africa investment guide

Oneyka Cindy OjogboAttorney & Head of Operations, Centurion Law [email protected]

AFRICA INVESTMENT GUIDE:

AFRICA INVESTMENT GUIDE

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NIGERIA IN FOCUS

Incorporation

a) Business Entitiesb) Incorporation process/requirementsc) Registration with NIPC

Foreign Participation

a) Investment protection b) Work permits c) Local content provision

Employment

a) Probationb) Leave periodsc) SocialSecurityfundsandotherbenefitsd) Termination4. Taxesa) Taxes on foreign companies & service providers b) SignificantEconomicPresencec) Double tax treaties d) Tax incentives e) Socialsecurityfundsandotherbenefits

Investment Protection Mechanisms

a) Regulation stability b) Domestic Protectionc) Investment treaties

Real Property Acquisition

a) Leasehold ownership b) No actual salec) Procedure/requirements for acquiring real estate

Tech Start-ups

a) Business structureb) Registration of intellectual propertyc) Regulatory framework d) Fiscal incentives for tech start-ups

Data Protection

a) Scope b) Key points

Dispute Resolution

a) Litigation b) Alternative Dispute Resolution (ADR) methods c) Enforcements

CONTENTS


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NIGERIA IN FOCUS

INCORPORATION

BUSINESS ENTITIES, PROCESSES AND REQUIREMENTS.


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NIGERIA IN FOCUS

BUSINESS ENTITIES

A) PRIVATE LIMITED LIABILITY COMPANIES (LTD): THIS TYPE OF

COMPANY:

B) PUBLIC LIMITED LIABILITY COMPANY (PLC):

C) UNLIMITED LIABILITY COMPANIES (UNLTD):

D) COMPANIES LIMITED BY GUARANTEE (GTE):

E) LIMITED LIABILITY PARTNERSHIP AND LIMITED PARTNERSHIP

INCORPORATION PROCESS/REQUIREMENTS

In Nigeria, the main business entities recognized under the Companies and Allied Matters Act, 2020 (as amended) (CAMA), are:

• requires a minimum issued share capital of N100,000. • requiresminimumofone(1)andamaximumoffifty(50)shareholders.• restricts the transfer of its shares • is prohibited from inviting the public to subscribe to its shares, debentures

and/ordepositmoneyforfixedperiodsorpayableatcall,whetherornot bearing interest.

• Minimum issued share capital for this type of company is N2,000,000 with 25%ofthesharecapitalallottedtoitsmembersatincorporation.

• No restriction on the maximum number of shareholders or their right to transfer their shares freely.

• It can offer its shares and debentures to the public • Must appoint a Company Secretary who is a professional with requisite

experience.

• No limit on the liability of its members.• Its members are like Partners and share the company’s liabilities.

• Consent of the Attorney General of the Federation must be obtained. • Generallyincorporatedasanot-for-profit.• Allowedtodobusinessnotforprofitbuttoapplysuchtowardsrealising

its objects.• No share capital. Members merely undertake to contribute the

subscribed amount in the event of its winding up, to a sum not less than N100,000 at all times.

• Limits its members’ liability to the amount of their respective guarantees.

While it is mandatory for any foreign company desirous of doing business in Nigeria to get incorporated in Nigeria, a foreign company desirous of doing businessinNigeriamayapplytotheofficeoftheSecretarytothe

Government of the Federation (SGF), for exemption from the standard registration requirements. This exemption may be granted if it is:

(a) foreign company other than (d) below, invited by or with the approval oftheFederalGovernmentforaspecificindividualproject;

(b)executingspecificindividualloanprojectsonbehalfofadonorcountryorinternationalorganisation;

(c) foreign government-owned companies engaged solely in export promotionactivities;or

(d) engineering consultants or technical experts engaged in specialist projects under contract with any tier of Government, where such contract has been approved by the Federal Government.

The registration of businesses is regulated by the Corporate Affairs Commission (CAC). Businesses can be registered using the Commission’s online registration portal (https://services.cac.gov.ng/login) or by visiting the One-Stop Investment Centre (OSIC) of the Nigerian Investment Promotion Commission (NIPC) to complete or submit paper applications.


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STATEMENT OF COMPLIANCE

REGISTRATION WITH NIP

ONE-STOP INVESTMENT CENTRE (OSIC)

The summary of the online registration process is laid out below:

1. Conduct an availability search and reservation of proposed registration names.

2. Prepare registration documents and complete relevant forms.

3. Pay the prescribed registration fees and stamp duty. The stamp willbeelectronicallyaffixedoncepaymentismadeonline.

4. Download completed registration documents and append signatures accordingly.

5. Upload scanned registration documents and other necessary documents for processing.

6. Oncethedocumentsareapprovedandnotificationofapprovalis received, visit CAC’s office and present original copies ofuploadeddocumentsandcollectCertificateofIncorporation.

7. ObtainaTax IdentificationNumber(TIN) fromtheFederal InlandRevenue Service.

Documentations at CAC for business registration:The documents required for filing at CAC are as follows:

Form CAC 1.1 (Application for Registration).Memorandum and Articles of Association.

• Notice of Approval of proposed name.• Evidence of payment of registration fees to CAC (the registration

fee payable depends on the quantum of authorised share capital). • Evidence of payment of stamp duty. • Recognizedformofidentification(passportbio-datapage,drivers’

licence or National Identity Card) for Director(s)/Shareholder(s) and Secretary

• Foreign Certificate of Incorporation and Board resolution forsubscription to Nigerian company (where applicable)

• Residence permit of resident foreigners (where applicable)• Proficiencycertificate(whereapplicable)

After registration with CAC, and prior to commencement of its business operations, the foreign investor must register at the Nigerian Investment Promotion Commission (NIPC). The NIPC is the main institution that acts as a liaison between foreign investors and Regulators.

The NIPC has further set up a One-Stop Investment Centre (OSIC), which is an investment facilitation mechanism that coordinates the activities of relevant regulatory Agencies in granting various permits, approvals, licences. Thus, applications for regulatory permits may be applied for through NIPC via OSIC or directly to the relevant regulatory Agencies.

Basically, the key services at OSIC comprise granting of business entry approvals,licensesandauthorizationswithintheshortestpossibletime;provision of general information on the Nigerian economy, investment


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NIGERIA IN FOCUS

climate, legal and regulatory framework, as well as sector and industry-specificinformationtoaidexistingandprospectiveinvestorsinmakinginformed business decisions; and facilitation and follow-up serviceson behalf of investors in all government ministries, departments and agencies.

The summary of business registration process at the NIPC is as follows:

1. Submit a formal Application addressed to the Executive Secretary of NIPC for registration of foreign Nigerian company, with a duly completed NIPC Form 1.

2. The following documents should be annexed to the Application:

• DulycompletedNIPCFormI;• CertifiedTrueCopyofMemorandum&ArticlesofAssociation;• A copy of Evidence of Incorporation with minimum of N10million

authorisedsharecapital;• CACForm1.1;• PowerofAttorney/LetterofAuthority(whereapplicable);and• EvidenceofPaymentofProcessingfeeofN15,000.

PROCEDURE/DOCUMENTATIONS AT NIPC FOR BUSINESS REGISTRATION:


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NIGERIA IN FOCUS

FOREIGN PARTICIPATION

WORK PERMITS AND LOCAL CONTENT PROVISIONS.


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NIGERIA IN FOCUS

INVESTMENT PROTECTION

WORK PERMITS

(A) EXPATRIATE QUOTA/BUSINESS PERMIT

(A) FOR BUSINESS PERMIT:

The Nigerian constitution is the omnibus framework that guarantees fair and equitable treatment for foreign investors and nationals alike, in terms of investments, employment, etc. Meanwhile, the Nigeria Investment Promotion Commission (NIPC)Act, 1995,has taken investmentprotection furtherbyenactingequalopportunityprovisions,andspecificallyforbidsnationalisationor expropriation of a business or asset by any tier of Government, unless the acquisition is in the national interest or for a public purpose in the case of Federal Government. In such cases, investors are guaranteed legal remedy and fair and adequate compensation.

As a signatory to various international investment treaties, conventions, trade agreements particularly in relation to foreign investment rights protection, there is no doubt that Nigeria is a safe haven for foreign investment and presents foreign investors with viable investment opportunities given its status as the largest consumer market in Africa.

Companies in Nigeria, whether wholly foreign-owned or indigenous, that are desirous of hiring a foreigner with special competence to work in Nigeria, must apply and obtain an appropriate Expatriate Quota (EQ), Subject-to-Regularisation (STR) visa and Combined Expatriate Resident Permit and Aliens Card (CERPAC).

These are issued by the Citizenship and Business Department of the Federal Ministry of Interior (FMI). The EQ permits companies in Nigeria (whether wholly foreign owned, indigenous or indigenous company in partnership with foreign company) to employ foreigners either on long term basis (Permanent Until Reviewed, PUR) or short term basis (Temporary Work Permit, TWP). Business Permit applies solely to wholly foreign owned companies and joint venture. In practice, the EQ is often applied with Business Permit in the case of wholly foreign-owned companies, but they are not the same.

