Nigeria operates a mixed legal system which is sourced from the received English law, common law, customary law and sharia.
The judicial system is hierarchical in nature and divided between federal and state jurisdictions. The judicial order is also divided between original and appellate jurisdictions with the Supreme Court being the highest court.
Additionally, there are some specialised courts and tribunals that are established by statute for dealing with special matters. For example, the National Industrial Court deals with employment disputes, the Investment and Securities Tribunal deals with capital markets-related issues, and the Tax Appeal Tribunal deals with tax issues. These specialised courts/tribunals have original jurisdiction over the matters assigned to them by law, while appeals from the courts/tribunals will follow the hierarchical order provided in the law that set them up.
Nigeria operates an open economy and encourages the inflow of foreign investment by way of foreign direct investment (FDI) and foreign portfolio investment (FPI). Foreigners interested in FDI are required to take up shares in an existing company or register a business with a minimum share capital of NGN10 million. A company with foreign participation is also required to obtain a business registration certificate and business permit from the Nigerian Investment Promotion Commission (NIPC) and the Federal Ministry of Interior, respectively.
Although the Nigerian economy is open to foreign investment, foreigners are restricted from investing in the items on the negative list. These are:
Additionally, there are some Nigerian laws that restrict and limit the capacity of foreigners to invest in some sectors in Nigeria. These apply to the following sectors.
Generally, obtaining approvals from the necessary regulatory governmental bodies is done after incorporating a company. The two major post-incorporation permits required are the business registration certificate from the NIPC and a business permit from the Federal Ministry of Interior.
The process for the registrations involves completing application forms and payment of application fees. Copies of incorporation documents, tax clearance certificate and other documents will be required for the process. The business registration with the NIPC is usually completed within 48 hours or less while the business permit from the Federal Ministry of Interior may take between three to eight weeks (or longer) to process.
Section 78(2) of the Companies and Allied Matters Act invalidates any act of non-compliance with the requirement of registration of a company by a foreign investor. Section 79 of the Companies and Allied Matters Act criminalises non-compliance by foreign entities, such that where an unregistered foreign company carries on business without applying for an exemption from registration requirements, that company, its officers and agents are liable to prosecution and upon conviction, liable to the payment of a penalty as may be prescribed by the Corporate Affairs Commission in the regulations. Where the offence is a continuing one, the company and every officer or agent of the company are liable to a further penalty, as the Commission shall specify by regulation, for every day during which the default continues.
It is expected that a foreign investor will import the capital for their investment into Nigeria as a form of commitment. Thus, one of the documents required for approval of a business permit application is a copy of the company’s Certificate of Capital Importation (CCI). The CCI is usually issued by a commercial bank upon receipt of the capital of a foreign investor.
Except for items on the negative list (see 2.1 Approval of Foreign Investments), and subject to meeting the requirements for post-incorporation approvals, foreign investments are usually granted permits and approvals by the relevant authorities. There are no known cases of non-authorisation of a legitimate investor.
The most common types of corporate vehicles are limited liability companies. This could be a private company limited by shares or a public limited company. A limited liability company is one whose members’ liabilities are limited to the amount of unpaid shares held by them in the event of the company’s winding up.
A single person can form a private company and the membership of a private company shall not exceed 50 persons except for former or current employees of the company. The prescribed minimum issued share capital for a private company is NGN100,000. A public company has a minimum membership of 50 persons and has no maximum limit. The minimum issued share capital of a public company is NGN2 million.
A private company is suitable for establishing joint ventures, special purpose vehicles and subsidiaries of foreign entities. A public company is suitable for raising capital from the public through sale of its shares on the stock market.
The first step in incorporating a company is to check for the availability of the proposed name and reserve the name. This is typically completed within 24 hours, except where the proposed name is not available. Thereafter, the pre-incorporation form is completed on the company registration portal of the Corporate Affairs Commission (CAC), and relevant documents including resolutions of the proposed shareholders are uploaded. Subsequently, the filing fee and stamp duty is paid online; this can be completed in a few hours after which the documents will be approved, and the company incorporated. Following this, the certificate of incorporation and certified true copies of the memorandum and articles of association can be downloaded from the portal. The incorporation process can be completed within a day or more depending on the ability of the company to provide the necessary information and documents as well as the seamless operation of the CAC’s company registration portal.
The law requires that the decisions of a private company – in respect of (i) a change of name or address, (ii) an alteration of the memorandum or articles of association, (iii) a removal or appointment of directors, (iv) an allotment or transfer of shares, (v) an increase or decrease in share capital, (vi) charges, and (vii) the appointment of a secretary – be filed with the CAC. Additionally, (i) all private companies are required to file their annual returns at the CAC, and (ii) every person who gains significant control over a company is required to inform the company, which shall then notify the CAC for entry into the register of persons with significant control maintained by the CAC. These requirements also apply to public companies except as they relate to the transfer of shares, since the stocks of a public company are freely traded on the stock exchange or over-the–counter markets.
The management structure for public and private limited liability companies is one-tier in nature. This implies that the board of directors performs both management and supervisory functions.
