Nigeria

Market Overview
By

1. Introduction

The Federal Republic of Nigeria (“Nigeria”), the most populous country in Africa, accounts for one-sixth of Africa’s population. Nigeria also plays host to one of the continent’s fastest-growing economies. Following a contraction of 1.8% in 2020 with growth losses occasioned by the COVID-19 pandemic (“the Pandemic”), the economy rebounded and grew by 3.6% in 2021, growing faster than expected.1 In 2022, Nigeria’s GDP is predicted to grow faster than its population and will be driven by agriculture, services (trade, ICT, financial services), and the non-oil industry (construction, food).2

As countries compete for investments and economic growth it is the duty of every responsive government to provide an enabling environment for businesses to thrive and to attract foreign investments. Thus, in recent times, the focus of the Federal Government of Nigeria (FGN) has been on catalyzing a stable business environment with landmark legislative reforms, including but not limited to the Secured Transactions in Movable Assets Act No. 3 2017, the Federal Competition and Consumer Protection Commission Act No. 1 2018; the Companies and Allied Matters Act No. 3 2020 (“CAMA”); Banks and Other Financial Institution Act No. 5 2020 (“BOFIA”); the Finance Acts (2019, 2020, & 2021), the Petroleum Industry Act No. 6 2021 (“PIA”). To reinforce the positive impact of these legislations, the FGN has through executive orders, like the Executive Order on Promotion of Transparency and Efficiency in the Business Environment (2017), created more certainty and transparency to the model of doing business in Nigeria.

2. The Nigerian Business Environment: 2021-2022

After the tumultuous economic clime in the first half of 2020 characterised by the outbreak of the Pandemic and a Pandemic induced recession, the 3rd-4th Quarter of 2020 witnessed some economic improvements and deliberate attempts by the administration of President Muhammadu Buhari to enact reformative legislations including but not limited to the enactment of the CAMA and BOFIA which repealed the Companies and Allied Matters Act 1990 and the Banks and Other Financial Institutions Act 1990, the provisions of which were ill-equipped to cater to economic and technological developments of the 21st century. The Nigerian economic clime witnessed remarkable developments in sectors such as the oil and gas industry, financial services and international trade.

The oil and gas industry has continued to be the mainstay of the Nigeria economy despite Government’s best efforts at diversification. According to a new report by the National Bureau of Statistics (“NBS”), in the first quarter of 2022, Nigeria’s oil and gas sector led in volume and value of imports and exports, accounting for nearly 88% of all exported goods about 30% of total imports. The report stated that the value of crude oil exports in Q1, 2022 stood at ₦5,620.99 trillion which accounts for 79.16% share of total exports. Similarly, in Q1, 2022, revenue from gas export and feedstock sales to the Nigeria Liquefied Natural Gas Limited (NLNG) hit $243.57 million, surpassing receipts from crude oil export by 259.4%.3. In 2021, the Nigerian oil and gas industry witnessed a new dawn with the enactment of Petroleum Industry Act No. 6 2021 (“PIA”). Among the numerous changes introduced by the PIA is the (i) characterization of the Nigerian National Petroleum Corporation (NNPC) into a limited liability company in a bid to engender profitability and market competition (ii) introduction of Host Community Development Trust Fund for indigenous communities (iii) establishing dual regulators for the petroleum industry, namely, the Nigerian Upstream Petroleum Regulatory Commission (NUPRC) which is responsible for the technical and commercial regulation of the upstream petroleum operations, and the Nigerian Midstream and Downstream Petroleum Authority (the “Authority”), which is responsible for the technical and commercial regulation of the midstream and downstream petroleum operations; (iii) reduction of tax rates from 85% (or 65.75% for companies in their first 5 years of operations) under the repealed Petroleum Act and the Petroleum Profit Tax Act to tax rate of 15% to 30% for onshore and shallow waters and a 30% tax rate under the companies income tax and (iv) renaming existing licenses and leases related to the upstream petroleum operations and replacing them with the following categories: Petroleum Exploration License, Petroleum Prospecting License, and Petroleum Mining Lease.

A vibrant sub-market in the Nigerian oil and gas industry is the marginal fields which is geared at giving Nigerian indigenous oil and gas companies the opportunity to play a more active part in the exploration and production of petroleum by owning and operating oil blocks. Sequel to the marginal fields licensing round that commenced in June 2020, 161 indigenous firms out of 665 interested bidders were issued letters of award in respect of their bids for marginal field licenses by the government. From this bid, the Federal Government had so far raised about ₦175 billion. The bid was initially hindered by bureaucratic challenges, in addition to internal issues between co-awardees in incorporating special purpose vehicles (SPVs), high bid participation fees and signature bonus, inadequate data about the fields, difficulties in accessing finance from lenders, equity participation by members of respective SPVs, etc. However, the round was completed by the NUPRC with fewer complaints or litigations as against the norm.

Furthermore, the Companies Income Tax Act (CITA) as amended by the Finance Acts 2019, 2020 exempts the profits of small companies (companies with annual gross turnovers of N25m or less) from tax while the companies income tax that applies to medium-sized companies (companies with gross annual turnovers greater than N25m but less than N100 million) is limited to 20% and large companies (companies with annual gross turnovers higher than N100m) are levied companies income tax at 30%.