Procedure/highlight of documentations: The procedure for obtaining the EQ or Business Permit (through NIPC) are outlined below:

1.PaytheonlineregistrationandprocessingfeesthroughtheFMIportal;2. Collect the Application Form (Business Form T1) from the FMI Business Departmentafterpaymenthasbeenconfirmed;3. Submit the company’s application letter to the Permanent Secretary FMI, attaching all the required documents as listed below:

• CertificateofIncorporationoftheApplicantCompany• CAC Form 1.1• Memorandum and Articles of Association• CurrentTaxclearanceCertificate• Joint Venture Agreement (where applicable)• LeaseAgreement,CertificateofOccupancyorRentReceipt• Feasibility report and Project Implementation Program of the company,

incorporatingmanagementsuccessionscheduleforqualifiedNigerians.• (b) for Expatriate Quota, attach same documents in (a) above,

including:• Evidence of capital importation (e.g. Form M, Profoma Invoice, Shipping

documents and Clean Certificate of Inspection issued by Govt.Appointed Pre-shipment Inspection Agents).

• Licenses / Permits / Certificate from relevantGovernment Agencies,


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(B) SUBJECT TO REGULARISATION (STR) VISA

THE PROCESS FOR APPLYING FOR THE STR IS AS FOLLOWS:

(C) COMBINED EXPATRIATE RESIDENT PERMIT AND ALIENS CARD (CERPAC)

PROCEDURE/HIGHLIGHT OF DOCUMENTATIONS:

Department of Ministries for the operation or execution of project if the companyisengagedinoilservices,healthcareservices,fishing,mining,construction.

• Details of the expatriates (indicating their proposed annual salaries, job descriptionandqualifications.C.Vandcopiesofcredentialsaretobeattached).

• Bank reference letter• Business permit (not applicable to companies with 100% indigenous

ownership) • Evidence of work at hand, its duration and value attached to the

contractifthecompanyisinvolvedinbuilding,civilengineeringetc.;

4. Pay approval fee through the FMI portal. The total cost will depend on the numberofexpatriatequotasapproved;

5.CollecttheletterofapprovalfromtheBusinessRegistry.Thiscanbedonebyacompanyrepresentativewithvalididentification.

After the appropriate EQ approval is obtained, application must be made to the Nigerian Embassy in expatriate’s country of residence requesting that the expatriate be issued a Subject to Regularisation (STR) visa. This visa is usually issued to expatriate hired to work in Nigeria based on the EQ approval.

a) Complete and print two copies of the online visa application form (IMM22).b) Make online payment using the website of Nigeria Immigration Service (NIS) and print the payment receipt.c)Affixtwo(2)passport-sizedphotographsoftheexpatriatetothecompletedvisa form and submit along with the following required documents in person or via post to the Nigerian Embassy in the country of applicant’s residence:

• Formal application for STR Visa from the Employer/Institution accepting immigration responsibility

• Two (2) passport-sized photographs taken within the last six (6) months• Valid passport with a minimum of 6-months validity and 2 blank pages

for visa endorsement• Letters of Offer of Appointment and Acceptance of Offer• Expatriate Quota Approval• Curriculum Vitae or Resume of the expatriate concerned.• Duly completed Visa Form IMM22 – available online (To be completed

by the employer)• For CEOs, MDs and GMs, there is need for extract of Board Resolution• Evidenceoffinancialsupport

Upon receipt of STR and within ninety (90) days of arrival in Nigeria, the expatriate is required to apply to NIS, through his employer, for a Combined Expatriate Resident Permit and Aliens Card (CERPAC). The employer usually bears full immigration responsibility for the expatriate.

The following are the requirements for the issuance of CERPAC:Application letter from the employer requesting regularization of stay and acceptingimmigrationresponsibilityonbehalfoftheexpatriate;• Letterofappointment/employment;• Acceptanceofofferofappointment/employment;• FormIMM22withthree(3)passportsizephotographs;• Quotaapproval;


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NIGERIA IN FOCUS

(D) OTHER PERMITS

THE REQUIREMENTS ARE AS FOLLOWS:

THE PROCESS/REQUIREMENT IS HIGHLIGHTED BELOW:

THE REQUIREMENTS ARE AS FOLLOWS:

LOCAL CONTENT PROVISIONSAPPLICABLE SECTORS:

OIL & GAS INDUSTRY:

• Vettedcredentials;and• Valid Passport with STR visa and photocopies of relevant pages.

(i) Temporary Work Permit (TWP)—This is issued for positions within a company that will be occupied on a temporary basis, such as independent contractors, third party staff, experts, etc. invited to perform certain technical and short-termassignments.ATWPcanbeobtainedfromtheofficeoftheComptrollerGeneral of Nigeria Immigration Service.

a. Application to the Comptroller General of Immigration set out on the company’sletterhead;

b. Confirmedairlinereturnticket;c. Acceptanceofimmigrationresponsibility(IR)byinvitingcompany;d. CertificateofIncorporationandthecompany’sprofile;e. MemorandumandArticlesofAssociation;andf. Name of the expatriate.

(ii) Visa on Arrival —Available to frequent travelers, high net-worth investors or visitors who may not be able to obtain Nigerian visas due to the absence of a Nigerian Embassy in their countries or exigencies of business travels.

• Apply and obtain a ‘Visa on Arrival Approval Letter’ before commencing travel through the Immigration Desk at the NIPC OSIC or send email to [email protected].

• Upon arrival, pay (or show evidence of online payment) for, and be issued, the visa.

(iii) ECOWAS Residence Card—Citizens of countries that are members of the Economic Community of West African States (ECOWAS) can reside and work in Nigeria without residence permits. However, they are required to apply for the ECOWAS Residence Card within 90 days of their arrival.

• Valid travel documents e.g. Country’s Passport or ECOWAS Travel Certificate.

• Admission through approved port of entry.• ProcurementofResidenceCard,valid for5years subject toPassport

validity.• Registration of business with the CAC in accordance with CAMA (as

amended).

By virtue of the NIPC Act, Nigeria liberalised all sectors of its economy to foreign investment, except business comprised in the negative list. The Act further granted foreign Investors the right to fully own Nigerian companies. However, it is important to highlight that these milestones notwithstanding, certain industries in Nigeria retained the requirement that ensured compulsory participation or control of businesses within such industries by Nigerians. Some of these industries are highlighted below:

a) It is mandatory for companies desirous of hiring expatriates in the oil and gas industry to apply and obtain requisite approvals from the Nigerian Content Development & Monitoring Board (NCDMB) before applying for EQ, TWP or other relevant permits from the FMI, NIS or other Government agencies.

b)Anycompanyisallowedforeachofitsoperations,amaximumof5%ofmanagement positions as may be approved by the NCDMB as EQ.

c) The requesting company must provide for Nigerians to understudy each


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NIGERIA IN FOCUS

MARITIME:

AVIATION:

REAL ESTATE:

incumbent expatriate for a maximum period of four (4) years after which, the position shall become “Nigerianised.”

d) All applications for approval from NCDMB before applying for EQ from FMI shall be accompanied with the following documents:

• Succession Plan.• Organizational chart of the Applicant Company.• Advert Report (for new applications).• JobDescriptions/qualificationsforeachjobrole.• Training schedule for understudies and other Nigerian staff.• Employment commitment for Nigerians within the 2 years grant period.• Past FMI approval letters for the required positions.• Current DPR permits.• Proof of expatriate registration with professional bodies in Nigeria.• Cross posting/exchange program.

e) Companies deploying expatriates in the industry must register on the NigerianOilandGasIndustryContentJointQualificationSystem(NOGICJQS),and undertake biometric enrolment of all expatriates in their employment as part of the conditions theymust fulfil before securingappropriate EQapplications with the FMI.

f) An Oil Prospecting Licence, Oil Exploring Licence or Oil Mining Lease is granted exclusively to a company incorporated in Nigeria.

g) Preference must be given Nigerian Independent Contractors in the award of all projects for which contract is to be awarded in the Nigerian oil andgasindustry,subjecttofulfilmentofcertainconditionsbytheMinister.

h)Legal,financialandinsuranceservices—EntitiesintheindustrymustretainNigerian:• lawyersorfirmsforlegalservices,and50%ofNigeriancontentisrequired.• financialinstitutionsforfinancialservices,excepttheNCDMBissatisfied

thatitisimpracticable.50%ofNigeriancontentisrequired.• insurance companies duly licensed for all insurable risks relating to their

oil and gas business. 70% of Nigerian content is required for non-lifeinsurance services.

a) Vessels wholly owned and manned by a Nigerian citizen, built and registered in Nigeria are granted the exclusive right to engage in Cabotage trade (i.e. domestic coastal carriage of cargo and passengers within the coastal, territorial, inland waters, island or any point within the exclusive economic zone of Nigeria).

b) The Minister in charge of shipping may grant waivers and authorise a suspensionof this strict regime, if satisfied that nowholly-ownedNigerianvessel is suitable for provide those services.

The Nigerian Civil Aviation Authority grants aviation licence or other related permits exclusively to a Nigerian citizen or a corporate body controlled by Nigerians.Thisrestrictiondoesnotapplytolicences,permits,certificatesandother authorisations given for operating an aircraft privately. a) Foreigners are precluded from acquiring real estate individually ordirectly. However, a wholly foreign-owned Nigerian company can validly acquire such title.