The law puts directors in the position of trustees for their companies; therefore, the primary duty of a director is the fiduciary duty and the exercise of due care, skill and diligence in the discharge of these duties. Thus, an obligation is placed on directors to act in utmost good faith in their dealings with the company. This includes the duty not to place themselves in a position where there is conflict of interest between their duties and their personal interests. Directors are also obliged to attend meetings and not to fetter their discretion to vote in a particular way. This means that directors must disclose their personal interests to the company at every point in time. Failure to abide by these obligations would be a reasonable ground for an action in negligence and breach of fiduciary duty to lie against directors.
Furthermore, the law also allows the piercing of the corporate veil in order to identify the members and directors of a company in the event that a crime is committed by that company.
The primary law which governs employment relationships in Nigeria is the Labour Act (Chapter L1, Laws of the Federation of Nigeria 2004). The Act is, however, limited in scope as it applies only to workers (ie, persons who perform manual and clerical roles).
Conversely, the Labour Act does not apply to non-workers (ie, persons who perform executive, administrative, technical and professional roles). Rather, their relationship with their employers is governed by the terms of an employment contract, the law of contract and any applicable collective bargaining agreement.
Although the Labour Act acknowledges that employment contracts may be oral or written, express or implied, it mandates employers to issue employment contracts to their workers no later than three months after the beginning of the employment relationship.
The employment contract is required to state the following.
There is no statutory requirement in relation to the issuance, form and content of the employment contracts of non-workers. However, in practice, the employment contracts are usually written.
For workers, the Labour Act provides that the hours of work shall be fixed by mutual agreement of the parties, collective bargaining within the organisation or industry concerned, or an industrial wages board. Where workers are required to work for six hours or more in a day, they are to be granted rest-intervals of not less than one hour in total.
In every period of seven days, a worker is to be given one day of rest that must not be less than 24 consecutive hours, and if the rest period is reduced for any reason, the worker is to be granted corresponding time-off from work not later than 14 days thereafter or be paid wages in lieu at overtime rates.
In addition, although the Labour Act stipulates that any hour which a worker is required to work in excess of the agreed normal hours will constitute overtime, it does not make provision for the rate at which wages for overtime hours are to be paid. This will, therefore, be subject to agreement by an employer and employee.
With respect to non-workers, the working time and overtime hours will be as agreed by the parties and stipulated in an employment contract or collective bargaining agreement.
An employment contract may be terminated by either an employer or employee upon giving the required length of notice or making payment in lieu of such notice and complying with all other applicable requirements provided for in an employment contract. However, in certain sectors, the consent of a regulator should be obtained before an employer can terminate any employment contract.
In respect of workers, where there is no specific notice period stated in the employment contract or collective bargaining agreement, the following minimum notice periods as set out in the Labour Act will apply:
For non-workers in the same position, the courts have held that reasonable notice (which in many cases is a notice of at least one month) should be given.
Failure by an employer to comply with the notice and termination obligations provided by contract or the law could potentially lead to a suit against it for wrongful termination or penalties being imposed by regulators. If the courts decide in favour of the employees, a probable outcome could be that the employer would be required to pay damages to the employees.
Redundancy is defined under the Labour Act as an involuntary and permanent loss of employment caused by an excess of manpower.
In carrying out a redundancy exercise in respect of workers, an employer is required to:
Although the above requirements only apply to workers, they can be used by employers as a guide when carrying out redundancy exercises in respect of non-workers, subject to the provisions of an employment contract or any applicable collective bargaining agreement.
Failure by an employer to comply with the requirements for carrying out a redundancy exercise could potentially lead to a suit against it for wrongful termination or penalties being imposed by regulators. If the courts decide in favour of the employees, the probable outcome would be that the employer would be required to pay damages to the employees.
Unless stipulated under an employment contract or collective bargaining agreement, there is no requirement for employees to be represented, informed or consulted by management.
Personal Income Tax
Generally, an employee is considered tax resident in Nigeria where the employer is in Nigeria or has a fixed base in Nigeria, or where the duties of that employment are wholly or partly performed in Nigeria, unless:
Employees are allowed a consolidated relief allowance of either NGN200,000 or 1% of gross income, whichever is higher, plus 20% of gross income. The balance of the income after all deductions will be taxed in accordance with the graduated tax scale rates set out below:
Every employer is obliged to withhold and remit its employees’ personal income tax to the authority of the state(s) in which such employees are resident under the Pay As You Earn (PAYE) scheme.
Social Security Contributions
An employer with more than 15 employees is required to contribute a minimum of 10% of the monthly emolument of each employee to the retirement savings account of each employee. Employees are required to contribute a minimum 8% of their monthly emoluments to be deducted by their employers.
Employers are required to contribute 1% of the total monthly payroll to the Nigeria Social Insurance Trust Fund for purposes of the Employee's Compensation Scheme, which compensates employees (or their dependents) in the event of injury, disability or death.
Employers in industry or commerce are required to contribute 1% of their annual payroll to the Industrial Training Fund for the purpose of providing industrial training to employees.
An employer is required to maintain a group life insurance policy in favour of its employees for a minimum of three times the annual total emolument of its employees.
Companies Income Tax (CIT)
CIT is imposed on the profits of any company accruing in, derived from, brought into, or received in Nigeria in respect of a trade or business.
Companies incorporated in Nigeria are liable to CIT on their worldwide income.
