A. NAME OF THE PROPOSED COMPANY
The first step towards incorporating a company in Nigeria is to conduct a "name availability search" at the Corporate Affairs Commission ("CAC"),1 in order to confirm that the desired name for the company is available for use, that is, the said name is not identical or similar to the name of an existing company or any existing trademark or trade name or otherwise unacceptable to the CAC.
Where, following the name availability search, the CAC confirms that the desired name is available, same will be exclusively reserved for an initial period of sixty (60) days which can be renewed for further period(s) of sixty (60) days subject to availability of the name. During the reservation period, no other company can be registered with the reserved name or any other name which, in the opinion of the CAC, is identical or similar to the said reserved name.
B. OBJECTS OF THE COMPANY
By the provisions of CAMA, the memorandum of association (the "Memorandum") of every Nigerian company, which must be filed at the CAC in support of an application for the incorporation of the company, must contain the objects for which the company is being incorporated (that is the proposed/intended lines of business of the company).
Generally, entities desirous of carrying on business in Nigeria may engage in any type of business in Nigeria, except for certain prohibited businesses, such as the production of arms and ammunitions; production and dealing in narcotic drugs and psychotropic substances; and the production of military and para-military wears and accouterment.
C. REQUIRED DOCUMENTS
Upon confirmation, by the CAC, that a proposed name is available for use by the promoters of a proposed Nigerian company, the following documents must be completed and filed online2 to incorporate a company:
(i) Memorandum and Articles of Association ("MemArts")
These are the constitutional documents of the company. As stated above, the Memorandum sets out, among other information, the objects of the company, a description of the kind of company (that is, whether private limited liability company, public limited liability company, limited by guarantee or unlimited company), as well as the authorised share capital of the company.
On the other hand, the Articles of Association (the "Articles") regulate the internal governance and administrative procedures of the company.
The MemArts must be subscribed to by at least two (2) entities, both of whom/ which, generally,3 can be non-Nigerians and whom/ which must jointly subscribe for a minimum of twenty five percent (25%) of the company's authorised share capital.
Each subscriber must also submit a recognised form of identification, which could be in the form of a copy of the bio-data page of their international passport, national driver's license, the national identity card or any other nationally recognised means of identification. Where the subscriber is a corporate entity, it must submit a copy of its certificate of incorporation (or similar document) and a resolution of its board of directors (or similar body) authorizing it to subscribe for shares (and the number of the shares) in the proposed company. The resolution must be printed on the subscriber's letter-headed stationery, signed by its directors and the subscriber's common seal must be affixed thereon.
Further, please note that where any of the subscribers is a corporate entity, the CAC requires that such subscriber must be represented by an individual, who will sign the MemArts and other incorporation documents on behalf of the entity, in addition to affixing that subscriber's common seal on the MemArts.
(ii) Form CAC 1.1 – Application for Registration of Company
In this form, an applicant is required to provide information on the following:
- Statement of Authorised Share
Capital and Return of Allotment of Shares
This form will contain the details of the company's authorised, issued and paid-up share capital.4
- Particulars of
This form will contain the names, addresses and job descriptions of the proposed directors of the proposed company. There must be at least two (2) individuals5 appointed as the directors. Generally,6 the directors need not be Nigerians but they must be at least eighteen (18) years old.
This form must be submitted to the CAC, together with a copy of a recognised form of identification of the directors, as earlier described above.
- Notice of registered office
Every company is required to have a registered office address in Nigeria.
- Particulars of the Company
Every company incorporated in Nigeria is required to have a Company Secretary.7
This form must be accompanied by a copy of a recognised form of identification of the proposed company secretary as well as a letter issued by the proposed company secretary, confirming his/her or willingness to act as the company secretary of the proposed company.
- Declaration of Compliance
with the Requirements of CAMA
This form is a statutory declaration, (which is to be made by legal counsel undertaking the relevant incorporation) attesting that the statutory requirements for the registration of the Nigerian company have been duly complied with.
D. SHARE CAPITAL
(i) Authorised Share Capital
Pursuant to CAMA, the minimum authorised share capital for a private company is generally Ten Thousand Naira (N10,000); whilst that for a public company is Five Hundred Thousand Naira (N500,000).
However, where any of the subscribers to the company's MemArts is a foreign entity, the Nigerian Investments Promotion Commission ("NIPC") requires that such a company must have a minimum authorised share capital of Ten Million Naira (N10,000,000).8
(ii) Issued Share Capital
At incorporation, and at every point in time during its existence, a Nigerian company's issued share capital must not be less than 25% of its authorised share capital.