Another important sector of the Nigerian economy is the financial services comprising banks, capital markets, insurance and pension industries. In April 2021, the Board of the Pension Commission (Pencom), Nigeria issued a circular4 to increase the minimum regulatory shareholders capital for pension fund administrators (PFAs) from One Billion Naira to Five Billion Naira, effective 27 April 2022. On 29 April, Pencom informed all stakeholders that all PFAs have complied with the directive, albeit the exercise led to the reduction of licensed PFAs from a total of 22 to 20 vide the mergers/acquisition undertaken by certain operators in order to comply with the directive. The Nigerian banking industry progressively contributed about ₦168.4 trillion to the country’s GDP between 2017 and 2020, indicating incredible resilience and growth.5 The Nigerian banking industry witnessed a landmark regulatory development with the enactment of the BOFIA in 2022. On October 25 2021, the Central Bank of Nigeria (“CBN”) officially launched its digital currency, the E-Naira.6 In less than four weeks of its launch, almost 600,000 downloads of the ENaira application were recorded.7 In keeping with the financial inclusion strategy, the CBN, in May 2022, announced the adoption of an Unstructured Supplementary Service Data (USSD) code8 to enable intending users who do not have a bank account to leverage the E-Naira platform. Key benefits of E-Naira include easier access to capital and financial services thereby increasing economic activities at low/no interest transaction rate; a secure and cheaper diaspora remittance option; a traceability feature that limits its use for illicit or fraudulent purposes; increased financial inclusion to people/communities with inadequate banking opportunity; and presenting a more secure option as its unique identity and security structure prevents forgery or counterfeit. It also saves the CBN from the huge amount of money spent on printing Naira notes and stops the abuse of same.

Other key developments in the banking industry include (i) improved lending to the real sector via CBN Circular Regulatory Measures to Improve Lending to the Real Sector of the Nigerian Economy, dated 3 July 2019 which mandates inter alia that deposit money banks maintain a loan to deposit ratio (LDR) of 60% out of which small and medium scale enterprises, retail, mortgage and consumer lending shall be assigned a weight of 150% in the computation of the LDR (ii) licensing of payment service banks to entities especially telecommunication companies pursuant to the CBN Guidelines for Licensing and Regulation of Payment Service Banks for the purpose of leveraging mobile and digital channels to enhance financial inclusion and stimulation of economic activities at the grassroots through the provision of financial services (iii) release of the Regulatory Framework for Open Banking by the CBN in February 2021 which set out the principles for data sharing across the banking and payment system to promote innovations and broaden the range of financial products and services available to bank customers.

The Securities and Exchange Commission (the “SEC”) on 12 January 2021 released its Rules on Crowdfunding (the “Rules”) to regulate investment-based crowdfunding in Nigeria. Pursuant to the Rules, all entities that facilitate investment-based crowdfunding through online platforms (crowdfunding portals) are required to be registered with the SEC as Crowdfunding Intermediaries. Furthermore, the SEC on 11 May 2022 published its Rules on Issuance, Offering Platforms and Custody of Digital Assets (the “Digital Assets Rules”). The Digital Assets Rules sets out the approval process for issuers looking to raise funds through the capital market by offering digital assets such as tokens to the public, digital assets offering platforms, digital assets custodians, virtual assets service providers, and digital asset exchanges.

The Nigerian telecommunication, media, and technology (TMT) space also witnessed considerable development over the past 2 years on 8 September 2021 the National Policy on 5G Networks for Nigeria’s Digital Economy (the “5G Policy”) was approved by the Federal Executive Council. Sequel to the auction by the Nigerian Communications Commission (“NCC”) for the licensing of 3.5GHz Spectrum towards the deployment of 5G, the NCC announced MTN Nigeria, Mafab Communications Limited, and Airtel Networks Limited as the three qualified bidders that have met the criteria for participation in the licensing process of 3.5GHz Spectrum. After 11 rounds of bidding, MTN Nigeria and Mafab Communications Limited emerged as the two successful winners of the auction on 13 December 2021. In preparation for the rollout of the 5G network slated to commence in August 2022, the NCC, in June 2022, released draft guidelines on infrastructure deployment in the telecommunication sector.

In February 2022, the Federal government of Nigeria announced the establishment of the Nigeria Data Protection Bureau (NDPB). The NDPB is required to enforce compliance with the provisions of the Nigeria Data Protection Regulations 2019; and assist in the development of a primary legislation for data protection and privacy in Nigeria.

3. The Nigerian Comparative Advantage

With the presence of a large youthful population willing to explore new products and possibilities (combined with factors such as increased smartphone penetration and the regulatory financial inclusion policy of the government), Nigeria is home to one of the most vibrant FinTech ecosystems in Sub-Sahara Africa. In a study by McKinsey & Company, between 2014 and 2019, Nigeria’s Fintech raised more than US$600 Million in funding (including M&As), thereby attracting 25% (US$122 Million) of the US$491.6 Million raised by African tech startups in 2019 alone - second only to Kenya which attracted US$149 Million. Within a month in the first quarter of 2021, Nigerian technology firms raised US$202 Million eclipsing the entire US$170 Million raised by 82 Nigerian tech firms in 20209. By Q3 2021, out of the US$1.4 Billion raised by African Fintech firms, Nigeria was the largest recipient of about 57.9% of the investments.

Nigeria’s teeming population comprises the largest market in Africa and this is reflected in the spate of growth in the consumer goods sector. Nigeria’s largest fast-moving consumer goods (FMCG) companies saw their profits surge to a five-year high and above pre-pandemic levels in the first half of 2021. Nestle Nigeria Plc, Dangote Sugar Plc, Flour Mills Plc, Unilever Nigeria Plc, and Nascon recorded a combined profit of ₦52 billion in the first half of 2021, a 22% increase compared with ₦42.6 billion.

To ensure that residents or contracting parties do not suffer tax more than once on the same income or in two jurisdictions, Nigeria currently has operational Double Taxation Agreements (DTAs) with sixteen (16) countries including, Italy, the United Kingdom, Belgium, Pakistan, Czech, Slovakia, France, Netherlands, Romania, Canada, South Africa, China, Philippines, Sweden, Spain, and Singapore. Benefits of the DTA include relief from double taxation, treaty tax rates on income from source countries, dispute resolution mechanisms, and others.

To ensure smooth enforcement of foreign judgments on business, Nigeria ratified the International Center for Settlement of Investment Disputes (ICSID) Convention and subsequently enacted the International Center for Settlement of Investment Disputes (Enforcement of Awards) Act. The ICSID Act provides that upon filing of an ICSID award with the Supreme Court of Nigeria such award shall for all purposes have effect as if it were an award contained in a final judgment of theSupreme Court and the award shall be enforceable as such.

