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In this Issue:-
1.   Legal News – July 2014 – Foreign Exchange Payment Regulations in Nigeria
2.   Disclaimer Notice.
3.   Copyright Notice.

Legal Alert – July 2014 – Foreign Exchange Payments in Nigeria
Despite continuing trade liberalisation, divergent opinions remain as to whether goods and services can be paid for in a foreign currency in Nigeria? This divergence in opinion is easily resolved by a review of the provisions of the Central Bank of Nigeria (Establishment) Act ("CBN Act") and the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act (''Forex Act'').
In furtherance of the CBN and Forex Acts, the Central Bank of Nigeria (''CBN'') compiled and issued the Foreign Exchange Manual, which Manual serves as a guide to participants when processing their foreign exchange transactions.
Common Mode of Payment.
The common mode of payment in Nigeria is by cash, in the Naira currency. By Law, any person who refuses to accept payment in the Nigerian currency of the Naira is guilty of an offence and liable on conviction to a fine of N50,000; or to a term of imprisonment of six (6) months.

The CBN is empowered to prescribe the circumstances and conditions under which foreign currencies may however be accepted as a medium of exchange in Nigeria. And in furtherance of this statutory duty, the CBN issued the Foreign Exchange Manual.
Exception to the Common Mode of Payment.

Under the current CBN Foreign Exchange Manual, the payment for any goods or services, in any convertible foreign currency, is at the discretion of the person making the payment; provided that any such foreign currency payment originates from a domiciliary account, or from the payee's offshore sources.

Except expressly required by a Statute, operators of domiciliary accounts are not obligated to disclose the sources of the foreign currency or currencies in their domiciliary accounts. This is because data collated on foreign exchange transactions are primarily for statistical and foreign exchange reserve purposes.

Also, foreign currency transactions in the foreign exchange autonomous market or in domiciliary accounts are not liable to government expropriation.

Hotels and Foreign Exchange Licensing
Like other regulated institutions, Hotels that are registered by the Central Bank of Nigeria as Authorised Buyers of foreign currencies, may receive payment for the services that they provide in any convertible foreign currency.

Also, Hotels that are registered by the CBN as Authorised Buyers may buy from their Guests, foreign currencies, and can exchange unutilised foreign or local currencies from such Guests.

All foreign exchange receipts must however be domiciled in the Hotel's Foreign Currency Domiciliary Account with a licensed Bank in Nigeria.

It is also a mandatory requirement that all foreign exchange transactions must have documentation showing the name, address and passport number of the customer of the Hotel making the currency transaction; the name and address of the Hotel; the amount purchased; what foreign currency was involved in the transaction; the commission earned and the equivalent in Naira.
Lastly, monthly returns of all the purchased and sold foreign currencies must be submitted to the Trade and Exchange Department of CBN not later than 10 days after the end of each month. Where no foreign exchange sale or purchase is made, a Nil return is required to be filed.

Some Foreign Exchange Offences and Sanctions.
There are various foreign exchange offences for which stiff sanctions are prescribed. Some of these offences are the forgery of foreign currencies; the conversion of any foreign exchange sourced from the foreign exchange autonomous market to a use not approved by the applicable laws; or the negotiation of any foreign exchange or any other trading instrument contrary to the provisions of the applicable law; round-tripping of foreign exchange sourced from the autonomous foreign exchange market; failure to render monthly returns; etc.
On conviction, some of the penalties for any foreign exchange infringement include, for individuals, a term of imprisonment of five (5) years; or a fine of five (5) times the amount of the foreign exchange involved. In the case of a corporate body, the fine for contravention includes a penalty of ten (10) times the amount of the foreign exchange involved.

Further sanctions are the forfeiture of the proceeds of the foreign exchange contravention to the Federal Government of Nigeria (''FGN''); the suspension or revocation of the licence of the dealer involved; and the forfeiture of the foreign currency to the Nigerian Federal Government.

