INTRODUCTION

The most common medium for undertaking a commercial enterprise is through the registration of a limited liability company, which is also known as a corporation in some jurisdictions.

As with any human undertaking, there are risks associated with a registered enterprise; and where these risks are not kept in perspective, managed and or prevented, such registered enterprise risk levels could become too high, with the result the enterprise may be wound up or liquidated.

Some of the most common compliance requirements that any successful enterprise should adhere to, and insurance covers that such enterprise must always retain, are highlighted herein for your guidance and benefit. Grave fines and other penalties are attached to the contravention of any of these provisions.

COMPANIES AND ALLIED MATTERS

It is a mandatory requirement under the Companies and Allied Matters Act (“CAMA”) for every private company to ensure that at all times, it has a minimum of two (2) Directors and two (2) Shareholders; with its number of members/shareholders never exceeding fifty (50) members at any one time.

It is also a mandatory requirement that a private company shall not, unless authorised by law to do so, invite members of the public to subscribe to any of its shares or debentures. A private company is also forbidden from soliciting from the members of the public the deposit of money for fixed periods, whether or not such moneys bear or earn interest.

Where a private company infringes any of the above provisions, such private company, its Directors and Shareholders shall cease to be entitled to the privileges and exemptions that a private company and its members enjoy. Some of such privileges include the separation of the legal existence of the company from its members or Shareholders; the restriction of the liability of its members to only the unpaid portion of the shares allotted to them; etc.

Where however the above contravention or contraventions arose inadvertently or for some other sufficient reasonable cause or ground, a Court of law may on such just and expedient terms relieve the private company from the legal consequences of any such default.

COMPLIANCE TO THE OBJECTS OF A COMPANY

Every company is required at registration, to state among other things its objects, which are the nature or kind or type of business or businesses which the company is authorised to undertake.

Where a company undertakes businesses that are not authorised by its Memorandum of Association, consequences like law suits by its Shareholders or investigations by the Corporate Affairs Commission to redress such unlawful or oppressive action or actions could arise.

STATUTORY MEETINGS – COMPLIANCE AND PENALTIES

Every registered company is required to, within six (6) months of incorporation, for registered public companies, and eighteen (18) months for private companies, hold their first Shareholders Meeting; and subsequent Meetings must be held on an annual basis.

The penalties for not holding the mandatory annual Shareholders Meeting includes fines, which shall be borne by the company and every officer of such defaulting company who is proven to be aware of the default.

ANNUAL RETURNS AND AUDITED ACCOUNTS

Unbeknownst to many, it is the mandatory legal responsibility of the Directors of every registered company to prepare the annual Financial Statements for their company. The Auditors engaged during this process only provide assistance to the Directors with regard to preparing the Statements and Reports.

To be contained in every annual Financial Statement are the Directors’ Report, Auditors Report, Balance Sheet, Income Statement (which is also known as the Profit and Loss Account), among other information.

It is also a mandatory requirement for the Directors to ensure that the Financial Statements are annexed to the statutory Annual Returns which must be filed at the Corporate Affairs Commission.

The failure to prepare the annual Financial Statements, and file them as an annexure to a company’s Annual Returns, attracts fines which are inimical to the sustenance of the defaulting company.

DIRECTORS’ RISKS, DUTIES, CONFLICT OF INTEREST, ETC

There are numerous Corporate Governance provisions, in CAMA, intended by the legislature to minimise some of the Corporate Governance risks that any company may have to bear.
Some of such risks include:-

(i) The prohibition of any tax-free remuneration to the Directors of a company.

(ii) The prohibition of Directors deriving any secret benefits in respect of any transaction that the Director’s company is involved in or such a Director accepting a bribe, gift or commission in the performance of his or her duties.

(iii) The obligation for Directors to disclose any personal interest, and avoid conflict of interest situations while directing the affairs of the company.

FINANCIAL REPORTING COUNCIL OF NIGERIA

The Financial Reporting Council of Nigeria Act, 2011 established the Financial Reporting Council of Nigeria (“F.R.C.N”).

With the objective of protecting investors and retaining public confidence, the F.R.C.N is charged by statute with the responsibilities of, among other things, developing and publishing accounting and financial reporting standards to be observed in the preparation of Financial Statements of public interest entities in Nigeria.

F.R.C.N is further charged to maintain a register of professionals engaged by public interest entities; and no such professional shall render any service to a public interest entity unless registered with F.R.C.N.

Despite the provisions of the F.R.C.N Act not applying to private limited liability companies, it is recommended that private limited liability companies desirous of fortifying their corporate governance practices should familiarise themselves with the F.R.C.N rules, and implement such rules that will grow and protect their businesses.

INTERNATIONAL FINANCIAL REPORTING STANDARDS (“IFRS”)

Nigeria is among many other countries that have adopted the International Financial Reporting Standards (“IFRS”) in place of the old Generally Accepted Accounting Practice (“GAAP”).

From the phased transition schedule, Nigerian publicly listed companies, and other companies with significant public interest are required to convert their Financial Reporting Standards from GAAP to IFRS before 1st January 2012. Small and Medium sized entities are required to effect the Financial Statement conversion by 1st January 2014.

The implication of the above is that all the Financial Statements prepared and submitted to the Federal Inland Revenue Service (“FIRS”) must be prepared in accordance with the IFRS template. This requirement creates the anomaly of the F.R.C.N Law not been applicable to private companies with no public interest whilst the same private companies must comply with the IFRS regulations as supervised by F.R.C.N. Unfortunately, until these Laws are amended or challenged up to the highest Appellate Courts of Law, private companies will remain in the damning compliance dilemma in this area of the Law.

CREDIT BUREAU REGULATIONS

The unabating financial crisis with “predatory debtors” that escalate these crisis especially in the banking industry led the Central Bank of Nigeria (“CBN”) to create a central Credit Risk Management System (“CRMS”), which is more commonly known as a Credit Bureau System.

By the provisions of Sections 33 and 57 of the Central Bank of Nigeria (Establishment) Act, 2007, legal force was provided to the CBN to demand from all licensed Financial Institutions monthly returns on all credits and debits information, with a minimum account opening balance of N1,000,000 (One Million Naira). These returns, according to the CBN website, are compiled and disseminated to all operators and regulators in the Financial Market requiring these information.

Nigerian Banks are now statutorily required to make enquiries from the CRMS regarding any intending borrower so as to determine their eligibility or otherwise for credit.

The CBN is also empowered to licence and regulate private credit bureaux establishments who must also subscribe to the CBN data collection regulations.

Infringement of any of the above provisions attracts penalties.

INSURANCE LEGISLATIONS AND RISK MANAGEMENT

In addition to Corporate Governance minimum compliance requirements, some of which are enumerated above, there are various statutory insurance provisions intended to protect property and persons. Some of these provisions, summaries of which are provided hereunder, are very valuable risk management tools which though are mandatory, we recommend to you as business necessities.