(iii) Paid-Up Share Capital
There is generally9 a statutory requirement that any minimum amount of a company's issued share capital must be paid up.10
Every Nigerian company acts through its member or shareholders in general meeting or its board of directors (which are the two main organs of the company) or through officers, managers or agents appointed by, or under the authority derived from, the members in general meeting or the board of directors. It is common practice for the Articles of Nigerian companies to permit the board of directors to delegate functions to a managing director11 and other executive directors; or to committees of the board of directors.
Nigerian companies desirous of employing expatriate personnel12 are required to obtain expatriate quota approval(s)13 from the Nigerian Immigration Service. Unless the Articles otherwise provide, there is no requirement that a director holds shares in the company.
The incorporation process can typically be concluded within a period of four (4) business days from the date on which all official fees have been paid and all relevant documents are filed with the CAC.
It is important to note that through the efforts of the Presidential Enabling Business Environment Council ("PEBEC") at continuously improving the ease of doing business in Nigeria, a lot of innovative legal reforms have been introduced and implemented in order to enhance the process and/or shorten the time it takes to register a business in Nigeria. These reforms are implemented through the Ease of Business Environment Secretariat ("EBES"); some of these notable reforms include:
- Introduction of a public search window where applicants can view details of registered companies (names, RC Numbers and Registered Office addresses of such companies) on the CAC website at no cost to the applicants.
- Introduction of an upgraded and fully automated online name reservation where applicants can apply and reserve a unique name for the registration of companies in less than four (4) hours after an application is paid for and submitted.
- A simplified Company Incorporation Form (Form CAC 1.1), which is a major improvement of the previously existing system where seven (7) incorporation forms had to be completed by promoters of a new company.
- The introduction of a Company Registration Portal (CRP) through which an applicant can initiate and conclude the registration of a company. The CRP is an online registration portal where users including lawyers can log in to undertake registration of new companies in Nigeria. Tools required to undertake such process are: (a) a computer; (b) internet connection and (c) a printer/scanner.
- Introduction of an electronic process for payment of stamp duties and registration fees on the CRP through a payment platform (Remita). Previously, applicants had to make such payments at designated banks or at the CAC office in Abuja and undertake a rigorous verification process for such payments before proceeding to file incorporation documents for registration of companies.
- Introduction of e-stamping for stamping of Memorandum and Articles of Association of a new company. Previously, each applicant had to physically submit such documents at the office of a Commissioner of Stamp Duties and it took a period of two (2) to three (3) days to conclude such process.
- Introduction of a back-end service whereby lawyers engaged by the CAC complete the Form for Declaration of Compliance and notarise such document at a flat rate of just N500; thereby making it easier for lawyers to continue the registration process on the CRP without the need to engage notaries or a Commissioner of Oaths in a Court Registry.
- Worthy to note that PEBEC/EBES also collaborated with the Federal Inland Revenue Service/Joint Tax Board to introduce a system whereby Tax Identification Numbers are automatically generated within 24hours from registration of new companies and sent by email to one of the directors of each company.
The foregoing achievements notwithstanding, PEBEC/EBES continually strives to improve reliability of CAC portal to ensure over 99% uptime
G. OTHER PERMITS REQUIRED (INVESTMENT APPROVALS)
(i) Importation and Repatriation of Investment Capital
The Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, Cap F34 LFN 2004 ("FEMM Act") provides that any person may invest in a Nigerian enterprise with foreign currency imported into Nigeria through an authorised dealer (usually a bank licensed to deal in foreign exchange) by telegraphic transfer, cheques or other negotiable instruments converted into Naira. At the point of importing investment capital to Nigeria, a foreign investor is required to specify the Nigerian beneficiary of the investment funds and the purpose thereof. An authorised dealer is required to issue a Certificate of Capital Importation (CCI), evincing receipt of investment capital within 24 hours of receipt of imported funds. In practice however, a CCI is issued within 24 – 72 hours of funds inflow.
The authorised dealer will typically charge commission and administrative fees for their services and the amount varies from bank to bank.