Nigeria is a signatory to the African Continental Free Trade Area (ACFTA) Agreement which officially came into force on 30 May 2019 and commence operations on the 1st of January 2021. The AfCFTA heralds huge economic benefits in a single market economy of 1.3 billion people and improvement in GDP of over $3.5trillion market, while lifting as many as over 30 million Africans out of poverty.10 The AFCTA will expedite efficient intra-continental trade, marked by few restrictions and less complex checks of goods across national borders and ports of entry. With the coming into full force of the ACFTA, Nigeria occupies a position of strategic strength, especially in sectors such as financial services and TMT especially taking cognizance of the fact that in the year 2021 Nigeria accounted for $6.7 billion worth of capital importation.

4. Business Structures in Nigeria

On 15 May 2018, Nigeria witnessed a watershed event in its corporate landscape as the 8th Senate of the Federal Republic of Nigeria at its plenary session passed the Bill for an Act to repeal the 30 years old Companies and Allied Matters Act 1990 (CAMA 1990) which had become archaic and incompatible with the economic and technological advancement of the times. In place of the CAMA 1990, the government enacted the CAMA 2020 which came into force on the 7th of August 2020. The CAMA represents a bold step toward business reform and contains salient provisions that enable business registration efficiency, reduced onerous requirements for small and medium enterprises (SMEs), enhanced stakeholders’ engagement in business organizations, promote long-term investments, and establish Nigeria as the African hub for the setup and operation of businesses. The Corporate Affairs Commission (“CAC”) pursuant to the powers vested in it by the CAMA issued the Companies Regulations 2021 (the “CAMA Regulations”) which provided the regulatory framework for the implementation and operationalization of the CAMA.

Within the Nigerian legal system the business structures in utilization are as contained in Diagram1 below:

5. The Main Sector Drivers of the Economy

Nigeria’s main economic drivers include the agricultural, oil and gas, services, and non-oil sector. The agricultural sector grew by 2.1% in 2021, which spate is consistent with 2.2% growth in 2020, and is expected to grow by 3.2% in 2022. However, the oil and gas sector witnessed a further contraction of 8.3% in 2021, following a contraction of 8.9 in 2020. Oil and gas production suffered myriad technical and security issues such as pipeline leaks, equipment failure, work stoppages for non-payment, community protests over unpaid compensation, and other problems such as theft and vandalism.11

The services sector accounts for the largest share of the country’s GDP and contributed the most to GDP growth in 2021. The services sector is bolstered by subsectors such as information and communication technology (ICT) and financial services. ICT expanded by 6.5%, while financial services grew by 10.1%.12 The non-oil industry recovered from its contraction in 2020 and grew by 4.4%, strengthened by subsectors such as manufacturing and construction. Other subsectors of the non-oil industry such as cement, food, beverage and tobacco, motor vehicles and assembly, and chemical and pharmaceutical products, are predicted to grow at a lower rate as they struggle with issues like supply constraints, rising costs for inputs, and services, and foreign exchange shortages.13

6. Investments Routes in Nigeria

Foreign entities can invest in Nigeria organically or inorganically. Organically by incorporating or establishing firms in any of the business structures discussed above. Inorganically, by acquiring or merging with existing firms in Nigeria. Foreign entities may invest in Nigeria via Foreign Direct Investments (“FDI”) or Foreign Portfolio Investments (“FPI”). FDI is a measure of foreign ownership of productive assets such as factories, mines, and land. FPI is the inflow of funds into Nigeria through the subscription for securities (equities, quasi-equities, or bonds) issued by Nigerian companies.

A breakdown of the capital importation data shows that portfolio investment received the largest share at $3.4 billion, other investments at $2.6 billion, and foreign direct investment (FDI) at $698.8 million.14 In terms of sectors, banking ($1.5 billion), shares ($1.1 billion), and production ($934.1 million) received the largest shares.15 While Nigeria’s FDI inflows as a share of GDP have dropped from over 2% a decade ago to less than 1% in recent years.16 The decline in FDI in Nigeria has been driven by the weak performance of the mining, and oil and gas sectors, while the services sector has attracted the largest share of Nigeria’s FDI.17

The data available for the first quarter of 2022 revealed that Nigeria attracted a total FDI of ₦651.550 billion ($1.57 billion) in the first quarter of 2022, with about 3.6%, i.e. ₦23.982 billion ($57.79 million) being attracted by the telecommunications sector.18 According to the recently published capital importation report released by the NBS, Nigeria attracted a total of $1.6 billion in capital inflows in the first quarter of 2022, falling by 28.1% compared to $2.2 billion recorded in the previous quarter.

Restriction on Foreign Participation

While Section 17 of the Nigerian Investment Promotion Commission Act provides that foreigners can invest and participate in the operation of any enterprise in Nigeria, there are certain sector-specific restrictions may restrict the extent of foreign participation. Some of these include:

  • Private Security Guard Companies: Section 13(1)(e) of the Private Guard Companies Act No. 23, 1986 restricts the grant of a license or approval if any of the company or the person applying for approval is not a citizen of Nigeria.
  • Broadcasting: Pursuant to Section 9 of the National Broadcasting Commission Act No. 38, 1992, a broadcasting license is only granted to Companies with a majority of their equity stake owned and operated by Nigerians and which do not represent foreign interests.
  • Oil and Gas: The Nigerian Oil and Gas Industry Content Development Act No 2, 2010 (the “Local Content Act”) was enacted to promote indigenous participation in Nigeria’s oil and gas industry. In accordance with the Act all regulatory authorities, operators, contractors, subcontractors, alliance partners and other entities involved in any project, operation, activity, or transaction in the Nigerian oil and gas industry shall consider Nigerian content as an important element of their overall project development and management philosophy for project execution. The Local Content Act further defines Nigerian content as the quantum of composite value added to or created in Nigeria through the utilization of Nigerian resources and services in the petroleum industry resulting in the development of indigenous capability without compromising quality, health, safety, and environmental standards.19
  • Advertising: Only a national agency, i.e. an agency in which Nigerians own not less than 74.9% of the equity can advertise in the Nigerian market.
  • Engineering: A company engaged in engineering services must be registered with the Council for Regulation of Engineering in Nigeria (“COREN”). Before undertaking engineering business, a company must have directors that are registered with the COREN and who hold at least 55% of the shares in the company.20
  • Shipping: Cabotage waivers were introduced in the Coastal and Inland Shipping (Cabotage) Act No 5 of 2003 (the “Cabotage Act”). The objective of the Cabotage Act is to restrict the use of foreign vessels in domestic coastal trade within the Nigerian coastal and inland waters and also promote indigenously built vessels wholly owned, registered, and manned by Nigerians. In the absence of indigenous capacity, waivers are granted to foreign vessels/ships operating in Nigerian coastal waters. Under the Cabotage Act, a priority system is established for the grant of waivers as follows: (i) first to wholly-owned Nigerian vessels, then to joint venture-owned vessels, and finally to any vessel registered in Nigeria and owned by a shipping company registered in Nigeria (foreign-owned vessels).
  • NIPC Registration and Company Incorporation: The minimum share capital for a company with foreign participation is Ten Million Naira21 and the Nigerian Investment Promotion Commission Act22 requires that a company with foreign participation should be registered with the NIPC. Furthermore, while a foreigner may invest and participate in any business operation in Nigeria, certain sectors of investment (negative list) is prohibited to both foreign and Nigerial investors alike.23
  • National Office for Technology Acquisition and Promotion (NOTAP) Act: An agreement under which a foreigner is to provide foreign technology, management or assistance to a Nigerian company is required to be registered by NOTAP. Registrable agreements by NOTAP are include: (i) the use of trademarks (ii). the right to use patented inventions, (iii) the supply of technical expertise in the form of the preparation of plans, diagrams, operating manuals or any other form of technical assistance of any description whatsoever, (iv) the supply of basic or detailed engineering, (v) the supply of machinery and plant, and (vi)the provision of operation staff or managerial assistance and the training of personnel.
  • Banking: Pursuant to CBN’s Policy on Foreign Banks’ Participation in the Nigerian Banking System, no single foreign individual/institutional investor can acquire more than the share of the single largest Nigerian individual/institutional investor in any bank; provided the aggregate shareholding of the foreign investors do not exceed 10% of the total capital of the bank. In addition, any foreign bank that seeks to acquire or merge with a local bank existing in Nigeria must have operated in Nigeria for at least five years and established branches in at least 2/3 of states of Nigeria (excluding the state capital), provided the foreign bank/investors’ shareholding arising from the merger/acquisition should not exceed 40% of the total capital of the resultant entity.
  • Insurance: Under the Insurance Act24, any moveable or immovable property located in Nigeria and all imports into Nigeria must be insured by a Nigerian registered insurer. The Act further prohibits any person from transacting insurance or reinsurance business with foreign insurers/reinsurers, except with the written permission of National Insurance Commission.

7. Economy

Against the backdrop of heightened inflationary pressures, the CBN in May 2022 raised the monetary policy rate by 150 basis points to 13%. However, the effectiveness of the monetary policy is reduced by the CBN’s development financing interventions at subsidized interest rates and its FX management which leaves substantial amounts of local currency liquidity waiting to exit.25

Foreign Exchange

The various rates applicable to the forex regime in Nigeria are: (i)the CBN Official Rate: The central foreign exchange authority in Nigeria is the CBN and in 2016, the CBN introduced the managed floating system due to increased demand pressure. Under the new regime, the value of the naira in the inter-bank forex market is largely driven by the forces of demand and supply and forex policies of the CBN; (ii) Import and Export Foreign Exchange Window: The Import and Export forex window is the market trading segment for investors, exporters and end-users that allows for forex trades to be made at exchange rates determined based on prevailing market circumstances; (iii)Nigerian Autonomous Foreign Exchange (NAFEX) Rate: NAFEX rates are determined by the FMDQ after pooling rate submissions by the 10 contributing banks who bid for forex on behalf of their clients. NAFEX is a polled rate based on the submissions of ten (10) contributing banks and calculated using a trimmed arithmetic mean. Upon receipt of quotes, the individual contributing banks’ submission is ranked in descending order. The lowest and highest two (2) quotes are eliminated from the ranked rates leaving only the middle six (6) rates. The arithmetic mean of the remaining rates are then calculated to two (2) decimal places and disseminated as the NAFEX Spot Rate. (iv) Parallel Market Foreign Exchange Rates: This refers to the financial rate in a dual system or to the black-market rate in a black-market system. Parallel Market operators who sell on the streets determine their prices simply by adding a premium on the prevailing exchange rate regardless of the official forex rates.

The exchange rate policy in 2022 remains focused on maintaining the IEFX rate and the official exchange rate artificially stable through foreign exchange restrictions and administrative measures.