LIFE INSURANCE AND GENERAL INSURANCE POLICIES

The Insurance Act recognises the following categories of insurance businesses:-

A. Fire Insurance

B. General Accident Insurance

C. Motor Vehicle Insurance

D. Marine and Aviation Insurance

E. Oil and Gas Insurance

F. Engineering Insurance

G. Bonds Credit Guarantee and Suretyship Insurance.

H. Life Insurance

I. Miscellaneous Insurance.

All buildings under construction and having more than two floors must be insured with a registered insurer in respect of any construction risk or negligence which may result in bodily injury, or loss of life, or damage to property.

Also, public buildings, whether privately or publicly owned, must be insured with a registered insurer in respect of any loss or damage to property or bodily injury or death suffered by the user of the premises or by third parties to the public building.

It is also a mandatory legal requirement that all goods to be imported into Nigeria must be insured with a Nigerian registered insurer.

All motor vehicles in Nigeria must also have a minimum cover of third-party insurance. This legal requirement applies to the owner of the motor vehicle, whether or not the owner is the driver of the motor vehicle. Further information in this area can be gathered from the Insurance Act and the Motor Vehicles (Third Party) Insurance Act.

OPERATING PERMITS

One of the greatest risks to the existence of any business is for such a business not to be in constant tune with the minimum operating licences required in its industry. Some examples will now be considered.

A non-Nigerian company, whether resident in Nigeria or not, cannot carry on any business in Nigeria unless and until it is incorporated as a Nigerian company, in accordance with the provisions of CAMA. Where a default arises, any contract that such a company enters into will be declared null and void, with the benefits accruing therefrom lost.

A non-resident insurance company cannot carry on insurance business in Nigeria without first of all being incorporated under CAMA; and secondly being registered by the Nigerian National Insurance Commission.

A final example is with regard to the Oil and Gas sector of the Nigerian economy, which presently remains critical to the economic sustenance of the Nigerian Federation. Any business involved in any Oil and Gas enterprise must obtain an operating licence from the Department of Petroleum Resources (“DPR”).

NIGERIAN DEPOSIT INSURANCE CORPORATION ACT

To engender public confidence in the Nigerian Banking system, the Nigerian Deposit Insurance Corporation (“NDIC”) was created and statutorily charged to insure all deposit liabilities of licensed banks and other deposit-taking financial institutions operating in Nigeria. It is therefore mandatory for these licensed financial institutions to insure their deposits with NDIC.

There is however a limit to the amount that a depositor can receive from NDIC in the event that a financial institution’s operating licence is revoked or withdrawn. Presently, the maximum amount for depositors of licensed banks to receive in the event of a liquidation of the financial institution is N500,000; while for other financial institutions, the maximum amount receivable is N200,000.

EMPLOYMENT REGULATORY COMPLIANCES

The manpower capacity of any business is arguably such a business’ greatest asset. Mindful of this reality, there are numerous employee compliance provisions, which if not adhered to, bear financial risks to any defaulting enterprise.

WRITTEN EMPLOYMENT CONTRACTS, ETC

Employment Agreements are generally required to be in writing, with both the employer and the employee given the legal right to terminate the employment Agreement with notice.

Employees are also statutorily entitled to sick and annual paid leave. See the provisions of the Labour Act for more information on these areas.

CONTRIBUTORY PENSION SCHEME AND GROUP LIFE INSURANCE

One of such mandatory employee compliance requirement is as stated in the Pension Reforms Act (as amended), which now requires every employer in Nigeria, whether in the public or in the private sector of the Nigerian economy, having five (5) or more employees, to contribute a minimum of seven and a half per cent (7.5%) of each of its employees’ monthly emolument to this mandatory contributory pension scheme.

Every employee is also required to contribute another minimum of seven and a half per cent (7.5%) of the employees’ monthly emoluments to the contributory pension scheme.

Penalties will accrue where any employer fails to implement the mandatory provisions of the Pension Reforms Act (as amended).

In addition to the above compulsory pension contribution, every employer in Nigeria with five or more employees must maintain a Group Life Insurance Policy in favour of its employees, for a minimum of three (3) times the annual total emolument of each employee.

EMPLOYEES’ COMPENSATION ACT – DEATH, INJURY, DISEASE OR DISABILITY

A further risk compliance requirement on Nigerian employers is their compliance with the provisions of the Employees’ Compensation Act, 2010. This Law repealed the Workmen’s Compensation Act; and makes robust provisions for compensation to be paid to an employee, whether in the private or in the public sector, in the event of any death, injury, disease or disability which must arise out of or in the course of the employment.

The Nigerian Social Insurance Trust Fund (“NSITF”) Management Board is statutorily empowered to collect the monthly one per cent (1%) contributions of each employer’s payroll, which ensures that a solvent compensation fund is managed in the interest of the employees and their employers.

INDUSTRIAL TRAINING FUND

To continuously boost the entire economy, the Industrial Training Fund was created to promote and encourage the acquisition of skills by indigenous employees.

Every employer with five (5) or more employees, or with a lesser number of employees but having a turnover of N50,000,000 and above per annum, shall in respect of each calendar year contribute one per cent (1%) of its/his total annual payroll to the Industrial Training Fund (“ITF”).

Fortunately, employers that actively train their employees at subjects that are pre-approved by ITF are entitled to apply to ITF for a refund of fifty per cent (50%) of the training expenses incurred by the employer. Where a refund is made by ITF to an employer, ITF is obligated to inform the relevant tax authority of such a refunded training expenditure.

Any breach of the above provisions attracts fines of between N500,000 to N1,000,000 for both the corporate body involved, and its principal officers, i.e. Chief Executive Officer, Secretary, etc. Terms of imprisonment could also be imposed with the fine(s).

TAX RISKS

A key risk to doing business in Nigeria is the recurring multiplication of taxes which stifles the growth of enterprises and the larger economy. To curb this problem, the Federal, Lagos and Edo State Governments are examples of some governments that have passed legislation emphatically demarcating what taxes each tier of government can levy and collect.

It is therefore important that as a business owner, you familiarise yourself with, and adhere to these tax provisions.

Samples of some of these taxes, and which tier of government is authorised to collect them, are stated in the following paragraphs.

Taxes collected by the Federal Government.

1. Companies Income Tax and Education Tax.

2. Petroleum Profits Tax

3. Value Added Tax

4. Capital Gains Tax

5. Stamp Duties Tax, where the parties are corporate bodies and residents of the Federal Capital Territory, Abuja.

Taxes collected by State Governments.

1. Personal Income and Withholding Taxes on the income of individuals only.

2. Capital Gains Tax on the gains earned by individuals.

3. Pools, Betting and Lotteries, Gaming and Casino Taxes.

4. Road Taxes.

5. Business Premises Registration. In urban areas, the maximum amount is N10,000 for initial registration and N5,000 per annum for the renewal of this registration.