The FEMM Act further provides that foreign currency imported into Nigeria for investment purposes shall be guaranteed unconditional transferability through an authorised dealer in freely convertible currency. Unconditional convertibility and repatriation will also apply to yields on investment funds (dividends, profits, loan repayments etc), and in the event of a divestment. Thus, a CCI assures the unhindered remittance of investment capital and yields thereon, in any convertible currency. Remittance of these monies is usually at the prevailing official exchange rate of the Naira on the relevant date. In addition, the FEMM Act also permits the operation and maintenance of domiciliary accounts.
(ii) Certificate of Business Registration
By virtue of the Nigerian Investment Promotion Commission Act, Cap N117 LFN 2004 ("NIPC Act"), any company in which non-Nigerians participate must register with the NIPC and obtain a Certificate of Business Registration from the NIPC before carrying on business14 in Nigeria.
NIPC shall, within seven (7) working days from the date of receipt of completed registration forms, register the enterprise if it is satisfied that all relevant documents for registration have been duly completed and submitted or otherwise advise the applicant, accordingly15.
(iii) Business Permit
Section 8 of the Immigration Act, Cap I1 LFN 2004 provides that a non-citizen of Nigeria shall not establish a business or register a company without the consent of the Minister responsible for immigration matters. In practice, the consent is obtained after the incorporation of the company has been concluded in the form of a "Business Permit" issued by the Department of Citizenship of the Federal Ministry of Interior.
(iv) Expatriate Quota Approvals
Where a Nigerian company is desirous of employing non-Nigerian personnel, it must first obtain an expatriate quota approval before employing such personnel.
It is the duty of the company and not that of the employee to apply for expatriate quota approval. Expatriate quota approvals are typically valid for a specified period (usually between two (2) to five (5) years) and are renewable for consecutive terms.
Following the grant of expatriate quota approval(s) to a company, such company will be required to file monthly returns in respect of approved expatriate quota positions indicating the names of the employees holding the approved positions and details of the Nigerians understudying the expatriates holding the said positions.
(v) Combined Expatriate Residence Permit and Alien Card ("CERPAC")/Electronic Passengers Registration System ("E-PARS")
Upon securing expatriate quota approvals, each expatriate employee must obtain a CERPAC, which permits him/her to reside and work in Nigeria. The CERPAC is issued by the Nigerian Immigration Service to the non-Nigerian employees upon their arrival in Nigeria.
Prior to arriving in Nigeria, expatriates are required to obtain a "Subject To Regularization" ("STR") visas from the Nigerian Embassy/High Commission in their home countries, which enables them to lawfully take up employment during the period in which applications for the issuance of CERPAC are being processed.
An application for CERPAC is made on a CERPAC form addressed to the Minister of Interior and the form is valid for three (3) months from date of purchase. The CERPAC is usually issued within six (6) to eight (8) weeks from the date of application and is typically valid for a period of two (2) years.
Electronic passenger registration system is a new directive from the Nigerian Immigration Service ("the NIS") mandating all holders of CERPAC, expatriates and foreigners who come into Nigeria and return to their countries to be registered.16
The E-PARS is an electronic registration platform which allows the NIS to capture the data of expatriates that have entered Nigeria but are not captured under the CERPAC residency scheme.
The system provides for effective monitoring of expatriates/visitors right from arrival till they leave the country
Expatriates in the country are to endeavour to renew their CERPAC and other necessary documents accordingly before expiration or risk arrest, deportation and or fine.
In the event that any applicant wants an extended stay in Nigeria after a grant of Business Visa, he can apply for E-PARS extending his stay for 90 days. It can be extended a second time for a period of 12 months at the cost of US$ 1,000.
(vi) Registration with Special Control Unit Against Money Laundering (SCUML)
Under the Money Laundering (Prohibition) Act 2011 as amended (the "MLA" or the "Act"), Financial Institutions and Designated Non-Financial Institutions ("DNFIs") are required to be registered with SCUML a unit manned by the Economic and Financial Crimes Commission ("the EFCC") and supervised by the Federal Ministry of Trade and Investment. It is charged with registering and monitoring all DNFIs in Nigeria.
DFNIs to be registered under the MLA include dealers in jewelry, cars and luxury goods, chartered Accountants and Audit firms, tax Consultants, consulting firms, clearing and settlement companies, legal practitioners, supermarkets, hotels and Casinos. Others are dealers in precious stones and metals, Trust and company service providers, hospitality industry, estate agents, construction companies, pools betting & Lottery, Non Governmental Organisations (NGOs), Religious and Charitable Organisations, Mortgage Brokers, Practitioners of mechanized farming and such other businesses as the Minister of the Federal Ministry of Trade & Investment may from time to time designate.
