Procedures For Acquiring Aviation Licence Under Nigerian Law By Foreign Companies -By Oyetola Muyiwa Atoyebi & Onyi-Otu Olo Aria

INTRODUCTION

Under Nigerian Law, foreigners, just like citizens can venture into any business of their choice in Nigeria, except those on the negative list. However, certain procedures must be complied with for foreigners to legally and effectively carry on business in Nigeria. The aviation industry in Nigeria is not left out of this principle.  Foreigners who intend to venture into the aviation business in Nigeria are, by law, expected to comply with certain procedures. This article intends to extensively discuss the legal requirement for foreigners to carry on the business of aviation in Nigeria.  It discovers that there is a discrepancy between the Civil Aviation Act 2022 and the Nigerian Civil Aviation Authority Regulations 2015 with regard to the requirement of registration of foreign companies before airline operations (in line with section 78 of the Companies and Allied Matters Act 2020). Consequently, the article advocates the need for harmony between the relevant laws in this subject matter.

AVIATION LAWS AND REGULATIONS IN NIGERIA

In line with the Constitution of the Federal Republic of Nigeria 1999 (as amended), the National Assembly has sole authority over all aviation-related issues.  The Civil Aviation Act 2022 (“CAA 2022”), a major piece of legislation governing the aviation sector, was recently re-enacted by the National Assembly.  The CAA 2022 acknowledges that the Federal Ministry of Transportation is in charge of developing industry policies and plans.[1]  Additionally, the CAA 2022 kept the Nigerian Civil Aviation Authority (“NCAA”), which was first formed by Decree 49 of 1999, as the body in charge of regulating technical and safety matters in the sector.[2]  Under the CAA 2022, the NCAA has the authority to enact rules pertaining to a number of matters, such as aircraft registration, air navigation services, airworthiness standards, aviation safety and security, commercial air transport, personnel licensing, aerodrome and airspace standards, and the provision of auxiliary services related to aviation.[3]

Additional laws are:

1. The Federal Airport Authority of Nigeria Act 1996:This establishes the Federal Airport Authority of Nigeria (“FAAN”), which is in charge of the construction, delivery, and upkeep of airports and related services.

1. The Nigeria Airspace Management Act 1999:This creates the Nigerian Airspace Management Agency (“NAMA”), which is in charge of managing the airspace, providing air traffic control services, and managing navigational communications, among other things.

OPERATION OF COMMERCIAL AIRCRAFT IN NIGERIA

The majority of industries in Nigeria generally require the incorporation of a company or corporate body before beginning business activities, and the aviation industry is no exception in this regard.[4]According to Section(s) 96 and 97 of the Civil Aviation Act (the “CAA” or “the Act”) 2022, no aircraft may be utilized for commercial operations unless the NCAA has issued the aircraft a license, permit, or other permission. Additionally, the NCAA will not issue a license to an applicant who is not a Nigerian national or a corporation that is not legally incorporated in Nigeria and has its headquarters here. Furthermore, pertinent parts of the Regulations reinforce the Act’s provisions.[5]Regarding foreign air operators, there appears to be a discrepancy between the Act and the Regulations.[6] Foreign air operators are not required to incorporate a Nigerian company in order to conduct business in Nigeria, according to paragraph 10 of the Regulation that governs their operations. A form for applications to gain permission to conduct commercial operations in Nigeria is also provided in paragraph 10 for use by foreign operators. The application form asks for information about the company, including its registered name, primary address, fax number, and email address, among other things. Once more, the form makes no mention of the requirement that the corporation be registered in Nigeria. The CAA 2022 is in conflict with the Regulations in this case since the Act states that;

The Authority shall refuse to grant a licence, permit, certificate or other authorisation in pursuance of an application if it is not satisfied that- (a) the applicant is – i. a citizen of Nigeria, or; ii. Being a company or a body corporate; iii. is registered in Nigeria and has its principal place of business within Nigeria, and is controlled by Nigerian nationals[7]

For either an Air Transport Licence (“ATL”) or Airline Operating Permit (“AOP”), a written application must be submitted to the Director General of the NCAA on or before a date that is at least six months before the anticipated date of utilisation and includes the necessary documentation and information as outlined in the NCARs 2015.[8]

Despite this issue, international business owners are permitted to operate in Nigeria without first setting up a local company. This means that, in relation to foreign aviation operators, the NCAA has decided not to enforce Section 96 of the Act.

PERMITS AND LICENSES

To start operating commercially in Nigeria, air operators will need to get the necessary licences and permits from the NCAA.[9] Below is a list and a brief overview regarding such licenses.

1. Airline Operating Permit (AOP) – This permits an air carrier to operate charter flights, which are not regularly scheduled flights.
2. Air Transport Licence (ATL) – Before starting an air transportation firm, an air operator needs to get an Air Transport Licence (ATL). It grants the operator permission to offer air transportation services for people and/or cargo in Nigeria. The ATL is valid for a period of five (5) years and may be renewed.