6. Development Levy payable by taxable individuals only in the maximum amount of N100 per annum.

7. Naming of Street Registration in State capitals.

8. Right of Occupancy Fees on State Land in urban areas.

9. Market Taxes and Levies where State finance is involved.

Taxes and Levies collected by Local Governments

1. Shops and Kiosks Rate.

2. Tenement Rates.

3. On and Off Liquor Licence Fees.

4. Slaughter Slab Fees.

5. Marriage, Birth and Death Registration Fees.

6. Name of Streets (outside the State Capital) Registration Fees.

7. Customary Right of Occupancy Fees for Land in Rural Areas.

8. Motor Park Levies.

9. Market Taxes and Levies, excluding any market where State finance is involved.

10. Radio and Television Licence Fees (other than radio and television transmitters).

11. Vehicle Radio Licence Fee imposed by the Local Government where the vehicle is registered.

12. Wrong Parking Charges.

13. Signboard and Advertisement Permit Fees.

14. Merriment and Road Closure Levy.

15. Religious Places Establishment Permit Fees.

INTRODUCTION
Nigeria Health Care Delivery Laws

The availability of minimum, qualitative health care services to a vast majority of citizens must be regarded by any responsible government as one of the guaranteed fundamental human rights.

The provision of health care delivery services in Nigeria is the responsibility of the three tiers of government; namely the Federal, the States, and the Local Governments.

The Constitution of the Federal Republic of Nigeria, 1999 has provisions which require the Nigerian government to among other things formulate policies which ensures that qualitative health care, sick benefits and other similar health care services are provided to the citizens of Nigeria. Unfortunately, these constitutional provisions are only a guide as they are non-justiciable; i.e. they cannot be brought before a Court of Law for judicial determination of the government’s compliance with the said constitutional provisions.

Also, the inability of the three tiers of government to provide minimum, qualitative and affordable health care services in Nigeria, led to the enactment of the National Health Insurance Scheme Act, which Act seeks to provide health care benefits to persons, their spouses and not more than four (4) biological children under the age of 18 years old.

There is also the National Agency for Food and Drugs Administration and Control Act, which among other things established the managing Agency to regulate and control the importation, exportation, manufacture, advertisement, distribution, sale and use of food, drugs, cosmetics, medical devices, bottled water and chemicals.

Most recently, in 2014, the Nigerian Senate, with a lot of objections from some stakeholders in the health care sector, passed the National Health Bill. Pending its assent, it is reported that this Bill will, when passed into Law, guarantee minimum and basic health care services to children under the age of five (5) years old, pregnant women and elderly people with disabilities.

An exposition of some of the health care legislations in Nigeria will be undertaken in this presentation so as to provide you with more information on your health care rights and benefits.

THE NATIONAL HEALTH INSURANCE SCHEME ACT

The National Health Insurance Scheme (“NHIS”), has the primary objective of ensuring access to good, qualitative and cost-effective health care services to every health care insured Nigerian citizen and a restricted number of his dependents.

The NHIS also has as one of its objective the protection of such insured Nigerian families from exorbitant medical bills arising from their not having any health care insurance cover.

The NHIS, like any other insurance scheme, is required to assist the health care sector in Nigeria to have an equitable distribution of health care standards, facilities and costs among different income groups.

CONTRIBUTIONS TO NHIS

Contributions to the NHIS are voluntary, as any employer with a minimum of Ten (10) employees, may, together with every person in his employment, pay a health care insurance contribution to NHIS, at such rate and in such manner as may be determined from time to time by the Governing Council of the NHIS.

All NHIS contributions are required to be paid into the account of the health-insured’s chosen Health Maintenance Organisation (“HMO”).

Employers’ contribution to the NHIS, on behalf of their employees, must not however result in the reduction, directly or indirectly, of the employees’ remuneration or allowances, on whose behalf the NHIS contribution is, are or was made.

NHIS REGISTRATION

The NHIS is managed by the NHIS Governing Council; and the NHIS Governing Council has among its key functions the registration of all participants in the NHIS; namely Health Maintenance Organisations (“HMOs”), Health Care Providers (“HCPs”), employers, employees, etc.

Persons who are not obligated to join the NHIS are allowed to apply to be registered with the NHIS as voluntary contributors; and on registration, to make the specified contributions like other NHIS contributors to the NHIS.

In return for registering with the NHIS, and making contributions to the scheme, insured beneficiaries of the scheme are entitled to such quality of health care services that the contributor or subscriber has paid for.

HEALTH CARE INSURANCE ARBITRATION

Complaints and violations of any of the provisions of the NHIS Act are required to be referred for judicial decision to the nearest State or Federal Capital Territory, Abuja, Health Insurance Arbitration Board.

All complaints are required to be in writing and delivered within sixty (60) days from the date when the event giving rise to the complaint arose. An extension of time may however be granted if the Arbitration Board is satisfied that the complainant was justifiably unable to submit the complaint within sixty (60) days of the occurrence of the complained event.

NHIS OFFENCES AND PENALTIES

Any registered person who fails to pay any NHIS contribution into the account of any NHIS organisation within the time specified; or who deducts NHIS contributions from an employee’s wages and withholds such NHIS deductions, commits an offence which on conviction, in the case of a first offender, attracts a fine of N100,000 or 500 per cent of the amount involved, together with accrued interest; this fine could be with or without imprisonment for a term not exceeding two (2) years or less than one (1) year; or to both the fine and the term of imprisonment.

For repeat offenders, the above monetary penalties and term of imprisonment are required to be doubled when the repeat offender is convicted.

Where any offender is a corporate body, its Directors and Managers who are or were aware of, connived or consented to the infraction of the provisions of the NHIS Act will be deemed to have committed the offence in their individual capacity, and will be liable to prosecution and punishment in the like manner stated above.

BUSINESS BENEFITS OF NHIS CONTRIBUTIONS

One of the benefits that an employer derives from incurring NHIS contributions on behalf of its employees is that the employer will have a healthier and more dependable workforce.

Another benefit to the employer and other independent contributors is that NHIS contributions are tax deductible expenses when computing the tax liability of the NHIS contributor for the relevant tax period.

Also, NHIS contributions are non-transferable to the creditors of a NHIS registered operator, where such operator goes into bankruptcy or insolvency. And where a merger or acquisition occurs, the acquiring entity shall take over the NHIS statutory responsibilities of the previous entities.

PROFESSIONAL INDEMNITY COVER

All health care providers – medical centres, institutions or professionals – are statutorily required to have a professional indemnity cover from an insurance company approved by the NHIS Governing Council.

THE NATIONAL AGENCY FOR FOOD AND DRUGS ADMINISTRATION AND CONTROL ACT

As food and drug administration and control are very essential to qualitative health care, the National Agency for Food and Drugs Administration and Control Act established the National Agency for Food and Drugs Administration and Control (“NAFDAC”).

