A foreign investor seeking to do business in Nigeria will be required to interphase with the under listed substantive laws and its attendant corporate bodies.
THE COMPANIES AND ALLIED MATTERS ACT (CAMA) and THE CORPORATE AFFAIRS COMMISSION (CAC).
Section 18 of CAMA, allows “any two or more persons may form and incorporate a company in Nigeria in accordance with the Act:
However such persons as listed under Section 20 (1) are prohibited from joining in the formation of a company, if:
· He is less than eighteen years of age ( except 2 or more persons not disqualified by the Act, join in the formation of such a company); or
· He is of unsound mind and has been so found by a court in Nigeria or elsewhere; or
· He is an undischarged bankrupt; or
· He is disqualified under section 254 of this Act from being a director of a company or
· It is a body corporate in liquidation.”
An Alien (foreign investor) or Alien Company is empowered by Section 20(4) to join in the formation of a company or any business venture in Nigeria. This is however, subject to any other law(s) in force, regulating Alien participation in trade or business in Nigeria.
TYPES OF COMPANIES IN NIGERIA-UNDER PART A OF CAMA
Section 21 of CAMA provides for three types;
a) Company Limited by shares
b) Company Limited by Guarantee and;
c) Unlimited Company.
Any of the above companies can be either a private company or a public company.
Section 22, states what constitutes a private company including: its membership (excluding bona fide employees) which shall not exceed fifty; the company’s Memorandum must state that it is a private company and the company is restricted by the Act from inviting members of the public to buy its shares or to deposit money for fixed periods or payable on call whether bearing interest or not.
According to Section 24, any company other than a private company as stated above is a public company and shall have it stated in the company’s memorandum of association.
Other types of business include:
Business names registered under part B of the CAMA and
Incorporated Trustees registered under part C of the CAMA.
QUICK STEPS TO REGISTERING A COMPANY WITH FOREIGN PARTICIPATION, IN NIGERIA.
1. Retain a lawyer or law firm in Nigeria
2. Foreign Shareholder may grant a Power of Attorney to its Solicitor in Nigeria, empowering them to act as its agent in executing incorporation and other legal documents.
3. Determine the name, initially authorized capital and objects of the proposed company
4. Establish partners/shareholders and their respective shareholding percentage in the company.
5. Conduct search and availability of name and reserve proposed name with CAC
6. Prepare a Joint Venture Agreement (JVA) where proposed company has part foreign shareholders and part local shareholders, incorporating the intensions of both parties.
7. Prepare Memorandum and Articles of Association incorporating the spirit of the JVA
8. Pay stamp duty ( this is done at the Federal Inland Revenue Service-FIRS)
9. Notarize form CAC 4, verify documents’ compliance, pay CAC filing fees at the designated bank desks within the CAC premises and file all duly verified incorporation documents.
10. Incorporation certificate will be issued usually within ten working days, except the one (1) day incorporation option is exercised. This option costs an additional Fifty thousand naira (N50, 000) apart from the regular fees of incorporation.
THE NIGERIAN INVESTMENT PROMOTIOM COMMISSON ACT and THE NIGERIAN INVESTMENT PROMOTION COMMISSION (NIPC).
Notable among the NIPC Act provisions include:
1. Section 17- A non-Nigerian may invest and participate in any enterprise in Nigeria-this is Foreign Direct Investment (FDI),
2. Section 20- An enterprise in which foreign participation is permitted, shall after its incorporation or registration with the CAC, be registered with the NIPC
3. Section 21 - A foreign enterprise may buy the shares of any Nigerian enterprise in any convertible currency-this is Foreign Portfolio Investment ( FPI)
4. Section 22- Incentives for special investments
5. Section 23- Priority areas of investment
6. Section 24 – Investment guarantees, transfer of capital, profits and dividends in freely convertible currency through an authorized dealer.
7. Section 25 – Guarantee against expropriation ( Investment Protection Assurance)
According to Section 4 of the NIPC Act, the Commission has the following duties and functions;
The Commission shall encourage, promote and co-ordinate investment in the Nigerian economy and accordingly shall
a) Be the agency of the Federal Government to co-ordinate and monitor all investment promotion activities to which this Act applies;
b) Initiate and support measures which shall enhance the investment climate in Nigeria for both Nigerian and non-Nigerian investors;
c) Promote investments in and outside Nigeria through effective promotional means;
d) Collect, collate, analyse and disseminate information about investment opportunities and sources of investment capital, and advise on request, the availability, choice or suitability of partners in joint-venture projects;
e) Register and keep records of all enterprises to which this Act applies;
f) Identify specific projects and invite interested investors for participation in those projects;
g) Initiate, organize and participate in promotional activities, such as, exhibitions, conferences and seminars for the stimulation of investments;
h) Maintain liaison between investors and Ministries, Government departments and agencies, institutional lenders and other authorities concerned with 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 investments in Nigeria and make appropriate recommendations;
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;
m) Perform such other functions as are supplementary or incidental to the attainment of the objectives of this Act.