The CBN maintains a complete restriction of FX supply to import about 45 products, and firms report limited FX supply availability for other imports. Despite the recovery in exports and economic activity in 2021, the CBN’s FX supply in the I&E window declined by 41 percent in 2021 relative to 2020. At the same time, the NAFEX remained broadly stable in 2021, and the parallel exchange rate depreciated by as much as 16 percent in the context of FX scarcity. As a result, the premium between the parallel exchange rate and the NAFEX widened from 21 percent to 37 percent. The CBN has also signaled that it would stop selling FX to commercial banks by end2022 and has introduced an FX repatriation rebate program in February in conjunction with the Bankers’ Committee.26

The CBN took steps to unify multiple exchange rates by adopting the IEFX window rate as its official exchange rate in May 2021. However, different windows still exist, and the parallel rate premium continues to climb, reaching 39 percent over the official IEFX rate in March 2022. The CBN continues to supply FX to at least four windows, sometimes at varying rates: (i) the I&E window; (ii) the secondary market intervention sales retail window; (ii) the small and mediumsized enterprises (SME) window; and (iv) the window for Invisibles.27

The Foreign Exchange (Monitoring and Miscellaneous Provisions) Act and extant Forex regulations in Nigeria provide that that any person may invest in a Nigerian enterprise with foreign currency imported into Nigeria through an authorised dealer (usually a bank licensed to deal in foreign exchange) by telegraphic transfer, cheques or other negotiable instruments converted into naira. The authorised dealer is required to issue a Certificate of Capital Importation (“CCI”), evincing receipt of investment capital within 24 hours of receipt of imported funds. The CCI assures the unhindered remittance of investment capital and yields thereon, in any convertible currency through official channels. In September 2017, the Central Bank of Nigeria introduced the issuance of electronic CCI’s and directed all Nigerian banks to replace the issue of physical CCI’s with electronic CCI’s to facilitate the tracking of investments across banks, eradicate the wear and tear as well as the risks of loss of physical CCIs.

Inflation rate

Nigeria’s inflation has steadily increased since the closure of the borders. Prior to the start of the Ukrainian war higher inflation pushed an estimated 8 million Nigerians into poverty between 2020 and 2021. In 2021, inflation averaged 17%, rising above that of the previous four years and ranking among the highest in the world.. World Bank reports estimate the “inflation shock” to result in about 15 million more Nigerians living in poverty between 2020 and 2022.28 The headline inflation rate rose to 16.8% year-on-year in April 2022, from 15.6% in January, while food inflation increased from 17.2% to 18.4%. Core inflation which has risen due to the scarcity of petrol and other fuels (diesel, household kerosene, and jet fuel) remained steady at 14.2%.

Authors

Adeleke Alex-Adedipe – Managing PartnerSeye Ayinla – PartnerSimisola Olasunbo Eyisanmi – Managing AssociateTracy Idemudia – AssociateAmanze Izundu – Associate

Foonotes

1. World Bank Group, “Nigeria Development Update: The Continuing Urgency of Business Unusual”, June 2022, p9.
2. Ibid.
3. Obas Esiedesa, “Gas Export Revenue Surpasses Oil Receipts by 259.4%”, Vanguard, May 5, 2022.
4. Pencom circular dated 28 April 2021 (PENCOM/INSP/SURV/2021/568) to all MDs/CEOs of all licensed Pension Fund Operators
5. Ailemen Anthony, “Nigeria’s Banking Sector Contributes ₦168.4trn to GDP in 4 Years”, Business Day, March 4, 2022.
6. The E-Naira is the second Central Bank Digital Currency (CBDC) fully open to the public after the Bahamas.
7. Moses-Ashike Hope, “What more to CBN’s E-Naira after Launch?” Business Day, April 5 2022.
8. The USSD code 997 is adopted for all E-Naira transactions.
9. Business Day Newspaper 23rd March 2021, pp 1 and 31 “Nigerian Tech Startups $202 Million in March Beats Entire 2020”
10. Edeh Harrison, “AFCTA: As Nigeria Resorts to ‘Services’ on Weak Infrastructure, Analysts Say Competitiveness in ‘Goods’ the Real Deal”, Business Day, January 12, 2021.
11. Supra, n.1, p10
12. Ibid. p,11.
13. Ibid.
14. Bunmi Bailey, “Foreign Investment in Nigeria Drops to $6.7 billion in 2021, Lowest in 5 Years”, Business Day, March 25, 2022.
15. Ibid.
16. Supra n.1
17. Supra, n.1.
18. https://www.nipc.gov.ng/2022/06/09/nigeria-records-n23-982-billion-fdi-from-telecom-sector-in-the-first-q1-of-2022/
19. For the purpose of the Local Content Act, Nigerian Company was defined in Section 106 of the Act as “a Company formed and registered in Nigeria in accordance with the provisions of the Companies and Allied Matters Act with
not less than 51% equity shares by Nigerians”
20. See the requirements for the registration of engineering consulting firms in Nigeria, available at https://www.coren.gov.ng/index.php?option=com_content&view=article&id=78:ecopacce&catid=3:newsflash&Ite
mid=50
21. Corporate Affairs Commission Operations Checklist
22. Section 20
23. Section 18 and 31 of the NIPC Act. The negative list include: (a) production of arms, ammunition, etc.; (b) production of and dealing in narcotic drugs and psychotropic substances;(c) production of military and para-military
wears and accoutrement, including those of the Police and the Customs, Immigration and Prison Services; and (d) such other items as the Federal Executive Council may, from time to time, determine.
24. Section 65 (7), 67 and 72
25. Supra, n1 p17
26. Ibid, p18
27. Ibid.
28. Ibid. p3