NAFDAC’s birth was also facilitated by the urgent need to stop the illicit trade in adulterated and counterfeit drugs and foods, from which many lives were frequently lost.

NAFDAC is the government Agency charged to among other things, regulate and control the manufacture, importation, exportation, advertisement, distribution, sale and use of food, drugs, cosmetic, medical devices, bottled water and chemicals in Nigeria.

OTHER FUNCTIONS OF NAFDAC

NAFDAC is also statutorily charged to be the leader in appropriate technological advancement, enforcement and compliance with standard specification for all food, drugs, cosmetics, chemical and such other similar industries, manufactured, imported, exported, etc within the territory of Nigeria.

NAFDAC – OFFENCES AND PENALTIES

Any person who obstructs a NAFDAC official in the performance of his or her duties under the NAFDAC Act; or contravenes any of the provisions of any regulations made pursuant to the NAFDAC Act, will be liable on conviction to a fine or a term of imprisonment; or to both the fine and the term of imprisonment, for the offence so committed.

Where the NAFDAC Act offence is committed by a corporate body, every Director, Manager, Secretary or such similar officer in the corporate body who consented, connived or neglected to prevent the breach shall be deemed to be personally guilty of the offence and liable on conviction to a fine of N100,000.

The Federal High Court is seized with the exclusive jurisdiction to try offences committed under the NOTAP Act.

ANCILLARY HEALTH CARE LAWS

By the provisions of the Employees’ Compensation Act, 2010, all employees are entitled to compensation for any death, disease or disability arising from or in the cause of any employment. The conditions precedent to an employee enjoying this benefit is that the employer must mandatorily make a minimum monthly contribution of one per cent (1%) of the employer’s monthly payroll to the Employees’ Compensation Fund.

Also, by Section 9 (3) of the Pensions Reform Act, 2004, employees are entitled to enjoy life insurance cover of not less than three (3) times their annual total emolument.

NATIONAL PRIMARY HEALTH CARE DEVELOPMENT AGENCY ACT

The National Primary Health Care Development Agency Act created the National Primary Health Care Development Agency, which Agency has among its functions the development and regular review of all health care policies, vis-a-vis their relevance to the development of Primary Health Care in Nigeria.

This Agency, which is under the Federal Ministry of Health, is also charged to provide technical support to States and Local Governments in their planning, management and implementation of accelerated primary health care development in Nigeria.

DISCLAIMER NOTICE

This is a free educational material which does not create a Client/Attorney relationship. Readers are advised to seek professional legal advice to their specific situations from qualified Legal Practitioners. Questions, comments, criticisms, suggestions, new ideas, contributions, etc are always welcomed.

INTELLECTUAL PROPERTY PROTECTED.

This material is protected by International Intellectual Property Laws and Regulations. Where redistributed, our authorship and disclaimer notice must be prominently acknowledged and displayed.

Introduction – Minimum Environmental Compliance Requirements

Managing and protecting the environment continues to be an enormous task that Governments alone cannot be made to be bear and sustain.

Also, public perception that environmental management, protection and legislations only apply to materials which are very toxic and hazardous to the environment has not assisted compliance to at least some minimum levels for sustaining a healthy environment.

In Nigeria, there are Federal and State Legislations which seek to protect the environment; and some of these legislations directly and indirectly apply to businesses which are not involved in toxic or hazardous trades in Nigeria. Samples of such legislations include:-

1. The Federal Environmental Protection Agency Act.
2. The Environmental Impact Assessment Act.
3. The Lagos State Environmental Protection Agency Law.
4. The Edo State Sanitation and Pollution Management Law.
5. The Delta State Environmental Protection Agency Law.
6. The Abuja Environmental Protection Board Act.

The Environmental Impact Assessment Act

The Environmental Impact Assessment Act (“EIA Act”) was enacted to set out the general principles, procedures and methods that would enable the prior evaluation of any possible environmental impact, that any project or development, whether public or private sector led, would have on the environment.

Where a development or project is likely to have any impact on the environment, whether such a project or development is among the types of development for which a Mandatory Environmental Impact Assessment (“MEIA”) must be undertaken, and an approved environmental impact assessment certification obtained, such assessment or analysis must be commenced at the very early stage of the project or development; and the Environmental Impact Assessment (“EIA”) must be approved by the Environmental Impact Assessment Agency (“EIAA”).

The final decisions of the EIAA are published after comments and opinions are received from members of the public and other stakeholders to the project or the development.

Failure to comply with the EIA Act attracts fines and terms of imprisonment for both corporate bodies and individuals.

The Federal Environmental Protection Agency Act

The Federal Environmental Protection Agency Act (“FEPA Act”), which is a Federal Law, created the Federal Environmental Protection Agency (“FEPA”).

FEPA is charged with various statutory responsibilities, which are encapsulated in the EIA Act; i.e. protecting and developing the environment, its biodiversity, conservation, and the sustainable development of Nigeria’s natural resources.

Any breach of the provisions of the FEPA Act attracts fines to the offending individuals and corporate entities; and terms of imprisonment to offending individuals and corporate supervisors who were aware of the breach.

Another penalty for any breach is the authority of FEPA to demand that compensation be paid for any damage resulting from the environmental infraction; and or that the environmental area be repaired or restored.

Lagos State Environmental Protection Agency Law

In Lagos State, the applicable Law is the Lagos State Environmental Protection Agency Law, which Law has among other provisions, the establishment of the Lagos State Environmental Protection Agency (“LASEPA”) as the Agency in Lagos State that manages all environmental matters inside Lagos State.

LASEPA is more commonly known for enforcing environmental sanitation regulations, which includes the disposal and control of all kinds of waste and other hazardous materials in Lagos State.

The LASEPA Law also expressly prohibits the discharge of untreated or un-purified waste of any kind into the environment.

To assist LASEPA in the discharge of its statutory functions, private sector enterprises are required to pay an annual Environmental Development Levy; and the amount of the Levy that a private sector enterprise will pay is dependent on the nature of its business, with various amounts for various categories of businesses stated in Schedule 2 to the LASEPA Law. The Figures in Schedule 2 of this Law are however subject to review by LASEPA.

The LASEPA Law authorises officials of LASEPA to, without a warrant, enter, search, seize and or arrest any person, item or premises where an environmental hazard or infringement is reasonably believed to be occurring.

Other penalties for infringing the LASEPA Law includes fines for both individuals and corporations; and both fine(s) and or terms of imprisonment for individuals.

FCT, Abuja Environmental Protection Board

In the Federal Capital Territory (“FCT”) Abuja, the principal legislation is the Abuja Environmental Protection Board Act, 1997.

The subsidiary legislations include the Waste Management Rates/Charges Regulations, 2005, and the Solid Waste Control Environmental Monitoring Regulations 2005.