• Air Operator Certificate (AOC) – This is given issued by the NCAA to attest that a company is operating in accordance with the rules and suggested procedures of the International Civil Aviation Organization (ICAO). Its validity is for a period of two (2) years, and it may be renewed for successive durations of two (2) years each.

FOREIGN AIR OPERATORS

As already mentioned, the NCAA must approve and issue a “Document of Authorisations, Conditions, and Limitations” (DACL) before foreign aviation operators are permitted to operate in Nigeria.[10]

A foreign aviation operator who wants to operate in Nigeria must submit an application to the NCAA in the required format and include the following:

1. A certified true copy of an operational Certificate of Operation and related operations requirements granted to the foreign air carrier by the foreign authority to whom it is subject;
2. A copy of the authorization page for the Minimum Equipment List for each kind of aircraft that the air carrier intends to fly in Nigeria;

• A copy of the most recent airworthiness certificate and aircraft certificate issued for the aircraft types that the air operator in Nigeria intends to operate;

1. A copy of the insurance certificate;
2. A copy of the operator’s operating policies and practices;
3. A copy of a document outlining the maintenance procedures that must be followed for the air operator’s aircraft while they are being operated in Nigeria.

Requirements for foreign air operators seeking permission to operate on Nigerian territory.

1. A copy of the maintenance agreement between the air operator and the approved maintenance organization, in cases where the approved maintenance organization is recognized by a foreign government to do the repair;
2. A copy of the air service agreement with a safety clause permitting the foreign airline to fly into Nigeria;

• For wet rented aircraft, a copy of the CAA approval from the operator’s state, together with the name of the operator who has operational control over the aircraft, is required;

1. A prospective Aircraft Operator Security Program for foreign air operators, who do not possess an Air Operator Certificate granted by the Authority. This program complies with the Nigeria Civil Aviation Regulations, for acceptance and subsequent approval by the Authority;
2. Any additional documents that the Authority deems relevant to guarantee the safety of the envisaged operations.

A foreign air operator applicant may get a Document of Authorizations, Conditions, and Limitations from the NCAA-

1. After the foreign airline operator’s request to fly inside Nigerian territory was granted;
2. After a successful administrative evaluation of the paperwork the foreign air operator provided;

• Whenever it has signed bilateral or multilateral agreements with the operator’s state that contain a safety clause;

1. When it does not have bilateral or multilateral agreements in place with the State of the Operator, the Authority does not receive any important safety discoveries or serious flaws from the safety-related information that is readily available and pertinent to the foreign air operator.

CONCLUSION

The NCAA is still steadfast in its commitment to a more secure and developed aviation industry in Nigeria and in order to enhance the quality of aviation services provided in the country as a whole, the authority continues to support initiatives in this direction, with the Nigerian aviation business having a promising future towards both local and foreign engagements in the aviation sector.

SNIPPET

Under Nigerian Law, foreigners just like citizens can venture into any business of their choice in Nigeria except those on the negative list. However, certain procedures must be complied with for foreigners to legally and effectively carry on business in Nigeria.

KEY WORDS

Aviation, license, foreign participation.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN

Mr Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).

Mr. Atoyebi has expertise in and a broad knowledge of Corporate and Commercial Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.

He can be reached viaatoyebi@omaplex.com.ng

CONTRIBUTOR: ONYI-OTU OLO ARIA

Ariais a member of the Dispute Resolution Team at OMAPLEX Law Firm. She also holds a commendable legal expertise in Corporate Practice.

Se can be reached viaaria.onyi-otu@omaplex.com.ng

[1] Section 3 Civil Aviation Act 2022

[2]Ibid, S.4

[3]Ibid, S.8

[4] O S Akpoghomeh, The Development of Air Transportation in Nigeria. Journal of Transport Geography 7, no. 2 (1999): 135-146.

[5] Para(s) 4.2.1.2 & 9.1.1.6 of the NCAA Regulations 2015 – Registration of Aircraft and Issuance or Denial of Air Operator Certificate (AOC) respectively

[6] A Daramola and F Tunde, Air travel and Airline Operations in Nigeria: Market Potentials and Challenges.”

[7] Section 96 CAA 2022

[8]Ibid, S.95(4)

[9] P C Onokala and C J Olajide, Problems and Challenges facing the Nigerian Transportation System which affect their contribution to the Economic Development of the Country in the 21st Century. Transportation Research Procedia 48 (2020): 2945-2962.

[10] B S Kokpan and P O Emerhana, Exploring the Legal Issues in Aircraft Lease Financing Option. The Journal of Jurisprudence, International Law and Contemporary Issues 16, no. 1 (2022).