The principal statutes that govern foreign investment in Nigeria are as follows:
1. Companies and Allied Matters Act (Chapter C20), LFN 2004 ("CAMA")
This is the principal statute regulating the establishment and operation of companies in Nigeria. The CAMA establishes the Corporate Aﬀairs Commission ("CAC") as Nigeria's companies' registry, and the body responsible for the regulation and supervision of the formation, incorporation, registration, management and winding up of companies. The CAMA also makes provision for the registration of business names and incorporated trustees. Foreign companies that wish to do business in Nigeria are required to do so through a locally incorporated entity. Section 54(1) of the CAMA provides that every foreign company intending to carry on business in Nigeria must take steps necessary to incorporate as a separate legal entity with the CAC. Section 56 of CAMA empowers the Federal Executive Council to grant exemptions from the mandatory incorporation requirement to a limited category of foreign companies. It is an oﬀence for a foreign company to carry on business in Nigerian without being formally incorporated.
There is presently a bill before the House of Representatives for the amendment of the Companies and Allied Matters Act.
THE COMPANIES AND ALLIED MATTERS (REPEAL & RE-ENACTMENT) BILL 2018
As part of its reformative plans for the Nigerian Business Environment, the Federal Government has, through its upper legislative house, the Senate, passed the Companies and Allied Matters Act (Repeal and Re-enactment) Bill in a bid to amend the country's foremost business legislation. Although the Bill will not become law until it is passed by the second federal legislative house, the House of Representatives, and assented to by the President, its importance prompts a need for awareness of imminent developments.
Highlights of the Bill
The highlights of this Bill are as follows:
i. Introduction of Limited Partnerships & Limited Liability Partnerships as new business vehicles at the Federal level allowing partners combine the organizational flexibility already available to partnerships with the limited liability introduced to limit business risks and consequently fuel business development.
ii. Introduction of One Person Companies ("OPC") & Single Directorship to drive the participation of MSMEs in the Country's business space as, in addition to the fact that most businesses are owned and managed by individuals, the limited liability status which will be conferred on this person will help spur on more courageous business transactions.
iii. Abolition of Requirement of Attorney-General's Consent to register Companies Limited by Guarantee and replacement of same with a duty of the Commission to cause the application to be advertised in three (3) national dailies. This will allow non-governmental organizations to adopt the Companies Limited by Guarantee option without worrying about the bottlenecks that would arise as a result of the need to obtain the Attorney-General's consent.
iv.Abolition of the Requirement of Company Secretaries for Private Companies in a bid to ensure smoother operation and management at reduced cost.
v. Introduction of minimum Issued Share Capital to replace Authorized Share Capital to encourage increased investments and reduce the cost burden on MSMEs in the event of share capital alteration.
vi. Abolition of the Requirement of Annual General Meetings for Small Companies under the Act in a bid to lessen the regulatory burden on MSMEs which were, once operating as a registered company, required to hold AGMs in each year.
vii. Improved Company Rescue & Insolvency Regime which seeks to ensure that, on the one hand, viable businesses are rescued and on the other hand, that non-viable businesses can exit the market in good time. In furtherance of this objective, the Bill seeks to introduce insolvency models on:
- Netting; and
- Company Voluntary Arrangement
2. Nigerian Investment Promotion Commission Act (Chapter N117), LFN 2004 ("NIPC Act")
The NIPC Act established the Nigerian Investment Promotion Commission ("NIPC") as an agency of the Federal Government, responsible for encouraging and promoting investment in the Nigerian economy by both domestic and foreign investors. The Act provides for various investment incentives and guarantees applicable to both foreign direct investments and foreign portfolio investments.
3. Immigration Act 2015 (the "Immigration Act")
Any foreigner wishing to take up employment in Nigeria (other than employment with the federal or a state government) is required to have a residence permit or a work permit issued by the Comptroller General of Immigrations. Such persons are also required to apply for visas at the appropriate diplomatic Nigerian Mission abroad. The required visas could be either a Subject to Regularization visa or a Combined Expatriate Residence Permit and Alien Card (CERPAC).
4. Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, (Chapter F34), LFN 2004, (the "FEMM Act")
The FEMM Act sets out the rules and regulations which govern the operation of the foreign exchange market and provides a framework for the remittance of interest, dividends and principal payments in foreign currency by foreign investors.
5. Investment and Securities Act No. 29 of 2007 (the "ISA")
The ISA governs investments in the capital markets generally and provides for the establishment of the Securities and Exchange Commission (the "SEC") as the apex regulatory authority for the Nigerian capital market. Also relevant are the Securities and Exchange Commission Rules and Regulations (the "SEC Rules") as amended in 2017, which are made by the SEC pursuant to powers which it has been granted by the ISA to regulate capital market activities and operators, including mergers, acquisitions, take-overs, and collective investment schemes.
