loss, or damage to individuals or property. The updated section offers comprehensive clarity on the liabilities and potential consequences associated with such incidents.

22. New Offences

Section 80 of the CAA 2022 introduces a new offence of forgery or counterfeiting of documents, which was not present in the CAA 2006.

The CAA 2022, under Section 82(4)(a), (b), and (c), adds additional offences, including wilful failure to report to the Authority, failure to maintain required records, and falsification of reports, accounts, or records. These offences were not included in the repealed Act.

Section 82(6) of the CAA 2022 introduces the offence of neglecting or refusing to cooperate with Authority investigations or inquiries. This provision is new and was not found in the CAA 2006.

In Section 85(3) of the CAA 2022, it is stated that using or operating any equipment or item, such as a mobile phone, that can interfere with aircraft radio frequency or navigational equipment, against the instructions of the pilot-in-command or flight crew, is considered illegal. This provision was not present in the CAA 2006.

Additionally, Section 85(4) of the CAA 2022 establishes that the pilot-in-command, when faced with unruly passenger behaviour, is obligated to take reasonable measures to ensure the safety of the aircraft and passengers. They may also seek assistance from anyone on board. This provision is newly added and was not included in the CAA 2006.

23. Protection of Informants and witnesses

The CAA 2022 introduces the “Protection of Informants and Witnesses” provision, which was not present in the repealed CAA 2006. Section 90(1) of the CAA 2022 requires the Authority to take reasonable steps to protect the identity of individuals who provide information voluntarily. The Authority is also obligated to treat the volunteered information as confidential.

24. Power to establish a training facility

Section 100(1) of the CAA 2022 introduces a new provision that allows for the establishment of a training facility, academy, or similar establishment to provide training in safety, security, and economic oversight in civil aviation. This addition is not present in the CAA 2006. Furthermore, Section 100(2) grants the NCAA the authority to impose fees for such training as it considers appropriate.

Conclusion

The amendments introduced in the CAA 2022 have brought about significant changes to the previous CAA 2006, covering various aspects of aviation regulation. These changes encompass a wide range of areas such as enhanced powers for the regulatory authority, establishment of new programs and facilities, introduction of new offences, expansion of international conventions, and improved protection for informants and witnesses.

Overall, these changes can be seen as positive and progressive steps towards strengthening aviation safety, security, and regulatory oversight. The addition of powers and provisions, such as the establishment of a State Safety Programme (SSP) and Safety Management System (SMS), the regulation of refuse disposal facilities near aerodromes, and the inclusion of new offences like forgery and counterfeiting of documents, demonstrate a commitment to addressing emerging challenges and enhancing the industry’s efficiency and effectiveness.

Moreover, the domestication of more international conventions and the introduction of measures to protect informants and witnesses showcase a dedication to aligning Nigerian aviation practices with international standards and ensuring a robust legal framework.

The changes also emphasise the importance of continuous training and professional development within the industry, as exemplified by the establishment of training facilities for safety, security, and economic oversight.

In summary, the changes introduced in the CAA 2022 reflect a positive evolution in aviation regulation, aiming to enhance safety, security, and operational standards. These amendments align Nigeria’s civil aviation practices with international norms and demonstrate a commitment to staying abreast of emerging challenges and advancing the industry’s overall growth.