Oct 15, 2015

Doing Business in Nigeria: A Brief Legal Guide by Babatunde Ibidapo Obe

Credits - ngex.com

Company structure
The primary law governing companies and businesses in Nigeria is the Company and Allied Matters Act (CAMA). It deals with the various types of company structures, eligibility, process for registration, and rules for operation. The regulatory body that is in charge of implementing the provisions of the CAMA is the Corporate Affairs Commission (CAC).
The various business structures allowed in Nigeria are – registered business name, company limited by shares, company limited by guarantee, unlimited company (all companies may be private or public), and incorporated trustees For the purposes of this guide, we will deal with only a private company limited by shares.

What are the requirements?
  • A company must have a minimum of 2 members, and a maximum of 50 members
  • Founding members must not be – under the age of 18 years old (unless at least 2 other members are over the age of 18), of unsound mind, an undischarged bankrupt, or disqualified by CAMA from being a Director
  • Foreigners and foreign companies can be founding members of a company alongside Nigerian citizens
  • The current minimum share capital of a company to be registered in Nigeria is N10, 000
 What documents are needed for incorporation?
  • Memorandum and Articles of Association
  • Notice of registered address of the business
  • List, particulars, and consent of the first Directors of the company
  • Statement of compliance by legal practitioner

Upon successful registration, the company is presented with a Certificate of Incorporation.
To find out a bit more about registering a company/business in Nigeria you can read up on the below articles: 

Intellectual Property (IP) Protection
The Nigerian legal system affords protection to IP rights in the following categories – copyright, trademark, and patents.
Copyright 
A copyright is a legal right that grants the creator of an original work exclusive right to its use and distribution, usually for a limited time. The exclusive rights are not absolute; they are subject to certain limitations.
 In Nigeria, the primary piece of legislation for copyright is the Copyright Act, and the body charged with the enforcement and protection of copyright is the Nigerian Copyright Commission (NCC).
The ownership of copyright is the creator of a copyright work, usually referred to as the “author” of the work. He/she owns the copyright in the work in the first instance. However, the author is at liberty to transfer his rights to a third party. In such a case, the person who has obtained the right by transfer or other legal means becomes the owner of copyright.
What is eligible for copyright protection?
  • Literary works; Musical works; Artistic works; Cinematograph works; Sound recording; and Broadcasts
For it to be eligible for copyright protection, the work must be sufficiently original, and must be in a form which can is expressed e.g. in writing, a painting, a musical recording etc. You can’t have copyright protection over something in your head, which has not been expressed.
Originality and expression are the key pillars for eligibility
 Do you need to register a copyright?
You do not have to register your copyright. Copyright subsists automatically in a work from the moment the work is created.
However, the NCC has established a voluntary copyright registration scheme designed to enable authors and right owners notify the Commission of the creation and existence of a work. The NCC justifies the establishment of this scheme based on the following benefits:
  • It provides an independent source of verifying data relating to a work or its author to the general public;
  • The acknowledgement certificate issued provides prima facie evidence of the facts shown on it;
  • It provides a depository for preserving original copies of works notified;
  • The information and data contained in the Notification database offers reliable rights management information to members of the public and prospective licensees to the work