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NIGERIA IN FOCUS

EMPLOYMENT

PROBATION PERIOD


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NIGERIA IN FOCUS

ANNUAL LEAVE

MATERNITY LEAVE

PATERNITY LEAVE

SICK LEAVE

COMPASSIONATE LEAVE

CONTRIBUTORY PENSION SCHEME

EMPLOYEE COMPENSATION SCHEME

INDUSTRIAL TRAINING FUND (ITF)

There is no provision in the Nigerian employment law that indicates the length of probation period. However, section 7(1) of the Labour Act 2004 is implied to make a provision for it. The section provides that not later than three (3) months after the beginning of a worker’s period of employment with an employer, the employer shall give to the worker a written statement specifying particulars of terms of employment.It is common practice among employers in Nigeria to set the probation period between three (3) and six (6) months.

Leave Periods

After 12 months’ continuous service, employees are entitled to a holiday of at leastsix(6)workingdays;orinthecaseofapersonundertheageofsixteen(16) years (including an apprentice), at least twelve (12) working days. In practice annual leave is set by the employer based on the Company’s policy and the length for annual leave typically depends on the designation of the staff.

The law provides for 12 weeks of maternity leave which shall be taken 6 weeks before actual delivery and 6 weeks after deliver.

Not provided under the law.

Employees are entitled to paid sick leave of up to twelve (12) workdays in a calendar year.

Not provided under the law

Social Security Funds and Other Benefits

Allemployers inthepublicsector,andprivateemployersthathave15ormore employees are required, under the Pension Reform Act (PRA) 2014, to participate in a contributory pension scheme in favour of their employees. The old law enacted in 2004 has been repealed and re-enacted as the PRA 2014.

• Under the Pension Reform Act, 2014, employers and employees are requiredtomakeaminimumcontributionof10%and8%respectivelyof the employee’s monthly emoluments to a Pension Fund Administrator chosen by the employee.

• In addition, an employer is also required to maintain a Group Life Insurance Policy for each employee for a minimum of three times the annual total emolument of the employee.

• Expatriate employees may join the scheme at their discretion and with the agreement of their employers.

The due date of compliance is not later than 7 working days after the payment of employees’ salary

By virtue of the Employee’s Compensation Act, 2010 employers are required tocontribute1%oftheirpayrollcoststotheNationalSocialInsuranceTrustFund (NSITF) in order to provide adequate compensation to employees (or their dependents) in the event of death, injury, disease or disability arising out of, or in the course of employment.

Industry and commerce employers are required to contribute 1% of their annual payroll costs to the ITF, if they:


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NIGERIA IN FOCUS

NATIONAL HOUSING FUND (NHF)


TERMINATION OF EMPLOYMENT

• havefive(5)ormoreemployeesoranannual turnoverof₦50millionandabove;bid fororsolicitcontracts,businesses,goodsandservicesfrompublicandprivateestablishments;

• requireapprovalforExpatriateQuota;or• utilise Customs services for import and export.

TheITFGoverningCouncilmayeffectarefundofupto50%ofanemployer’scontributions if it issatisfiedthatthetrainingprogrammesprovidedbytheemployer to its employees are appropriate for the ITF’s scheme

The rate of NHF is 2.5% ofmonthly basic salary. A schedule of paymentindicating the amount deducted from each employee and the period covered to be submitted to the Federal Mortgage Bank of Nigeria.

All employers, including individuals, are required to register with the Nigeria Social Insurance Trust Fund (NSITF) and contribute to the scheme.

Employers are required to make monthly contributions to the NSITF not later than the last day of the month.

1%oftotalmonthlypayrolloramountassessedbytheNSITF.

According to Section 7 of the labour Act 2010, a contract shall be terminated -bytheexpiryoftheperiodforwhichitwasmade;orbythedeathoftheworkerbeforetheexpiryof thatperiod;orbynotice inaccordancewithsection 11 of this Act or in any other way in which a contract is legally terminable or held to be terminated.The required notice period for the termination of the employment contract depends on length of service. According to Section 11 of the Labour Act 2004, notice to be given shall be:

• One (1) day, where the contract has continued for more than three (3) monthsorless;

• One (1) week, where the contract had continued for more than three (3)monthsbutlessthantwo(2)years;

• Two (2) weeks, where the contract has continued for a period of two (2) yearsbutlessthanfive(5)years;and

• One(1)month,wherethecontracthadcontinuedforfiveyearsormore.

It should be noted that any notice for a period of one week or more shall beinwriting;noticewillnotberequiredwhereanypartyconductshimselfina manner that is contrary to the terms of the contract or where either party waives his right to notice on any occasion or accepts payment in lieu of notice.


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NIGERIA IN FOCUS

TAXES:

THE MAIN TAXES, RATES AND EXEMPTIONS.


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NIGERIA IN FOCUS

TAXES ON FOREIGN COMPANIES AND SERVICE PROVIDERS

COMPANIES INCOME TAX (CIT)

EXEMPTIONS FROM F CIT:

THERE ARE SPECIAL INCENTIVES FOR THE FOLLOWING:

CIT FILING PROCEDURE

Every company in Nigeria is required to register with the Federal Inland Revenue Service (FIRS) and the relevant State Board of Inland Revenue (SBIR) for tax purposes. After registration, the FIRS and the SBIRs issue Tax IdentificationNumber (TIN)andPayer-ID respectively. Thereare somanytax regimes in Nigeria today, however, the following paragraphs provide an overview of the main taxes.

A foreign company is subject to tax on profits deemed to be derived from Nigeria where the:

• companyhasafixedbaseinNigeria;• companydoesnothaveafixedbasebuthabituallyoperatesatrade

orbusinessinNigeria;• tradeorbusinessinvolvesaturnkeyproject;• tax authority deems that a transaction between the company and a

relatedentityisonenotcarriedoutatarm’slength;and• companyhasSignificantEconomicPresenceinNigeria.

This is also known as corporate tax. It is chargeable on profits of allcompanies (except those involved in petroleum operations and companies thatarespecificallyexemptedbytheCITAct)inNigeria.Beforenow,theCIT standard rate is 30% of the assessable profit (accounting profit afterconsidering disallowable expenses, non-taxable income, loss reliefs and capital allowances) earned in the year preceding assessment. However, the Finance Act 2019 has reviewed the rate for different categories of companies as follows:

• Smallsizedcompanies(N25millionannualturnoverandbelow)=0%;• Mediumsizedcompanies (AboveN25mbut less thanN100mannual

turnover)=20%;and• Largecompanies(N100mannualturnoverandabove)=30%.

Any company doing business in Nigeria, whether resident (registered in Nigeria) or non-resident (foreign company registered outside Nigeria). Non-residentcompaniesareliabletotaxontheprofitor incomederivedfromNigeria

• Not-for-profit entities engaged in ecclesiastical, charitable oreducational ·activities of a public character

• Registeredcooperativesocietiesunderspecificconditions• Dividend, interest, rent, or royalty derived from a country outside Nigeria

and ·brought into Nigeria through government approved channels ·• Interest on foreign currency domiciliary account in Nigeria Dividends

which have been subject to withholding tax in Nigeria and those distributedfrompioneerprofits

• Income from government bonds and treasury bills. This is valid till 2022 ·excluding bonds issued by the Federal Government)

• Profits of any Nigerian company in respect of goods exported fromNigeria, provided that the proceeds from such export are repatriated to Nigeria and are used exclusively for the purchase of raw materials, plant, equipment and spare parts.

• Gas utilisation• Pioneer industries and products

• All companies (small, medium and big) are exoected to file CITreturns within six (6) months after the accounting year end. However, anewcompanymustfileitsreturnswithin18monthsfromthedateof


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MINIMUM TAX

CAPITAL GAINS ACT (CGT)

incorporationor6monthsafter theendof itsfirstaccountingperiod,whichever is earlier.

• The filing requirements include audited accounts, tax and capitalallowance computations, self-assessment forms

• Paymentoftaxistobemadeonorbeforetheduedateoffilinginonelump sum or instalments.

• Any taxpayer that wishes to pay in instalments prior to the due date of filingmaydoso;however,thefinalinstalmentmustbepaidonorbeforetheduedateoffiling

• A company that pays all of its tax liability 90 days before the due date shallbegrantedabonusof2%ofthetaxinthecaseofamedium-sizedcompanyor1%foranyothercompany.

• A company granted early payment bonus may set-off the bonus against its future taxes.

• Anytaxdueandunpaidbytheduedateoffilingshallattractinterestand penalties as provided in the tax laws.

• FailuretofiletheCITreturnonorbeforetheduedateattractsN50,000inthefirstmonthoffailureandN25,000ineachsubsequentmonthoffailure.

Minimumtax iscomputedatafixedrateof0.5%ofGrossTurnover.Grossturnover, for the purposes of computing minimum tax, shall not include franked investment income. In computing minimum tax, franked investment incomeisfirstdeductedfromthegrossturnover(wherefrankedinvestmentincome had been included in gross turnover) and the amount derived is multiplied by 0.5%. Franked investment income is defined under Section80(3)oftheActasdividendreceivedbyonecompanyfromanotherafterdeduction of withholding tax as specified in that Section. Any dividendthat has not suffered WHT is not a franked investment income and shall not be deducted from gross turnover for the purposes of minimum tax. As such, provision of evidence of WHT suffered is a condition to be met before treating dividend income as Franked Investment Income. Also, the franked investment income is only deductible where it has been included in the gross turnover. “Gross turnover” is thegross inflowof economicbenefits (cash,revenues, receivables, other assets, etc.) arising from the operating activities of a company such as sale of goods, supply of services, lending of money, letting of assets, granting of rights, investment activities, etc. Gross turnover, for the purposes of minimum tax, includes all operating incomes or revenues anywhere embedded.