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

This material is protected by International Intellectual Property Laws and Regulations. This material can only be re-distributed for non-profit educational purposes only on the strict condition that our authorship is acknowledged, and the Disclaimer Notice is prominently displayed.
Legal Alert – June 2014 – Bribery, Corruption, Economic and Financial Crimes

Bribery, Corruption, Economic and Financial Crimes
Corruption is generally described as any dishonest action or inaction, by any person, in any form of authority, to derive any form of illegitimate, illicit, immoral, incompatible or unethical advantage.
As bribery, corruption, economic and final crimes remain a deterrent to human capital advancement, various global bodies and countries have enacted their anti-corruption, bribery, economic and financial crimes legislations. Some of these legislations will now be reviewed in the paragraphs following underneath.
The United Nations Convention Against Corruption is an internationally binding Treaty designed to promote, facilitate and support transnational cooperation, technical assistance and the exchange of information which prevents, detects and deters in a more efficient and effective manner, the international transfer of  corrupt and illicitly acquired property.
Signatories to this Treaty are obligated to, subject to their legal systems, develop and implement Anti-corruption Policies which promote the prevention of corruption, money laundering and the proper management of public affairs, public property, integrity, transparency and accountability.
More than 140 member states of the United Nations have signed and ratified this Treaty and domesticated it in their statute books.
The African Convention on Preventing and Combating Corruption (‘’the African Convention”) describes corruption to include the solicitation or acceptance, directly or indirectly, of anything of value in exchange for any act or omission in the course of, or in performance of any duty.
Illicit enrichment and the diversion of state resources by an individual or group of individuals for purposes that is unrelated to the purpose for which those resources are intended, also amounts to criminal corruption.
The Organisation for Economic Co-operation and Development (‘’OECD’’) also has a Convention on combating the bribery of foreign public officials in international business transactions. This Convention, like other similar anti-bribery conventions, seeks to enshrine effective measures which promptly deter, prevent, combat and criminalise the bribery of foreign public officials. 
Each party to the OECD Convention on Combating Bribery is required to implement measures which make it a criminal offence under its Laws for any person to intentionally offer, promise or give any undue pecuniary or other advantage to a foreign public official for the purpose of such public official acting or refraining from acting, in order for some improper advantage to be obtained.
Each Party to the OECD Convention on combating bribery is also enjoined to ensure by domesticated Legislation, that the bribery of a foreign public official is punishable by effective, proportionate and dissuasive criminal penalties which should include the deprivation of individual liberty and the extradition of suspected offenders to their home countries for prosecution and sentencing.
The United States Foreign Corrupt Practices Act (“US FCPA”) prohibits the giving or offering of anything of value to foreign government officials or their third party proxies for the improper purpose of influencing any decision to the benefit of the giver of the bribe, or to such other parties related to the giver of the bribe.
Examples of “anything of value” include cash, gifts, travel, entertainment, transportation, free lodging, political or charitable donations, discounts, giving favourable employment or business opportunities, etc.
Under the US FCPA, there is no minimum value as to what constitutes a bribe. 
The United Kingdom (“UK”) Bribery Act is broader in scope to the US FCPA, as the UK Bribery Act prohibits the giving of a bribe to any person, whether such a person is a government official or not, for the improper purpose of influencing any benefit to the giver of the bribe.
Under the UK Bribery Act, both the bribe giver and the bribe receiver are subject to strict liability, which includes criminal prosecution and conviction.
Corporations are compulsorily required to adopt and implement an anti-bribery policy. This is as the UK Bribery Act holds corporations subject to UK jurisdiction strictly responsible where the giving and the taking of a bribe is not prevented from occurring by corporations.
In Nigeria, the applicable law is the Corrupt Practices and Other Related Offences Act. The Corrupt Practices and Other Related Offences Act describes corruption to include bribery, fraud and other similar dishonest offences.
The Corrupt Practices and Other Related Offences Act established the Anti-Corruption Commission with a charge to investigate any corrupt practice in the public sector of the economy, and recommend appropriate cases for prosecution by the office of the Attorney-General of the Federation.
Any person, who in the discharge of his or her duties asks for, gives, receives, procures, conspires or facilitates the obtaining of any property or benefit, in return for any favour, thing, omission or commission, commits an offence which on conviction attracts a seven (7) year term of imprisonment.
It is also an offence for a Public Servant to acquire and hold, directly or indirectly, any private interest in any contract or agreement emanating from a public establishment. The punishment on conviction for this offence is also seven (7) years imprisonment. 
It is equally a criminal offence for any person to offer to a public servant any gratification as an inducement or reward for the public servant to perform, expedite, delay, hinder, prevent or abstain from performing any duty. The punishment for this offence is five (5) years imprisonment with hard labour.