6. The Industrial Development (Income Tax Relief) Act, Chapter I7 LFN 2004 ("Tax Relief Act")
The Tax Relief Act is the basis for the grant of Pioneer Industry Status (or "Pioneer Status"). The Pioneer Status Certiﬁcate is issued to exempt a company from payment of taxes for a period of 3 – 5 years. In 2017, pioneer status was granted to 27 additional industries and the Federal Ministry of Industry, Trade and Investment issued new Application Guidelines for the issuance of Pioneer Status Incentives.
7. Central Bank of Nigeria Act, Act No. 7 of 2007 ("CBN Act")
The CBN Act established the Central Bank of Nigeria and conferred upon it the role and responsibility as the apex regulator of banks, the ﬁnancial system as manager of Nigeria's foreign currency reserve. The CBN's major function is to promote an eﬃcient and eﬀective ﬁnancial system in Nigeria and to act as banker to the Federal and State governments and also to other banks. The CBN also provides economic and ﬁnancial advice to the Federal Government.
Sector Specific Regulations
1. Oil and Gas Sector
a. National Content Policy
A foreign consortium or a joint venture may obtain qualiﬁcation acceptance, participate to tender and thereafter carry out and implement operations or transactions falling within the scope of the Nigerian oil and gas industry. It is necessary to demonstrate local shareholding and compliance with the Nigerian local content policy applicable to the oil and gas industry. For ease of understanding, this will be discussed in two parts; (i) Local Content Policy (ii) Local Shareholding.
(I) Local Content Policy
The Nigerian Oil and Gas Industry Content Development Act, 2010 (the "Content Act") provides the legal basis for the determination of local content compliance of companies operating in the Nigerian oil and gas industry ("the Industry"). The local content policy drive of the Nigerian government is aimed primarily at building local competencies in the Industry by ensuring indigenous participation through the provision of manpower, services and the ownership of interests in the Industry. To this extent, the Content Act places emphasis on the promotion of "Nigerian Content" among companies bidding for contracts in the Industry.
Highlights of the Content Act: Following our summary of the thrust of the Content Act above, a synopsis of the major highlights of the Content Act is set out as follows:
- All operators and alliance partners to maintain a bidding process for all job oﬀers and the bid selection process shall not be based solely on principle of the lowest bidder but shall, where the bids are within 1% of each other at the commercial stage, be considered with preference for the bid with the highest Nigerian content.
- Where applicable or where directed by the Board, an operator shall, prior to commencing work, establish a project oﬃce in the area where the job is to be executed and such project oﬃce shall have staﬀ with decision- making authority. The Board shall ensure that a reasonable number of personnel from the signiﬁcant areas of operation of the company are supervised by the operator together with a requirement that Nigerians shall be given ﬁrst consideration for employment and training in any project executed by an operator in the Industry.
- The conduct of any project contrary to the provisions of the Content Act is an oﬀence for which the operator would be punishable by a ﬁne of 5% of the value of the contract, or a cancellation of the project.
- A ﬁscal framework and tax incentives are to be put in place for foreign and indigenous companies that establish facilities, factories, production units or other operations in Nigeria for providing support services to the Industry.
- 1% of every contract awarded is to be deducted at source for the funding of the Nigerian Content Development Fund.
- Operators are encouraged to train and develop a Nigerian labor force and all expatriate positions shall after a maximum four-year period, be occupied by a Nigerian albeit that a maximum of 5% of management positions may be reserved for protecting investor interests; subject to the condition that any application for expatriate quota for such positions must be pre-approved by the Board. However, staﬃng in the junior and intermediate cadre or any other corresponding grades shall be held exclusively by Nigerians.
- International/multinational companies working through their Nigerian subsidiaries must demonstrate that a minimum of 50% of the equipment deployed for execution of work is owned by Nigerian subsidiaries.
All insurable risks related to oil and gas business, operations or contracts are required to be insured through insurance brokers registered in Nigeria.
- Only services of Nigerian legal practitioners would be permitted to be retained by companies in the Industry.
- Except where impracticable, only Nigerian ﬁnancial institutions shall be retained by companies in the Industry.
(II) Local Shareholding
The Content Act does not provide any threshold of share capital distribution as one of its parameters. The Content Act, however, provides a deﬁnition of a Nigerian Company as "a company formed and registered in Nigeria in accordance with the provision of the Companies and Allied Matters Act with not less than 51% equity shares [held] by Nigerians". Notably, the Content Act does not indicate that it would be a general requirement for eligibility in respect of any company desirous of operating in the Industry to be a Nigerian Company, either at contract bidding or contract execution. It is, however, worth mentioning that the Content Act vests exclusivity for certain contracts and services in the areas where such Nigerian indigenous service companies demonstrate ownership of equipment, (Nigerian) personnel and capacity to bid for contracts and services on land and swamp operating areas of the Industry.