The FCT Environmental Protection Law and Regulations have in addition to making regulations for the protection of the environment in the FCT Abuja, also provided for private businesses to pay an annual Environmental Levy or Charge. Any infringement of any of the provisions of this legislation attracts fines, terms of imprisonment and the sealing of the business premises of the defaulting party.

Edo State Sanitation and Pollution Law

Like other States in the Federal Republic of Nigeria, Edo State has a Environmental Protection Law that goes by the name, the Edo State Sanitation and Pollution Law, 2010. This Law empowers the Edo State Ministry of Environment and Public Utilities to charge and collect an annual Environmental Re-mediation and Pollution Management Levy. The average amount for this Levy is N100,000 (One Hundred Thousand Naira) per annum.

One of the penalties for non-compliance with the provisions of the Edo State Sanitation and Pollution Law is the sealing-up of the business premises from which the environmental infraction occurred or is occurring.

Delta State Environmental Protection Laws

Some of the applicable Environmental Laws in Delta State include the Delta State Waste Management Board Law and the Delta State Ecology Law. These legislations, like the ones of other States above-mentioned, seek to protect the environment in Delta State while also providing for an annual environmental development levy or charge.

Conclusion

Public enlightenment on the importance of the environment to mankind’s wellbeing is virtually non-existent in Nigeria, as issues regarding the environment are perceived to be elitist and not communal.

Celebrating the environment once in a year, or imposing once-in-a-month-no-movement-for-a-few-hours compulsory sanitation exercise is not enough to protect the environment.

Governments and private sector stakeholders must collaborate in protecting and improving the environment, for this and the coming generations.

DISCLAIMER NOTICE

This is a free educational material which does not create a Client/Attorney relationship. Readers are advised to seek professional legal advice to their specific situations from qualified Legal Practitioners. Questions, comments, criticisms, suggestions, new ideas, contributions, etc are always welcomed.

INTELLECTUAL PROPERTY PROTECTED.

This material is protected by International Intellectual Property Laws and Regulations. Where redistributed, our authorship and disclaimer notice must be prominently acknowledged and displayed.

In this Issue:-

1. Legal News – Lagos State No Smoking in public places and FIRS Request for Transfer Pricing Policy Documentation
2. Legal Alert – Invisible Trades and Fees Remittances Regulations

Legal News

The Income Tax (Transfer Pricing) Regulations No. 1, 2012 (“TPR”) took effect with tax returns that have their basis period beginning after August 2012.

The Federal Inland Revenue Service of Nigeria (“FIRS”) has accordingly requested all connected persons affected by the TPR to submit their company’s Group Transfer Pricing Policy on the pricing of transactions between or among members within the group, or of persons connected with members within a group, in order to avoid a breach of the TPR, and the penalties that are attached to any such breach.

Lagos State No Smoking in Public Places Bill

The Lagos State House of Assembly has passed a Bill into Law prohibiting smoking in public places in Lagos State. There are fines and term of imprisonment for any contravention of this Law.

Legal Alert – Invisible Trades – Fees Remittances Regulations

The repeal of the Exchange Control Act, in furtherance of the liberalisation of trade in Nigeria, is not however a free regime for the remittance of fees arising from invisible trades like royalty payments for the use of Trademarks, Patents, other Intellectual Property Rights, or technical advisory services.

One of the Compliance Regulation, on this subject of the remittance of income earned from invisible trades, is the Central Bank of Nigeria Monetary, Credit, Foreign Trade and Exchange Policy Guidelines for fiscal years 2012/2013 (“Foreign Trade and Exchange Guidelines”) which provides trenchholds for the maximum range of fees that can be remitted under invisible trade transactions.

Range of Fees for Invisible Trade Transactions

The recommended range of fees that can be remitted for the use of intellectual property rights – like trademarks, patents, know-how, etc must be between 0.50 to 5.00 per cent of the net sales or profit before tax (“PBT”) of the licensee company.

For Hotel services, the recommended range of remittable fees, as incentive fees must not exceed 8.00 per cent of the Gross Operating Profit (“GOP”) of the Hotel, while the basic fee shall not exceed 3.00 per cent of the Hotel’s net sales.

Fees paid for Technical Services must not be tied to the net sales of the Nigerian company. In its stead, such fees can only be settled on a per diem, man-hours, man-day or man-month basis.

Annual Technical Support Fees paid to a Information Technology Licensor can only range between 15.00 to 23.00 per cent as Licensee Fees for a period not exceeding three (3) years.

Remittable Consultancy Fees are restricted to projects requiring very high technology content which content is not otherwise available locally. The allowable remittable consultancy fees, for these kinds of consultancy services, shall not exceed a maximum amount of 5.00 per cent of the project’s costs.

Technology Transfer Agreements

Where there is a Technology Transfer Agreement (“TTA”), such Agreement must be submitted to the National Office for Technology Acquisition and Promotion (“NOTAP”), for registration, within sixty (60) days of its execution.

The recommended range of remittable fees that is provided for in the NOTAP 2011 “Revised Guidelines for the Registration and Monitoring of Technology Transfer Agreements (“NOTAP Revised Guidelines”) are similar to those in the CBN Foreign Trade and Exchange Guidelines. For example, and depending on the nature and extent of the management services, the management service fees are required to range from 1-5% of the PBT. For Hotels managed by an international chain, the range of fees is 1-2% of net sales for management/marketing/advertising fees.

DISCLAIMER NOTICE

This is a free educational material which does not create a Client/Attorney relationship. Readers are advised to seek professional legal advice to their specific situations from qualified Legal Practitioners. Questions, comments, criticisms, suggestions, new ideas, contributions, etc are always welcomed.

INTELLECTUAL PROPERTY PROTECTED.

This material is protected by International Intellectual Property Laws and Regulations, On the strict condition that our authorship is acknowledged, this material may be shared with other persons with our Disclaimer Notice prominently displayed.

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Legal Alert December 2013 Cyber Security, Risks and Crimes

Legal Alert – December 2013 – Cyber Security, Risks and Crimes

 

In this Issue:-

 

1.       Legal Alert – December 2013 – Cyber Security, Risks and Crimes

2.       Disclaimer Notice

3.       Copyright Notice

 

Introduction

 

Associated with the enormous benefits that the internet continues to bring to mankind, are numerous Risks which global governments are using legislation to ensure that public confidence in modern Commerce and Governance, over the internet, does not diminish, and or become ultimately eclipsed by criminal activities undertaken using the internet.

 

Escalating increments in economic crimes, some of which economic crimes are associated with terrorism, have brought about more urgency for cyber-security legislations and enforcement in Nigeria, as in other parts of the world.

 

What is Cyber Security?

 

Cyber security, which is more commonly referred to as cybercrime, has been described as the use of the internet to perpetuate, in time and space, the commission of criminal offences.

