Corporate Affairs Commission CAC

The Importance Of Registering A Business – Adeolu Adesuyi Esq.

by Legalnaija | Sep 5, 2016 | Uncategorized

The importance of registering a business
can never be over-emphasized. For one, when it comes to doing serious business,
many agencies will never take you serious if your company is not registered.

Secondly, you might have to discover that people and that includes you and I,
feel more comfortable paying for services and products into a corporate account
with the name of an organization than paying into Individual account. You may
have missed an important sale because when your prospect made up his mind to
buy, the account number you sent him was an individual account in your name. He
thought it too risky because it was a sizable amount involved.

People feel if the account is in a corporate name, the organization can be
traced if the transaction went foul. If you register your company, you can use
the documents to open a corporate account with less stress.
In this post, you’ll be learning simple steps you can take to register your
business name with the corporate affairs commission in less than 21 days.

REQUIREMENTS FOR INCORPORATING A PRIVATE
COMPANY IN NIGERIA.

The steps for incorporating a new company at the nation’s registry, The
Corporate Affairs Commission, can be summarized in the following 10 steps:

i. Submission of the proposed Company Names to the CAC. This is the first step
in the entire process. The promoters of the company must decide on a company
name and submit for approval. The government officials reserve the right to
approve or deny company names submitted for a number of justifiable reasons –
availability, suitability, legality, similarity, etc.

ii. Details of Directors: Long story short, you will be required to provide the
biodata of the Directors of the proposed company. This information include:
Full Names, Residential Address, Nationality, Age, Valid Identification
Document and Signature of the Directors. The minimum number of directors for a
private company is 2 and maximum is 50. There is no maximum for public
companies. There are statutory requirements for being a director, one of which
is that the directors must not be less than 18 years old.

iii. Shareholders/Subscribers. The legal minimum number of shareholders in a
private company in Nigeria is 2 and a maximum of 50. The shareholders subscribe
to the memorandum and articles of association and are allotted shares in the
company.

iv. Appoint a Company Secretary. Every Nigerian company must appoint a Nigerian
Company Secretary, as it has become a legal requirement. The company secretary
of a private limited company needs no formal qualifications. It is the
directors’ responsibility to ensure he/she has the appropriate knowledge and
experience to act as a Secretary of the company.

v. Registered Address of the Proposed Company. The company must have a Nigerian
business address. This requirement needs no much explanation and not debatable
either.

vi. Core Areas of the company’s business activities (Nature/Objects of
company). Nigerians and Non-Nigerians are allowed to carry on all forms of business
provided it’s legal and not in the “Negative List”. If the company will engage
in specialist services (Hospital, Consultancy, Schools, Media &
Advertising, etc), the directors may need to provide an evidence of
professional proficiency. E.g. Certificate of a professional body/trade
association, Academic Certificate, or both.

vii. Valid Identification. Although this requirement has been stated earlier,
it is worthy of mention here again. A photocopy of Identification of all the
directors is required. (E.g. National ID card, Data Page of your National
Passport, Voter’s Card or Driver’s License).

viii. The Company’s Share Capital and Allotment. In simple terms, the share
capital of a company (usually in monetary terms), is the amount of capital the
subscribers have to carry on the business. The minimum share capital of a
private company must not be less than N10, 000:00 (Ten Thousand Naira only)
However, for economic reasons, it is advisable that an average Nigerian company
incorporate a N1, 000,000: 00 (One Million Naira only) share capital company. A
company’s share capital is also industry-dependent. For example, advertising
agencies must have at least N10 million as share capital. The law also
stipulates a minimum of N10 million share capital for a Nigerian company with
foreign ownership. Your regulator or adviser should advice you appropriately. A
minimum of 25% of the authorized share capital must be subscribed and paid for.
Once the issue of share capital has been decided on, then the subscribers must
also decide on allotting the shares. If there are 2 persons that formed the
company, they could share it 50% each.

ix. Draft the Memorandum of Understanding and Articles of Association (MEMART).
This is a legal document that spells out the business objectives and the
framework on which the company intends to run its business within the
acceptance of the law. This legal document also shows the particulars of the
shareholders and their shares allotment.

x. Payment of Stamp Duty and Statutory Filling Fees. The total fees payable to
the Stamp Duty office and the Corporate Affairs Commission is dependent on the
company’s share capital.

These are the basic requirements for incorporating a private limited liability
company in Nigeria.

If
you need professional service to register a limited liability company, please
contact the writer via the email address or phone number supplied below. If you
have any questions on the content of this article, please do not hesitate to
send a mail.

Adeolu Adesuyi Esq.

https://deolumike.wordpress.com/

Chukwudi Ofili – Perfection of Security Documents and the Practice of Upstamping in Nigeria

by Legalnaija | Aug 29, 2016 | Uncategorized

In Nigeria, debts are typically secured
through the use of guarantees, mortgages, fixed and floating charges and
pledges of real, personal, tangible and intangible property belonging to the
debtor or a guarantor of the debtor. Security created in favour of a lender for
providing debt financing is documented using different forms of security
documents.