Where a public servant uses his or her office or position to confer any corrupt or unfair advantage on himself or on any third party, an offence is committed which on conviction carries a term of imprisonment of five (5) years without the option of a fine. 
In addition to the term of imprisonment for bribery offences, the Corrupt Practices and Other Related Offences Act prescribes the forfeiture of the object of the gratification, and the payment of a fine that is not less than five (5) times the sum or the value of the subject matter gratification.
Any public officer to whom any gratification is promised, offered or given; and any individual whom any gratification is solicited or obtained from; is statutorily required to report such bribery incident to the nearest office of the Anti-Corruption Commission or to a police officer.
Any person who fails to make such a bribery incident report, without a reasonable excuse, is guilty of an offence, and liable on conviction to a fine not exceeding One Hundred Thousand Naira (N100,000) or to a term of imprisonment not exceeding two (2) years; or to both the fine and the term of imprisonment.
Where an allegation of corruption or bribery is made against the President or the Vice-President, or against any State Governor or Deputy Governor, the Chief Justice of Nigeria is required to, if reasonable cause is provided, appoint an Independent Legal Counsel to investigate the allegation and report his or her findings to the National Assembly in the case of the President or Vice-President, or to the relevant State House of Assembly in the case of a State Governor or Deputy Governor.
The provisions of the Corrupt Practices and Other Related Offences Act also apply to persons who though are not Nigerian citizens, enjoy permanent residence status in Nigeria, for corrupt and bribery offences committed inside and outside Nigeria.
The Economic and Financial Crimes Commission (Establishment, etc.) Act, 2004 describes an economic and financial crime to be the non-violent, criminal and illicit activity committed with the objective of gaining wealth illegally.
Examples of economic and financial crimes include any form of bribery, corrupt practices, advance fee fraud, narcotics, drug trafficking, money laundering, embezzlement, illegal charge transfers, contract scams, credit card fraud, human trafficking, child labour, tax evasion, foreign exchange malpractices, theft of intellectual property,  piracy, etc.
The Economic and Financial Crimes Commission (“EFCC”) is charged with the investigation of all economic and financial crimes in Nigeria. As part of its investigative responsibility, EFCC is enjoined to identify, trace, freeze, confiscate or seize proceeds derived from economic, financial and terrorist criminal activities.
In addition to the statutory authority to investigate economic and financial crimes, the Economic and Financial Crimes Commission (“EFCC”) is also empowered to conduct investigations into the assets of any individual where there is a mismatch between such an individual’s lifestyle and his or her sources of income.
It is also the statutory responsibility of EFCC to co-ordinate the enforcement of all economic and financial crimes legislations among which are the Money Laundering Act, the Advance Fee Fraud and other Related Offences Act, the Failed Banks Act, the Banks and other Financial Institutions Act, etc.
Other financial and economic crimes for which various punishments are prescribed under the law include financial malpractices, aiding and abetting acts of terrorism, giving false information, possessing, retaining, using, concealing and converting the proceeds of a financial or economic crime, etc.
And some of the punishments for the above paragraph financial and economic crimes include terms of imprisonment, fines equivalent to one hundred per cent (100%) of the value of the proceeds of the financial or economic crime; or to both the term of imprisonment and the punitive fine.
All the assets and properties derived or acquired from any economic or financial crime, including the international passports of the offenders, are liable to forfeiture or confiscation. Where such derived or acquired asset or property is in a foreign country, the asset or property shall be subject to any treaty or arrangement that Nigeria has with such a foreign country for the repatriation of the proceeds of any financial or economic crime.
In practice, the Bribery, Corruption, Economic and Financial Crimes Laws are held more in disdain than in compliance. This is as a result of many reasons ranging from a continuing, overbearing, endemic bribery and corruption culture; an ill-equipped enforcement and judicial system; etc.
The harmonisation of the various legislations and enforcement agencies – like EFCC, the Anti-Corruption Commission, the Police, etc. – will remove the current duplication of investigative powers and streamline enforcement resources.
Following from the above comment is the observation that while the robustness or otherwise of bribery and corruption laws may not be comparable to those in the United Kingdom, or in the other OECD countries and in the United States, improvements in the enforcement of the current legislations with their harmonisation by parliament should improve enforcement.
This is a free educational material which does not create a Client/Attorney relationship. Readers are advised to always seek professional legal advice to their specific situations from qualified Legal Practitioners. Questions, comments, criticisms, suggestions, new ideas, contributions, etc. are always welcomed. You can also visit our website for more legal materials.
This material is protected by International Intellectual Property Laws and Regulations. This material can only be re-distributed for non-profit educational purposes only on the strict condition that our authorship is acknowledged, and the Disclaimer Notice is prominently displayed.
Legal Alert – May 2014 – Smoking Regulations In Public Places
Legislation to control the hazards that smoking poses to human health has escalated in the last decade. In Lagos State, the Regulation of Smoking Law was assented to on 17th day of February 2014, with the full implementation of this Law commencing six (6) months afterwards.