 

Some of the common cybercrimes, which are enumerated in the Nigerian Cybercrime Bill 2013, include:-

 

i.               The unlawful access to a person’s computer;

ii.              The unlawful interference or interception with a computer system or network of systems, or with other electronic devices;

iii.            The use of a computer or computer systems or networks to unlawfully produce, procure, distribute and promote child pornographic materials;

iv.           The use of a computer, computer systems or networks to unlawfully impersonate and steal another person’s identity;

v.             Cyber-stalking – which is the unlawful, gross, offensive, menacing, indecent and or obscene use of a computer, computer systems or networks to annoy and inconvenience another person;

vi.           Cyber-squatting – which is the intentional and unlawful acquisition and or use of another person’s name, trademark, domain name or other word or phrase without that person’s consent or authority;

vii.          Cyber-terrorism – which is the unlawful use of a computer, computer systems or networks to promote any form of terrorism;

viii.        Racist and xenophobic crimes – which entails the unlawful distribution of racist and xenophobic material using a computer, computer systems or networks.

 

Cyber Security Laws in Nigeria?

 

There is not presently in Nigeria, any Act of Parliament regulating cyber security or cybercrimes. This is despite several Bills on the subject, before the Nigerian National Assembly, awaiting enactment into Law.

 

It is therefore recommended that we consider the existing Laws that relate to cyber security or cybercrimes before considering at least one of the numerous Bills before the Nigerian National Assembly on the subject – i.e. the Cyber Security Bill, 2013, which is the most recent Executive Bill on the subject.

 

Criminal Code Act – Obtaining By False Pretences

 

Presently, the most common legislation for prosecuting cybercrimes in many of the Southern States of Nigeria are as stated in Sections 419, 419A, 419B, 420, 421, 422, and 423 of the Criminal Code Act.

 

The above-mentioned Sections of the Criminal Code Act provide in summary that where any person, by false pretence, and with the intent to defraud another person, obtains from that other person anything capable of being stolen, or advises any other person to deliver to any other person anything capable of being stolen, or obtains credit by false pretences or by some other kind of fraud, commits an offence and is liable on conviction to imprisonment for a term of three (3) years. Where the item concerned is of a value of N1000 (One Thousand Naira) or upwards, the term of imprisonment on conviction is seven (7) years.

 

The above statutory provisions and punishments also apply to cases of obtaining the execution of a security document by false pretences; cheating and conspiracy to defraud another person by deceit or other fraudulent means, etc are also criminal offences which carry fines and terms of imprisonment.

 

Advance Fee Fraud & Other Fraud Related Offences Act, 2006.

 

The Advance Fee Fraud & Other Fraud Related Offences Act, CAP A6, Laws of the Federation of Nigeria literally extended the felonious provisions of the Criminal Code Act, on false pretences, to now include any person who by false pretence, and with the intent to defraud, obtains from any other person, whether in Nigeria or in any other country; or induces any other person in Nigeria or in any other country, to deliver to any person, any property, whether or not the property or its delivery is induced through the medium of a contract, which contract was itself induced by false pretence.

 

The penalty on conviction for committing any of the above false pretences offences is imprisonment for a term of not less than seven (7) years without the option of a fine, or imprisonment for a  term of not more than twenty (20) years.

 

Other fraud related offences under this Law include:-

 

(a)         Representing oneself as possessing the power of doubling or otherwise increasing any sum of money through any unorthodox method or methods, like currency colouration.

 

(b)         Fraudulent invitation of a non-Nigerian to Nigeria under false pretences.

 

(c)          Possession of fraudulent documents to commit a false pretence offence.

 

(d)          Laundering of funds obtained through unlawful false pretences activity or activities.

 

Data Services Customers Registration.

 

As part of the global efforts to enhance cyber security, the Advance Fee Fraud and other Fraud Related Offences Act, provides in its Part II, Sections 12 and 13, the statutory mandatory requirement for all telecommunication companies in Nigeria to obtain from all their subscribers or customers, especially their data services subscribers or customers, the full names, residential or corporate copies of utility bills, certificates of incorporation or registration, etc of these subscribers or customers.

 

All telecommunications, internet and internet cafe service providers are also required to, in addition to registering their businesses with the Economic and Financial Crimes Commission (“EFCC”), maintain a register of all telecommunication lines in their networks. These service providers are further statutorily required to submit on demand to EFCC, such data and information as are necessary or expedient for giving full effect to the performance of the functions of EFCC under the Advance Fee Fraud and other Fraud Related Offences Act.

 

The failure by any customer or subscriber to any telecommunication service to register, or where the customer or subscriber registers with the intent to deceive, or supplies false information, or conceals or disguises such false information, constitutes an offence which on conviction carries a term of imprisonment of not less than three (3) years or a fine of N100,000.

 

Economic and Financial Crimes Commission Act, 2004.

 

The Economic and Financial Crimes Commission (Establishment, ETC.) Act. CAP E1, Laws of the Federation of Nigeria 2004 (“EFCC Act”) is the legislation which preceded the Advance Fee Fraud and other Fraud Related Offences Act, 2006.

 

The EFCC Act describes an economic or a financial crime to be the non-violent and illicit activity committed with the objective of earning wealth illegally.

 

Some of the economic and financial crimes mentioned in the EFCC Act include any kind of fraud, drug trafficking, money laundering, embezzlement, bribery, looting and other corrupt practices, tax evasion, foreign exchange malpractices, theft of intellectual property and piracy, etc.

 

It is also an offence under the EFCC Act for any person to retain, conceal or remove from Nigeria the proceeds of any economic or financial crime; or to engage in the acquisition, possession or use of any property acquired from any economic or financial criminal activity.

 

It is equally a criminal offence for any person to engage in the concealment or disguising of the true nature, source, location, disposition, movement or rights to a property acquired through an economic or financial criminal activity.

 

The penalties for the various economic and financial crimes enumerated in the EFCC Act include terms of imprisonment for different number of years for each class of economic or financial offence; fines equivalent to 100 per cent of the value of the proceeds of the economic or financial crime; in addition to the forfeiture of such proceeds to the Federal Government of Nigeria; life imprisonment where the economic or financial crime is meant to aid, facilitate or participate in a terrorist activity; obtaining from a competent Court of record an order freezing the Bank accounts of a suspected economic or financial crime infringer.

 

Budapest International Convention on Cybercrime.

 

In the international platform, there is a Convention on Cybercrime, which is more commonly referred to as the Budapest Convention on Cybercrime. This is the first International Treaty that seeks to address internet and computer related crimes, by harmonising the legislations of signatory nations on cybercrimes, thereby enhancing cooperation in the investigation and prosecution of such cybercrimes among nations.

 

Some of the criminalised cyber offences enumerated in the Budapest Convention on Cybercrimes include illegal access, illegal interception, data interference, system interference, misuse of computer and other internet devices, computer-related forgery, computer-related fraud, offences related to child pornography, copyright and neighbourhood rights.

