Aviation LawSaving Aviation

June 8, 2012by Olufola Wusu1

On the 3rd of June 2012 a Passenger plane, MD-83 operated by Dana airlines crashed into houses in Iju Ishaga, an area in Lagos. The crash killed all the 153 people on board including the crew members. My friend Christopher Okocha was on that flight, he was a loving husband and father of one. May his gentle soul rest in peace.

Air Transport Safety

Air transport is probably the safest means of transportation and the most regulated industry in the world.

Safety within aviation circles can be defined as the management of risks to harm or damage to property to an acceptable level through a process of hazard identification, risk management, remedial action planning and continuous improvement. The acceptable level is usually determined by the regulatory authority in aviation.

The prevalence of plane crashes in the Nigerian Air space has exposed the need for a safety management system in the Nigerian Aviation Industry.

A Safety Management System (SMS) is a systematic, explicit and comprehensive process for the management of safety risks that integrates operations and technical systems with financial and human resource management for all activities related to any organisation.


Delayed Rescue operations

Reports have it that for about a quarter of an hour, the ill-fated plane was enmeshed in rubble with trapped passengers screaming for help. Besides when help came it was disorganised with no mention of air ambulances evacuating people!


Governmental Influence and policy formulation

There is an urgent need for the Federal Government in conjunction with all stakeholders to develop of a National Aviation Policy that will drive the aviation industry. It can be a 5-year or 10-year plan that can be reviewed periodically.

A National Aviation Policy will guide lawyers and government officials in assessing existing legislation and signing international agreements. In drafting a National Aviation Policy we need to examine the aviation policies of the US, the EU and other African countries. This would help us to decide what level of protection our local airlines need and how best we can go about protecting our economic interest.


Review of the Open Skies Arrangement and Bilateral Aviation Services Agreements.

Bilateral Air Service Agreement (BASA) is an air operation agreement which Nigeria signs with countries that have their airlines operate into the country and from which agreements Nigeria receives royalties. There is the need for a complete review of the Open Skies Arrangement and Bilateral Aviation Services Agreements. The Arik Air debacle has revealed that the BASA’s are not particularly favourable to Nigerian flag carriers.

The need for round pegs in round holes

We need aviation experts running the aviation industry in Nigeria, we can’t afford the politicisation of the appointment of key personnel in the Ministry of Aviation and the regulatory bodies in aviation, and this is because lapses in air travel regulation often result in tragic loss of life.

Public Sector branding in aviation

The regulatory bodies overseeing aviation in Nigeria have made concerted efforts to properly brand their organisations through seminars, workshops etc. However trust in the competency of the regulator is undermined every time an accident occurs. Airplane crashes have far-reaching effects as was seen when the market capitalisation of the listed equities on the Nigerian Stock Exchange fell by N106 billion or 1.5% per cent to close at N6.899trillion down from the N7.005 trillion it opened with on Monday 4/6/2012.It is important to note that public sector branding is ineffective especially when systemic failures are so critical that they result in wanton loss of life and property.


The need to restrict multi designation in Nigeria

Multi-designation is the assigning of foreign airlines to operate from more than one airport in Nigeria. It deprives local carriers a percentage of its local passenger market; as foreign airlines go to different airports to pick their passengers for flights to their destinations instead of local airlines bringing passengers to one airport for the foreign airlines.

Government participation in Aviation

All over the world more governments are actively participating in aviation.


The American Experience

A look at the American government’s Policy would reveal a strong protectionist tendency.

The Fly America policy compels all beneficiaries of air travel paid for by the American government, to use only American airlines with very few exceptions.

There is ample bankruptcy protection for American airlines, and almost all major American airlines have received bankruptcy protection at least once since September 11 2001.

The American government gave a total of $15B in aid to its airlines in the aftermath of September 11 2001.

Middle East experience

Emirates was established in 1985, it is now one of the youngest and strongest carriers in the Middle East. It is owned and funded by the government of Dubai. It has a viable, low-cost business model, which enables it to offer superior in-flight and ground facilities and free visas.  These incentives are offered at the same price competing airlines normally charge for the flight ticket alone without any other benefits. The government of Dubai also has an important role by drawing investors with a zero corporate tax policy to set up businesses in Dubai.

Other Challenges in Nigerian Aviation

Better Consumer protection

NCAA has Consumer Protection Units in all the airports, which have been upgraded to a full-fledged directorate.  Cases of harassment and ill-treatment of passengers by airline operators are now being addressed by the NCAA.

Airport facilities /Better access roads to our airports

Airport users all over Nigeria have decried the dirty state of its infrastructure especially the airport corridor and toilets. This is shameful as our airport is the primary first hand impression foreigners have of Nigeria. We urgently need better access roads to our airports.
Insurance compensation

The Montreal Convention has been domesticated into the Nigerian Civil Aviation Act 2006, which stipulates that airlines should pay victims of air accidents a minimum insurance compensation package from starting with $10,000 and a maximum of $100,000 per head.

The need to maintain Category one Status

Category One certification that was earned by Nigeria is evidence that our aviation sector has the potential to be world class. It has been alleged that the Dana aircraft that crashed Sunday revealed that, the plane – MD 83aircaft has a history of malfunctioning before it was re-sold to the Nigerian airline in 2009.

There is a policy that stipulates that Nigerian airline operators should not fly aircraft that are more than 22 years old. Despite this, investigations have shown that some Nigerian airlines still          operate aircraft that are more than 22 years old (http://www.planespotters.net/Production_List/Country/Nigeria ).