The new minimum tax rule is applicable to all companies, except those specificallyexemptbytheAct,namely:i.CompanieswithlessthanN25milliongross turnover.

ii.Companiescarryingonagriculturaltradeorbusinessasdefinedinsection11(4) of CITA. iii.Anycompanyinitsfirstfourcalendaryearsofbusinessoperations.

This is 10% tax levied on capital gains accruing to companies (includingpioneer companies) and individuals from a sale, exchange or other disposal of properties known as chargeable assets. It is administered jointly by the FIRS and the relevant SBIRs. Examples of chargeable assets are options, debts and incorporeal property, any currency other than Nigerian currency, Goodwill, Copyrights, Buildings, Chattels etc

Exemptions on gains: from disposal of securities, stocks, shares and retirement benefit schemes; arising from take-over, absorption or merger; accruing


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EXEMPTIONS FROM CGT:

DEDUCTIONS ALLOWED:

VALUE-ADDED TAX (VAT)

EXEMPTIONS FROM F VAT:

EXEMPTIONS FROM F VAT:

STAMP DUTIES

to unit holders in a trust in respect of disposal of securities, provided the proceeds are re-invested, disposal of main residence or dwelling house of an individual

Initial cost of the asset, stamp duties, cost of enhancing the value of the asset, expenditure incurred in establishing, preserving or defending the title to, or rightovertheasset,costofadvertisementtofindasellerduringacquisitionandadvertisementcosttofindabuyerduringdisposal

Thisisaconsumptiontaxchargedat7.5%onthesupplyoftaxablegoodsand services. All taxable persons are expected to immediately register for the tax upon the commencement of business. The penalty for failure to registerisN50,000inthefirstmonthofdefaultandN25,000inthesubsequentmonths in which the failure continues.. Oil and Gas companies and government agencies are required to deduct VAT at source and remit the VAT on their purchases directly to the FIRS rather than pay it over to their vendors. A non-resident person who makes taxable supplies to a person in Nigeria or to a Nigerian resident, is required to register for the tax with the FIRS. The non-resident person is to use the address of the person to whom it is making the supply, as its Nigerian address, for the purposes of correspondence relating to the tax. The non-resident person shall include VAT on its invoice for the supply of goods or services made The person who receives the supply in Nigeria is required to withhold and remit the VAT due on the invoice to the FIRS in the currency of transaction.

Anon-residentcompanywhichhaveafixedbase(permanentestablishment)inNigeria isrequiredtocomplywithregistration,charging,filing,paymentand other requirements as if it is a Nigerian company. As such, such company mustregisterusingtheaddressofitsplaceofbusinessinNigeria(fixedbase),issueVATinvoice,filereturn,remitthetax,submititselftotaxexaminations,etc. in accordance with the provisions of the VAT Act..

Goods exempted from VAT: medical and pharmaceutical products, basic food items, educational materials, agricultural equipment, fertilizer, equipment purchased for gas utilisation in petroleum operations, exports andbabyproducts;Locallymanufacturedsanitarytowels,padsortampons.

Services exempted from VAT: medical services; services rendered bymicrofinancebanks,people’sbanksandmortgage institutions;playsandperformancesconductedbyeducationalinstitutionsandexportedservices;-tuition relating to nursery, primary, secondary and tertiary education.

Falure to register/ Failure to notify of change of address or permanent cessationoftradeorbusinesswillallattractN50,000inthefirstofdefaultandN25,000ineachsubsequentmoth

Failuretoremit/payVATattractsunpaidtax+10%oftax+interestatCBNMRR

This is paid to FIRS or SBIRs on documents such as Conveyances on Sale, Bills of Exchange, Promissory notes, Agreements, Contracts or even documents suchasLettersandCertificatesofAdmission,InstrumentsofApprenticeship,Insurance Policies etc.

• Itiseitherchargeableatfixedratesoradvaloremonwritteninstruments(exceptspecificallyexempted).


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PERSONAL INCOME TAX (PIT)

• The Stamp Duties Act 1939 (as amended) provides the respective duties payable on each documents listed in its Schedule and also a list of items exempted from stamp duties.

• Stamp duty is applicable on all dutiable instruments, such as agreements, contracts, receipts, memorandum of understanding, promissory notes, insurance policies and other instruments stipulated in the Schedule to theStampDutiesAct,CapS8,LawsoftheFederationofNigeria2004(asamended) (SDA or “the Act”).

• The Finance Act, 2019 has expanded the scope of the SDA to include technology, e-commerce and cross-border transactions, in line with global practice and current economic realities.

• Stamp duty is chargeable on both physical and electronic dutiable instruments,eitherasafixedsumorapercentageoftheconsiderationon the instrument (ad-valorem)

• The FIRS is the competent authority to impose, charge and collect stamp duties on all dutiable instruments executed between a company and an individual, while the remit of the State tax authorities (STAs) is limited to collection of stamp duties on instruments executed between individuals. However, the FIRS is the relevant tax authority to collect stamp duties on all banking transactions, even when the parties thereto are individuals, especially electronic fund transfers.

• Afixed-rateof₦50FIRS’adhesivestampisapplicableonall receipts.Also, electronic transfers above ₦10,000 through theMoney DepositBanks (MDBs) will attract a stamp duty of ₦50 which the MDBs areobliged to remit to the FIRS.

• Stamp duties due to the Federal Government and collectible by the FIRS are to be remitted into the FIRS Stamp Duties Account with the Central Bank of Nigeria, while the stamp duties due to State Governments are to be remitted to the stamp duties accounts of the States.

• The postage stamp administered by the Nigerian Postal Service (NIPOST) for delivery of goods does not denote stamp duties and, therefore, is not a substitute for the FIRS’ adhesive stamp.

• Failure to deduct or remit stamp duties into the appropriate stamp duties account would attract penalty and interest as provided by the SDA.

This is imposed on income of individuals, incorporated trustees, partnerships and corporation sole on the basis of residency and payable to the SBIRs. The Personal Income Tax Act requires an employer to deduct and remit its employee income tax under the Pay-As-You-Earn (PAYE) scheme. PITs are chargeable on a progressive scale on taxable annual income at the

following rates:Annual taxable income RateFirstN300,000 7%NextN300,000 11%NextN500,000 15%NextN500,000 19%NextN1.6million 21%AboveN3.2million 24%


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BENEFITS IN KIND

REIMBURSEMENT

INTEREST AND DIVIDEND

RELIEFS AND DEDUCTIONS

FILING AND DUE DATES:

Everytaxablepersonisliabletoaaminimumincometaxof1%ofthegrossincome. This is triggered after where actual tax payable after all reliefs and allowancesislessthan1%ofgrossincome.

BenefitsinKind(BIK)providedtoanemployeebytheemployersuchasofficialcars, accommodation, etc. are deemed to be part of the employee’s gross emoluments. For items other than accommodation, the deemed annual benefitis5%ofthecostwheretheassetisownedbytheemployerortheactualrent paid where the asset is leased by the employer. BIK on accommodation is taxable based on the annual value of the premises as determined for purposes of local rates or as determined by the relevant tax authority

PIT is not applicable on expenses incurred in the performance of employment duties from which it is not intended that the employee should make any gain orprofit.

Interest earned from treasury bills, government and corporate bonds are exemptwhilewithholdingtaxat10%isthefinaltaxonother interestsanddividend.

• Consolidatedreliefallowance:TheHigherofN200,000and1%ofgrossincome,plus20%ofgrossincome.

• The deductions allowed are National Housing Fund contribution, National Health Insurance scheme, Life assurance premium, National Pension Scheme

• Life assurance premium paid in the prior year is granted as a relief in the current year. Only policy on the life of the individual and spouse is eligible.

• Interest paid on mortgage loan for owner’s occupied property in any year is granted as a relief in the following year.

• Individualsaretofilereturnsnotlaterthan31Marchannuallyinrespectof the preceding year.

• Employersarerequiredtofilethefollowingdocuments:

Employers’ Declaration Form (Form H1): showing the income of the employees, taxes deducted and remitted in the preceding year. This is due by 31 January.

Employers’ Remittance Card (Form G): showing the monthly remittances and reference number on the receipt. Copies of the receipt are to accompany the form G.

Declaration of estimated income and application for tax reliefs (Form A).

PAYE must be remitted on or before the 10th day of the month following the payment of salary (e.g. PAYE tax deducted from January salary should be remitted by 10th of February). For individuals under direct assessment, paymentmustbemadealongwithreturnswithin90daysofthefiscalyeari.e. not later than 31 March.

10%perannumoftheamountplusinterestonannualbasisatbanklendingrate(inpracticeaone-offinterestrateof15%to21%isapplied).LatefilingattractsafineofN500,000.


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PETROLEUM PROFIT TAX (PPT)

INCENTIVES OF PPT

FILING REQUIREMENTS

TERTIARY EDUCATION TAX (TET)

WITHHOLDING TAX (WHT)

Penalty

Petroleum Profit Tax is levied on the income of companies engaged in upstream petroleum operations . The rates vary as follows:

• 50%forpetroleumoperationsunderProductionSharingContracts(PSC)with the Nigerian National Petroleum Corporation (NNPC).

• 65.75%fornon-PSCoperations,includingjointventures(JVs),inthefirstfiveyearsduringwhich thecompanyhasnot fullyamortisedallpre-production capitalised expenditure.