Trademark
A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.
Once a trademark is registered, it enables the trademark owner to amongst other things- take legal action against anyone who uses the registered mark without permission, sell and/or license the registered trademark (so in a sense it becomes an asset), and allows the owner to legally put the ® symbol next to the brand - to show ownership and warn others against using it.
In Nigeria, the legislation, which governs the registration of trademarks, is the Trade Marks Act (and the Trade Mark Regulations made pursuant to it). 
 What is eligible for trademark registration?
  • Device, brand, heading, label, ticket, name, signature, word, letter, numeral, or any combination thereof;
For it to be eligible for registration it must contain or consist of at least one of the following essential particulars -
  • the name of a company, individual, or firm, represented in a special or particular manner;
  • the signature of the applicant for registration or some predecessor in his business;
  • an invented word or invented words;
  • a word or words having no direct reference to the character or quality of the goods, and not being according to its ordinary signification a geographical name or a surname;
  • any other distinctive mark
 Do you need to register a Trademark?
In order to have exclusive use of your trademark, it is imperative that you register it.
Unlike with copyright, protection does not vest automatically in the owner. Not registering a trademark would mean that you do not have exclusive right to use it.
If someone were to use the same mark as you, the only recourse you would potentially have would be an action for the tort of passing off. So, yes you should register your trademark.
 A trademark is valid for an initial period of 7 years, and then for further renewable 14-year periods.
Patent
A patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something, or offers a new technical solution to a problem.
What a patent does is that it basically grants the inventor a temporary but exclusive monopoly of the commercial exploitation of that invention. It gives the inventor the right to exclude others from making, using, or selling the claimed invention in that country without their consent, for the duration of the patent.
 In Nigeria, the primary legislation that governs the grant of patents is the Patents and Designs Act. 
What is eligible for Patent registration?
Patents are granted for the invention of products or processes. However, for it to be patentable, the invention 
  • Must be new,
  • Must have an inventive step that is not obvious to someone with knowledge and experience in the subject,
  • Must be capable of being made or used in some kind of industry and not be, a scientific or mathematical discovery, theory or method, a literary, dramatic, musical or artistic work, a way of performing a mental act, playing a game or doing business, the presentation of information, or some computer programs, an animal or plant variety, a method of medical treatment or diagnosis,
  • And must not be against public policy or morality.
 Do you need to register a Patent?
Yes. In order to be able to exclusively commercially exploit an invention, it must be patented. The rights to a patent are vested in the "Statutory Inventor" i.e. the first person to file and register the patent. However, the law in Section 2(2) of the act enables the possibility of redress by reassigning the rights to an invention, to a person who is adjudged to be the true inventor whether or not he is the first to register a product.
 Once granted, a patent is valid for 20 years.
Insurance
Getting the requisite insurance coverage is an important part of setting up a business in Nigeria. Below we will highlight a number of mandatory insurance policies that businesses have to obtain in order to lawfully operate in Nigeria.
These compulsory insurance policies are those that are mandated to be taken out by the relevant laws for the protection of third parties and the general public.
  • Statutory Group Life Insurance
 Section 4(5) of the Pension Reform Act 2014 makes it compulsory for every employer to maintain a Group life insurance policy in favour of each employee for a minimum of three times the annual total emolument of the employee. If the employer refuses or omits to pay for the policy, the employer is liable to make arrangement to effect the payment of claims arising from the death of any staff in its employment during such period
  • Builders Liability Insurance
 Section 64 (1) of the Insurance Act provides that during the construction of any building with more than two floors, there must be insurance coverage protecting injury or death to person, or damage to property caused by negligence.  
  • Occupiers Liability Insurance
 This insurance is compulsory for all “public buildings” i.e. any building that is not 100% used by the owner for residential purposes. These include tenement houses, hostels, residential buildings occupied by tenants, lodgers or licensees, and any other building to which members of the public enter and exit for the purpose of educational, recreational or medical services (e.g. schools, cinemas, hospitals, malls, petrol stations, etc).
  • Employee Compensation Contribution
 Section 33(1) of the Employee’s Compensation Act 2010 requires all employers to make a minimum monthly contribution of 1% of the total monthly payroll of employees to the Employee Compensation Fund. The Fund shall be used to provide compensation to employees or their dependants for any death, injury, disease or disability arising out of or in the course of their employment.
  • Motor 3rd Party Liability
 All owners of Motor vehicle whether private or commercial vehicle are required to insure their vehicles by virtue of Section 68 of the Insurance Act 2003. This type of insurance provides compensation in the event of death, bodily injury, and property damage to members of the public.  
