INCORPORATING A BUSINESS ENTERPRISE: Methods of Conducting Business

Legal Framework for Business Activities

Legal Framework for Business Activities

The Companies and Allied Matters Act and Incorporation Procedures
The Companies and Allied Matters Act, 1990 (the Companies Act) is the principal law regulating the incorporation of businesses. The administration of the Companies Act is under-taken by the CORPORATE AFFAIRS COMMISSION (CAC) and its functions include:
(i) the regulation and supervision of the formation, incorporation, registration, management and winding up of companies.
(ii) the maintenance of a Companies Registry;
(iii) the conduct of investigation into the affairs of any company in the interest of share-holders and the public.

must state inter-alia that the subscribers “shall take amongst them a total number of shares of a value not less than 25 per cent of the authorised capital and that each subscriber shall write opposite his name the number of shares he takes.” The law permits and acknowledges the roles of attorneys and other relevant professionals in facilitating business transactions provided, of course, that this “agency arrangement is disclosed".

Membership of the Company - Prohibition of Trusts
The Companies Act prohibits “notice of any trust, express, implied or constructive” and such shall not be entered on the register of members or be receivable by the CAC.

Shares -
All categories of company shares to carry one vote. Shares with “weighted” voting right are prohibited. All shares (i.e. whether ordinary or preferential) issued by a company must carry one vote in respect of each share.
Consequently, preference shareholders are entitled to receive notices and attend all general meetings of the company and may speak and vote on any resolution before the meeting.

Disclosures To Be Published In Company Correspondence and
Business Premises
Every company is obliged to disclose on its letterhead papers used in correspondence, the following particulars:
(i) Name of the company/enterprise;
(ii) Address;
(iii) Registration/Incorporation Number;
(iv) Names of Directors and Alternate
Directors (if any)

Legal Framework for Business Activities

so incorpo-rated, the foreign company may not carry on business in Nigeria or exercise any of the powers of a registered company.

The foreign investor may incorporate a Nigerian branch or subsidiary by giving a power of attorney to a qualified solicitor in Nigeria for this purpose. The incorporation documents in this instance would disclose that the solicitor is merely acting as an “agent” of a “principal” whose name(s) should also appear in the document. The power of attorney should be designed to lapse and the appointed solicitor ceases to function upon the conclusion of all registration formalities.

The locally incorporated branch or subsidiary company must then apply to the Nigerian Investment Promotion Commission (NIPC) for Business Permit and other requisite permits and licences.

Exemption to the General Rule
Where exemption from local incorporation is desired, a foreign company may apply in accor-dance with Section 56 of the Companies Act, to the National Council of Ministers for exemption from incorporating a local subsidiary if such foreign company belongs to one of the following categories:
(a) “foreign companies invited to Nigeria by or with the approval of the Federal Government of Nigeria to execute any specified individual project;
(b) foreign companies which are in Nigeria for the execution of a specific individual loan project on behalf of a donor country or international organisation;
(c) foreign government-owned companies engaged solely in export promotion activities; and
(d) engineering consultants and technical experts engaged on any individual specialist project under contract with any of the governments in the Federation or any of their agencies or with any other body or person, where such contract has been approved by the Federal Government.”

The application for exemption from disclosing certain details about the applicant is to be made to the Secretary of the Government of the Federation (SGF). If successful, the request of the applicant is granted upon such terms and conditions as the National Council of Ministers may think fit.

Factories Act
This Nigerian law makes general and special provisions for the health, safety and welfare of persons employed in places statutorily defined as “factories” and for which a certificate of registration is required by law. It makes general provisions as to the standards of cleanliness, crowding, ventilation, lighting, drainage of floors, and sanitary conveniences: e.g. all factories must have potable water and washing facilities.

In respect of safety, there are general provisions as to the securing, fixing, usage, maintenance and storage of prime movers, transmission machinery, other machinery, unfenced machinery, dangerous liquids, automated machines, hoists and lifts, chains, ropes and lifting tackle, cranes and other lifting machines, steam boilers, steam receivers containers, and air receivers. There are in addition to these, standards set for the training and supervision of inexperienced workers, safe access to any work place, prevention of fire and safety arrangements in case of fire and first aid boxes.