• 85%forpetroleumoperationscarriedoutunderaJVarrangementwithNNPCoranytraditionaloilconcessionafterfive(5)years.

Exemption of dividend of such companies from withholding tax (WHT)Tertiary Education Tax is treated as a tax deductible ·expense for petroleum companies

GasincomeistaxableatCITrateof30%whilecapitalinvestmentforgasaredeductible as capital allowances against crude oil income at the higher PPT rate

Companies engaged in petroleum operations shall submit returns, in a form prescribed by the FIRS, of its estimated tax ·for such accounting period. Estimated tax returnsmust be filedwithin twomonths of the ·fiscal year(which runs from 1 January to 31 December). Actual tax returns must be filed within fivemonths after the end of theaccounting period, that is, not later than 31 May.

Tax is payable on actual year basis in 12 equal monthly installments with a final13thinstalment(ifthereisanunderpayment).Thefirstinstalmentfortheyear is due by the end of March.

All resident companies are required to contribute 2% of their assessableprofits totheTertiaryEducationFund.This tax isusuallyfiledalongsidetherelevanttaxreturn(PPTorCIT).ForcompaniessubjecttoPetroleumProfitTax,Tertiary Education Tax is treated as an allowable deduction. Incentives—Foreign companies and unincorporated entities are exempt from Tertiary Education Tax. In addition, small sized companies (turnover of belowN25million)areexemptedfromTET.

This is an advance payment of income tax deducted at source on qualifying transactions of the taxpayers (individuals and companies). WHT accruing from payments to companies is remitted to FIRS while payments from individuals should be remitted to SBIRs. The under-listed WHT rates are applicable to all resident and foreign companies and individuals in Nigeria:

Payments Corporates Individuals

Dividends 10% 10%Interest 10% 10%Royalties 10% 5%Directors’fees n/a 10%Rent 10% 10%Construction5% 5%Commission 10% 5%Professionalfees 10% 5%


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WHT RATES FOR CONSTRUCTION CONTRACTS

SIGNIFICANT ECONOMIC PRESENCE

KEY PROVISIONS OF THE ORDER INCLUDE:

Section81(2)ofCITAprovidesaWithholdingTaxrateof2.5%forcontractofconstruction of roads, bridges, buildings and power plants.The2.5%rateislimitedtocontractforconstructionofroads,bridges,buildingsand power plants. WHT rate on other forms of construction contracts are notaffected;suchothercontractsshallcontinuetoattractWHTattheratesspecifiedintherelevantlegislation;

WHT rate of 2.5% is applicable to construction work only. However, anypart of the construction works (other than the actual construction work) subcontractedshallattractWHTattheratespecifiedinthelaw.Forexample,subcontracts for supply of materials, equipment, labour, etc. or services such as survey, architectural design, soil test, environmental impact assessment, structuraldesignetc.,shallnotqualifyfor2.5%WHTrate,butshallattractWHTattheratespecifiedforsuchsuppliesorservicesinthelaw

Where construction work and other activities that are preparatory, incidental or ancillary to that construction (e.g. survey, architectural design, soil test, environmental impact assessment, structural design, etc.) are embedded in a construction contract, the applicable WHT rate on the entire contract sumshallbe2.5%.However,anysubcontractthereofshallattractWHTattheapplicable rate in line with paragraph above.

Nigeria published the Companies Income Tax (Significant EconomicPresence)Order,2020effectiveFebruary3,2020,todefineanddeterminethe scopeofSignificantEconomicPresence(SEP) inNigeria. TheOrder ismade pursuant to the Finance Act 2019 which amended the tax laws and adopted the SEP principle to tax non-Nigerian companies undertaking digital transactions or offering certain services in Nigeria. However, the Act conspicuouslydidnotdefineSEPtherebycreatingagapinitsapplicationand implementation.

The Minister of Finance, empowered by the Act, has now issued this Order to provide guidance and clarity on SEP in Nigeria.

A. Digital or related transaction

1.Non-NigeriancompaniesshallhaveasignificanteconomicpresenceinNigeria and liable to tax where they:

i.deriveagrossturnoverorincomeofmorethanN25millionoritsequivalentin other currencies, in that year, from any or combination of the following:

• streaming or downloading services of digital contents, including but not limited to movies, videos, music, applications, games and e-books to anypersoninNigeria;

• transmission of data collected about Nigerian users which has been generated from such users’ activities on a digital interface including websiteormobileapplications;

• provisions of goods and services directly or indirectly through digital platformtoNigeria;and

• provisions of intermediate services through a digital platform website or other online applications that link suppliers and customers in Nigeria.

ii.useNigeriandomainname(.ng)orregisterawebsiteaddressinNigeria;or


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B. SERVICES:

DOUBLE TAX TREATIES

TRANSFER PRICING LEGISLATION

iii. have a purposeful and sustained interaction with persons in Nigeria by customising their digital page or platform to target persons in Nigeria, includingreflectingthepricesofproductsorservicesinNairaorprovidingoptions for billing or payment in Naira.

2. Companies covered under multilateral agreements or consensus arrangement which address tax challenges arising from the digitization of the economy to which Nigeria is a party shall be treated in accordance with such agreement or arrangement. 1. Non-Nigerian companies carrying on a trade or business comprising the furnishing of services of technical, professional, management or consultancy innature,shallhaveasignificanteconomicpresenceinNigeriaandliabletotax where it earns any income or receives any payment from:

i.apersonresidentinNigeria;or

ii.afixedbaseoragentofanon-NigeriancompanyinNigeria.

2. Service of a technical nature means any services of a specialized nature (including advertising services, training, or the provision of personnel) that are neither professional, management nor consultancy services.

3. There is no SEP, and therefore no tax liability, in relation to a payment where the payment is made to an employee of the person making the payment under an employment contract, for teaching in or by an education institution orbyaforeignfixedbaseofaNigeriaCompany.

Nigeria has entered into tax treaties with the following countries in order to avoid double taxation on income and capital gains: Belgium, China, France, Netherlands, South Africa, United Kingdom, Canada, The Czech Republic, Pakistan, Philippines, Romania, Singapore, Slovakia and Italy (Aircrafts and Ships). Consequently, residents from these countries pay a reduced WHT rateof7.5%ratherthan10%oninvestmentincomes(dividends,interestandroyalty) derived from Nigeria.

The Federal Inland Revenue Service (FIRS), in exercise of powers conferred on it by Section 61 of the Federal Inland Revenue Service (Establishment) Act No.13 of 2007, updated the Income Tax (Transfer Pricing) Regulations, 2012 (Old Regulations).

The revised Transfer Pricing (TP) Regulations came into effect from March 2018 and provide the legal framework for the application of the arm’slength principle to transactions between related persons. The FIRS issued a publiccircularstatingthatalltaxpayersweretofulfilallpendingobligationspertainingtofilingofTPreturnsonorbefore31December2018.PleasenotethatfilingofTPreturnsincludeTPDocumentationReport,TPDeclarationandTP Disclosure.

However, connected persons with total related party transactions of less than N300 million (about USD 1 million) may choose not to maintain the TP Documentation but must prepare and submit the TP documentation within 90 days from the date of receipt of a notice from FIRS. Please note that the exception is only applicable to TP documentation but not for TP Declaration and TP Disclosure. Hence, any company that has related party transaction mustcompulsorilyfileTPDeclarationandDisclosure.In addition to the above, the income tax (country-by-country reporting) (CbCR) regulations stipulate that each ultimate parent of a Multinational


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TAX INCENTIVES

Enterprises(MNE)GroupthatisresidentfortaxpurposesinNigeriashallfilea Country-by-Country report with the Federal Inland Revenue Service (FIRS) with respect to its reporting accounting year not later than 12 months after the last day of the reporting year of the MNE Group. It is also very important for any constituent entity of an MNE Group that is resident for tax purposes in Nigeria (whether or not it is the ultimate parent entity or surrogate parent entity) to notify the FIRS of the identity and tax residence of the reporting entity not later than the last day of the reporting accounting year of such MNEGroup. Please note that the threshold for complying and filing theCbCR is minimum group revenue of N126 billion where the ultimate parent of theMNEGroupisinNigeriaand750millionEuroswheretheultimateparentof the MNE Group is in a country other than Nigeria.

Failure to comply with the TP regulations above will attract some administrative penalties such as follows:

S/N Offences Penalties

1 FailuretofileTPDeclaration

N10millioninthefirstinstanceandN10,000 for every day failure continues

2 FailuretofileTPDisclosure

ThehigherofN10millionor1%ofthevalue of related party transactions not disclosed;andN10,000foreverydayinwhich the default continues

3 FailuretofileTPdocumentation upon request

ThehigherofN10millionor1%ofthevalue of related party transactions not disclosed;andN10,000foreverydayinwhich the default continues

4 LatefilingofCoun-try-by-Country Report

N10millioninthefirstinstanceandN1,000,000 for every month default continues

5 Failure to provide no-tificationstoFIRSbyaconstituent entity of an MNE Group

N5millioninthefirstinstanceandN10,000 for every day default continues

The Federal Government has developed various fiscal incentives andinitiatives inNigerian tax lawsand sector-wide fiscalconcessions inorderto improve the attractiveness of the Nigerian investment climate. These incentives and initiatives are coded in the Compendium of Investment Incentives, which is comprised of six (6) principal sections, viz: Investment policies and protections; General tax-based incentives; Sector-specificincentives;Tariff-basedincentives;ExportincentivesandSpecialEconomicZone. 1. Pioneer status: companies engaged in industries/products approved as “pioneer industries/products” are:

• granted a tax holiday from payment of CIT for initial period of 3 years, andrenewableforoneortwomoreyears;

• exemptedfrompayingtaxondividendsduringthepioneerperiod;and• capital allowances can be carried forward and utilised at the end of

the tax relief period• To acquire a pioneer status, the Nigerian company can lodge necessary

application with the NIPC.