There is a glaring need for Government to act quickly to restructure the aviation industry and save it from possible collapse, perhaps Mr President should act with the same speed and determination it has deployed in forwarding the bill renaming Unilag in addressing the problems facing the aviation industry, insecurity, the reinstatement of Justice Salami and the passage of the Petroleum Industry Bill that has been dragging for so many years.

May the souls of the departed rest in peace.*

Megathos Law Practice © 2012

*(As it appeared in Thisday Lawyer 12/06/12) http://www.thisdaylive.com/articles/saving-aviation/117847/

Olufola Wusu

One comment

  • ohio-michael elakhe

    June 27, 2012 at 12:39 am

    Having read your comments, i think that certain issues need clarification from an industry perspective, especially with regards to the manner in which the NCAA angle of the ill fated Dana aircraft was handled.

    1 Delayed Rescue operations
    – This of course is does not fit into not NCAAs job description. It is NEMAs area of duty.

    2 Governmental Influence and policy formulation
    – There are policies on ground which if enforced, will ensure professionalism in the industry. It is the compliance which such standards and policies that ensured we earned the Category One certification. But due to governmental meddling, such as the arbitrary firing of key staff and replacing them with un-qualified politically favoured candidates, without proper understanding of the facts.

    3 Review of the Open Skies Arrangement and Bilateral Aviation Services Agreements.
    – Kema Chikwes debacle, when she allowed multiple entry into the countries airports by foreign airlines, without allowing Nigerian private carriers do same on international routes. Nigeria Airways had about 66 BASAs, which are simply going to waste because they are not being utilized. Those BASAs could fetch Nigeria Airways between $2 and $5 million dollars each annually if they were just being utilized. Kema Chikwe conceived and inaugurated two airlines (Nigeria Eagle and another) in the stead of Nigeria Airways while she was Minister of Aviation. To date, nobody ever saw any aircrafts which were supposed to have been purchased for those purposes.

    4 The need for round pegs in round holes
    – Suspension of the DG of NCAA, an autonomous body is a bad sign. It clearly states that NCAA is not autonomous in actualty NCAAs duties is to ensure that the documentation of aircrafts and personnel is in order. Their duty does not include aircraft maintenance and inspection, that is the job of the airline engineers, so the crash is not in any way NCAAs fault. If the paperwork for the aircraft is in order, then Demuren and NCAA cannot be faulted. They would only become liable if the paperwork shows that the aircraft or personnel were subject to question or if a false entry was made to allow a faulty plane or crew into the air. NCAA does not engage in aircraft repair or maintenance. NCAA can only advise and oversee, but cannot take upon itself duties that they are not legally mandated to carry out.

    5 The need to restrict multi designation in Nigeria
    .- Another Kema Chikwe debacle. Multiple entry points takes away the opportunity for local airlines to connect pax across the country, especially on the very lucrative routes (Lagos, Abuja, Rivers, Kano etc), thereby filling their almost always empty flights.

    6 The American Experience
    – Because of politicization, this will be an uphill task in Nigeria. Political affiliations, nepotism etc will be major considerations in accessing such funds. When Nigeria Airways was in operation, this concept sounded a death knell, because government and it’s personnel were categorically flouting a vital ingredient in business success… liquidity. Government was Nigeria Airways biggest debtor due to corruption and bureaucracy.
    Another key drawback in this model is the tribal sentiment that has plagued most Nigerian parastatals, where qualified managers are passed up due to the state quota practice, and also where government might be deemed to be favouring certain airline above others and flimsy demands being made by the airline to get backing to cover their operational and financial irresponsibility’s.

    7 Middle East experience
    – Again, because of politicization, this will be an uphill task in Nigeria. Political affiliations, nepotism etc will be major considerations in accessing such funds. Countries like Trinidad & Tobago, Kenya and United Arab Emirates (Dubai) have used some policies like these in building their tourism and aviation sector. It is a model that a state government in Nigeria attempted recently, but was scuttled by fifth columns within the government for personal benefits.

    8 The need to maintain Category one Status
    – One of the primary reasons why we got a Category One certification is because our NCAA was deemed to be autonomous and non-politicized. Arbitrarily removing the DG by a political body obviously rubbishes that claim. Demuren, the ousted DG is one of the most qualified and trained managers in the industry, and the board constituted does not have the knowledge prerequisite to factually advise on the way forward. Professional aviation is totally different from administrative oversight. It is for issues like this crash that we have an NCAA. Air crashes in the US, and even the infamous September 11 saga did not require that US remove the head of its NCAA US counterpart.
    Secondly, the age of the fuselage of an airplane is not necessarily an issue as there are numerous maintenance issues that ensure that the engine specifically is in top operational form. Issues such as time or use related change of certain parts, C an D checks. It is issues like this that NCAA oversees, and as long as the paperwork shows that those are in place, they have clearance to fly. It is the filing of erroneous claims of these that could lead to crashes. NCAA staff are not flight or aircraft maintnance engineers, it is not their duty to check aircrafts.
    Secondly, the – The very successful DC9 is an off shoot of the MD 83 aircraft, whose concept Boeing used after acquiring the McDonnel Douglas organisation, and it is as a whole adjudged to be one of the best aircrafts in flying history.

    9 On the need for Government to act quickly to restructure the aviation industry and save it from possible collapse
    – The answer to this is based on a thought you had mentioned before. Government needs to support the industry by giving them buffers and financial guarantees to acquire newer planes should they need to, to also properly maintain their planes, get cheaper subsidized fuel, easier access to maintenance, training etc, and not just divertible funds, so they can offer reasonable prices without compromising on safety and maintenance. That’s what the industry needs now. Even if airlines merge, as has been advocated by some quarters, they still will not have the financial muscle to acquire more modern plane as advocated. that is beside the strange bed fellows syndrome that will plague the partnerships ab initio


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