Also, the law provides that adequate arrangements should be made for the removal of dust or fumes from factories, provision of goggles to protect the eyes in certain processes and the prevention of eating and drinking in places where poisonous or injurious substances give rise to dust or fumes.

It is mandatory that all accidents and industrial diseases be notified to the nearest inspector of factories and be investigated; it is prohibited for the occupier of a factory to make any deductions from the wages of any employee in respect of anything to be done or provided in pursuance of the Factories Act.

All employers and trade unions in both the public and private sectors of the economy are permitted to make adjustments to total remuneration packages through the process of collective bargaining. The remuneration agreed requires the approval of the Federal Minister of Employment, Labour and Productivity. Approval will be given where the increases are moderate, non-inflationary and affordable. The agreed and approved remuneration will apply from the first day of the calendar month that follows such agreement. Back-dating of increments is not permitted.

LABOR, HEALTH, TRADE & ENVIRONMENTAL STANDARDS: Regulatory Bodies

Regulatory Bodies
Standards Organisation of Nigeria
The Nigerian Standards Organisation Act, 1971, established as an integral part of the Federal Ministry of Industries, the Standards Organisation of Nigeria, to carry out among other things, the following functions:-

- to designate, establish and approve standards in respect of meterology, materials, commodities, structures and processes for the certification of products in commerce and industry throughout Nigeria;

- to provide necessary measures for quality control of raw materials and products in conformity with the standards specifications;

- to compile Nigerian standards specifications;

- to ensure compliance with designated standards;

- to establish a quality assurance system including certification of factories, products and laboratories;

- to develop methods for testing of materials, supplies and equipment items purchased for use by public and private establishments;

- to undertake preparation and distribution of standards samples;

- to establish and maintain laboratories necessary for the performance of its functions.

products.

National Agency for Food And Drug Administration and Control
NAFDAC was established in 1993 with functions to regulate and control the importation, exportation, manufacturing, advertisement, distribution, sale and use of food, drugs, cosmetics, medical devices, bottled water and chemicals.

Drugs and Related Products
No drug product, cosmetic or medical device shall be manufactured, imported, exported, advertised, sold or distributed in Nigeria unless it has been registered in accordance with the provisions of and regulations made under a 1993 Act.

Trade Malpractices Decree 1992
This Law creates certain offences relating to trade malpractices and sets up a Special Trade Malpractices Investigation Panel to investigate such offences. The law provides against any person who:

- falsely labels, packages, sells, offers for sale or advertises any product so as to mislead as to its quality, character, brand, name, value, composition, merit or safety; or

- for the purpose of sale, contract or other dealing, uses or intends to use any weight, measure or number which is false or unjust; or

- sells any product by weight, measure or number and delivers to the purchaser a less weight, measure or number than is purported to be sold,

-  advertises or invites subscription for any product or project which does not exist.

LABOR, HEALTH, TRADE & ENVIRONMENTAL STANDARDS: Consumer Protection Council

Consumer Protection Council
A Consumer Protection Council has been established in Nigeria with the objectives to:-
- provide speedy redress to consumer complaints through negotiations, mediation and conciliation;

- seek ways and means of removing from the market hazardous products and cause offenders to replace such products with safer and more appropriate alternatives;

- publish from time to time a list of products whose consumption and sale have been banned, withdrawn, restricted, or not approved by the Nigerian government or foreign governments;

- cause an offending company, firm, trade association or individual to protect, compensate, provide relief and safeguards to injured consumers or communities from adverse effects of technologies that are inherently harmful, violent or highly hazardous;

- organise and undertake campaigns and other forms of activities as will lead to increased public consumer awareness;

- encourage trade, industry and professional associations to develop and enforce in their various field quality standards designed to safeguard the interests of consumers;

- encourage the formation of voluntary consumer groups or associations for consumers’ well being.

In the exercise of its functions, the Council is empowered to:
- apply to court to prevent the circulation of any product which constitutes an imminent public hazard;

Principal Laws on Foreign Investments
The principal laws regulating foreign investments are, the Nigerian Investment Promotion Commission Decree No.16 of 1995 and the Foreign Exchange (Monitoring and Miscellaneous Provisions) Decree No.17 of 1995.