2. Rural investment allowance: this is for companies located at least 20km


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CONTRIBUTORY PENSION SCHEME


INDUSTRIAL TRAINING FUND (ITF)

from government facilities, but who incurred expenditure on electricity, water, tarred road or telephone for purpose of a trade or business carried on by the company. Such company enjoys the following allowance rates: no facilities—100%;noelectricity—50%;nowater—30%;notarred road—15%.Administering agency is FIRS.

3. Investment tax relief: same as Rurual investment allowance, save that the tax relief is not available to the company for more than 3 years. Administering agency is FIRS

4. Deduction for research and development: here, companies and other organisations engaged in research and development activities for commercializationareallowed20%investmenttaxcreditontheirqualifyingexpenditure for that purpose. Administering agency is FIRS.

5. Export processing zones: companies approved by Nigeria ExportProcessing Zones Authority (NEPZA) under the NEPZA Act and operating within an approved Zone enjoy:

• fulltaxholidayfromFederal,StatesandLocalGovernments;• rent-freelandatconstructionstage,thereafterrentshallbepayable;• 100%capitalallowance;• freetransferabilityofcapital,profitsanddividendsbyforeigninvestors;• duty-free, tax free on import of raw materials for goods destined for re-

export;

6.Export expansion grant scheme provides for a post-shipment incentive for non-oil exports. Qualifying exports must fully repatriate proceeds within 300 days.

Social Security Funds and Other Benefits

Allemployers inthepublicsector,andprivateemployersthathave15ormore employees are required, under the Pension Reform Act (PRA) 2014, to participate in a contributory pension scheme in favour of their employees. The old law enacted in 2004 has been repealed and re-enacted as the PRA 2014.

• Under the Pension Reform Act, 2014, employers and employees are requiredtomakeaminimumcontributionof10%and8%respectivelyof the employee’s monthly emoluments to a Pension Fund Administrator chosen by the employee.

• In addition, an employer is also required to maintain a Group Life Insurance Policy for each employee for a minimum of three times the annual total emolument of the employee.

• Expatriate employees may join the scheme at their discretion and with the agreement of their employers.

The due date of compliance is not later than 7 working days after the payment of employees’ salary

By virtue of the Employee’s Compensation Act, 2010 employers are required tocontribute1%oftheirpayrollcoststotheNationalSocialInsuranceTrustFund (NSITF) in order to provide adequate compensation to employees (or their dependents) in the event of death, injury, disease or disability arising out of, or in the course of employment.

Industryandcommerceemployersare required tocontribute1%of their


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annual payroll costs to the ITF, if they:• havefive(5)ormoreemployeesoranannual turnoverof₦50million

andabove;• bid for or solicit contracts, businesses, goods and services from public

andprivateestablishments;• requireapprovalforExpatriateQuota;or• utilise Customs services for import and export.

TheITFGoverningCouncilmayeffectarefundofupto50%ofanemployer’scontributions if it issatisfiedthatthetrainingprogrammesprovidedbytheemployer to its employees are appropriate for the ITF’s scheme National Housing Fund (NHF)

The rate of NHF is 2.5% ofmonthly basic salary. A schedule of paymentindicating the amount deducted from each employee and the period covered to be submitted to the Federal Mortgage Bank of Nigeria.Employee Compensation Scheme

All employers, including individuals, are required to register with the Nigeria Social Insurance Trust Fund (NSITF) and contribute to the scheme.Employers are required to make monthly contributions to the NSITF not laterthanthelastdayofthemonth.1%oftotalmonthlypayrolloramountassessed by the NSITF.


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NIGERIA IN FOCUS

INVESTMENTS PROTECTION MECHANISMSINVESTMENT TRENDS, LEGAL REGIMES AND TRADE TREATIES THAT PROTECT INVESTOR RIGHTS.


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REGULATORY STABILITY

DOMESTIC PROTECTION

1. CAPITAL IMPORTATION

2. REPATRIATION OF PROCEEDS OF INVESTMENTS:

3. PROTECTIONS AGAINST EXPROPRIATION AND

NATIONALISATION

4. RECOURSE TO INTERNATIONAL ARBITRATION

As a leading investment hub in Africa, Nigeria has proactively undertaken regulatoryandstatutoryreformsthathasledtosignificantinfluxofforeigninvestment in different sectors of its economy. The country has gone ahead to put in place several legal safeguards and laws to ensure the protection of indigenous and foreign investments. Some of the legal safeguards can be found in Constitutional provisions, domestic laws and treaties with various States and international organisations.

These legal safeguards are further discussed below:

The following provisions are made under the Foreign Exchange Monitoring and Miscellaneous Provisions (FEMM) Act guaranteeing a foreign Investor’s investments in Nigeria:

• Foreigners are eligible to invest in any Nigerian enterprise with foreign currency or capital imported through an Authorized Dealer (a bank authorised by CBN), and converted to Naira in the Nigerian foreign exchange market.

• The Authorised Dealer shall within 24 hrs of the capital importation issue the foreign Investor a Certificate of Capital Importation (CCI), andwhere the capital imported is in the form of equipment, machinery or raw materials, a CCI will also be issued.

• TheCCIguaranteestheforeignInvestor’saccesstotheNigerianofficialforeign exchange market for further repatriation of capital and returns on investment.

• The requesting Nigerian company must present a copy of the CCI to the Authorised Dealer in order to process the foreign Investor’s remittances.

Apart from the FEMM Act, statutory provision is also made in the Nigeria Investment Promotion Commission (NIPC) Act guaranteeing unconditional transfer of capital and returns through an authorized dealer in a freely convertible currency, of:

• dividendsorprofits(netoftaxes)attributabletotheinvestment;• payments in respect of loan servicing where a foreign loan has been

obtained;and• the remittances of proceeds (net of all taxes), and other obligations in

the case of sale or liquidation of the enterprise or any interest attributable to the investment.

The NIPC Act guarantees protection against:

• expropriation by government of investors’ investments in any enterprise• acquisition of an enterprise by the government except such acquisition

is made in national interest, or for public purpose.

The NIPC Act grants a foreign investor the option of recourse to international arbitration machinery for the settlement of disputes. Where there is disagreement on the method of dispute settlement to be adopted, the International Centre for Settlement of Investment Disputes (ICSID) Rules shallapply.TheArbitrationandConciliationAct furtherprovidesaunifiedlegal framework for settlement of commercial disputes by arbitration and conciliation. It also makes applicable the Convention on the Recognition and Enforcement of Arbitral Awards.Fully liberalised foreign ownership of investments in any enterprise except


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5. FOREIGN OWNERSHIP:

INVESTMENT TREATIES

ELIGIBILITY:

enterprises with activities listed on the ‘negative list’ which are prohibited for both foreign and Nigerian investors.

Nigeria has signed and ratified trade treaties with several countries allover the globe, which are geared towards maximizing its huge potentials from foreign trade and investments. The essence of the trade treaties is to fosterstablelegalenvironmentthatencouragesforeigndirectinvestments;accord citizens/residents of the contracting States rights and guarantees on the protection of their investments and establish a legal regime for the enforcement of those rights. Some of these are highlighted below:

1. African Continental Free Trade Agreement—The Continental Free Trade Agreement will establish a single market for goods and services across fifty-four(54)countries,allowthefreemovementofbusinesstravellersandinvestments, and create a continental customs union to streamline trade and attractlong-terminvestment.InAugust2019,Nigeriabecamethe53rd(andpenultimate) African country to sign the agreement. Full implementation of the agreement will take some time as negotiations covering trade, dispute settlement, investment, competition policy and intellectual property rights would have to be completed.

2. Commonwealth Tax Relief—As a member of the Commonwealth and in order to promote its mutual relationship with other Commonwealth states, Nigeria has provideda tax relief for profits gained in those states,whichprofitsarealsotaxableinNigeria.

Incentive: Nigerian companies are subject to a cap of half of the Nigerian tax rate for such company incomes derived in those states.

• Nigerian companies should enjoy reciprocal protections in the laws of therelevantCommonwealthcountryandRepublicofIreland;

• Annual claim for relief should be made to the FIRS no later than six years after the end of that year.

3. Investment Promotion and Protection Agreement—In seeking to foster reciprocal promotion and protection of Nigerian investments and to provide a baseline minimum protection of these investments within the jurisdiction of participating States, Nigeria has entered into various Investment Promotion and Protection Agreements (IPPAs) with the following countries: China, Finland, France, Germany, Italy, Korea Republic, Netherlands, Romania, Singapore, South Africa, Spain, Sweden, Switzerland, Taiwan Province of China, United Kingdom.

4. ECOWAS Trade Liberalisation Scheme—ECOWASTreatyexecutedwith15West African countries with the following incentives: • abolition of customs duties levied on imports and exports of goods

produced and moving among member states• abolition of non-tariff barriers among member states to facilitate the

free movement of goods and services across member states.

