Nosa Osula Aituamen
The signing of the practice directions on the Cape Town Convention in 2024 has continued to generate widespread discussion on its implications for the Nigerian aviation sector.
Mr. Fubara Anga, a Senior Advocate of Nigeria, and member of the Aviation Working Group (AWG), speaking at the Aviation Roundtable Safety Initiatives, ASRTI, Quarterly Business Breakfast Meeting in Lagos last year, 2024, offered a critical analysis of the development, highlighting both its potential benefits and significant challenges.
Nigeria has been a signatory to the Cape Town Convention since 2001, one of the first eight countries to adopt it. The Convention was domesticated into Nigerian law through the Civil Aviation Act of 2006, providing a legal framework to secure aircraft financing and protect creditors.
Despite nearly two decades of being bound by the Convention, Mr. Anga argues that the new practice directions offer little novelty in substance.
He stated, “These practice directions are not a magic wand. The law has been there for almost 20 years. What they do is send a signal that business as usual is no longer acceptable. It’s more optics than substance.”
The practice directions primarily serve as a guide for judges in handling cases involving the Cape Town Convention, ensuring a consistent application of the law.
He explained that such directions are an extension of AWG’s judicial guides, which aim to harmonize the interpretation of the Convention globally while allowing individual countries to adapt the framework to local laws.
The directions also align with the Nigerian Civil Aviation Authority’s (NCAA) recent Advisory Circular on Procedures for Recordation of Irrevocable Deregistration and Export Request Authorization (IDERA) and aircraft registration. These initiatives have improved Nigeria’s compliance rating, making the country more attractive to international financiers.
While acknowledging the symbolic importance of the practice directions, Mr. Anga emphasized several unresolved issues:
The practice directions mandate Nigerian courts to enforce foreign judgments within 10 days if stipulated in agreements.
The aviation legal expert, questioned the feasibility of this, pointing out that existing laws already provide procedures for reciprocal enforcement of foreign judgments.
He asked, “Can a mere practice direction override established insolvency and bankruptcy laws?”.
Mr. Anga criticized the lack of genuine consultation with key stakeholders, including airlines, during the development of the practice directions.
“The process was dominated by foreign interests, particularly aircraft manufacturers and financiers, without adequate input from Nigerian operators”.
Given Nigeria’s ongoing foreign exchange crisis, debts to lessors, and a reputation for judicial delays, Mr. Anga questioned whether the practice directions would meaningfully alter lenders’ perceptions of the country.
“At the end of the day, lenders prioritize business realities over compliance scores”.
He stressed the urgent need for capacity building across the aviation sector, highlighting gaps in the judiciary’s and regulators’ understanding of the Convention and the new practice directions.
“You cannot implement what you do not know,” he stated, adding that even accessing the practice directions had been a challenge for many stakeholders.
The legal expert maintained that, while the practice directions mark a step towards better compliance with the Cape Town Convention, their success depends on addressing systemic challenges in Nigeria’s aviation sector.
According to him, enhanced stakeholder consultation, robust capacity building, and realistic expectations, are essential to bridging the gap between theory and practice.
He stressed that, “Nigeria must recognize these directions for what they are—a signal of intent, not a solution. To achieve meaningful progress, we must align policy with practical realities and ensure that all stakeholders have a voice in shaping the future of aviation in Nigeria.”
Another aviation legal expert, Mr. Pekun Sowole, also raised concerns about the Cape Town Convention Practice Directions, highlighting potential conflicts with existing laws and concerns over jurisdictional ambiguity.
Mr. Sowole emphasized that in case of conflicts, existing laws will supersede the practice directions.
He also expressed concern over a recent Supreme Court decision that has created ambiguity regarding the jurisdiction of the Federal High Court in aviation matters.
This decision, he argued, could be exploited by some lawyers to challenge the jurisdiction of the Federal High Court in cases involving aircraft that are not in operation.
Mr. Sowole further stressed the need for harmonization of existing laws to ensure the effective implementation of the practice directions.
“So I think a lot more needs to be done to harmonize all those laws to make the practice direction a lot more effective and then make it pursuance to some orders”.
He pointed out the potential for delays and legal challenges throughout the court system, including the Court of Appeal and the Supreme Court, which could significantly hinder the enforcement of judgments and ultimately impede the aviation industry.
“There’s court of appeal, there’s Supreme Court, almost like 10 years in between If they get an order for stay of execution, that’s the end of the story, that aircraft ain’t going nowhere and we’re back to square one”.