At the Federal tier of governance, the Tobacco Smoking (Control) Act 1990, and the Tobacco Control Bill 2013, are legislations that are also worthy of review for a further appreciation of some of the legislations which regulate the smoking of tobacco products in public places.

Save for the few exempted areas, the Lagos State Regulation of Smoking Law, 2014 forbids smoking in all public places.
One of the exceptions to this rule is the one that states that the only places where an individual can smoke, as from 16th August 2014, are on a street, a road or a highway.

A second exception to the no smoking in public places rule is the requirement that an owner, an occupier or a person in charge of a Tertiary Institution, a Bar, a Night Club or a Hotel is allowed to designate not more than Ten per cent (10%) of such a person's premises as a smoking area. A designated smoking area must however have the necessary smoking signs, with good cross ventilation, and where necessary, proper ventilating equipment.

It is the duty of the owner or occupier or manager of a Tertiary Institution, a Bar, a Night Club or a Hotel to ensure that:-
(i) The internationally recognised "No-Smoking" Signs or Symbols are conspicuously displayed at each entrance and in other prominent locations of his, her or its premises.
(ii) "No-Smoking" Signs must be affixed with the Smoke Detectors in the premises.
(iii) Ensure that people that smoke on the street, near its premises, do so at least Ten (10) meters from the premises.
(iv) Ensure that Smoking outside the permitted No-Smoking area in its premises does not occur.

Any person who smokes in a public place that is not exempted under the Lagos State Regulation of Smoking Law commits an offence which on conviction carries a fine of not less than Ten Thousand Naira (N10,000) and not more than Fifteen Thousand Naira (N15,000); or to a term of imprisonment that is not less than One (1) month and not more than Three (3) months; or to such other non-custodial punishment as a Judge may deem fit; or to both the fine and the term of imprisonment.
Where a smoker is a repeat offender, the Lagos State Regulation of Smoking Law prescribes a fine of Fifty Thousand Naira (N50,000) or a term of imprisonment of Six (6) months; or both the fine and the term of imprisonment as the Judge deems fit.

It is an offence for the owner, occupier or a person in charge of a "No-Smoking Area" to fail to put up the "No-Smoking Signs" in such areas; or to fail to install smoke detectors; or to stop anyone from smoking in the non-exempted areas of his or her or its premises.
The penalties for the above offence, on conviction, includes a fine of One Hundred Thousand Naira (N100,000) or a term of imprisonment of Six (6) months; or to both the fine and the term of imprisonment. The Judge that hears the case is also allowed to award other non-custodial punishments.

Where the smoking control offence is committed by a corporate body, firm or association, the Directors, Managers, Partners, Company Secretary or such other similar or senior official of such an establishment could be held liable as if they personally committed the offence; and on conviction, they will suffer a fined Two Hundred and Fifty Thousand Naira (N250,000). The only permissible defence is for such an individual to establish that he took all reasonable steps to stop the smoker from smoking in his premises.

