Compliance Notes -Nigeria

COMPANY SECRETARIAL COMPLIANCE

Company Letter Head
Nigerian company law provides that every company shall on its letter head, state in legible characters the particulars of directors of the company, the nationality of its directors (if not Nigerian), the address of the company, and the
company’s registration number.

Company Seal
Every company may choose whether to have, or to use a common seal which must have its name engraved on it in legible character. The seal should be kept in safe custody at all times and be used only with the authority of the Directors.

Statutory Combined Register and Minute Book
This is a register which every company is required to keep under the Companies and Allied Matters Act which contains the register of allotments of shares, register of transfers, register of members, register of secretaries, register of directors’ interest, register of mortgage and charges etc.
The register is usually kept at the registered Office of the Company.

Share Certificate

Nigerian company law provides that every company shall within two months of allotment of shares issue the relevant share certificate(s) to the shareholder(s). Every member/shareholder of the Company is entitled to a certificate specifying the shares held. Such certificate issued is prima facie evidence of the member’s title to the shares.
Please not however, that the entry of name in the register of members is the conclusive evidence of ownership of shares in a Company.

Meeting of the Board
Under Nigerian company law, companies are statutorily required to convene board meetings as often as may be required together with one annual general meeting (AGM). Whilst all other meeting of the Company can be held outside Nigeria, the law provides that all AGMs must be held in Nigeria. We would advise that the Board of the Company should convene a meeting to deliberate and confirm certain company secretarial matters such as : adoption of the memorandum and article of association; confirmation of directors; ratification of appointment of company secretary; confirmation of registered address; appointment of Chairman of the Board of Directors; appointment of External Auditors; fixing of accounting reference date; adoption of common seal; disclosure of interest of by directors in other companies in Nigeria or any interest they may have in relation to the Company‘s business.

TAX COMPLIANCE
It will be necessary for the Company to effect its tax registrations and obtain a Taxpayer Identification Number (TIN). The Company will be required under the Value Added Tax Act (“VAT Act”) to register for VAT within six months of the commencement of its business.

Tax Identification Number
Duly completed Federal Inland Revenue Service (FIRS) Taxpayer Registration Input Form; Application letter addressed to the Executive Chairman, Federal Inland Revenue Service; Certificate of Incorporation; Memorandum and Articles of Association; and Forms CAC 2 (Allotment of Shares) and CAC 7 (Particulars of Directors)

Tax Clearance Certificate
Duly completed Application Form for Tax Clearance (in triplicate); Application letter addressed to the Executive Chairman, Federal Inland Revenue Service; Certificate of Incorporation; Memorandum and Articles of Association; and Forms CAC 2 (Allotment of Shares) and CAC 7 (Particulars of Directors).

VAT Registration
Duly completed Federal Registration Form (VAT Registration Form); Application letter addressed to the office of the Tax Controller, Federal Inland Revenue Service; Certificate of Incorporation; Memorandum and Articles of Association; and Forms CAC 2 (Allotment of Shares) and CAC 7 (Particulars of Directors).

 

BUSINESS IMMIGRATION COMPLIANCE
Regulatory Approvals
Must be obtained from the Ministry of Interior before companies with foreign participation are allowed to conduct business in Nigeria (Expatriate Quota & Business Permit)

Expatriate Quota
Must be renewed before due date of expiry and it is mandatory for expatriate quota monthly returns to be filed on a monthly basis.

Work Permit
Must be obtained for expatriate employee to properly have them authorized. The appropriate work permit are TWP (2 months) for short term work and CERPAC for long term assignment (1 year) and ECOWAS card for Nationals of West African countries.

Deletion Approval
Expat employees that have concluded their assignment in-country must be released from the quota position by the Nigeria Immigration Service.

 

EMPLOYMENT AND LABOUR COMPLIANCE
Employment Contracts
Should advisably be in writing and their terms may be express. It must be issued not later than three months after the beginning of an employee’s employment, the employer must give the employee a written statement specifying: the name of the employer (or group of employers) and, where appropriate, of the undertaking where the employee is employed; the name and address of the employee and the place and date of his or her engagement; the nature of the employment; if the contract is for a fixed term, the date when the contract expires; the period of notice to be given for termination of the contract, the wage rate and method of calculation, and the manner and frequency of payment of wages; any terms and conditions relating to hours of work, holiday and holiday pay, and incapacity for work due to  sickness or injury, including any provisions for sick pay; and any special conditions of the contract.