Consequently, a company operating in the Industry would be in compliance with the Content Act where:
(i) its operations meet the requisite parameters; and
(ii) at least 51% of its shares are held by Nigerians.
2. Restrictions on Importation of Certain Goods
Although doing business in Nigeria has been greatly liberalized to ensure increased private sector participation, some goods are prohibited by the Nigerian government from being imported into Nigeria. They include :
1. Live or dead birds including frozen poultry;
2. Pork, beef, birds eggs, excluding hatching eggs;
3. Refined vegetable oils and fats (includes mayonnaise). Crude vegetable oil is NOT banned from being imported;
4. Cane or beet sugar and chemically pure sucrose, in solid form in retail packs;
5. Cocoa butter, powder, and cakes;
7. Fruit Juice in retail packs;
8. Waters, including mineral waters and aerated waters containing added sugar or sweetening matter or flavored, ice snow, other non-alcoholic beverages, and beer and stout (bottled, canned or otherwise packed, but excluding energy or health drinks (liquid dietary supplements);
9. Bagged cement;
10. Medicaments as indicated below:
(1) Paracetamol tablets and syrups;
(2) Cotrimoxazole tablets and syrups;
(3) Metronidazole tablets and syrups;
(4) Chloroquine tablets and syrups;
(5) Haematinic formulations; ferrous sulphate and ferrous gluconate tablets, folic acid tablets, vitamin B complex Tablets (except modified released formulations);
(6) Multivitamin tablets, capsules, and syrups (except special formulations);
(7) Aspirin tablets (except modified released formulation and soluble aspirin);
(8) Magnesium trisilicate tablets and suspensions;
(9) Piperazine tablets and syrups;
(10) Levamisole tablets and syrups;
(11) Clotrimazole cream;
(12) Ointments – penicillin/gentamycin;
(13) Pyrantel pamoate tablets and syrups; and
(14) Intravenous fluids (dextrose, normal saline, etc.);
(15) Waste Pharmaceuticals.
11. Soaps and Detergents in retail packs only;
12. Mosquito Repellant Coils;
13. Sanitary Wares of Plastics and Domestic Articles and Wares of Plastics (but excluding Baby Feeding bottles) and flushing cistern and waterless toilets;
14. Rethreaded and used Pneumatic tires but excluding used trucks tires for rethreading of sized 11.00 x 20 and above;
15. Corrugated Paper and Paper Boards, and cartons, boxes and cases made from corrugated paper and paper boards, toilet paper, cleaning or facial tissue, excluding baby diapers and incontinent pads for adult use;
16. Telephone Re-charge cards and vouchers;
17. Carpets and other textile floor coverings;
18. All types of Foot Wears, Bags and Suitcases but excluding Safety Shoes used in oil industries, sports shoes, canvass shoes all Completely Knocked Down (CKD) blanks and parts;
19. Hollow Glass Bottles of a capacity exceeding 150mls (0.15 liters) of all kinds used for packaging of beverages by breweries and other beverage and drink companies;
20. Used compressors and used fridges/freezers;
21. Used Motor Vehicles above fifteen (15) years from the year of manufacture;
22. Furniture, but excluding baby walkers, laboratory cabinets such as microscope table, fume cupboards, laboratory benches, Stadium Chairs, height adjustments device, base sledge, seat frames and control mechanism, arm guide and head guides. Also excluded are; skeletal parts of furniture such as blanks, unholstered or unfinished part of metal, plastics, veneer, chair shell etc. Also excluded are Motor Vehicle seats and Seats other than garden seats or camping equipment, convertible into beds; and
23. Ball Point Pens and parts including refills (excluding tip).
Key Authorisations and Approvals
1. Incorporating a Separate Entity
As noted above, CAMA requires a foreign company, which intends to do business in Nigeria, to be incorporated as a separate entity in Nigeria. An exemption can only be granted by the Federal Government of Nigeria and is usually only granted for speciﬁc government-related projects. The business incorporation process is now fully automated in twenty-one (21) states of the Nigerian Federation.
2. Foreign Ownership of a Nigerian Company
Foreign investors may own 100% of the equity of a limited liability company. Accordingly, there is no requirement that the company to be established in Nigeria should have Nigerian shareholders. Similarly, other than certain matters set out in the "negative list" and regulated sectors like the broadcasting and oil and gas sectors, a Nigerian company that is 100% foreign owned may engage in the same businesses as a Nigerian company that is wholly or partially owned by Nigerians.
