Nigeria

The most common for-profit organisational form utilised in Nigeria is the company limited by shares which is provided for in the Companies and Allied Matters Act 2020 (“CAMA 2020”).  The liability of members (i.e., the shareholders) of a company limited by shares is limited to the amount unpaid on any shares held by them.  A company limited by shares can either be a private company (‘Private Co.”) or a public company (“PLC”).  A company limited by shares has a corporate personality distinct from that of its members and accordingly, it is able to sue and be sued as well as own assets in its own name.

A Private Co. cannot have more than 50 shareholders and is not allowed to invite the public to subscribe for its shares or other securities.  A PLC on the other hand, may have as many shareholders as it requires, and its shares are tradeable or transferable to members of the public.

It is possible to operate a for-profit business under a registered Business Name. This could be a sole proprietor or a partnership.  It is used mostly by small businesses.  A registered business name is not a separate corporate entity and as such, its proprietors do not enjoy limited liability.  It is much quicker to set up, is not regulated and the proprietors are subject to no limitation in their decision-making capacity, while these features make a business name attractive to entrepreneurs, they make this structure unattractive to investors. Prior to the enactment of CAMA 2020, the repealed Companies and Allied Matters Act (“CAMA 2004”) made provisions only for general partnerships. This type of partnership permits individuals to enter into partnership agreements which can be registered under part B of CAMA as a business name. In additional to the general partnerships, the CAMA 2020 recognises the Limited Liability Partnership (“LLP”) and Limited Partnerships (“LPs”).

The LLP is a body corporate formed and incorporated under the CAMA 2020 with separate legal personality from its partners and with perpetual succession. It can sue and be sued in its name and can acquire, own, hold and develop or dispose of property, whether movable or immovable, tangible or intangible. Generally, the partners have limited personal liabilities, i.e., their personal assets cannot be utilized or legally sequestrated in settlement of business debts and liabilities. Consequently, the liability of a partner will be met out of the assets of the LLP. However, under the CAMA 2020, in instances where the LLP or any of its partners act with the intent to defraud creditors of the LLP or any other person, the liability of the LLP and partners who acted in that manner shall be unlimited for all or any of debts or other liabilities of the LLP. With respect to LPs, section 795 (3) of the CAMA 2020 provides that a limited partnership shall consist of one or more persons called general partners, who shall be liable for all debts and obligations of the firm, and one or more persons called limited partners.  Thus, LPs are required to have at least one owner must be on record as the general partner with unlimited liability, and at least one partner must be listed as a limited partner with limited liability.

Following the enactment of the CAMA 2020 in August 2020, the CAC announced that they would begin registration of LPs and LLPs from January 2021.

a. Enterprises with multiple owners which seek financing from investors tend to set up as a Private Co.

b. A Private Co.

Yes. Section 305 of the CAMA 2020 provides that a director is required to act in the best interest of the company.  Specifically, it provides in s. 305(3) and (4):

• “(3) A director shall act at all times in what he believes to be the best interests of the company as a whole so as to preserve its assets, further its business, and promote the purposes for which it was formed, and in such manner as a faithful, diligent, careful and ordinarily skilful director would act in the circumstances and, in doing so, shall have regard to the impact of the company’s operations on the environment in the community where it carries on business operations.”
• “(4) The matters to which a director of a company is to have regard in the performance of his functions include the interests of the company’s employees in general, as well as the interests of its members.”

a. While there is no requirement that a Social Enterprise takes a particular organizational form, most Social Enterprises, whether for profit or otherwise, take the form of either companies limited by shares (profit), and companies limited by guarantee or Incorporated Trustees. The latter two forms are not for profit.  Having described a company limited by shares, we have set out below a brief description of a company limited by guarantee and Incorporated Trustees respectively below, in response to questions (b) to (f):

Company Limited by Guarantee:

b.   Company limited by guarantee is a non-profit organization which is formed for the promotion of social causes e.g. – for promoting charity, commerce, art, science, religion, sports, culture, education, research, or other similar objects.       

c.   None       

d.  The income and property are to be applied solely towards the promotion of its objects and no portion thereof is to be paid or transferred directly or indirectly to the members of the company. At winding up, the assets of the company would be transferred to another entity with similar objects.

e.   The requirement to obtain the consents of the Registrar General of the Nigerian companies registry and the Attorney General of the Federation increases the timeline for establishing this entity.

f.    This is a popular medium for setting up not-for-profit organizations or charities in Nigeria especially where the organization has foreign affiliations and non-resident directors.