A non-Nigerian company would be liable for CIT if it:
In exercise of her statutory powers, the Minister of Finance issued an order specifying when foreign companies would be deemed to have "significant economic presence" in Nigeria. Under the order, a foreign company that has a Nigerian domain name, registers a website in Nigeria, or has a turnover of NGN25 million (approximately USD64,000) from the provision of all forms of digital services to Nigerian residents would be deemed to have "significant economic presence" in Nigeria.
Under the order, foreign companies receiving payment from a Nigerian resident or a permanent establishment for the provision of technical, managerial, consultancy or professional services would be deemed to have "significant economic presence" in Nigeria. Such payment would be liable to a final WHT of 10%.
The CIT rate is 30%. However, small businesses with a turnover of less than NGN25 million are exempt from paying CIT, whilst medium-sized companies with a turnover between NGN25 million and NGN100 million pay CIT at a reduced rate of 20%.
There is also a tertiary education tax of 2% on the same tax base as CIT.
Petroleum Profits Tax (PPT)
Companies engaged in crude oil exploration and production pay PPT at rates that vary between 50% and 85% (depending on the nature of operations).
Notable taxes and levies
An information technology tax of 1% of profits before tax is payable by specified companies with a turnover of NGN100 million and above. The tax, when paid, is deductible for the company’s income tax purposes.
A levy of 0.005% of the net profit of a company is payable annually to the Nigeria Police Trust Fund.
An oil and gas company is required to pay 3% of its annual budget to the Niger Delta Development Commission for tackling ecological problems in the Niger Delta, where most of Nigeria’s oil is produced.
Withholding Tax (WHT)
Withholding tax (WHT) of 10% applies to payment of passive income (interest, dividends, royalties, and rents). Where a dividend is paid to a Nigerian company, the amount deducted as withholding tax is treated as franked investment income and is not subject to further tax in the hands of the recipient.
The WHT on payment of passive incomes to a non-Nigerian company is treated as the final tax and the rate is reduced to 7.5% where the recipient is a resident of a country with which Nigeria has signed a double tax treaty.
WHT of 10% applies to payment of technical, managerial, consultancy, or professional services rendered by companies. The WHT is the final tax when the services are rendered by a non-resident company.
Value Added Tax (VAT)
VAT is levied on the supply of all goods and services supplied to a person resident in Nigeria at the rate of 7.5%. VAT is collected by the supplier except where the supplier is a foreign company, in which case the Nigerian-resident beneficiary is required to remit the VAT directly to the Federal Inland Revenue Service (FIRS). Oil and gas companies (including oil service companies), ministries, departments, and agencies of governments are also required to pay the VAT on the invoices from their suppliers directly to the FIRS.
Capital Gains Tax
Capital gains tax of 10% is payable on chargeable gains arising from the disposal of chargeable assets.
Stamp duty is paid on instruments executed in Nigeria or relating to any property situated, or to any matter or thing done or to be done, in Nigeria. The stamp duty rates differ for various instruments and can be as high as 6% of the value of the underlying transaction.
Owners of real properties are subject to such rates, and levies as may be imposed by the states in which the properties are situated. For instance, in Lagos State, landowners are required to pay a land use charge which is calculated as a percentage of the assessed value of a land.
In many states, the holder of an interest in land is required to register that interest and registration fees may be as high as 6%.
Gains arising on the disposal of Nigerian government securities or shares of companies are exempt from capital gains tax.
There is a 20% tax credit for expenditure on R&D, in addition to capital allowance (up to 95% in the first year), in lieu of depreciation.
Foreign-earned passive income brought into Nigeria through any of the commercial banks is exempt from CIT.
Income from bonds issued by sovereign or sub-sovereign entities, and those of corporate bodies, are exempt from CIT in the hands of bondholders. The exemption for corporate bonds will lapse in 2022.
Interest on long-term foreign loans with repayment periods above seven years (with a two-year grace period), those with repayment periods between five to seven years (with not less than 18 months’ grace period), and those with repayment periods between two to four years (with not less than 12 months’ grace period), respectively, enjoy CIT exemption of 70%, 40%, and 10%.
Venture capital companies that invest in venture capital projects and provide at least 25% of the total project cost enjoy a 50% WHT reduction on dividends received from project companies and capital allowance on their equity investments in venture project companies, as well as tax exemption on gains arising from the disposal of such equity.
Companies engaged in crude oil production enjoy an investment tax credit (ITC) or an investment tax allowance (ITA) of between 5% and 50% of their qualifying expenditure. The ITC operates as a full tax credit and does not result in a deduction from qualifying capital expenditure for the purposes of calculating capital allowances. The ITA is deductible from profits in arriving at taxable profits.
A company engaged in a “pioneer industry” or in the production of a “pioneer product” (as designated by the government of the day) may apply for a “pioneer status” which, when granted, entitles it to:
Approved enterprises operating within a free trade zone are exempt from all federal, state and local government taxes, levies and rates.
Nigerian law does not permit consolidated tax grouping; each company within a group is, therefore, taxable in Nigeria on an individual basis. Consequently, losses suffered by one member of a group of companies cannot be used to reduce the tax liability of another company within the group, but can be carried forward and set off against the future profits of the company that incurred them.
Existing anti-avoidance provisions allow the Nigerian tax authority to disallow/reduce interest charged between related parties, where that interest is not reflective of the arm’s length principle.
Furthermore, the tax deductibility of interest expenses on a foreign-party loan is limited to 30% of EBITDA in any given tax year and deductible interest expenses not fully utilised can be carried forward for a maximum of five years.