Where further or repeated violations occur, the premises so affected could be sealed up for the repeated smoking regulations violation.

To protect children from third party smoking, which is arguably as harmful as direct smoking itself, it is now an offence to smoke in the presence of a child under the age of Eighteen (18) years old; or to expose a child to any form of smoking.

The punishment for smoking in the presence of a child is a fine of Fifteen Thousand Naira (N15,000), or a term of imprisonment of One (1) month; or both the fine and the term of imprisonment. The trial Judge is equally given the discretion to order a non-custodial punishment for this infringement.

For repeat offenders, who expose children to smoking, the punishment, on conviction, is a fine of One Hundred Thousand Naira (N100,000), or a term of imprisonment of One (1) year; or to both the term of imprisonment and the fine herein stated.

The existing Federal Law that regulates tobacco smoking is the Tobacco Smoking (Control) Act, 1990. This Federal Law prohibits the smoking of tobacco in certain public places like Cinemas, Theatres, Stadia, Offices, Public Transportation, Lifts, Medical establishments, Schools and Nursery Institutions.

The advertisement of tobacco products through the medium of newspapers, magazines, radio, television, cinema, billboards and handbills must contain a prominent warning which says that tobacco smoking is dangerous to health.
In furtherance of the tobacco warning requirement, all tobacco packages must have inscribed on them the following package-rotational warnings, namely:-
a. "The Federal Ministry of Health warns that tobacco smoking is dangerous to health;" and
b. "Smokers are liable to die young."
It is also compulsory that all tobacco products must state the amount of the tar, and the nicotine content in each unit of each tobacco product.

The promotion or sponsorship of sporting events by tobacco and tobacco related firms is not allowed as a medium to advertise tobacco products at such events without the tobacco warning that "smoking is dangerous to health" prominently displayed.

Any person who smokes tobacco in prohibited public places is guilty of an offence and liable, on conviction, to a fine of not less than N200 and not more than N1000; or to imprisonment for a term of not less than one (1) month but not more than Two (2) years.

A person found guilty of smoking in prohibited public places could also suffer both a fine and a term of imprisonment as stated in the preceding above paragraph.

Any person who advertises, sells or offer for sale any tobacco product without the prescribed tobacco warning prominently inscribed on the tobacco product is liable, on conviction, to a fine of not less than Five Thousand Naira (N5,000).

Where the offending advertiser or seller of tobacco products without the statutory warning signs inscribed on the tobacco product is a corporate body, the penalty for contravention, on conviction, is a fine of not less than Five Thousand Naira (N5,000) or imprisonment for a term not exceeding Three (3) years; or to both the fine and the term of imprisonment to be borne by the key or controlling officials of the corporate body who were aware, connived or consented to the tobacco warning statutory contravention(s).

Numerous Tobacco Smoking Control Bills have remained un-passed into Law by the National Assembly. One of such Bills is the Tobacco Smoking (Control) Bill 2013, which seeks to provide regulations on the production, importation, exportation, advertisement, promotion, sponsorship, distribution, sale of tobacco products, and the designation of areas where tobacco products may or may not be smoked; and on other matters related to tobacco smoking.

Subject to the final deliberation and the assent to one of the versions or a harmonised version of the Tobacco Smoking (Control) Bill, it is anticipated that further legislation on the labelling of tobacco products, health warnings on tobacco products, outdoor public smoking of tobacco products, the retail selling of tobacco products to persons under the age of 18 years old, advertising and sponsorship of tobacco led events, licensing of the stakeholders in the tobacco industry, enforcement of these regulations, etc. will be captured in this awaited Federal Law.

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

This material is protected by International Intellectual Property Laws and Regulations. This material can only be re-distributed for non-profit educational purposes only on the strict condition that our authorship is acknowledged, and the Disclaimer Notice is prominently displayed.

Legal Alert – May 2014 – Risk Management and Insurance Legislations

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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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”).
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.
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.
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.
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.
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.
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).
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.
Legal Alert – March 2014 – Nigeria Health Care Delivery Laws
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 (“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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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