Incorporated Trustees: 

b.   Incorporated Trustees are non-profit making organizations formed to facilitate the acquisition of corporate personality by a community of persons bound together by custom, religion, nationality or any association of persons established for religious, educational, literary, scientific, social development, cultural, sporting or charitable purposes.

c.   There is no profit distribution among members, however, an advantage of this structure is the ease of networking among members, availability of a wealth of knowledge and a communal sense given that it is an organization for a group of people with similar interests and backgrounds.

d.  (i)The Trustees must be residents in Nigeria, and they cannot receive fees or remuneration although they are entitled to be reimbursed for costs incurred in connection with the discharge of their duties as trustees.  (ii) the income and property are to be applied solely towards the promotion of its objects and no portion thereof is to be paid or transferred directly or indirectly to the members of the organization with the exception of the following:

• ex-officio members of the governing council, appointed to any salaried office of the body or any office of the body paid by fees;
• repayment of out-of-pocket expenses, reasonable rent for premises demised or let to the body or reasonable fee for services rendered to the Incorporated Trustees to any member of such council or governing body (section 838 2(a) and (b) of CAMA 2020); and
• At winding up, the assets of this organization would be transferred to another entity with similar objects.

e.  This form is well known and is popular especially where all members and directors are local residents.

a. Social Enterprises may be set up as for-profit or nonprofit organizations.  Where they set up as non-profits, they take the form of either a company limited by guarantee or Incorporated Trustees.  Social enterprises that are set up as non-profits are treated the same as other non-profits in all respects.

b. Not Applicable

c. No, there is no hybrid non-profit structure under Nigerian law.

d. Traditionally, social enterprises set up as non-profits.  Increasingly, especially with respect to those who seek private sector investment, they set up as for-profit enterprises.

Yes. Nigerian jurisdiction allows for worker-owned enterprises, such as cooperatives.  The Nigerian Cooperatives Society Act, Chapter N98 Laws of the Federation of Nigeria 2004 is the federal legislation that governs cooperatives in Nigeria.  Certain states such as Lagos State have enacted laws to govern cooperatives within their jurisdiction.  A society may be described as a cooperative society if it has as its objects the promotion of the socio-economic interests of its members in accordance with co-operative principles and established for the purpose of facilitating the operation of those principles.

The corporative society may be established as a:

• Primary society: a registered society consisting of a minimum of 10 individuals as members.
• Secondary society: a registered society established to facilitate the operations of registered societies in accordance with co-operative principles and includes a central financing society. Minimum membership is 5 registered societies: or
• Industrial society: a registered society comprising of no less than 5 members whose principal objective is manufacturing, making, servicing or assembling of industrial goods and whose members are respectively manufacturers, craftsmen, artisans, industrial workers and apprentices.

Material benefits:

a. One of the objects of the registered society could be to lend money to its members

b. One-fourth (1/4) of the net surplus disclosed in the income and expenditure account for the year must be put in a reserve fund and the remaining three-quarter (3/4) may be distributed as dividends to its member in accordance with the by-laws of the society or upon the approval of the committee of the registered society.

c.  All instruments executed by or on behalf of a registered society or by any officer or member of a registered society, relating to the business or the society are exempted from stamp duties.

d.   A registered society is exempt from payment of tax for research and development under the Companies Income Tax Act (as amended by the Companies Income Tax (Amendment Act 2007).

e.   Upon liquidation, any surplus funds left over after meeting the obligations of the society shall be distributed to the members in accordance with the by-laws.

Restrictions:

a. One cannot be a member of more than one registered society that has the primary objective of granting loans to its members

b. A registered society may be canceled if the required membership is below the minimum threshold.

c. No member, other than a registered society, shall hold more than one-fifth of the share capital of a society.

d. A registered society shall not grant a loan to a person, who is not a member of that society, provided that it may grant a loan to another registered society with the consent of a majority of its members.

No. There are no unique reporting requirements for Social Enterprises in Nigeria.

No.

No. The ESG requirements apply to public listed companies as explained below.

No, there are no ESG requirements specifically for Social Enterprises. However, where a Social Enterprise is incorporated as a PLC that has securities listed on the Premium Board of the Nigerian Stock Exchange (“NSE”) it will need to comply with the requirements of the NSE Sustainability Disclosure Guidelines 2018 (“NSE Guidelines”).  Section 4.3 of the NSE Guidelines requires all Issuers to comply with the sustainability requirements set out therein and to report their compliance annually to the NSE. The NSE Guidelines require issuers to comply with 9 (nine) principles as set out below:

1. Businesses should conduct and govern themselves with Ethics, Transparency and Accountability.
2. Businesses, when engaged in influencing public and regulatory policy, should do so in a responsible manner.
3. Businesses should provide products and services that are safe and contribute to sustainability throughout their life cycle.
4. Businesses should engage with and provide value to their customers and consumers in a responsible manner.
5. Businesses should promote the well-being of all employees.
6. Businesses should respect the interests of, and be responsive towards all stakeholders, especially those who are disadvantaged, vulnerable and marginalized.
7. Businesses should respect and promote human rights.
8. Businesses should support inclusive growth and equitable development.
9. Businesses should respect, protect, and make efforts to restore the environment.