The arm’s length standards in the transfer pricing standards and guidelines issued by the OECD and the UN apply in Nigeria unless they conflict with the domestic transfer pricing legislation.
There are anti-avoidance provisions in the various tax laws that empower the tax authorities to make necessary adjustments to counteract any reduction to tax that would result from transactions that are considered artificial.
There is legislation that empowers the tax authorities to tax the undistributed profits of a Nigerian company where that company is controlled by five persons or fewer.
Pursuant to the Federal Competition and Consumer Protection Act 2018 (the FCCPA), any merger or acquisition that results in a change of control of a business in Nigeria will come under the regulatory purview of the Federal Competition and Consumer Protection Commission (FCCPC).
The provisions of the FCCPA apply to all undertakings and all commercial activities within, or having effect within, Nigeria. They also apply to conduct outside Nigeria by any person in relation to the acquisition of shares or other assets outside Nigeria resulting in the change of control of a business, part of a business or any asset of a business, in Nigeria. In essence, any foreign-to-foreign merger that results in a change of control of a Nigerian business will come under the FCCPC’s regulatory purview.
A merger occurs where there is direct or indirect control over the whole or part of the business of another undertaking. It may be achieved through:
Mergers are categorised into small and large mergers.
The FCCPC must be notified of a merger before implementation, if, in the financial year preceding the merger:
It is presumed that a merger with an annual turnover below the threshold will constitute a small merger and those above the threshold would constitute a large merger.
A transaction classified as a small merger may be implemented without notifying the FCCPC. However, where the FCCPC is of the opinion that a small merger may substantially prevent or lessen competition, it may, within six months after the implementation of that merger, require that the parties notify it of the merger. Parties to a small merger may also voluntarily notify the FCCPC of the merger at any time.
Where the FCCPC determines that a small merger is to be notified to it, the notification is to be published within five business days after receipt by the FCCPC. The parties are to take no further steps to implement the merger until it has been approved by the FCCPC. The FCCPC is to make its decision within 20 business days of the parties fulfilling the notification requirement or extend the time that it will consider the merger by a single period not exceeding 40 business days and issue an extension notice to the notifying party.
With regard to a large merger, the FCCPC is required to respond within 60 days after the parties to the large merger have fulfilled the notification requirements. The parties shall not implement the merger until it has been approved the FCCPC. The FCCPC may extend the period in which it has to consider the proposed merger to 120 business days and issue an extension notice to all parties to the merger.
Where the FCCPC fails to issue a report regarding its consideration of the merger within the prescribed periods (including any extension period where an extension notice is issued), the merger shall be deemed approved. However, the FCCPC is empowered to revoke this approval.
For eligible transactions, the FCCPC may permit parties to apply under an expedited procedure which will reduce the applicable timelines by up to 40%.
The applicable legislation is the FCCPA. The FCCPA prohibits restrictive agreements, which are defined as any agreement among undertakings or a decision of an association of undertakings that has the purpose (or actual or likely effect) of preventing, restricting or distorting competition in any market. However, there is an exemption to the above; namely where the agreements are authorised by the FCCPC.
In addition, an undertaking is prohibited from requesting another undertaking to refuse to sell or purchase any goods or services with the intention of harming certain undertakings. Moreover, the FCCPA prohibits the unlawful withholding of products from a dealer. An undertaking will be treated as withholding goods or services from a dealer if:
The FCCPA prohibits any term or condition of an agreement for the sale of any goods or services to the extent that it purports to establish minimum prices to be charged on the resale of the goods or services in Nigeria.
The FCCPA prohibits actions that constitute an abuse of dominant position. An undertaking will generally be considered to be in a dominant position if it is able to act without taking account of the reaction of its customers, consumers or competitors.
The factors that are taken into account in assessing market dominance include:
Abuse of a Dominant Position
The FCCPA expressly provides that the following acts will constitute an abuse of a dominant position.
In addition to abuses specifically provided, it is also implied that "exclusive dealings", as defined in the FCCPA, will constitute an abuse of a dominant position, unless it is carried on between affiliated or interconnected undertakings.
Inventions are patentable in Nigeria if they are new, result from inventive activity and are capable of industrial application; or if they constitute a new improvement on an already patented invention.
An invention is considered new if it does not form part of the state of the art (ie, the field of knowledge relating to the invention which has been made available to the public before the date of filing a patent application). An invention is deemed to result from inventive activity if it does not obviously follow from the state of the art and is deemed capable of industrial application if it can be manufactured or used in any kind of industry, including agriculture.
A patent cannot be obtained in respect of plant or animal varieties, essentially biological processes for the production of plants or animals, or any invention whose publication or exploitation would be contrary to public order or morality.
The right to patent an invention is vested in the first person to file a patent application in Nigeria or validly claim priority to a foreign application, whether or not they are the true inventor. The true inventor must, however, be named in the patent, even if they are not the person applying for the patent.
An application for a patent is to be made to the Registrar of Patents and accompanied by a description of the relevant invention with any appropriate plans and drawings. The application process typically takes about 12 months.
There is no substantive examination of patents by the Registrar before a grant is made in respect of an invention. As such, patents are granted at the risk of the patentees and without a guarantee of their validity. A patent, when granted, is valid for a period of 20 years from the date of filing, subject to the payment of the prescribed annual fees.