 

There is no record that Nigeria has ratified this International Convention on Cybercrime. Some of the countries that have however ratified this Convention include the members of the European Union, the United States of America, Canada, Japan, the Republic of South Africa, Australia, the Dominican Republic, Mauritius, among other countries.

 

An additional Protocol to the Budapest Convention on Cybercrimes criminalised the publication of racist and xenophobic literature over the internet. Undergoing further review is the inclusion of cyber terrorism in the Budapest Convention on Cybercrime.

 

Nigerian Cybercrime Bill, 2013.

 

Numerous Bills on cybercrime prevention in Nigeria have remained unpassed by successive sessions of the Nigerian National Assembly. This is due in part to the lack of coordinated efforts by various interest groups presenting separate Cybercrime Bills to the Nigerian National Assembly; instead of a harmonised Cybercrime Bill.

 

Another reason for the non-passage of any Cybercrime legislation in Nigeria has been that no session of the National Assembly has been able to consider for passage any of the Cybercrime Bills before the tenure of that National Assembly elapsed, with the new Assembly considering all such Bills de novo – i.e. afresh.

 

Despite the above developments, one of the core objectives of the Cybercrime Bill, 2013 is the provision of “….. an effective and unified legal, regulatory and institutional framework for the prohibition, prevention, detection, prosecution and punishment of cybercrimes in Nigeria.

 

Some of the offences under this Bill include any unlawful access to any computer; any unauthorised modification of a computer data, which is also known as data forgery; any computer system interference; any misuse of any computer devices; any computer related fraud; any identity theft and impersonation; any child pornography and related offences; any cyber stalking, cyber terrorism, racist and xenophobic offences, attempt, conspiracy, aiding and abetting in cybercrimes, etc. Penalties and fines apply for any commission of any of these cybercrimes.

 

Cybercrime Bill and International Cooperation

 

As Cybercrimes have no territorial boundaries, the Nigerian Cybercrime Bill 2013, like the previous Bills before it, has proposed that all offences under this legislation shall be extraditable offences under the Extradition Act, Cap. E25, Laws of the Federation of Nigeria, 2004.

 

Other areas of international cooperation, among different countries, on the matter of cybercrimes, include requests for mutual assistance in the singular or joint investigation or prosecution of cybercrimes, whether or not Nigeria has signed a bilateral or multilateral agreement on cybercrime prevention, investigation and prosecution with such country or countries from whom cybercrime prevention assistance is requested.

 

Conclusion

 

The existence of a very weak cybercrime prevention and enforcement structure in a country like Nigeria, with an estimated population of more than one hundred and fifty million people, most of whom are adolescents and juveniles, portends a clear and present danger to the structural and economic development of Nigeria, and the global economy.

 

While there is no enacted cybercrime specific legislation in Nigeria, the above-mentioned Laws criminalising obtaining any property under false pretences should serve as a start-off point for the successful prosecution of cybercrimes. Unfortunately, private and public sector corruption have changed dramatically the value structure which celebrates ill-gotten wealth with the result that cybercrime prosecution is in turn inhibited.

 

Multiplicity and under-funding of the numerous law enforcement and security agencies have not assisted in the prevention and prosecution of cybercrimes and other white collar crimes in Nigeria.

 

Equally inhibiting the prevention and prosecution of cybercrimes has been a weak and grossly underfunded judicial system.

 

Despite the above challenges, continuing enlightenment on the criminality and harm that cybercrimes cause to the development of any country will greatly assist Nigeria and other countries of the world in overcoming the menace of cybercrimes’.

 

DISCLAIMER NOTICE. This Legal Alert is a free educational material, for your general information and enlightenment purpose ONLY. This Alert, by itself, does not create a Client/Attorney relationship between yourself and our Law Firm. Recipients are therefore advised to seek professional legal advice and counselling to their specific situations when they do arise.

COPYRIGHT NOTICE. This Legal Alert is protected by International Intellectual Property Law and Regulations. It may however be shared with other parties provided that our Authorship is always acknowledged and this Disclaimer Notice is attached.

Legal Alert – November 2013 – Music, Copyright, Collecting Societies Licensing and Royalties Management

In this Issue:-

  1. Legal Alert – November 2013 – Music, Copyright, Collecting Societies Licensing and Royalties Management
  2. Disclaimer Notice.
  3. Copyright Notice

What is a Copyright?

A copyright to an original artistic or other intellectual work is the exclusive proprietary right that the owner to such an original work has to exclusively control the commercial exploitation of such a work, by members of the public.

Where a copyright to an original work is used for commercial purposes, whether directly or indirectly, without the authorisation, permission or licence of the owner of the copyright to the work, liability for the copyright infringement arises at the instance of the owner, his/her/its assignee or exclusive licensee who can claim for, among other reliefs, damages, injunction, an account of the use and the profits derived from the unlawful use of the copyrighted original work or works.

Copyright Society Registration.

As it would be administratively very unwieldy and too expensive for each individual copyright owner, assignee or exclusive licensee to administer licences to public users of copyrighted works, the Nigerian Copyright Act provides that where any person or group of persons representing more than fifty (50) owners of copyrighted works, carry on the business of negotiating and granting licences to members of the public for the use of their original copyrighted works; or where such a person or group of persons or an association of persons collects and distributes royalties in respect of their copyrighted works, such a person or group of persons must be granted approval by the Nigerian Copyright Commission (“NCC”) to operate as a not-for-profit Collecting Society. See Sections 17 and 39 of the Nigerian Copyright Act, CAP C28, Laws of the Federation of Nigeria, 2004.

Collective Management Organisations.

The Copyright (Collective Management Organisations) Regulations, 2007 (“CMO Regulations, 2007”) provides for some further criteria that must be furnished before a group of persons or an association of persons can be licensed by NCC to operate as a Collective Management Organisation (“CMO”) in Nigeria. Note that CMOs are more commonly known as Copyright Collecting Societies.

Some of the key licensing requirements include evidence that the applicant association of persons represent not less than one hundred (100) copyright owners of the class or category of copyright works in which the association seeks the licence to operate as a CMO or as they are more commonly known, as a Copyright Collecting Society.

Licensing Fees and Royalties.

The CMO Regulations, 2007 requires all CMOs to draw up tariffs in respect of the Licensing Fees that they will demand for, from the usage of the copyrighted works administered by the CMOs.

In setting the tariff/rate for the royalty to be charged for copyrighted works, a CMO is required to have regard to, among other things, the monetary advantage to be obtained by the user from the exploitation of the copyrighted work, the value of the copyrighted work, its purpose, the manner or kind of its use, the proportion of the utilisation of the work, any other relevant decision of a Court or such other dispute resolution panel on the matter of copyright tariff, etc.

Collective Management Agreements.

