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22 Jan

CORPORATE LAW PRACTICE WEEK 9 (FOREIGN PARTICIPATION)

WEEK 9

FOREIGN PARTICIPATION IN NIGERIAN BUSINESS SECTOR.

:: LAWS AND AGENCIES REGULATING FOREIGN PARTICIPATION.

S/N LAW REGULATORY BODY
1. Companies and Allied Matters Act 1990. Corporate Affairs Commission.
2. Investments and Securities Act 2007 Securities and Exchange Commission.
3. Nigerian Investment Promotion Commission Act 1995? Nigerian Investment Promotion Commission
4. Foreign Exchange (Monitoring and Miscellaneous Provisions) Act. CBN, Minister of Finance.
5. National Office for Technology Acquisition and Promotion Act National Office for Technology Acquisition and Promotion.
6. Industrial Inspectorate Act 2007 Industrial Inspectorate Division (Federal Ministry of Industry).
7. Immigration Act
8. Industrial Development (Income Tax Relief) Act, 2014.

 

 

An Alien/non-Nigerian may invest in or participate in any enterprise here in Nigeria except those in the negative list (i.e. production and dealing in arms, ammunition, Military or Paramilitary uniforms, hard drugs, etc.) and subject to provisions of regulatory laws-Section 20 CAMA, 17 NIPCA, etc.

** FIRST: The Company/Alien should make preparations: Like prepare necessary pre-incorporation agreements (JVA,) considering feasibility, securing premises, stamping, etc.

** THIRD: The Company should Register with CAC (Check Week 4 discussed earlier on what this involves).

** SECOND: The Company should decide how it can participate.

A foreign company may participate through:

  1. Foreign Direct Investment: if the co wishes to set up an endeavour in Nigeria/own local productive assets (like Factories) it should be registered with the CAC and NIPC.
  2. Foreign Portfolio Investment: by buying shares or bonds in a Nigerian company. Note CSCS.
  3. Foreign Exempted Company: Section 56 NIPC? These companies are exempted from the requirement of registering locally. After applying for exemption (to the Secretary to the FG with requisite particulars and procedures complied with). Honest and fully detailed[1] application for exemption to the President through the Secretary to the Federal Government CURRICULUM MANDATES YOU STATE HOW SUCH EXEMPTION CAN BE APPLIED FOR (STEPS)).These include:

– Foreign companies coming to execute a specified loan project either on invitation/approval by FG OR on – behalf of a donor country or international organization.

– Foreign Companies which are engineering consultants and technical experts to execute individual specialist project with FG or (if with individual) on authorization of FG.

Foreign government-owned companies engaged solely in export promotion activities.

Exemption is for a particular duration and can be revoked. Such exempted companies have the status of an unregistered company but can still sue and be sued in Nigeria.-Section 60 CAMA. Ritz etc., & Co KG v TCE Nig Ltd 4 NWLR (Pt. 598) 298. Watammal Singapore Ltd v Liz Olofin & Co. Ltd.

Where a co is not registered or exempted, it appears the contract would be valid but unenforceable- Solanke v Abed

A co can receive correspondence, notices and documents preliminary to its incorporation-UNIPETROL v AGIP Plc.

** FOURTH: The foreign company or individual should apply for other requisite permits.

  1. Under the NIPC Act:

Apply for Business Permit[2], Expatriate Quota and Pioneer Status, Technical Assistance Agreement, and other Fiscal incentives. #10,000 for each application. Complete NIPC Form 1 and attach applicant’s (foreign Company’s) Memorandum and Articles of Association, Partnership/JVA, 2 photocopies of application form payment receipt, TCC, stamp duties receipt, feasibility report of proposed business, training programme for Nigerian Staff, details of proposed directors, title deeds of land evidencing firm commitment to acquire requisite business premises for company’s operations, expatriate quota positions and qualifications for such position.

  1. Under the Immigration Act: Apply for and get;

Business permit (for foreigner to operate business in Nigeria) from the Minister of Internal Affairs-Section 8 IA.

Expatriate Quota/Work Permit: (from director of immigration… to be able to employ a foreigner in Nigeria). It may be Temporary (for 5 years renewable for additional 2 years) OR Permanent Until Reviewed (usually for Chairman or Managing Director). It is the Employer Company that applies as in Immigration Form T/2 together with pre-incorporation documents, personell policy of the co, TCC, business plan/feasibility report-Oilfields Supply Centre Ltd v Johnson (No.2) [1987] NWLR 625, Oliver v Dangote Industries.

Residence Permit/Visa: to be able to stay in Nigeria for more than 3 months. Apply to Director of immigration by letter (2 copies) accompanied by alien’s passport, letter of employment, and a copy of his expatriate quota to the Immigration Department.-Section 10 IA who then grants Cable or STR Visa which is temporary or subject to regulation respectively which should be regularised (within 3 months of the expatriate arriving Nigeria) into– CERPAC:  the Combined Expatriate Residence Permit and Aliens Card was introduced in 2002 for foreigners (except ECOWAS citizens, accredited diplomats and children below 15 years) in Nigeria to carry the card.