Deregulation of Equity Structure in Nigeria Enterprises
Effectively, the Nigerian Enterprises promotion (Repeal) Decree No. 7 of 1995 has abolished any restrictions, in respect of the limits of foreign shareholding, in Nigeria registered/domiciled enterprises.

The only enterprises which are still exempted from free and unrestrained foreign participation are those involved in:
- Production of arms and ammunition;
- production of and dealing in narcotic drugs and psycothropic substances;

The Nigerian Investment Promotion Commission Decree No. 16, 1995 (NIPC Decree)
This decree established the Nigerian Investment Promotion Commission (NIPC) as the successor to Industrial Development Coordination Committee (IDCC)

investments;
(i) provide and disseminate up-to-date information on incentives available to investors;
(j) assist incoming and existing investors by providing support services;
(k) evaluate the impact of the Commission in investment in Nigeria and recommend appropriate remedies and additional incentives;
(l) advise the Federal Government on policy matters, including fiscal measures designed to promote the industrialisation of Nigeria or the general development of the economy; and
(m) perform such other functions as are supple mentary or incidental to the attainment of the objectives of NIPC Decree.

Provisions Relating to Investments
Notable amongst the provisions relating to investments are the following:
- A non-Nigerian may invest and participate in the operation of any enterprise in Nigeria;
- An enterprise in which foreign partici-pation is permitted, shall after its incor-poration or registration, be registered with the NIPC.
- A foreign enterprise may buy the shares of any Nigerian enterprise in any convertible foreign currency.

A foreign investor in an approved enterprise is guaranteed unconditional transferability of funds through an authorised dealer, in freely convertible currency of:
(a) dividends or profit (net of taxes) attributable to the investment;
(b) payments in respect of loan servicing where a foreign loan has been obtained; and
(c) the remittance of proceeds (net of all taxes) and other obligations in the event of sale or liquidation of the enterprise or any interest attributable to the investment.

Priority Areas of Investment
The NIPC issues guidelines and procedures which specify priority areas of investment and prescribed incentives and benefits which are in conformity with Government policy.

Investment Protection Assurance

The NIPC Decree provides that:
(a) No enterprise shall be nationalised or expropriated by any Government of the Federation; and
(b) No person who owns, whether wholly or in part, the capital of any enterprise shall be compelled by law to surrender his interest in the capital to any other persons.

There will be no acquisition of an enterprise by the Federal Government unless the acquisition is in the national interest or for a public purpose under a law which makes provision for:
(a) payment of fair and adequate compen-sation; and
(b) a right of access to the courts for the determination of the investor’s interest of right and the amount of compensation to which he is entitled.

Compensation shall be paid without undue delay, and authorisation given for its repatriation in convertible currency where applicable.

Checklist of Steps For Establishing New Companies in Nigeria with Foreign Shareholding

STAGE A
1. Establish partners/shareholders and their respective percentage shareholdings in the proposed company.

2. Establish name, initial authorised share capital and main objects of proposed company.

subscription by parties, manner of Board Composition, mutually protective quorum for meetings, specific actions which would necessitate share-holders approval by special or other resolutions.

4. Prepare Memorandum and Articles of Association, incorporating the spirit and intents of the Joint-Venture Agreement.

5. Foreign Shareholder may grant a power of attorney to its Solicitors in Nigeria, enabling them to act as its Agents in executing incorporation and other statutory documents pending the grant of Business Permit (i.e. formal legal status for foreign branch/subsidiary operations) to the foreign shareholder.

6. Conduct a search as to the availability of the proposed company name and, if available, reserve the name with the CAC.

7. Effect payment of stamp duties, CAC filing fees and process and conclude registration of the company as a legal entity.

STAGE B
1. Obtain “Tax Clearance Certificate” for the newly registered company

2. Prepare Deeds of Sub-Lease/Assignment, as may be appropriate, to reflect firm commitment on the part of the newly registered company, to acquire business premises for its proposed operations.