A patent gives the patentee the exclusive right to exploit their invention. The patentee’s rights under a patent, however, extend only to acts done for industrial or commercial purposes. A patentee whose rights have been infringed may institute a civil action against the infringer and claim reliefs such as damages, injunction and account of profits.
A trade mark is a device, brand, heading, label, ticket, name, signature, word, letter, numeral, or any combination thereof. Marks that are deceptive, scandalous, generic, descriptive, geographical names in their ordinary signification, or the commonly used and accepted names of chemical substances cannot be registered as trade marks in Nigeria.
Nigeria is a first-to-file jurisdiction. Therefore, for a mark to enjoy statutory protection, it must be registered in Nigeria. An application to register a trade mark is to be made to the Registrar of Trade Marks and must contain the specification of goods/services in relation to which the trade mark is to be used. It is not acceptable to simply make a statement that the application is to cover all the goods/services in any particular class.
The Registrar, on receipt of an application, will issue a letter of acknowledgement containing all relevant filing details of the trade mark application (eg, temporary number, date of application, the trade mark, etc). The Registrar, thereafter, examines the trade mark for distinctiveness, similarity with existing registered trade marks and general compliance with the requirements of the law.
Where the Registrar is satisfied, they will issue a Notification of Acceptance for the mark to be advertised in the Trademarks Journal for opposition purposes. Otherwise, the mark is refused and a Letter of Refusal is issued stating the reason(s) for the refusal. An applicant, through its local agent, may appeal a refusal within two months, otherwise the application will be deemed abandoned.
When a trade mark is advertised in a Trademarks Journal, any person may, within two months from the date of the publication, give notice to the Registrar of their opposition to the registration of the mark. Where no opposition is received at the expiration of the opposition period, or where the opposition is determined and resolved in favour of the applicant, the Registrar will issue a certificate of registration upon payment of the prescribed fee.
Currently, the registration process may take up to three years. A trade mark is registered for an initial period of seven years but can be renewed for further periods of 14 years.
The registration of a person as the proprietor of a trade mark in respect of any goods or services gives that person the exclusive right to the use of that trade mark in relation to those goods or services. A proprietor whose trade mark rights have been infringed may institute a civil action against the infringer and claim reliefs such as damages, injunction and account of profits.
An industrial design refers to any combination of lines or colours or both – and any three-dimensional form, whether or not associated with colour – if it is intended by the creator to be used as a model or pattern to be multiplied by an industrial process, and is not intended solely to obtain a technical result.
An industrial design can be registered in Nigeria if it is new and is not contrary to public order or morality. An industrial design will not be considered new if, before the date of application for registration, it has been made available to the public unless the creator of the design can prove that they had no knowledge that it had been made so available.
The right to registration of an industrial design is vested in the person who, whether or not they are the true creator, is the first to file, or validly to claim a foreign priority for, or an application for registration of, the design. The true creator is, however, entitled to be named in the application.
An application to register an industrial design is to be made to the Registrar of Patents and Designs and accompanied by a specimen of the design or a photographic or graphic representation of the design and an indication of the kind of product for which the design will be used.
The registration of an industrial design is effective in the first instance for five years from the date of the application for registration and can be renewed for two further consecutive five-year periods, each upon payment of the prescribed fees.
The registration of an industrial design gives the creator the exclusive right to exploit their design. The creator’s rights, however, extend only to acts done for industrial or commercial purposes. A creator whose rights have been infringed may institute a civil action against the infringer and claim reliefs such as damages, injunction and account of profits.
Under Nigerian law, musical, literary and artistic works, cinematograph films, sound recordings and broadcasts enjoy copyright protection. A work is, however, not eligible for copyright unless sufficient effort has been expended to give it an original character and it is fixed in a definite medium of expression.
The law does not provide for the registration of copyright as it arises automatically upon the creation of a work. However, in fulfilling its mandate of creating a databank of authors and their works, the Nigerian Copyright Commission (NCC) has established a voluntary notification process by which authors can notify the NCC of their works.
Copyright in literary, artistic and musical works lasts for 70 years from the date of the author's death. Copyright in films and photographs subsists for 50 years from the date of the first publication of the work while copyright in sound recordings and broadcasts subsists for 50 years from the date of the making of the first recording or the broadcast.
Copyright gives the owner of the eligible work the exclusive right to exploit that work. Where the right of a copyright owner is infringed, they may institute a civil action against the infringer and claim reliefs such as damages, injunction and account of profits. In addition, it is an offence under the law for persons to deal with infringing works and such persons may, if found guilty, be liable to a fine or imprisonment.
Software (referred to as computer programs under Nigerian law) and neighbouring rights (covering performers’ rights and expressions of folklore) are protected as copyright in Nigeria.
Trade secrets are, however, not statutorily protected in Nigeria.
The main regulation applicable to data protection is the Nigeria Data Protection Regulation (NDPR) issued by the National Information Technology Development Agency (NITDA) on 15 January 2019.
Furthermore, NITDA developed the Nigerian Data Protection Regulation – Implementation Framework (Framework), which is a guide that assists data controllers and processers to understand the controls and measures that they need to introduce into their operations in order to comply with the NDPR.
The NDPR is applicable to the processing of data of Nigerians and non-Nigerian residents. However, the NDPR does not apply to:
The legal basis for processing the data must also be established.