Maternity and Pregnancy Rights
Female employees are entitled to take up to 12 weeks of maternity leave.

Trade Unions and Recognition
The Constitution provides for freedom of association, including the right of people to form or belong to any trade union or other association for the protection of their interests. There are certain exceptions to this right. Members of the armed forces and police are prohibited from forming or joining trade unions, as are employees of the prison and customs services and of certain other government organisations. Managerial staff exercising executive authority may not join or hold office in a trade union if this will lead to a conflict of loyalties towards either the union or the
employer. Minors under the age of 16 may not join a trade union.

Pension Funds
Must be remitted on a monthly basis to the pension fund administrator of choice.

TRADEMARKS COPYRIGHT, PATENT COMPLIANCE
Trademarks Compliance Steps
Trademark registration process is in four stages, which are set out hereunder:

• Official Acknowledgement of Application
• Examination of Application
• Advertisement in the Trademarks Journal
• Payment of Sealing Fees to obtain Registration Certificates

 

Copyright Compliance Steps
Copyright types of works that is eligible for copyright as follows:

• literary works;
• musical works;
• artistic works;
• cinematographic films;
• sound recordings; and
• Broadcasts.

There is no system of copyright registration in Nigeria. What operates is a notification scheme whereby the author is expected to duly complete the notification form, submit two copies of the work and pay the prescribed fees. Thereafter, the application will be processed and notification of the work will be issued accordingly.

Patent Compliance Steps

• If the applicant’s address is outside Nigeria, an address for service in Nigeria shall be included.
• A description of the relevant invention with appropriate plans and drawings. The description should describe the invention in a manner sufficiently clear and complete for the invention to be put in effect by a person skilled in the art or field of knowledge to which the invention relates.
• Power of Attorney (where application is made by an agent)
• Where the applicant seeks foreign priority in respect of an application made in a country other than in Nigeria (i.e. a convention application), then such application must include; – date and number of earlier application – country in which earlier application was made – name of person who made the earlier application
• If the inventor is not an employee of the applicant, then a Deed of Assignment is necessary to assign all patent rights to the applicant. An applicant should within 3 (three) months of making an application for foreign priority furnish the Registrar with a copy of the earlier application certified by the Industrial Property office or its equivalent of the country where the earlier application was made. The Registrar shall grant the application after proper examining and finding same to be in conformity with the law. After the grant, the Registrar is  required to enter the particulars of the grant in a Registrar of Patents. He is also required to cause a notification of the grant to be published in the Federal Gazette.

INVESTIGATIONS & WHITE COLLAR CRIMES NOTES
The Nigerian Police, Independent Corrupt Practices Commission (ICPC) and the Economic and Financial Crimes Commission (EFCC) prosecute business crimes by addressing the risks  associated with fraud and corruption, including crimes against the company, bribery and kickback schemes, and financial reporting fraud.

Insider Trading
Under the Investment and Securities Act and Companies and Allied Matters Act, it is unlawful for any person who is an insider of a company to buy or sell or otherwise deal in securities of the company which are offered to the public for sale or subscription if he has information which he knows is unpublished, price-sensitive information
in relation to those securities.

Bribery of Government Officials
Under the ICPC Act, it is unlawful for any person to offer to any public officer, or being a public officer to solicit, counsel or accept any gratification as an inducement or a reward.

Government-Contracting Fraud
Under the ICPC Act, it is unlawful for any person who, without lawful authority or reasonable excuse, offers an advantage to a public servant as an inducement to, or reward for, or otherwise on account of such public servant’s giving assistance or using influence in, or having given the promotion, execution, or procuring of any contract with a public body for the performance of any work, the providing of any service, the doing of anything or the supplying of any article, material or substance.

Money Laundering
Under the Money Laundering (Prohibition) Act, it is unlawful to collaborate in concealing the genuine nature or ownership of resources derived from the illicit traffic in narcotics.

Offences under the Companies and Allied Matters Act (CAMA)

Under CAMA, there are various offences which may lead to criminal offences including: failure to keep proper accounting records; insider trading; and making false statements to auditors or regulatory bodies.
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