The negative list comprises sectors of investment prohibited to both foreign and Nigerian investors, which are:
a. Production of arms, ammunition etc;
b. Production of and dealing in narcotic drugs and psychotropic substances;
c. Production of military and para-military wears and accoutrement, including those of the Police and the Customs, Immigration and Prison Services; and
d. Such other items as the Federal Executive Council may, from time to time, determine.
3. Foreign Investment Approvals
3.1. Business Registration (Companies with Foreign Participation)
The NIPC Act provides that all Nigerian companies with foreign participation in their shareholding structure should be registered with the NIPC following their incorporation.
3.2. Business Permit
Following the registration of the business at the NIPC, a company registered in Nigeria with foreign shareholders must apply for a business permit in order to do business. This business permit authorizes the company to carry on business in Nigeria.
3.3. Expatriate Quota Approvals
A company intending to employ expatriates i.e. foreign nationals must comply with the Immigration Act by applying for expatriate quota positions for the relevant number of expatriate personnel it intends to employ. An expatriate quota is an authorization that establishes the maximum number of expatriates that a company may employ. The Federal Minister of Interior has the discretion to determine the number of quota approvals.
3.4. Resident Permits and Visas
After the grant of the expatriate quota positions, the expatriate employees of the company placed on the quota positions are required to obtain a Subject-To- Regularisation (STR) visa from the Nigerian Embassy/High Commission in their country of usual residence to enable them to come into Nigeria for the purpose of taking up employment.
3.5. Certiﬁcate of Capital Importation ("CCI")
Nigerian law permits foreign investors to purchase any amount of foreign exchange for the purpose of remitting, for example, dividends and the free repatriation of capital subject to the provision of appropriate documentation.
One of such documents is the Certiﬁcate of Capital Importation (the "CCI") to be obtained from an authorized dealer (a Nigerian bank or ﬁnancial institution authorized by the Central Bank of Nigeria to engage in foreign exchange activities) as evidence that the investor has actually brought capital/funds into Nigeria e.g. for making its equity contribution to a Nigerian company. The CCI is necessary to repatriate royalties, fees, and dividends.
Physical CCIs have now been phased out by the Central Bank of Nigeria and the electronic CCI system took effect in September 2017.
3.6. National Oﬃce for Technology Acquisition and Promotion ("NOTAP") Certiﬁcation
If a foreign company intends to provide technical management or technical assistance to a Nigerian entity, it will be advisable for the foreign company to enter into a technical services, training or management agreement with the Nigerian company. This agreement will have to be registered with NOTAP in accordance with the provisions of the National Oﬃce for Technology Acquisition and Promotion Act LFN 2004 (the "NOTAP Act").
4. Sector – Regulated Approvals
In addition to the authorizations and approvals discussed above, there are sector-speciﬁc approvals required in order to carry on business in some sectors. Some of such sectors include banking, securities, oil and gas, aviation, insurance, telecommunication, manufacturing of food and beverages and the hospitality sectors. In the oil and gas industry, for instance, approvals are required from the Department of Petroleum Resources - which regulates the Nigerian oil and gas industry, and the Nigerian Content Development and Monitoring Board (the "NCDMB") – which is the body that is responsible for the implementation of the provisions of the Local Content Act.
5. Tax Registration
A company incorporated in Nigeria is required to be registered with the relevant tax authorities for tax purposes. Following the incorporation of the company, a Tax Payer Identification Number (TIN) is automatically generated for the new company. This TIN is to be used when remitting taxes due to the Federal Government. Taxes imposed by State Governments require separate taxpayer registration.
6. Miscellaneous – Opening a bank account
Although there is no legal requirement to do so, for practical purposes, it is advisable for the local company to open an account with a Nigerian bank. For instance, any capital in the form of cash that will be injected into the local company by any of its oﬀshore partners through the oﬃcial foreign exchange market will need to be paid into a bank account held with a Nigerian bank. Once the local company is incorporated, the process of opening an account with a Nigerian bank is relatively simple.
7. Checklist to set up a company
The process for the registration of businesses in Nigeria is fully automated and requires online filling of the Application for Registration of a Company (Form CAC 1.1) and the upload of relevant documents. To incorporate a Private, Public or Unlimited Company Limited by Shares in Nigeria, the following are required:
a. Information regarding:
i. A primary choice of name and an alternative choice of name for your company;
ii. The company's share capital and details of share allotment;
iii. The company's registered oﬃce address;
iv. Details of the company secretary;
v. Details of the company's ﬁrst directors; and
vi. Details of the shareholders.
b. The company's Memorandum and Articles of Association;
c. Valid Means of Identification for the directors, shareholders, and the company secretary; and
d. Residence Permit (where applicable).
To incorporate a company Limited by Guarantee, in addition to the information listed in (a) to (d) above, a Letter of Consent from the Attorney General of the Federation is also required.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.