No. Some investors (e.g., private equity investors and development finance institutions) are subject to ESG requirements under the terms of their constitution or investment funds, and so they usually, in turn, impose corresponding ESG requirements on the social enterprises that they invest in.

No major investor classes are required to look at ESG issues. Investors may, (and do in fact) consider these issues when deciding on which companies to invest in.

Social Enterprises may receive grants, charitable donations, equity and debt investments. 

For-profit impact investments are increasingly prevalent in Nigeria. In addition to DFIs, certain private equity funds such as Leapfrog and charities such as Acumen, are active impact investors in Nigeria.   A prominent private for-profit impact investor in Nigeria is the Tony Elumelu Foundation.

There is no special government funding specifically available to Social Enterprises. The funding or support available is largely dependent on the Enterprise form and the industry it operates in, and government grants, loans, bonds, and guarantees may be available. The government may grant funding to companies in order to boost the economy, or as would be seen below, in the event of a health crisis. An example of funding provided by the government includes the Nigerian Bank of Industry’s youth empowerment program launched in 2016 which was aimed at empowering youths with skills and funding required to start up Small and Medium Enterprises in Nigeria.

Furthermore, in the wake of the Covid-19 pandemic, the Central Bank of Nigeria introduced a ₦50 billion targeted credit facility for Micro, Small and Medium Enterprises in a bid to cushion the effect of the pandemic on their revenues. This was followed closely by a ₦100 billion credit support for the healthcare sector for healthcare providers intending to build capacity in order to meet the higher demand. As we have mentioned above, since there are no particular forms which Social Enterprises are expected to take, the funding made available would depend mostly on the types of entities for which the funding or grants were created.

We are not aware of any Social Enterprises listed on the NSE. Although these Enterprises are not prohibited from being listed, we find that these Social Enterprises are oftentimes structured as either Non-profit Organisations or private limited liability companies, neither of which are permitted to offer securities to the public.

As we have mentioned above, section 4.3 of the NSE Guidelines requires all Issuers to comply with the sustainability requirements set out therein and to report their compliance with same in their annual reports required to be filed with the NSE or as a separate report within the same timeframe they are required to file their annual reports with the NSE. We have set out the applicable principles above.

Impact bonds are not very prevalent in Nigeria. However, they are sometimes utilized at the Federal Government level in Nigeria. Examples of such impact bonds issued by the Federal Government are the Green Bonds and the Federal Government Sukuk.

No.

Crowdfunding is legal in Nigeria. The Securities and Exchange Commission (“SEC”) recently released the Exposure Draft of the Proposed Rules on Crowdfunding in March 2020 (“Crowdfunding Rules”). The Crowdfunding Rules allow small businesses to solicit investment from the general public, i.e., both retail investors and sophisticated/high net worth investors. However, these small businesses must be duly incorporated in Nigeria with a minimum of two years operating track record in order to be eligible to raise funds through a crowdfunding portal registered by the SEC.

There are no tax exemptions specifically available to Social Enterprises. However, in Nigeria, Non-profits enjoy certain tax exemptions. 

Non-profits are exempted from paying companies income tax in respect of income derived from grants, subscriptions, donations, and gifts. This exemption does not however apply to income derived from any trade or business carried on by such nonprofit.

Furthermore, donations made to nonprofits or specific educational institutions as set out in the Companies Income Tax Act are tax deductible provided that such donations do not exceed 10% of the assessable profits of the company making the donation for that year and the donations are not an expenditure of capital nature.

In addition to the above, goods purchased for use in humanitarian donor-funded projects by non-profits are not liable to Value Added Tax.

No. Tax-deductible donations are limited to those made to:

1. the public funds;  
2. the statutory bodies and institutions;  
3. the ecclesiastical, charitable, benevolent, educational and scientific institutions, established in Nigeria, which are specified in the Fifth Schedule to the Companies Income Tax Act.

No.

No. For Non-profits to be tax exempt in Nigeria, they must be incorporated as either companies limited by guarantee or Incorporated Trustees in Nigeria and registered with the Federal Inland Revenue Service.

No.