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Maritime Law

FOUNDATION CHAMBER'S 2025 MARITIME INDUSTRY NEWSLETTER NO.1

Introduction We are pleased to present the first edition of our Maritime Industry Newsletter for this year 2025, offering our clients and industry stakeholders a concise yet comprehensive overview of key developments within the maritime sector during the first quarter of the year. In this issue, we shall highlight the various legislation developments in Nigeria's shipping industry in 2024 and thereafter focus on the first quarter of 2025, examining significant legal and regulatory changes that are poised to influence the sector moving forward. Among the topics discussed is the much-anticipated Nigerian Shipping and Port Economic Regulatory Agency Bill ("the NSPERA Bill") and Nigeria's tax reform bills which are currently awaiting Presidential Assent. A. RECAP OF MAJOR DEVELOPMENTS IN THE NIGERIAN MARITIME INDUSTRY IN 2024 a. New Minimum Wage Agreement (2024) In 2024, the Nigerian Maritime Administration and Safety Agency (NIMASA) launched a Minimum Standard for the Seafaring Industry, after months of discussions with Maritime Industry Stakeholders to ensure fair and safe working conditions and decent wages for Seafarers (‘NIMASA CBA’). In the same year, the Shipping Agencies, Clearing, and Forwarding Employers Association (SACFEA) and the Maritime Workers Union of Nigeria (MWUN) also reached an agreement facilitated by the Nigerian Shippers' Council (NSC) with the support of the Ministry of Marine and Blue Economy (‘the SACFEA-MWUN’), establishing an N200,000 minimum wage for maritime workers.[1] We are of the view that this wage level does not fully reflect current economic realities, but understand that clauses in the SACFEA-MWUN CBA, dealing with remuneration shall be reviewed bi-annually. It is important to note that both the NIMASA and the SACFEA-MWUN agreements constitute collective bargaining agreements, which can only be enforced through the Courts and are not backed by law. The challenges inherent in this kind of enforcement were highlighted in the recent 2025 case of Maritime Workers Union of Nigeria (MWUN) -VS- Intels Nigeria Limited and Associated Maritime Services (AMS) & ORS[2], delivered by Hon. Justice M. N. Esowe. In this case, the National Industrial Court upheld the Industrial Arbitration Panel's decision, which had refused to enforce a Collective Bargaining Agreement between the MWUN and the Seaport Terminal Operators Association of Nigeria (STOAN) concerning terminal benefits for redundant dockworkers. According to the National Industrial Court, MWUN's failure to adequately demonstrate the 1st Respondent's (Intels Nigeria Limited) membership in STOAN, was a very key ground in dismissing the appeal as it was considered a prerequisite for establishing the applicability of the Collective Agreement. The National Industrial Court emphasized that the most compelling evidence of STOAN membership would be the production of a membership number and certificate or, in their absence, official communication confirming membership.   Applying this judicial precedent to the SACFEA-MWUN Agreement, the enforceability against individual shipping agencies or freight forwarding companies hinges on the ability of the MWUN to substantiate the membership of each such entity within SACFEA. Without such proof, as established in the MWUN v. Intels case, a claim for enforcement through the courts may be unsuccessful. Thus, a party contesting the applicability of a collective bargaining agreement may find grounds to do so by disputing their membership in the relevant association. In light of this, for the minimum standards outlined in the SACFEA-MWUN CBA to have broader and more certain enforceability, the Nigerian Shippers' Council, as the confirming party, may need to consider incorporating key provisions, such as the minimum wage, into its own regulatory framework. This could potentially provide an alternative avenue for enforcement, independent of establishing direct membership in the signatory employers' association on a case-by-case basis. b. Approval For Extension of Nigeria’s Maritime Territory By The United Nations: Also, in 2024, the United Nations approved the extension of Nigeria's Maritime territory with an additional 16,300 square kilometres. This approval follows a submission made in 2009 by Nigeria through its High-Powered Presidential Committee (HPPC), aimed at extending the country's continental shelf under the United Nations Convention on the Law of the Sea (UNCLOS)[3]. With this approval, the Nigerian government is expected to leverage the extended maritime area to boost offshore gas exploration activities. This development presents a strategic opportunity to enhance revenue generation and attract increased levels of foreign direct investment into the energy sector. c. Ratification of Six IMO Conventions In November 2024, Nigeria also expressed its commitment to enhancing maritime security and governance as well as its intention to align with international standards by ratifying six International Maritime Organization (IMO) conventions.[4] Specifically, the President of Nigeria signed six instruments of accession, confirming the nation's dedication to international maritime safety, security, and environmental protection. The six instruments of accession encompass the following: The Protocol of 2005 to the 1988 Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms on the Continental Shelf. The International Convention of Standards of Training, Certification, and Watch-keeping for Fishing Vessel Personnel, 1995. The Protocol Relating to Intervention on the High Seas in cases of Pollution by Substances other than Oil, 1973, as amended. The Protocol of 1996 to Amend the Convention on Limitation of Liability for Maritime Claims (LLMC), 1976. The Protocol to the 1974 Athens Convention Relating to the Carriage of Passengers and Their Luggage by Sea, 2002 The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships, 2009. d. The Nigerian Coast Guard (Establishment) Bill, 2024: On 5 December 2024, the Senate Committee on Marine Transport held a public hearing at the National Assembly on the Nigerian Coast Guard (Establishment) Bill 2024. The Bill seeks to formally establish the Nigerian Coast Guard as a distinct entity tasked with securing the country's maritime zones. The proposed Coast Guard shall be engaged in combating illegal fishing, enforcing civil maritime laws, ensuring safety at sea, and supporting environmental protection efforts. Furthermore, the Coast Guard shall serve as a specialised support service to the Nigerian Navy during times of war, to bolster Nigeria's national defence infrastructure. The Bill has successfully passed its second reading in the Senate and is currently undergoing further review at the committee stage. However, certain provisions of the Bill raise legal and operational concerns that may require a closer look before the Bill can be signed into law. For example, the Bill has various overlaps in the responsibilities between the