Tax
Nigeria is a Federal State, and as such all the different levels (Federal, State, and Local) have taxing powers. For the purposes of this guide we will focus on Federal taxes, as they are applicable in all states of the Federation.
The Taxes and Levies (Approved List for Collection) Act, CAP T-2, Laws of the Federation of Nigeria (“LFN”), 2004 provides a list of the taxes that each tier of government can charge in Nigeria.
  • Companies Income Tax
 This is a tax chargeable on all companies (other than Companies engaged in petroleum operations) registered in Nigeria. It is an annual tax on the profits of registered companies, which profits must accrue in, be derived from, brought into, or received in Nigeria.
  • Personal Income Tax
This is a tax payable by all individuals and registered businesses and partnerships except those registered under Part A of Companies and Allied Matters Act 1990 (incorporated companies). The State Inland Revenue Service administers the tax.
  • Capital Gains Tax
This is a 10% tax imposed on Capital Gains arising from a sale, exchange or other disposition of properties known as chargeable assets. 
Capital gains are the profits that an investor realizes when he or she sells the capital asset for a price that is higher than the purchase price. Capital gains taxes are only triggered when an asset is realized.
  • Education Tax
 This is a tax chargeable on all companies registered in Nigeria at chargeable profits as contribution to the Education Tax Fund. All registered companies in Nigeria are required to pay a percentage of their assessable profit into an Education Tax Fund. This fund is disbursed for the rehabilitation, restoration and consolidation of educational institutions in Nigeria. The tax is charged at 2%
  • Withholding Tax
 This is an advanced payment of income tax deducted at source of specific transactions. This advance tax must be remitted to the relevant tax authority for the latter to issue a withholding tax credit note or receipt. The recipient of the income is entitled to utilise the withheld tax credit note or receipt, against the final tax obligations.
  • Value Added Tax
This is a tax payable by the consumer at 5% of the net value added based on eligible transactions once consumed. It is a tax imposed on the supply of goods and services.
  • Petroleum Profits Tax
 This is a tax charged on the chargeable income for companies engaged in upstream petroleum operations. The amount of tax to be paid varies, depending on the commercial arrangement entered into between the Federal Government and the company.
  • Stamp Duties
 The Stamp Duties Act requires that all written instruments in Nigeria, that are of a contractual nature, must be stamped before they can be admissible in any judicial or quasi-judicial proceedings. Non-payment of stamp duties on an instrument does not create criminal liability however it prevents the unstamped document from being admitted in evidence in judicial or quasi-judicial proceedings.
  • Information Technology Tax
 This tax is payable by specified companies (GSM service providers and all telecommunications companies, cyber companies and internet providers, pension managers and pension related companies, banks and other financial institutions, and insurance companies) who have an annual turnover of One Hundred Million Naira (N100, 000,000).
The companies are to pay a levy of one per cent (1%) of their annual profit before tax to the National Information Technology Development Fund (“NITD Fund”). This tax when paid is tax deductible for company income tax purposes.
*Below are a couple of articles you might find interesting on registering for tax in Nigeria:
 Employment
 There are 4 key pieces of legislation pertaining to labour and employment rights, which employers need to be mindful of. They are the Labour Act, the Employee Compensation Act, the Pension Reform Act, and the Local Content Act.
  • Labour Act Cap L1 LFN 2004- This law lays out the protection of employees in Nigerian companies with respect to their remuneration, employment terms, etc.
  • Employee Compensation Act 2011 – This Law makes comprehensive provisions for payment of compensation to employees who suffer from occupational diseases or sustain injuries arising from accident at workplace or in the course of their employment.
  • Pension Reform Act 2014 – This Law governs and regulates the administration of the uniform contributory pension scheme for both the public and private sectors in Nigeria. The Law amongst other things establishes a contributory pension scheme, lays out the provisions on the rate of contribution, exemptions, and management of the scheme, and deals with the authorisation and regulation of Pension Fund Administrators (PFAs) and Pension Fund Custodians (PFCs).

Regulatory Bodies
For companies wishing to operate in certain sectors, there are specific Nigerian agencies that have been set up by the Government to regulate the companies that provide goods and services within those specific sectors.
These agencies have powers to set out the requirements to operate in the relevant sectors, guidelines for operations, and sanctions for non-compliance. A few of them include:
  • Central Bank of Nigeria
  • Securities and Exchange Commission
  • National Agency for Food Drug and Cosmetics
  • Nigerian Communications Commission
  • National Office for Technology Acquisition and Promotion
  • Standards Organisation of Nigeria
  • Consumer Protection Council

This is an abridged version of the article Doing Business in Nigeria: A Brief Legal Guide originally posted on our website.
If you have found this guide helpful, then you should check out our website: www.lawpadi.com, we have got loads of other useful articles for Nigerian businesses and individuals.

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