The Small and Medium Enterprise Development Agency conducts training, promotes, and facilitates development programs, instruments and support services to accelerate the development and modernization of Small and Medium Enterprise (“SME”) operations. As a result of the increasing financial needs of small businesses, government-sponsored funding programs were created to promote the growth of SMEs with the support of multilateral development agencies some examples of government grants are:

1.  Real Sector Support Facility (“RSSF”): the RSSF is a special intervention fund of ₦300 billion established by the Federal Government through the Central Bank of Nigeria (“CBN”). The objective of the RSSF is to improve the access of SMEs to affordable finance in the manufacturing, agricultural, and other related sectors.
2. Micro Small and Medium Enterprise Development Fund:  the CBN established the Micro Small and Medium Enterprise Development Fund (“The Fund”). The Fund was established in recognition of the significant contributions of the Micro, Small and Medium Enterprises (MSME) sub-sector to the economy and the existing huge financing gap. The objective of The Fund is to channel low-interest funds to the MSME sub-sector of the Nigerian economy through Participating Financial institutions.

₦50 billion Target Credit Facility: the CBN introduced the ₦50 billion Targeted Credit Facility (TCF) as a stimulus package to support households and micro, small and medium enterprises (MSMEs) affected by the COVID-19 pandemic.

Yes. Section 845 of CAMA 2020 stipulates that Incorporated Trustees are required to submit a bi-annual statement of affairs to the Corporate Affairs Commission (“CAC”). The trustees of the Association must also ensure that accounting records sufficient to show and explain the transactions are kept. Section 848 of CAMA 2020 provides that the trustees must also file an annual return at the CAC not earlier than 30th June or later than 31st December each year (other than the year in which it is incorporated).

Section 420 and 422 of CAMA 2020 provide that companies limited by guarantee must deliver to the CAC an annual return filing, duly accompanied by a copy of its balance sheet, profit and loss account, and notes on the statement.

No.

No.

The average time and filling fees to form an enterprise in Nigeria depend on the structure of the proposed entity.  Based on our recent experience, the applicable timelines are:

• Private Co.: 2 (two) weeks.
• PLC: 2 (two) weeks.
• Company Limited by Guarantee: 3- 6 months
• Incorporated Trustee: 2-3 months.
• Business Name: 5-10 working days.
• Limited Partnership: Unclear, as this structure only became available at the CAC in January 2020.  The duration for setting it up remains to be seen.

The timelines listed above are subject to reserving the proposed names of the entities within 48 hours and the CAC receiving the requisite documents in a timely manner.

• Limited Liability Partnership: Unclear, as this structure only became available at the CAC in January 2020.  The duration for setting it up remains to be seen.

Under Nigerian Law, social enterprises do not need to obtain a government or third-party certification or accreditations in order to be conferred with the tax exemption status, however, there are certain agencies that social enterprises must register with.

• Registration with the Special Control Unit Against Money Laundering: This registration is mandatory, and it ensures that the activities/transaction of the organization does not support money laundering and financial terrorism.
• Registration with the National Planning Commission (NPC): This applies to social enterprises that are set up as non-profits in Nigeria by parent entities that are foreign non-profits. The NPC is the agency that is responsible for managing bilateral and multi-lateral economic co-operation, including development aid and technical assistance in Nigeria. The NPC formulates policies, regulations, and is responsible for registering all foreign non-profits that intend to operate in Nigeria. Upon registration with the NPC, the registered entity will be entitled to three (3) expatriate quota positions. The NPC will also procure the grant to the registered entity an exemption from paying import duty on goods and equipment imported for executing the entity’s aims and objectives.

Other certifications shall be determined by the industry in which the social enterprise operates.

Yes, the removal of the bureaucratic impediments and initiatives formulated by the Presidential Enabling Business Environment Council (PEBEC) has led to the digitization of the companies' registration processes, reduction of timeframes and fees for registration of companies at the CAC.  The aforementioned reforms have made doing business in Nigeria easier.  We should mention that as a result of these reforms Nigeria ranks 131 out of 190 countries on the World Bank Doing Business Index 2020, moving up 15 places from 146th position in the 2019 Report.

Yes, by virtue of Section 23(1)(c) of Companies Income Tax Act Cap C21.LFN 2004 and Section 19, Paragraph 13 of the Third Schedule of Personal Income Tax Act Cap. P8 LFN 2004, which provides that profits of any company/institution engaged in ecclesiastical, charitable, benevolent or educational activities of a public character are exempt from income tax provided such profits are not derived from a trade or business carried on by the company.

Social enterprises can easily access governmental grants through programs such as the Federal Government Survival Fund Program by registering on the MIS Platform.

The introduction of a single form for incorporation of a company and simplified application process at the CAC, has created an environment where social enterprises can easily form and flourish in Nigeria.

No.

No.

1. Creation of extensive tax benefits to social enterprises

2.  Promotion of easy access to government loans.

3.  Creation of a commission that will specifically address and formulate policies for Social Enterprises.

Currently, ESG requirements are largely voluntary.  A framework imposing incremental ESG requirements on companies as they grow would be welcome. Tax breaks and other fiscal incentives should be provided to enterprises that perform their social and environmental responsibilities.

No.