STAGE C
1. Prepare and submit simultaneous applications to the NIPC (on the prescribed NIPC Application Form) for the following approvals:-
- Business Permit and Expatriate Quota;
- Pioneer Status and other incentives (where applicable)

acquired by the company, be forwarded either as annexes or separately. In order to discourage the dissipation of administrative energy on speculative applications, the NIPC favours the applicant who has demonstrated positive intention to commence business as and when approvals are granted. Hence, the requests for evidence of acquisition of business premises and evidence of having sourced the plant and machinery to be utilised in the company’s business;
- Copies of Deed(s) of Sub-Lease/Agreement evidencing firm commitment to acquire requisite business premises for the company’s operation. By implication, the ultimate NIPC approvals do incorporate approvals of the industrial site locations indicated in the application;
- Copies of training programme or personnel policy of the company, incorporating management succession schedule for qualified Nigerians;
- Particulars of names, addresses, nationa-lities and occupations of the proposed directors of the company;
- Job title designations of expatriate quota positions required, and the academic and working experience required for the occupants of such positions. It is pertinent to note that expatriate quota on a “Permanent Until Reviewed” (PUR) status is only accorded to a Managing Director, where the non-resident shareholders own a majority of the company’s shares, and the authorised capital of the company is N5 million and above;
- Copies of information brochure on foreign shareholder (if available) as testimony of international expertise and credibility of the foreign partner in the proposed line of business.

STAGE D
1. Having obtained the requisite NIPC approvals and Business Permit Certificate, the non-resident shareholder must act with despatch to import its foreign equity holding in the company. To ensure prompt importation of the foreign equity components, the NIPC may grant Business Permit but defer approvals for Expatriate Quota and Pioneer Status and other applicable investment incentives, until evidence of capital importation is produced.

2. After obtaining Certificate of Capital Importation from the bank, the NIPC is to be notified of this fact with the supporting documentation, in order for it to resume processing of pending approvals that might have been deferred on such ground.

Business permit, as the name connotes, is the permanent authorization for the local operation of businesses with foreign investments either as branch/subsidiary of a foreign company or otherwise.

Expatriate quota is the official permit to a company, conveying permission for the company to employ individual expatriates to specifically approved job designations, and also specifying the permissible duration of such employment. The expatriate quota forms the basis of work permits for expatriate individuals employed ( whose qualifications must fulfill the criteria established for the particular quota position). Expatriate quota positions are usually granted for 2-3 years subject to renewal, EXCEPT in cases where companies qualify for and are granted not more than one (1) “PUR” Quota ( i.e. Permanent Until
Reviewed) position.

The Current Regulation on The Appointment of Foreign Directors

The promoters of business ventures in Nigeria are free to appoint directors of their choice, either foreign or Nigerian, and the directors may be resident or non-resident. The application to the NIPC must reflect the names of the proposed Nigerian and foreign directors (with an indication of resident and non-resident directors). The Business Permit Certificate consequently issued following such application usually reflects the respective names of the proprietors of the company, as well as the directors representing each proprietor or co-proprietor.

Payments of foreign directors’ fees, are remittable in the same manner as dividends accruing to the foreign company. However, since such fees are taxed at source (5% as a withholding tax), each foreign director’s fees are remittable subject to satisfactory evidence that the taxable amounts on such fees have been paid.

Pioneer Status (Tax Holiday) Advantages to a Company

The Industrial Development (Income Tax Relief) Act, Cap. 179 Laws of Nigeria, 1990, declares a number of industries as pioneer industries. Thus, any company whose products fall within the categorised industries could be conferred with Pioneer Status.

pioneer products only. Under the current industrial policy, conferment of Pioneer Status accords a company relief from income tax liability for a period of up to 5 years (tax-holiday status).

Finally, it should be noted that even if a company’s activities and/or products are classified within pioneer industries, the grant of Pioneer Status is not automatic. The criteria for granting Pioneer Status are related and/or based on the following considerations:-

(i) the amount of underlying capital investment in a company (N5 million and above) must be verifiable by physical inspection and supported by a report of the Industrial Inspectorate Division of the Federal Ministry of Industries, before a Pioneer Certificate is granted.

(ii) the socio-economic advantages of a company’s activities to the Nigerian economy as set out in its Feasibility Study is also an important consideration.