5. African Growth and Opportunity Act—AGOAbuildsonandsignificantlyenhances the trade preferences under the US Generalised System of Preferences (GSP). Along with the GSP, it provides qualifying Sub-Saharan Africanbeneficiarycountries, includingNigeria,with non-reciprocalduty-freeaccesstotheUSmarketforapproximately6,500products,includingforsome categories considered to be ‘sensitive’.


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REAL PROPERTY ACQUISITION

KEY INSIGHTS.


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LEASEHOLD OWNERSHIP

NO ACTUAL SALE:

PROCEDURE/REQUIREMENTS FOR ACQUIRING REAL ESTATE:

The legal framework and policies that affect acquisition of real estate in Nigeria are highlighted below:

1.TheLandUseAct1978vestsabsoluteownershipofall landswithineachState (except those earmarked as Federal lands) in the Governor of that State.

2. State Governors administer these lands by granting leaseholds (Right of Occupancy) to individuals and corporate entities to hold and use subject to certain conditions some of which are: • a term not exceeding 99 years. • State Governor’s reversionary interest upon expiration of the term

granted.• payment of an annual rental, payment of a premium, purpose of use,

nature of development, and revocation for non-compliance.

3. State Governor’s consent must be sought and obtained before a valid legal transfer of real estate can be made to any person. 4. Foreigners are precluded from acquiring real estate directly. However, a wholly foreign-owned Nigerian company can validly acquire such title.

1. Transfer or assignment does not mean actual sale, but is simply transfer of legal right to occupy and use for a term.

2. The State Governor is the owner, hence the need for his consent before transfer.

3. Title deeds/documents like Certificate of Occupancy and Deeds ofAssignment serve as evidence of leasehold interests vested in individuals or corporate entities.

The process of acquiring real estate in Nigeria vary from State to State, depending on the system of registering property (whether it is registered conveyancing or unregistered conveyancing) practiced in the State. However, regardless of the applicable system, the widely accepted procedure is as follows: 1. Physical inspection of the real estate 2. Investigation and due diligence on vendor’s title (it is vital to engage an experienced Solicitor for advice and guidance at this stage) in order to ascertain • nature of the title/interest • capacity of the vendor to assign, • adverse claims/interests or litigation • the land use designation and zoning purpose, • the unexpired term of years, • surveyandsizeoftheproperty;• confirmationas towhetheror not theproperty is undergovernment

acquisition3. Preparation and execution of title documents4.ObtainCertifiedTrueCopyoftitledocumentsandsurveyplan5.Paychartingfee,endorsementfeeandForm1C6. Submit an application with executed title deeds and relevant documents at the Lands Registry 7. Assessment of fees/taxes payable for consent fee, stamp duty, registration fee and sundry charges/taxes. Note—consent and registration fees differ across various States. 8.RegistertitleintheRegisterofDeedsattheLandsRegistryoftherelevantState.


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TECH STARTUPS

MAJOR HIGHLIGHTS


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BUSINESS STRUCTURE

SOLE PROPRIETORSHIP

PARTNERSHIP

REGISTRATION OF INTELLECTUAL PROPERTY

TRADEMARKS:

PATENTS:

INDUSTRIAL DESIGNS:

Thefirstconsiderationtotechstart-upischoiceofbusinessstructuretobeundertaken. In Nigeria, business can be undertaken using any of the following models: Business Names in the nature of Sole proprietorship or Partnership and Companies (see Chapter One of this Legal Guide). Having previously considered the dynamics of Companies, the key features of Business Names are summarised below:

• No dissimilarity between the Proprietor and the business, since the Proprietor usually wants to just carry out business activities on his own.

• Admits of less formality in administration, as no rigid corporate government is required.

• Joint ownership of the business endeavours and partnership property

among Partners. • Partners are personally liable for the venture’s obligations. • In the case of limited partnership, there should be at least one general

Partner with unlimited liability. • For limited liability partnership, the liabilities of the Partners can be limited

where the partnership is being wound up.

In view of the uniqueness in the operations and processes of tech startups, especially their focus on creativity, expression of ideas in tangible forms, designs, marks, innovations, etc., it is crucial that their inherent rights in these endeavours are registered under Nigeria law. It is the registration of the creative works, ideas, innovations, etc. that confers adequate protection against infringements and thefts.

The types of intellectual properties recognised under Nigerian law are trademarks, patents, industrial designs and copyright. The key highlights of their features are highlighted below:

For any foreign trademark to enjoy statutory protection in Nigeria, it must be registered with the Registrar of Trademarks. A trademark registration is valid for an initial period of 7 years, subject to renewal for another period of 14 years. The laws that regulates trademarks in Nigeria are the Trademarks Act 1990. the Trademarks Regulation 1967 and the Merchandise Marks Act 2004.

• In Nigeria, a patentable invention is one which is new, results from inventive activity and can be applied industrially. Plant or animal varieties;essentialbiologicalprocessesfortheproductionofplantsoranimals;orany inventionwhichwouldbecontrarytopublicorderormorality if published or exploited are not patentable in Nigeria.

• Foreign patented inventions do not have legal protection in Nigeria, unless duly registered with the Registrar of Patents.

• Itispossibleforaforeignertorelyonpriorityfromanapplicationhefiledin a contracting State to the Patents Cooperation Treaty.

• Thevalidityperiodofapatentis20yearsfromdateoffiling,subjecttopayment of the prescribed annuity.

• The Patents and Designs Act regulates the registration of patents in Nigeria.

• Any combination of lines or colours or both, and any three-dimensional form (whether or not associated with colours), intended to be used as a model or pattern for multiplication by industrial process and not just to obtain a technical result.

• It must be new and not contrary to public order or morality.


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COPYRIGHT:

REGULATORY FRAMEWORK

NOTAP REGISTRATION:

FISCAL INCENTIVES FOR TECH START-UPS

• An application for registration is made to the Registrar of Patents and Designs.

• Validfor initialperiodof5years,subjecttorenewalfor2consecutiveperiodsoffiveyears.

• The Patents and Designs Act also regulates the registration and use of industrial designs in Nigeria.

• Automatically vested on works eligible for copyright• Works eligible for registration are (a) cinematograph films, literary,

musicalandartisticwithprotectionfor70yearsaftertheauthor’sdeath;and(b)soundrecordingsandbroadcastswhicharevalidfor50yearsafterthemakingoffirstrecordingorbroadcast.

• The Copyright Act regulates the use and commercialisation of copyright in Nigeria.

• The registration process of the above rights have their intricate and respective processes, but generally they are all involve the stages highlighted below:

• Availability search to ascertain the existence of similar rights sought to beregistered;

• Application for registration of the ideas, creative work, designs or marks at which stage,

• Approvalinprinciplethroughissuanceofacertificateofregistration.• Upon registration, the relevant startup becomes the owner/author

of the creative work, designs, marks, innovations, etc. and enjoys the benefit derived therefrom including legal protection from thefts andundue exploitation by third parties.

National Information Technology Development Agency (NITDA):

• All technology companies in Nigeria should be registered with NITDA. It is under the supervision and coordination of the Ministry of Communications and has the following roles:

• • Operate and implement the National Information Technology policy

andgiveeffecttoprovisionsoftheNITDAAct,2007;• Enter into strategic alliance with the private sector as well as international

organizationsfortheactualizationoftheInformationTechnologyvision;• DevelopandregulatetheInformationTechnologysectorinNigeria;• Ensure that Information Technology resources are readily available to

promoteNigeriandevelopment;and• Empower Nigerians to participate in software and IT system development.

The National Office for Technology Acquisition and Promotion (NOTAP)is the body that regulates the business of technology and the transfer of technologyortechnicalexpertiseinNigeria.TheOfficeregisterstechnologyacquisition agreements involving technology company. Registration of such agreements is a pre-condition for obtaining approval to repatriate any investment returns that may be due to the foreign Investor through an Authorised Dealer or the CBN. Conversely, non-registration on the other hand, prevents repatriation of investment returns.

Duty waivers, tax exemptions, tax holidays, rebate, accelerated capital allowances, etc. are available to companies in (a) business of installation ofscientificinstrumentsandcommunicationsequipment;(b)manufactureof telecommunications cables; (c) production of ICT equipment; (d)e-commerce services and software development and publishing. zThe abovecompaniesarefurtherqualifiedforpioneerstatustax incentiveforbetween3-5years.


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NIGERIA IN FOCUS

DATA PROTECTION

MAJOR HIGHLIGHTS


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THE REGULATION APPLIES TO ALL:

KEY POINTS

On January 25, 2019, theNational Information TechnologyDevelopmentAgency (NITDA), pursuant to its enabling law, issued the Nigeria Data Protection Regulation 2019 (the “Regulation”) with the following objectives: a)safeguardoftherightsofnaturalpersonstodataprivacy;b) foster safe conduct of transactions involving the exchange of personal data;c) prevent manipulation of personal data andd) ensure that Nigerian businesses remain competitive in international trade, through a just and equitable legal regulatory framework on data protection and which regulatory framework is in tune with global best practices.

• transactions intended for the processing of personal data and to actual processing of personal data, regardless of the means by which the data processing is being conducted or intended to be conducted and in respectofnaturalpersonsinNigeria;

• natural persons residing in Nigeria or residing outside Nigeria but of Nigerian descent.