(vii) Transfer of Foreign Technology
Every contract entered into by any company in Nigeria with a foreign company involving the transfer of foreign technology to the Nigerian company including agreements between a Nigerian company and its overseas parent, must be registered with the National Office for Transfer Technology Acquisition and Promotion ("NOTAP") within sixty (60) days from the date of execution of such contract.17 Relevant contracts (the "Registrable Agreements") include agreements involving:
- use of technology; right to use patented inventions;
- supply of technical expertise in the form of the preparation of plans, operating manuals or any other form of technical assistance;
- supply of basic or detailed engineering;
- supply of machinery and plant; and
- provision of operating or managerial staff.
Barring any bureaucratic delays, the registration process can be concluded within five (5) weeks from the date all the documents required in support of an application are submitted to NOTAP.
The registration of an agreement with NOTAP assures the unimpeded remittance of royalties, management fees or technical support fees to beneficiaries resident outside Nigeria, through authorised banking channels.
Upon the registration of an agreement, NOTAP will issue a Certificate of Registration which subsists for a period not exceeding (5) years, and in practice such Certificate is usually issued for an initial period of three (3) years, renewable for a maximum term of five (5) years.
Lastly, it is important to note that although failure to register a registerable Agreement with NOTAP does not invalidate same, such failure would typically have the consequences of: (i) precluding access to the official foreign exchange markets to obtain foreign exchange to make payments under the relevant agreement; and (ii) where the relevant contract is a management service agreement, the deductibility of relevant payments thereunder in the computation of taxes will be precluded (i.e. the FIRS will usually disallow deduction of management service expenses where NOTAP approval cannot be provided).
1. This is the Nigerian Companies' Registry
2. The process of incorporating a company is completely computerized and same has to be undertaken and concluded online.
3. However, note that there are certain industry-specific restrictions which preclude some categories of Nigerian companies from being "wholly-owned" by foreigners. For example, any company seeking to register a vessel under the Coastal and Inland Shipping (Cabotage) Act, Cap C51 LFN 2004, must be at least sixty percent (60%) owned by Nigerians, unless they qualify for waivers from that requirement, in accordance with the provisions of that Act.
4. Please see Section 2D below, containing statutory requirements in relation to share capital.
5. Even where a company is appointed as a director, such company must be represented by an individual. Unless the MemArts or constitutional document (such as a shareholders' agreement) otherwise provides, there is no prescribed maximum number of directors.
6. In very few exceptional cases, such as pursuant to Section 13(1)(e) of the Private Guard Companies Act, it is compulsory for the directors of to be Nigerian citizens in order for such companies to be granted operational licences.
7. Section 293 of CAMA.
8. Please Section 2H below for further details.
9. Exceptions apply in the case of public listed companies
10. Please see Section 2H below for further details
11. Such a managing director may also be designated as the chief executive officer ("CEO"). However, please note that whilst the CEO may not be a member of the board of directors, the managing director of a Nigerian Company is required to be a member of the board of directors.
12. Non-executive directors are not considered as employees; and thus, do not need to be covered by the expatriate quota approval
13. See further details in Section 2H below
14. Section 20 of the NIPC Act
15. Section 20(2) of the NIPC Act
16. Please see The Guardian of April 21, 2016 for the publication of this policy.
17. It should be noted that Revised Guidelines issued by NOTAP in 2011 pursuant to the NOTAP Act (the "NOTAP Guidelines") curiously provides that Registrable Agreements should be submitted to NOTAP for registration within thirty (30) days of the effective date of such agreements.
The information contained here is based on relevant Nigerian laws, regulations and practices applicable to doing business in Nigeria, as of November 14 2018. This Manual only highlights legal issues, in general, and is not exhaustive. Also it does not, and it is not intended to, constitute legal advice and or opinion. If you have questions or require advice in respect of matters contained herein or any other specific issues, kindly contact us for such advice and we would be happy to assist you on an individual basis and walk with you on your journey to explore the limitless opportunities for investments in Nigeria.
Banwo & Ighodalo does not accept liability for any action (or lack thereof) by you or anyone else as a result of reliance on, or any other use of, information contained herein. For the avoidance of doubt, under no circumstance shall Banwo & Ighodalo be liable for any consequences resulting from reliance on or use of information contained in this Manual.
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.