proposed Coast Guard and the Nigerian Navy. We believe this could lead to several issues based on the proposed Coast Guard’s area of operation and other procedural inefficiencies if not clearly addressed. For example, Section 1 of the Bill[5] classifies the Coast Guard as a "military service" and a branch of the Armed Forces, a position that appears inconsistent with the existing constitutional framework. The 1999 Constitution of the Federal Republic of Nigeria, as well as Sections 1.1 and 219 of the Armed Forces Act 1994, establishes a tripartite structure comprising the Army, Navy, and Air Force. Under the Constitution, the Nigerian Navy is already mandated to enforce maritime laws, conduct hydrographic surveys, and maintain safety within Nigeria's territorial waters and Exclusive Economic Zones (EEZ). Another ambiguity arises from the proposed administrative structure. While the Bill places the Coast Guard under the Ministry of Marine and Blue Economy, its military designation would typically place it under the purview of the Ministry of Defence. A more coherent and constitutionally aligned alternative may be to structure the Coast Guard as a specialised division within the Nigerian Navy, supported by inter-agency collaboration where necessary. This approach would be more consistent with Section 217(1) of the Constitution[6] and ensure better integration with Nigeria's existing defence and maritime enforcement architecture. B. NOTABLE DEVELOPMENTS IN THE NIGERIAN MARITIME INDUSTRY IN 2025 a. NIMASA to Begin Disbursement of Cabotage Vessel Financing Fund (CVFF). In March 2025, the Nigerian Maritime Administration and Safety Agency (NIMASA) issued a Marine Notice announcing the commencement of disbursements under the Cabotage Vessel Financing Fund (CVFF). Established pursuant to Section 42 of the Coastal and Inland Shipping (Cabotage) Act, 2003 (the Cabotage Act), the CVFF is designed to support the growth of indigenous shipping by providing financial assistance for vessel acquisition to Nigerian companies engaged in coastal trade. Since its creation, however, the Fund has faced persistent delays and criticism, as no disbursement had been made through the designated Primary Lending Institutions (PLIs) for more than two decades. This recent announcement marks the first time the CVFF will be activated to provide financing to qualified local shipping firms. According to the Marine Notice[7], eligible applicants may receive funding of up to US$25,000,000 per beneficiary, at low, single-digit interest rates. To qualify for a loan or guarantee under the CVFF, applicants must satisfy a series of conditions, including:[8] Submission of a bankable feasibility report, subject to independent verification by an approved PLI and NIMASA; Provision of a minimum equity contribution of 15% of the credit facility requested; Payment of all prescribed fees; Demonstration of adequate managerial and operational capacity to the satisfaction of the Fund; Agreement with a PLI regarding its participation in the credit facility structure; Presentation of acceptable security or collateral; Evidence of previous contribution to the Fund; and Fulfilment of any additional requirements as may be stipulated by the Fund. The successful implementation of the CVFF is expected to significantly improve access to capital for indigenous operators, thereby strengthening Nigeria’s coastal shipping capacity and promoting broader participation in the maritime industry. b. Nigerian Shipping and Port Economic Regulatory Agency Bill Passed—Awaiting Presidential Assent In April 2025, during the Operational Retreat for Middle Managers of the Nigerian Shippers' Council (NSC), the Executive Secretary and Chief Executive Officer, Pius Akutah, announced that the Nigerian Shipping and Port Economic Regulatory Agency Bill 2024 (the NESRA Bill) had been passed the third reading by the National Assembly and now awaits Presidential assent.[9] Once signed into law, the NESRA Bill will transform the Nigerian Shippers' Council into the Nigerian Port Economic Regulatory Agency (the Agency), thereby expanding its regulatory mandate. The Agency shall also be empowered to set minimum and maximum tariffs for both public and private service providers operating within the nations ports.[10] It also introduces comprehensive provisions aimed at regulating market entry and exit, supporting the implementation of government economic policies, and strengthening the Agency’s advisory role on trade facilitation. One key objective of the NESRA Bill is to improve competition among port service providers, such as shipping agencies, freight forwarders, and terminal operators, in coordination with regulatory bodies like the Federal Competition and Consumer Protection Commission. In addition, the Agency will have authority to issue, review, and enforce regulations, guidelines, tariffs, and standard operating procedures applicable to government-regulated service providers. Further powers granted under the NESRA Bill include the ability to issue, suspend, revoke, or cancel licences, certificates, and permits. This may, however, raise concerns over jurisdictional overlap with other regulatory bodies, particularly the Nigerian Ports Authority (NPA), especially in areas such as barge operations. The NESRA Bill also confers monitoring and enforcement powers on the new Agency, enabling it to supervise compliance with port concession agreements, conduct periodic audits, and review concession terms.[11] Given that many of these agreements were originally executed by other government agencies, this development raises questions about the scope and propriety of such oversight. Previous legal challenges, such as Apapa Bulk Terminal Ltd & Ors v. Nigerian Shippers’ Council & Anor[12] and Alraine Shipping Agencies Nig. Ltd & 12 Ors v. Nigerian Shippers’ Council & Anor[13], underscore the legal and regulatory complexities that may arise. In view of these expanded powers, it may be necessary to comprehensively amend the enabling statutes of other agencies operating within the port ecosystem, including the Nigerian Ports Authority (NPA), the National Inland Waterways Authority (NIWA), and the Nigerian Maritime Administration and Safety Agency (NIMASA). We are of the view that the amendments would help to reduce regulatory conflicts and encourage effective implementation of the new law. While some stakeholders have expressed concerns that the NESRA Bill could increase the cost of regulatory compliance due to potential overlaps, others view it as a step toward streamlined oversight and improved operational efficiency in the ports sector. We recommend that stakeholders begin engaging with the Agency to seek clarity on any anticipated overlaps in regulatory functions. We are monitoring the legislative process closely and will continue to provide updates as further developments unfold. c. National Policy on Marine and Blue Economy Approved by Federal Executive Council On 5 May 2025, the Ministry of Marine and Blue Economy announced that the Federal Executive Council had approved Nigeria’s National 10-year Policy on the Marine and Blue Economy, which would run from 2025 to 2034.