Therefore, companies targeting customers in Nigeria must ensure compliance with the NDPR.
NITDA is responsible for the enforcement of data protection rules in Nigeria.
NITDA is a statutory body responsible for the development of regulations for electronic governance, monitoring of the use of electronic data interchange and other forms of electronic communication transactions in government, commerce, education, the private and public sectors, labour, and other fields where the use of electronic communication may improve the exchange of data and information. Further to its powers, NITDA issued the NDPR to safeguard, regulate and protect personal information.
There are no major reforms expected in the near future in Nigeria.
Foreign Investment in Nigeria
The Nigerian Investment Promotion Commission (NIPC)
The NIPC was established by the Nigerian Investment Promotion Commission Act of 1995, which encourages and promotes investment in the Nigerian economy. The NIPC ensures that foreign investments are done with ease by offering relevant information and guidelines. It registers any enterprise with foreign participation.
One-Stop Investment Centre (OSIC)
OSIC is co-ordinated by the NIPC. It brings together relevant government agencies to provide fast-tracked services to investors. OSIC aims to simplify business entry processes by removing administrative and regulatory bottlenecks in business.
Specifically, OSIC provides the following services:
Establishing Business Presence in Nigeria
Formation of companies
The Companies and Allied Matters Act, 2020 (CAMA) established the Corporate Affairs Commission (CAC) as Nigeria’s companies’ registry.
Incorporation of foreign companies
Foreigners may invest and participate in the operation of any enterprise in Nigeria except enterprises that deal with the production of arms, ammunition, production of and dealing in narcotics and psychotropic substances.
For a foreign company to carry on business in Nigeria, the law requires that such a company must first obtain incorporation as a separate entity in Nigeria for that purpose. Until it is registered, such a company is not permitted to have a place of business or have an address for services of document or processes unless for purposes preliminary to incorporation.
Under CAMA, it is an offence for a foreign company to do business in Nigeria without being registered as a Nigerian company. The contracts of such a company may be voided and its officers may be personally prosecuted. CAMA makes it possible for certain foreign entities to be exempted from registering a local entity, but this must be approved by the Minister of Trade.
An exempted foreign company has the status of an unregistered company, and the provisions of CAMA applicable to an unregistered company shall apply in relation to such an exempted company.
It is an offence for any person to make a false statement, or present an instrument which is false, for the purpose of obtaining an exemption, or of complying with the requirements for the application for exemption, unless he or she proves that he or she has taken all reasonable steps to ascertain the truth of the statement made or contained in the instrument so presented.
An offender is liable on conviction to a fine or imprisonment as the court deems fit.
Types of Businesses
There are generally four types of companies recognised for business in Nigeria, namely:
The following are exempted from registration at the CAC:
A limited liability company may either be a private or a public limited liability company.
A public limited liability company is required by law to have:
A private limited liability company:
The company limited by guarantee is not for business purposes, because sharing of profit is not permitted. It is purely for charitable or other related purposes.
The documents required for incorporation are enumerated in the Companies and Allied Matters Act.
Upon registration, the company is given a Certificate of Incorporation as evidence of registration. When the foreign company has successfully registered with the CAC as a distinct entity, the locally incorporated company must then be registered with the Nigerian Investment Promotion Commission (NIPC) for a business permit and other necessary permits and licences.
Guarantees against expropriation or nationalisation
There are constitutional and treaty guarantees against the nationalisation or expropriation of foreign investments. No person who owns – whether wholly, or in part – the capital of any enterprise shall be compelled by law to surrender his or her interest in the capital to any person.
Joint Venture Participation
Nigerians and non-Nigerians may join in the formation of a company. Parties may enter into a joint venture agreement or shareholders agreement (outlining the purpose of the venture and terms of the relationship), and incorporate the company, thereafter registering with the Nigerian Investment Promotion Commission. An application to the Securities and Exchange Commission for registration of securities should be made. Although pre-incorporation agreements may be binding if ratified, they are binding between the parties to the contract, even if not incorporated in the constitution of the company.
Exchange Control Regulation
Nigeria has rules regulating the repatriation of capital, profit, dividends on investments, technical fees and royalties on imported technical services and technologies. Repatriation of proceeds from disposal of assets is allowed in the Autonomous Foreign Exchange Market.
Foreign Exchange (Monitoring and Miscellaneous Provision) Act, 1995
This Act established the Autonomous Foreign Exchange Market and provides for the monitoring and supervision of the transactions conducted therewith. It is responsible for the regulation of importation investment funds and repatriation of dividends, profits and capital and prescribes the various monetary instruments to be used.
The Act removes restrictions that were hitherto placed on foreign investments and allows:
The Nigerian financial system
The Nigerian financial system comprises the regulatory/supervisory authorities, banks and other financial institutions. These include:
There are several commercial and merchant banks in the country providing fast and efficient financial services to their customers. These are regulated by the Banks and other Financial Institutions Act, 1991.
National Office for Technology Acquisition and Promotion (NOTAP)
NOTAP was established by the National Office for Technology Acquisition and Promotion Act, 1979. NOTAP administers the registration of all contracts or agreements having effect in Nigeria for the transfer of foreign technology to Nigerian parties, and its intent and purpose is in connection with:
The Central Bank will not approve the transfer of royalties or technical fees from Nigeria by any financial authorities in Nigeria to any person outside Nigeria, for the contract listed above, without a certificate of registration issued by NOTAP.