1. Lawful processing—data processing is deemed lawful if one of the following occurs:

a) the data subject has given consent to the processing of his or her personal dataforoneormorespecificpurposes;b) processing is necessary for the performance of a contract to which the Data Subject is party or in order to take steps at the request of the Data Subjectpriortoenteringintoacontract;c) processing is necessary for compliance with a legal obligation to which theControllerissubject;d) processing is necessary in order to protect the vital interests of the data subject or of another natural person ande) processing is necessary for the performance of a task carried out in the public interestor in theexerciseofofficialpublicmandatevested in thecontroller;

2. Privacy Policy—The Regulation requires that any organisation through which data is being collected or processed shall display a simple and conspicuous privacy policy that the class of Data Subjects being targeted can understand. The policy shall also contain the following: • whatconstitutestheDataSubject’sconsent;• descriptionofcollectablepersonalinformation;• purposeofcollectionofpersonaldata;• technical methods used to collect and store personal information,

cookies,JWT,webtokens,etc.;• access(ifany)ofthirdpartiestopersonaldataandpurposeofaccess;• ahighlightoftheprinciplesoftheRegulation;• availableremediesintheeventofviolationoftheprivacypolicy;• thetimeframeforremedy;and• any limitation clause.

3. Data Security—There is an obligation on Data Controller (i.e. corporate body or person involved in data processing or the control of data) to develop security measures to protect such data. Such measures include but not limitedtoprotectingsystems fromhackers, settingupfirewalls, storingdatasecurelywithaccesstospecificauthorizedindividuals,employingdataencryption technologies, developing organizational policy for handling personal data (and other sensitive or confidential data), protection of


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emailing systems and continuous capacity building for staff.

A person or corporate body will be liable for the actions or inactions of third parties who the organisation or person contracted to handle the personal data of Data Subjects. The Regulation also imposes a general duty of care towards a Data Subject on anyone entrusted with the personal data of the data subject or who is in possession of such personal data. 4. Data Subject’s Right of Objection The right of a Data Subject to object to the processing of his data shall be safeguarded at all times. Accordingly, a Data Subject shall have the option to:

object to the processing of his personal data by the Data Controller for marketing purposes, and

be expressly and manifestly offered the mechanism for objection to any form of data processing at no cost whatsoever to the Data Subject.

5. Penalty for Default —The penalties for a breach of the Regulation are (in addition to any other criminal liability that such breach might give rise to) as follows:

• in the case of a Data Controller dealing with more than 10,000 Data Subjects,paymentofthefineof2%ofitsannualgrossrevenueofthepreceding year or payment of the sum of N10,000,000 (ten million Naira), whicheverisgreater;

• in the case of a Data Controller dealing with less than 10,000 Data

Subjects,paymentofthefineof1%ofitsannualgrossrevenueofthepreceding year or payment of the sum of N2,000,000 (two million Naira), whichever is greater.


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NIGERIA IN FOCUS

DISPUTE RESOLUTIONLITIGATION, ADR METHODS AND ENFORCEMENT OF FOREIGN JUDGMENTS AND ARBITRAL AWARDS.


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LITIGATION

ALTERNATIVE DISPUTE RESOLUTION (ADR) METHODS

A) NEGOTIATION:

Disputes arising out of commercial transaction can be settled either by recourse to litigation, arbitration, mediation, and other alternative dispute resolution methods.

In Nigeria, it is proper that before an aggrieved person approaches the Courtsforredress,heshouldfirstconsidersomepreliminarymatters.Failureto consider these preliminary matters may lead to termination of the suit or dismissal at the end of a tortuous and costly trial. Such preliminary are too numerous to highlight, however some of the key matters are considered below: a) Limitation Period: This is the time within a legal wrong may be initiated in Court. These time limits vary depending on the subject-matter of the dispute. For example, the time limit for initiating actions based on:

• Simplecontracts,debtrecoveryis6years;• Land, judgment of Court, instruments under seal, claim from deceased

person’s personal estate is 12 years• damages for negligence, slander, nuisance, etc is 3 years. • actionagainstPublicOfficersis3months;• action by State Authority to recover land is 20 years

b) Locus Standi: This means legal capacity to institute proceedings in Court. No one can properly sue for the enforcement of a right apart from the person, in whom a right is vested as his personal right.

c) Conditions Precedent: The law sometimes require certain conditions to be satisfied before filing an action in Court. Such condition precedentsmay be by way of service of Pre-Action Notice or satisfaction of other steps required by law before commencement of action, like Case Management Conference, where the Judge assesses the suitability of the matter for alternative dispute resolution and gives necessary directions.

d) Cause of Action: There must be a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person.

e) Jurisdiction: Jurisdiction is the legal capacity of the Court to hear and determine judicial proceedings. A court of law can only exercise judicial powers when it has jurisdiction.

These are alternative procedures outside the litigation method, often employedtoresolvedisputesinanefficient,mutuallybeneficialandtimelyfashion for Parties. These consists of negotiation, mediation, conciliation and Arbitration which is now commonly resorted to in settling commercial disputes in Nigeria. In Nigeria today, foreign investors are accorded the same rights as nationals to adopt any of the above ADR process to resolve their commercial disputes whenever such arise.

Some features of these ADR methods are highlighted below:

• Involves parties discussing and agreeing to terms or reaching certain agreement without the aid or intervention of a third party.

• Comprised of several stages, viz: opening, bargaining, closing and execution.

• Differentapproachesthatcaneitherbesoft;hardorfirm.


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B) MEDIATION:

C) CONCILIATION:

D) ARBITRATION:

ENFORCEMENTS

• Essentially a non-binding dispute resolution mechanism. • It involves a neutral third party who tries to help the disputing

parties reach a mutually agreeable solution. • The third party known as the Mediator should be impartial and not

take decision for the parties rather he helps and assists in identifying the issues and interests that need to be resolved.

• An agreement reached by the parties during mediation is enforceable if the terms of settlement are reduced into writing by the parties and witnessed by their Counsel.

• Thetermofsettlementwill thereafterbefiled incourtandmadethe judgment of the court in form of a consent judgment.

• A neutral person meets with the parties to a dispute and explores how the dispute might be resolved. The Conciliator may deliver his opinion as to the merit of the dispute in necessary cases.

• Involving one or more neutral third parties (the “Arbitrator(s)”) usually agreed upon by the disputing parties.

• The decision of the Arbitrator(s) is called an Award, and is enforceable like a Court’s Judgment.

• The principal legislation dealing with arbitration in Nigeria is ArbitrationandConciliationAct,which reflects inmany respectsthe provisions of the UNCITRAL Model law and also consistent with 1958NewYorkConventionontheRecognitionandEnforcementof Foreign Arbitral Award (New York Convention).

• There must be a written agreement between Parties to submit any dispute arising from their transaction to arbitration, in order to make the arbitral Award enforceable.

• Parties determine the rules of procedure to be adopted at the arbitral proceedings or the tribunal may so determine in the absence of Parties agreement.

• An arbitral Award must be signed by all the Arbitrators.Enforcement of Arbitral Award—the Party who got the Award in his favour may apply to the High Court for leave to enforce the Award as though the Award was a Judgment of the Court.

• All arbitral Awards made in Nigeria can be enforced in England and Wales or in any other country that is a signatory to the New York Convention.

In Nigeria, Judgment may be enforced in any one of the ways highlighted below:

a) Writ of Fieri Facias directs the Court’s Sheriff to seize and sell the Judgment Debtor’s property to satisfy the Judgment Debt.

b) Garnishee Proceedings—usually initiated against a person who is indebted to the Judgment Debtor in order to attach the debt in satisfaction of the Judgment Debt.

c) Writ of Possession is applicable to Judgments relating to land.

d) Order for execution of deeds and negotiable instruments

e) Insolvency proceeding if a company is unable to pay its debts.

f) Enforcement of Foreign Judgments. Enforcement of judgment of foreign superior Court (equivalent to a Nigerian High Court or more) is possible in Nigeria, and can be


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done either by (i) action at common law or (ii) reciprocity or reciprocal enforcement.

(i) action at common law—Here, institute an action in Nigerian Court claiming reliefs of the foreign judgment. For this enforcement to be successful, the foreignjudgmentmustsatisfythefollowing—thejudgmentmustbefinalandconclusive;musthavebeendeliveredbyacompetentcourtofjurisdiction;mustbeforadefinitesumnotrecoverableastax,fineorpenalty;andifthejudgment is not money, its subject-matter must be within the jurisdiction of the foreign court at the time of delivering the judgment.

(ii) reciprocal enforcement— Here, the foreign country whose Court delivered the judgment must also be ready to enforce judgments of Nigerian courts in its Courts. Enforcement of such judgment are by way of registration before the Nigerian High Courts under Foreign Judgments (Reciprocal Enforcement) Act.

BRING YOUR A-GAMEIF YOUR A-GAME IS AFRICA

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Centurion Law Group is a pan-African corporate law conglomerate, with a specialised focus on cross-border business and energy law. We are a stand out firm for investors that are starting a new business or looking to expand their footprint across Africa.

We provide a full-scope legal, tax, government relations and management advice for clients and regular advice on some of the most complex and market-first deals.

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Oneyka Cindy Ojogbo | Attorney & Head of Operations, Centurion Law Group | [email protected] T:+27112455900C:SA+27817999219C:US+1(646)3382560|NG+234(0)8037285682

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