A CMO is also empowered by the CMO Regulations, 2007 to elect to enter into a Collective Management Agreement with a representative trade association on the use and the tariff structure of its repertoire to the members of such a trade association. The CMO must however notify NCC of any tariff scale that is agreed to by a CMO with a representative trade association.

Royalty Distribution Plan.

A Collecting Society is required to establish a royalty distribution plan; and to distribute the royalties or the licence fees collected to its members in a manner that reflects as nearly as possible, and as equitably as possible, the actual usage of the works covered by the copyrighted works, which the CMO administers.

Dispute Resolution.

Whenever there is any dispute regarding a CMO/Collecting Society and the collective management of royalties in Nigeria, such a dispute is required to be referred to NCC, and NCC is in turn required to establish a Dispute Resolution Panel to settle the dispute.

On appeal, the final decision of the Dispute Resolution Panel can be reviewed, set aside or amended by a competent Court of Law.

Unethical Practices.

A CMO will be deemed to have been involved in an unethical practice or practices where it, among other things, grants licences, collects and distributes royalties for works that it does not have the authority to administer; or makes false representation knowing such representation to be false; or inhibits or impedes another approved CMO from carrying out its functions under the CMO Regulations, 2007.

Conclusion.

As commendable as the approval of the Collective Management regime is for copyrighted works in Nigeria, the non-publication of the CMO tariff structure, and the methodology for quantifying the use of the copyrighted works, is expected to lead to a plethora of otherwise avoidable high rate of defaults and expensive litigation to the prejudice of the owners of the copyrighted works.

Related to the above concern is the absence of the technology required to measure what copyrighted work is used, and for what duration such a work was used. Such technology, though expensive, removes arbitrariness and nepotism from the collective management of copyrighted works in Nigeria. The assistance of NCC and registered CMOs in Nigeria, collaborating with foreign CMOs with whom the Nigerian CMOs have some of their foreign repertoire under their management, to acquire and operate such copyright management technology in Nigeria, will optimise the licensing and royalty administration in Nigeria, to the benefit of all the stakeholders concerned.

DISCLAIMER NOTICE. This Legal Alert is a free educational material, for your general information and enlightenment purpose ONLY. This Alert, by itself, does not create a Client/Attorney relationship between yourself and our Law Firm. Recipients are therefore advised to seek professional legal advice and counselling to their specific situations when they do arise.

COPYRIGHT NOTICE. This Legal Alert is protected by International Intellectual Property Law and Regulations. It may however be shared with other parties provided that our Authorship is always acknowledged and this Disclaimer Notice is attached.

Legal Alert – October 2013 – Expatriates Pension Benefits in Nigeria

In this Issue:-

1.            Legal Alert – October 2013 – Expatriates’ Pension Benefits in Nigeria

2.            Disclaimer Notice.

3.            Copyright Notice.

Expatriates’ Pension Benefits in Nigeria

INTRODUCTION

In addition to a monthly remuneration, there are other benefits that accrue to every employee in Nigeria, including expatriate employees. Some of these benefits include compensation under the Pension Reform Act, 2004 (as amended); the Employees’ Compensation Act, 2010; the National Health Insurance Scheme Act, 1999; and the Insurance Act, 2003.

PENSION BENEFITS

Employees are described under the Nigerian Pension Law to be any individual, whether expatriate or Nigerian, engaged in any employment with a Nigerian domiciled company or organisation having at least five (5) employees resident in Nigeria.

In recognition of the advancements in global mobility of labour across multiple countries, at different times, there is in Nigeria a set of “Guidelines for Cross-Border Arrangements under the Pension Reform Act” (“Cross-Border Pension Guidelines”).

The Cross-Border Pension Guidelines are intended to ensure that all employees do not lose their pension benefits during the period of changing employment in or between different countries. Nigerians in the Diaspora are also accommodated under these Guidelines.

The Cross-Border Pension Guidelines are also especially required in the light of the provisions of Section 1(1) of the Nigerian Pension Reform Act (“PRA”), 2004 (as amended), which provides that “there shall be established in the Federal Republic of Nigeria, a contributory pension scheme for the payment of retirement benefits to employees to whom this scheme applies”.

EXPATRIATE EMPLOYEES

Guidelines 2.1.1 and 2.2.1 gives to foreign nationals working in Nigeria the discretion of whether to join the Nigerian Contributory Pension Scheme, as required under the Nigerian PRA, 2004 (as amended), or to continue to contribute to some prior pension arrangement in another country, or to be a contributor to the Nigerian and Non-Nigerian Contributory Pension Schemes simultaneously.

Where a foreign or expatriate employee elects to join the Nigerian Contributory Pension Scheme, such foreign or expatriate employee shall inform his or her Nigerian employer of his or her intention to join the scheme and open a Retirement Savings Account (“RSA”) with a Nigerian licensed Pension Fund Administrator (“PFA”) of his or her choice.

In the event of future permanent relocation of the employee out of Nigeria, the expatriate employee shall serve a three (3) months prior notice of permanent relocation on his or her PFA. Accompanying the notice of relocation shall be the expatriate employer’s letter confirming the employee’s permanent relocation from Nigeria, so that the employee can access the balance amounts in his or her RSA.

NIGERIAN EXPATRIATES

A Nigerian working abroad, or moving overseas, is allowed to join, and or to continue to make voluntary pension contributions to his or her RSA. Where an existing contributor however prefers to temporarily suspend his pension contributions, he shall formally request his PFA to freeze his or her RSA until he or she returns to Nigeria to continue to make the pension contributions.

EXCHANGE RATE, TAXATION AND MONEY LAUNDERING RULES

All pension contributions to the RSAs shall be made in Nigerian Naira or at the prevailing exchange rate on the date that the contribution is remitted to a RSA in Nigeria. Any exchange rate, administrative and transfer charges shall be borne by the employee contributor.

Within Nigeria, all pension contributions and withdrawals are tax free.

Lastly, all offshore contributions must be made through licensed Banks who are subject to anti-money laundering regulations. A contribution in excess of N1Million must however be reported to the Nigerian Economic and Financial Crimes Commission (“EFCC”) and the Nigerian Drug Law Enforcement Agency (“NDLEA”).

RATE OF CONTRIBUTION

Nigerian and foreign expatriates are allowed to make voluntary pension contributions at rates that they have predetermined. Such contribution must not however be less than the Naira equivalent of N5,000, per month.

 

DISCLAIMER NOTICE. This Legal Alert is a free educational material, for your general information and enlightenment purpose ONLY. This Alert, by itself, does not create a Client/Attorney relationship between yourself and our Law Firm. Recipients are therefore advised to seek professional legal advice and counselling to their specific situations when they do arise.

COPYRIGHT NOTICE. This Legal Alert is protected by International Intellectual Property Law and Regulations. It may however be shared with other parties provided that our Authorship is always acknowledged and this Disclaimer Notice is attached.

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