Quality and Standard Control Regulation
National Agency for Food and Drug Administration and Control (NAFDAC)
Established by the National Agency for Food and Drug Administration and Control Act, 1993, NAFDAC regulates the importation, exportation, manufacture, advertisement, distribution, sale and use of food, drugs, cosmetics, medical devices, bottled water and chemicals.
Standards Organization of Nigeria (SON)
SON was established by the Standards Organization of Nigeria Act, 1970. SON ensures that substandard and unwholesome goods are not produced or imported into the country.
National Film and Video Censors Board (NFVCB)
Established by the National Film and Video Censors Board Act, 1993, the NFVCB censors and regulates all films and video works, produced, imported and distributed in Nigeria and licenses premises where these video works are exhibited to the public.
Immigration Act, 2015
The Immigration Act regulates the entry and exit of people in Nigeria. Generally, any person who enters or leaves Nigeria by any means or from any of the recognised ports is required to possess valid travel documents – that is, a visa or entry permit as well as a valid passport.
Visa application methods include:
Where there is no diplomatic mission in the country of the applicant, an application for a visa may be made to the government of that country if there is an agreement with the government of Nigeria to that effect; where there is none, the application should be made to the diplomatic mission designated by the Minister of External Affairs.
Note that the Minister has the power to make an Order exempting any person or class of person from certain entry to or departure from Nigeria and the law expressly lists certain kinds of persons in the class that may be prohibited.
Work and resident permits
Foreigners cannot reside, work, or participate in any form of business in Nigeria, without an expatriate quota (work permit). The only exception is where the employment is with the federal government.
There are two types of expatriate quota:
Persons desiring to enter Nigeria for purposes of residence beyond three months must obtain a resident permit.
An immigrant is expected to obtain an international certificate of health from his or her home country certifying him or her healthy, as well as having taken the appropriate vaccines. However, upon entry into Nigeria, the medical inspector may – if he or she has cause to suspect the immigrant's state of health – order a medical examination or vaccination. This may be done where the international certificate of health fails to comply with the requirements of the director of immigration.
Two health legislations that regulate entry and movement of people within Nigeria are:
Land in Nigeria is regulated by the Land Use Act 1978. Land in each state of Nigeria vests in the governor of that state in trust for the use and common benefit of the people.
Individuals or corporations seeking to acquire land in Nigeria need to obtain a right of occupancy which usually is for a period of 99 years.
The nature of and ownership of land in Nigeria is that of a leasehold interest. The interest holder is usually given a certificate of occupancy by the governor.
Land is acquired by assignment from a person with a statutory right of occupancy and the law prescribes that the governor’s consent be obtained for such sale to be valid.
A person having a statutory right of occupancy has exclusive right to the land against any other person subject of course to the laws relating to cases where mineral deposits are found on the land.
It is important to note that there is nothing in the law that prevents non-Nigerians, or foreign corporations, from holding land in Nigeria.
Valid lease agreements must be in a deed form, as transfer of interest in land or right to property must be in the form of a deed. The exception is when the lease is for a period less than three years, in this case it is permissible if the agreement is in writing and signed by the parties. A party to a lease agreement can claim damages for breach of the terms agreed upon.
Three main statutes regulate taxation in Nigeria; they are:
Under CITA, every company must, not later than three months from the date from the commencement of each year of assessment, pay provisional tax of an amount equal to the tax paid by such company in the immediate preceding year of assessment in one lump sum.
Exemption from taxation
The laws exempt some companies or organisations from paying tax depending on the objects of the companies or organisations.
This is regulated by the Copyright Act of 1988 and the Amendments of 1992 and 1999. This gives protection to literary, artistic and musical works, sound recordings, cinematograph films and broadcasts. For them to have protection under this Act, the work must be original, that is the work must have emanated from their original ideas.
These are regulated by the Trademarks Act.
Trade marks include a device, brand, label, ticket, name, signature, word, letter, number or any combination of these.
Trade marks, unlike copyright, require registration. This must be done at the Trade Marks Registry. Unregistered marks may be enforced by the common law action of passing off.
Registration is usually for a period of seven years after which application for renewal is made and renewable for 14 years, subsequently.
Where a person’s mark has been infringed, such a person can apply to court to seek enforcement of his rights and the remedies available include: injunction (perpetual or interim); delivery of the mark and articles; damages for loss of profits.
Where a mark is not registered, such a person can only maintain an action in passing off.
Patents, designs and drawings
This is governed by the Patent and Designs Act.
The Patent Registry administers the patent system, which is under the control of the Registrar of Patents and Designs.
For an invention to be patentable:
Industrial design is any combination of lines or colours or both and any three-dimensional form, whether or not associated with colours, intended by the creator to be used as a model or pattern to be multiplied by industrial process.
These are governed by the Plant Variety Protecting Act, 2021, which protects plant varieties and encourages investments in plant breeding and crop variety development. The Act applies to breeders and any plant genera and species.
Oil and Gas
The Nigerian Constitution vests ownership and control of oil found anywhere in the country in the federal government of Nigeria.
Petroleum Act, 1969
The Act provides that only citizens or companies incorporated in Nigeria can validly engage in business in the oil and gas industry, such as oil exploration, drilling, storage, production, refining, and transportation of oil and gas.