QUICK STEPS TO OBTANING NIPC REGISTRATION FOR EXPATRIATE QUOTA AND OTHER INCENTIVES
1. Prepare and submit simultaneous applications to the NIPC (on the prescribed NIPC Application Form) for the following:
- Registration and Expatriate Quota;
- Pioneer Status and other incentives (where applicable)
2. The application to the NIPC should be accompanied with the following documents: -
a) Original and duplicate Copy of the duly completed NIPC Form 1;
b) Original Copy of the treasury receipt for the purchase of NIPC Form;
c) A Copy of the Certificate of Incorporation of the applicant company;
d) A Copy of the Tax Clearance Certificate of the applicant company;
e) A Copy of the Memorandum and Articles of Association;
f) A Copy of treasury receipt as evidence of payment of stamp duties on the authorised share capital of the company as at date of application;
g) A Copy of the Joint-Venture Agreement -UNLESS 100% foreign ownership is envisaged;
h) A Copy of Feasibility Report and Project Implementation Programme of a company for its proposed business. It is advisable that quotations, letters of intent and other such documentation relating to industrial plant and machinery to be 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 acquisition of the plant and machinery to be utilised in the company's business;
i) A Copy 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;
j) A Copy of training programme or personnel policy of the company, incorporating management succession schedule for qualified Nigerians;
k) Particulars of names, addresses, nationalities and occupations of the proposed directors of the company;
l) 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;
m) 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.
ADDITIONAL CRITERIA GUIDING THE GRANT OF BUSINESS PERMIT AND EXPATRIATE QUOTA
I. BUSINESS PERMIT:
a) NIPC Form 1 with Original receipt for the purchase of the Form;
b) Certificate of Incorporation;
c) A minimum share capital of N5 million;
d) Details of shareholding in the Joint Venture;
e) Joint Venture/Partnership Agreement where applicable
f) Memorandum and Articles of Association;
g) CAC’s Forms CO7 duly certified;
h) Evidence of capital importation for wholly foreign companies.
II. EXPATRIATE QUOTA:
In addition to the requirements listed under Business Permit, the following additional requirements have to be met for Expatriate Quota Positions:-
a) A company applying for Expatriate Quota should show evidence of acquisition of operational premises and operational machinery/equipment in the case of an industrial establishment;
b) Evidence of foreign capital importation;
c) A company applying for Expatriate Quota Positions in the case of provision of services should produce Management and Technical Services Agreement;
d) Companies seeking Expatriate Quota are expected to have a minimum authorized share capital of N5 million;
e) Companies applying for Expatriate Quota should produce Tax Clearance
f) Companies applying for permanent Until Reviewed (PUR) quota slots must show evidence of payment of tax for minimum of One million Naira (N1,000,000);
g) To enjoy two automatic Expatriate Quota Positions, the share capital of the company should not be below N15,000,000;
h) A company will be entitled to four automatic Expatriate Quota Positions, if its share capital is N30,000,000 and above;
i) A company would be considered for Expatriate Quota only where the type of personnel required is not likely to be available in Nigeria or where available not in sufficient number.
j) The Company must in all cases supply the names, addresses, qualifications and positions to be occupied by the expatriate (i.e. Details of quota positions desired).
k) The Company must also produce its project implementation programme;
l) The company must produce a Training Programme for Nigerians in addition to Management Succession Schedule;
m) The Company will furnish its Feasibility Report where applicable especially for new and pioneer industries.
FOREIGN EXCHANGE (Monitoring and Miscellaneous Provision) No. 17, 1995, THE CBN DECREE 24 of 1991 and BANKING AND OTHER FINANCIAL INSTITUTIONS DECREE 25, 1995 and THE NIGERIAN BANK
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.
Investors who wish to be able to remit dividends to non-resident shareholders or repatriate capital on disinvestments must ensure that they obtain a Certificate of Capital Importation from the Nigerian bank through which the payment is transferred into Nigeria.
PROCEDURE FOR OBTAINING CERTIFICATE OF CAPITAL IMPORTATION (CCI)
a) Application will be made to COMPANY’s bankers
b) The foreign shareholders will instruct their bank (“the remitting bank”) by telex to transfer the necessary funds either directly to COMPANY’s bankers or to their foreign affiliate;
c) The transfer must be accompanied by a telex stating that the money being remitted to the bank is for the account of COMPANY and that the money represents the foreign investors’ capital contribution to the equity of COMPANY;
d) Upon confirmation that the funds have been remitted to Nigeria,
The Company is required to send a formal letter of application to the receiving bank to issue a CCI in respect of the equity contribution.
THE FOLLOWING DOCUMENTS MUST BE SUBMITTED TOGETHER WITH THE LETTER OF APPLICATION:
a) A Board resolution of COMPANY authorizing the foreign investment;
b) A letter from COMPANY stating the purpose for which the money has been remitted;
c) A copy of the certificate of incorporation of COMPANY;
d) A copy of the swift message from the remitting bank.
If satisfied with the documentation the receiving bank will issue a CCI in respect of the funds. The receiving bank is required to notify the CBN whenever it issues a CCI.
After obtaining Certificate of Capital Important 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 grounds.
As soon as expatriate Quota position are granted and the respective individuals to fill the quota positions are recruited, the company must embark on steps to obtain work permit and residency status for the expatriate employees and their accompanying spouses and children (if any).
OTHER RELEVANT LAWS AND CORPORATE BODIES
1. Securities and Exchange Commission Decree, 1988 and the Securities and Exchange Commission (SEC)
2. Immigration Act Cap 171 LFN 1990.
3. Investment and securities Act No. 45 of 1999
4. National Office of Technology Acquisition and Promotion Act
Cap 268 LFN 1990.
Bibliography
1. Companies and Allied Matters Act Chapter 59 Laws of the Federal Republic of Nigeria 1990.
2. Nigerian Investment Promotion Commission Act Chapter N117 (Decree No 16 of 1995) Laws of the Federation of Nigeria.