In order to perfect security documents,
such documents must be stamped at the stamp duties office and registered at the
Corporate Affairs Commission (CAC). For certain assets such as real property
which require the consent of the Executive Governor of the state where the real
property is situate, such consent must be obtained to perfect the security
created under such document. The statutory obligation to stamp documents that
transfer or create a proprietary interest in assets is provided for under the
Stamp Duties Act (SDA) with specific emphasis on sections 3, 23 (1) and (4) of
the SDA. In addition, a charge created by a company to provide security to a
lender is void against a liquidator and such lender (as a creditor of the
company) unless it is registered with the CAC within 90 days of creation.

However, in large financing
transactions, the stamp duty payable in respect of a security document could be
very high (and in certain cases, prohibitively so). It is not uncommon
for lenders to a financing to agree that the borrower may pay stamp duty on
only a portion of the secured amount rather than the whole secured amount, with
a further assurance from the borrower that the full stamp duty will be paid on
a future date or upon the occurrence of certain events. This practice is
known as “upstamping”. Until the security document is upstamped, any such
lender is only protected up to the amount expressed to be secured and a lender
may lose priority to any subsequent security granted on the charged assets
during the period between the initial stamping and the full upstamping of the
security document.

The Implication of Upstamping on
Lenders

Neither the SDA nor the Companies and
Allied Matters Act (CAMA), stipulate that a security document that secures a
credit facility must be stamped and registered for the exact amount extended to
a company or person. However, where a security document is stamped for an
amount lower than the facility amount, the lenders will only be permitted to
prove for and realise the security for the secured amount i.e. the amount
for which that lenders has stamped and registered his security. CAMA
recognises the right of parties to commercially structure their transactions
such that the security documents can be stamped for an initial amount and then
subsequently up stamped for an additional amount.

Pursuant to section 202 of CAMA, any
additional amount for which a security document is up stamped will be valid and
effective to the extent of such increased amount. The lenders would only be
permitted to prove and realize the security for the full facility amount or a
higher amount only upon the security document being up stamped (i.e. payment of
additional stamp duty) to cover the facility amount or the higher amount being
sought to be recovered.

Potential Risk to Lenders in Enforcing
Security

There is a risk that prior to the
lenders up stamping the security document for the full facility amount,
intervening third party interests might have arisen (i.e. under other third
party security), thus raising pertinent priority issues where another creditor
has acquired an intervening proprietary interest. If prior to an up stamping to
secure additional amounts, another creditor advances money to the borrower, and
perfects its security interest over the same assets that form the
subject-matter of the lenders’ security, that creditor will rank ahead of the
lenders’ interest as it relates to the subsequent up stamped additional amount
to be secured but lenders will still have priority in respect of original
amounts for which the security was perfected.

Hardening Period

Another risk lenders face in an
upstamping scenario is that an agreement to upstamp to secure additional
amounts, might be viewed as a fraudulent preference in the event of insolvency
of the borrower. See section 495 of CAMA. This “hardening period” rule,
and the resultant effect is that the additional / up stamped security interest
would be void against the liquidator of the borrower and enable the liquidator
claw-back any such payments or cancel such acts. Arguments can be made whilst
referring to decisions of English courts on the fact that a preference is not
fraudulent by essentially showing that the dominant motive for such preference
is not to prefer certain creditors to the detriment of others. It should
however be noted that such arguments are only persuasive to Nigerian courts as
Nigerian courts are not bound by the decision of English courts; they are only
of persuasive authority.

On the flip side, where the dominant
motive was to carry out a pre-existing obligation, or to keep on good terms
with a creditor, it is likely that Nigerian courts will follow English courts
in holding that in such circumstances the preference is a fraudulent
preference. It is important to note that there are no Nigerian law decisions on
this point, however, Nigerian courts are likely to follow English courts on
this point.

Addressing the Residual Risks of
Upstamping

The risks identified above, while
adopting the upstamping regime, can be mitigated by:

1. Establishing an
upstamping regime in the relevant loan documentation;

2. Using a negative
pledge clause restricting the borrower from creating any additional security
over its assets;

3. Using automatic
crystallization provisions in the security documents for floating charges to
crystalise into a fixed charge when there is an attempt to create security over
the assets in favour of a third party; and

4. Establishing a stamp
duty escrow account to hold the balance of the perfection costs to enable
lenders upstamp at will.

The options highlighted in (1) to (4)
above are by no means exhaustive as other options have not been discussed in
this paper.

Chukwudi Ofili is
a Senior Associate in the corporate and commercial, banking and corporate
finance practice group of Bloomfield Law Practice; and advises on matters such
as local and foreign currency syndicated lending, leases
transaction/structured/project finance, structured trade finance, energy and
natural resources, due diligence issues and advisory services, foreign
investment advisory services, taxation and real estate.

Ed”s Note – This article was originally published by the author here.