Licences granted to companies include:
The Act grants powers to the Minister of Petroleum to grant and revoke a licence.
Nigerian National Petroleum Corporation (NNPC) Act, 2004
The Act established the NNPC and empowers the corporation to participate directly in oil and gas operations and management.
Nigerian Oil and Gas Industry Content Development Act, 2010
The Act established the Nigerian Content Development and Monitoring Board (NCDMB) empowered to promote indigenisation of the nation’s oil and gas sector in respect of all operations.
It defines a Nigerian company as one registered under the Companies and Allied Matters Act, with not less than 51% equity shares owned by Nigerians.
The Act mandates that international oil and gas companies give up to 50% stake in their companies to Nigerian citizens either directly or by outsourcing to local businesses, to encourage Nigerian representation and participation.
Environmental Impact Assessment (EIA) Act, 1992
The Act ensures that natural gas production complies with the environmental impact assessment.
Other regulatory agencies
Other regulatory agencies in the oil and gas sector include: (i) the Department of Petroleum Resources, which is responsible for the regulation of the upstream sector of the oil and gas industry in Nigeria; and (ii) the National Oil Spill Detection and Response Agency (NOSDRA).
Employment and Labour
Labour Act, 1974
The Labour Act regulates labour in Nigeria. It makes provisions relating to wages, contracts of employment and terms and conditions of employment. The law provides that, no later than three months from the beginning of a worker’s employment with his or her employers, he or she is entitled to be given a written statement by his or her employer detailing the name of the employer, the names, address and date of engagement of the worker, the nature of his or her employment and the date when the contract of employment expires (if it is not fixed), as well as the period of notice to be given by either of the parties wishing to terminate the employment.
In respect of the period of notice of termination, though the law stipulates that to be given, the parties are at liberty to agree on the period, which differs from those in the statute.
The Employees Compensation Act, 2010 makes provision for compensation for any death, injury, disease or disability arising out of or in the course of employment.
Pensions are regulated by the Pensions Act.
The Federal Competition and Consumer Protection Act, 2018 established the federal Competition and Consumer Protection Commission which oversees consumer protection and competition-related issues in Nigerian entities.
The Act provides for a legal regime to minimise market distortions across all sectors. It also ensures that fair play is valued and respected. It prohibits unfair business practices that are likely to reduce competition and lead to higher prices, reduced quality or levels of service, or less innovation. It aims to protect consumers and to create trust and confidence in the economy.
The Act also provides for negotiation of agreements and compromise with sector-specific regulators. It also encourages harmonic regulations to resolve any inconsistencies in enforcement.
Broadcasting in Nigeria is a lucrative business owing to the large population of the country. It is governed by the Nigerian Broadcasting Commission Act and National Broadcasting Code.
The Nigerian Broadcasting Commission Act established the Nigerian Broadcasting Commission with the powers, amongst other things, to regulate and license radio and television stations to broadcast within the territory of Nigeria and also regulate the receipt of foreign signals for transmission and broadcasting in the country.
Data protection involves the implementation of administrative, technical or physical measures to guard against unauthorised access to data and to safeguard the individual’s right to privacy.
Three principal legislations regulate data protection and privacy in Nigeria. They are:
The NITDA is the body responsible for creating a framework for the regulation of information technology practices, activities and systems in the country.
Fight against Corruption and Financial Crimes
The fight against corruption, fraud and financial crimes is primarily governed by the following laws:
Dispute resolution methods
There are currently three major methods of dispute resolution in Nigeria, namely:
A large number of commercial disputes are litigated at the states’ and federal High Courts. Labour-related matters are litigated at the National Industrial Court. Appeals from the decisions of these courts lie to the Court of Appeal and further to the Supreme Court.
The federal High Court has exclusive jurisdiction over matters of revenue, company, taxation, customs and excise, banking, aviation and shipping.
A large number of commercial cases are litigated at the state High Court which has unlimited jurisdiction to hear and determine cases other than those within the exclusive list of the federal High Court.
Alternative dispute resolution (ADR) mechanisms are utilised by business associates, investors and legal practitioners. Most contracts today contain ADR clauses or arbitration clauses.
The Arbitration and Conciliation Act is being modified and adopted by states of the federation and there is an increase in institutional and ad hoc, local and international arbitrations, as well as a beehive of activities of institutional arbitration centres in Nigeria and in other countries in Africa.
The courts also refer parties to disputes to the multi-door courthouse attached to the courts of the various states and federal capital territory to explore settlement of their disputes through the ADR mechanisms available at the multi-door courthouse.
Enforcement of judgments and arbitral awards
Enforcement of judgments is governed by the Sheriffs and Civil Process Act 1955, the Foreign Judgments (Reciprocal Enforcement) Act, the Judgment Enforcement Rules and Rules of Courts.
Enforcement of arbitral awards is governed by the Arbitration and Conciliation Act, 1988. The Act empowers the courts to recognise and enforce any arbitral awards in Nigeria, irrespective of the country in which the award was made.
Africa is the next emerging market. Nigeria's potential in terms of the size of the market, the investment opportunities, the incentives and its position in the region suggest that wise investors and businesspeople who consider Africa must plan for Nigeria. Nigeria's legal and regulatory framework constitutes a reasonably fair and conducive environment for investment and trading. Finally, the government has a listening ear and is prepared to effect further changes as may be required.