  1. Under the Industrial Inspectorate Act: any person wishing to start a new undertaking or incur additional expenditure of not less than 500,000 should notify the Director of Industrial Inspectorate Division of the Federal Ministry of Industry-Section 3. Application as in Form 1.

** FIFTH: Company should apply to SEC for the registration of security/investment-Section 54 ISA. Section 8 ISA.

** SIXTH: To ensure guaranteed transferability and repatriation of funds, the investment should be effected with foreign currency imported into Nigeria through an Authorised Dealer who should issue a certificate of Capital Importation (enjoy repatriation, domiciliary account, -Section 13,14 and 15 of Cap F34 lfn and 24 of Cap N117.

The company may also import capital through the debt-equity conversion programme (implemented by the Debt Conversion Committee in CBN) by buying Nigeria’s debt instrument at a discounted value (it appears the minimum consideration should be $250,000) Certificate of Capital Importation is issued[3]

** SEVENTH: Contracts involving the transfer of technology (like use of trademark, patent, supply of technical or managerial expertise/ assistance/ information/ engineering or training of personnel) from a foreign party to Nigerian partners should be registered with the National Office for Technology Acquisition and Promotion (through the Director of NOTAP accompanied with CTC of the contract) within 60 days from execution or conclusion of the agreement-Section 5 NOTAPA. Apply, pay Application fee, attach MEMO, Article and CTC of the agreement, feasibility Study and annual audited account.

Can be rejected if the technology is already obsolete or common place in Nigeria or the price is outrageous or provides that disputes should be submitted to foreign jurisdiction. Non-registration does not vitiate contract but could frustrate free transfer of funds due under the contract out of Nigeria.

** EIGHT: The Company should apply for the various incentives. Some of which includes:

  1. Pioneer Status: for 3 years (or further 2 years) tax exemption for new public companies engaged in investment in industry or pioneer products[4]. For indigenous and foreign controlled cos (150k and 5 Mil) respectively.
  2. Tax Relief Under the Companies Income Tax Act: Section 23 and 29 CITA for charitable/public spirited companies, -for exporting co (provided the proceeds of export is brought back to Nigeria and used to purchase of machinery and equipment), -for first 6k of profit (Section 29 CITA), relief in respect of Commonwealth Income Tax Section 33, – Reliefs in respect of foreign loans[5] and Bank Loans for Agriculture, Fabrication of local machinery –Section 9 CITA… or loan to be used as working capital for cottage industry established under the Family Economic Advancement Programme.
  3. Duty Drawback/Suspension Scheme: which allows import duties on the following endeavours to be refunded… Viz –Raw materials to be used in manufacturing goods to be exported, – Paper for manufacture of educational materials, goods exported in the same state as they were brought.
  4. Export Incentive Under the Export (Incentive and Miscellaneous Provisions) Act Cap. E19, LFN 2004. They include: -Incentive to Compnay engaged in utilization of associated gas, -3 years exemption from tax payment for investment in the Export Processing Zone provided up to 75 percent of the proceeds get exported.
  5. 7 years tax relief for Investment in economically disadvantaged areas, exemption for local raw materials utilization.
  6. Rural investment Allowance –Section 28 CITA. Tax deduction for expenditure incurred on provision of facilities (electricity, water, etc.) in areas at least 20km from the nearest one provided by the government.
  7. Investment Tax Credit: 20 percent for Companies engaged in Research and Development-Section 22(3) CITA. 25 for those engaged in fabrication of spare parts and equipment for export or local consumption, 15 percent ITC for co which purchases locally manufactured equipment for its business
  8. Double Taxation Treaty agreement. Section 44 CITA

Other Guarantees to encourage foreign participation include: – Full transferability and repatriation of funds and assets, – Assurance against nationalization else prompt and adequate compensation, – Promise on quick and effective ADR.

** NINTH: Where there is a dispute, the parties should try and amicably settle… failing which it would be submitted to Conciliation and Mediation and then to Arbitration which may be subject to the ACA, Multilateral/Bilateral International Agreement or other International Machinery for the settlement of investment dispute agreed on by the parties. Failing which, the International Centre for Settlement of Investment Dispute Rules would apply-Section 26 NIPCA?

Note that other sector specific licenses and permits should also be obtained.

::DRAFT DOCUMENTS / APPLICATION FOR EXEMPTION.

 

[1] Names and address of foreign and propsed local offices and officers, MEMART/constitution, proposed endeavour and duration. Names and address of Nigerian Agent.

[2] Given by Minister of Interior.

[3] Just that repatriation would be postponed until after at least 5 years with only 20 percent exportable per annum.

[4] (e.g. agro allied export goods, solid minerals, exports, iron, steel, mining, limestone, industrial chemicals, manufacture of machinery, book printing, cattle and piggery of not less than 500 herds, manufacture of computer, tools, aircraft, communication equipment, manufacture of gas, bitumen, fire fighting equipment, cables, medical equipment, mineral oil prospecting and production, lubricants, oven, air-conditioners, alum, enzymes, concentrates, ICT, Estate development, utility services, (Section 22 Minerals and Mining Act, etc.).

[5] Not less than N150k and more than 10 years. If 5-10 years, it is half of the interest that would be deducted. It is the interest that is exempted from taxation.

Isochukwu

Quite eccentric really

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