[14] The policy is intended to strengthen the maritime sector by unlocking the full potential of the country’s marine resources and positioning the sector as a central pillar of national economic development. The said National policy shall be reviewed in detail when it is published. d. Nigeria Tax Reform Bills 2025 Passed, Awaiting Presidential Approval – Implications to International Shipping Companies On 7 and 8 May 2025, the National Assembly concluded the third reading of four significant tax reform bills: the Nigeria Tax Administration Bill 2025, the Nigeria Tax Bill 2025, the Nigeria Revenue Service (Establishment) Bill 2025, and the Joint Revenue Board (Establishment) Bill 2025. These bills, which are now awaiting Presidential assent, are set to substantially reshape Nigeria’s tax administration framework. Of relevance to international shipping companies are the Nigeria Tax Bill 2025 and the Nigeria Tax Administration Bill 2025. Sections 18 and 21 of these respective bills largely codify the existing position of the Federal Inland Revenue Service (‘the Service’) regarding the tax obligations of non-resident shipping companies engaged in sea transport into Nigeria. Under the proposed legal framework, the obligation for non-resident shipping companies to file monthly tax returns with the Service will be explicitly mandated. It's important to note that this practice is not entirely new, as the Service had already issued a directive in 2023 instructing international shipping companies to submit monthly returns, a requirement many have been adhering to since 2024.[15] These returns must provide evidence of tax payments on freight income derived from the carriage of passengers, mail, livestock, or goods loaded in Nigeria.[16] Furthermore, Section 18 of the Nigeria Tax Bill 2025 empowers the tax authorities to issue a minimum tax assessment of 2% on gross revenue[17] earned from outbound freight. This assessment will be determined in line with established mechanisms for computing taxable profit and will consider applicable double taxation treaties.[18] Additionally, factors such as the terms of charterparty, including clauses on tax liability within the said charterparty, will be considered in determining whether the shipowner or charterer shall be the party bearing responsibility for the tax obligation.[19] Importantly, stakeholders may be able to argue for a reduction in the assessed liability based on the specifics of their unique operational arrangements, contractual terms, or treaty protections.[20] The main objective of the new provisions, however, is to ensure that a share of revenue generated within Nigeria is brought within the domestic tax net, and to enhance transparency and accountability by non-resident operators.[21] In light of these developments, we recommend that stakeholders; assess and confirm the scope of revenue generated from their Nigerian operations; ensure timely and accurate monthly tax filings with the Service; and develop and implement tailored compliance strategies aligned with the requirements of the proposed legislation. We are closely monitoring the legislative process and remain available to support clients in interpreting and complying with these evolving obligations. Further updates will be provided as the Bills progress toward enactment. Conclusion This 1st edition of our 2025 Maritime Newsletter reviewed several key developments and advancements within Nigeria's shipping industry. We examined the establishment of a new minimum wage agreement, alongside the significant extension of Nigeria's maritime territory by the United Nations. In addition, we mentioned Nigeria's ratification of six IMO conventions, demonstrating a commitment to international standards. We also tracked the progress of the Nigerian Coast Guard (Establishment) Bill and the finalisation of the draft National Policy on Marine and Blue Economy, both indicating ongoing efforts to bolster the sector. We anticipate that the commencement of the Cabotage Vessel Financing Fund disbursements and the prospective enactment of the Nigerian Shipping and Port Economic Regulatory Agency Bill will introduce further transformations to the industry's operational and regulatory framework. Nevertheless, the ultimate success of these initiatives will largely hinge on clear implementation strategies, effective inter-agency coordination, and robust stakeholder engagement. Equally important are the recent advancements in Nigeria's tax reform agenda, specifically the concluded third reading of significant tax bills awaiting Presidential assent, which hold particular relevance for international shipping companies operating within Nigeria. As we plan to continue this discussion in subsequent editions, we are confident that the insights and analysis provided in this Newsletter will assist your business decisions, legal compliance, and strategic positioning in the coming months. As always, our team remains available to offer advice on how these changes may affect your operations throughout 2025 and beyond.   Contributors Mojisola Jaiye-Gbenle Partner [email protected]   Emmanuel Ikwuakolam [email protected]   [1] Anozie Egole, 'Shipping Agencies Approve N200,000 Minimum Wage for Workers' (Punch Newspaper, 2024) https://punchng.com/shipping-agencies-approve-n200000-minimum-wage-for-workers/#:~:text=%E2%80%9CBy%20the%20agreement%20we%20have,minimum%20wage%2C%E2%80%9D%20she%20said.&text=Alabi%20expressed%20optimism%20that%20the,and%20enhanced%20productivity%20and%20efficiency accessed 4 February 2025   [2]  APPEAL NO: NICN/LA/177/2023 delivered 4th March 2025, https://nicnadr.gov.ng/judgement/details.php?id=9845&txt=collective%20bargaining%20agreement accessed 7 May 2025 [3] Clair Mom, ‘The United Nations Grants Nigeria Sovereignty Over Additional Maritime Territory’ (2024) https://www.vanguardngr.com/2024/08/20-years-after-workers-in-shipping-industry-get-n200000-minimum-wage/ accessed 7 February 2025. [4] Nigerian Maritime Administration and Safety Agency (NIMASA), 'President Bola Tinubu GCFR Signs Six IMO Instruments of Accession' (13 November 2024) https://nimasa.gov.ng/president-bola-tinubu-gcfr-signs-six-imo-instruments-of-accession/ accessed 6 February 2025 [5] Nigerian Coast Guard (Establishment) Bill 2024 [6] 1999 Constitution of the Federal Republic of Nigeria [7] NIMAS Marine Notice- MN03/25/SN01 – Implementation and disbursement of the cabotage vessel financing fund (CVFF): Requirements for applicants. [8] Ibid. [9] Ships & Ports, ‘National Assembly Passes Ports Regulatory Bill, Awaits Presidential Assent’ (Ships & Ports, 16 April 2025) https://shipsandports.com.ng/national-assembly-passes-ports-regulatory-bill-awaits-presidential-assent/ accessed 15 April 2025. [10] S. 37 NSPERA Bill [11] Section 4(1)(g) NSPERA Bill [12] (2018) LPELR-44802(CA) [13] 2017 Commercial Law Reports Nigeria,  9 CLRN, 125. [14] FG Approves National Policy on Marine and Blue Economy https://shipsandports.com.ng/fg-approves-national-policy-on-marine-and-blue-economy/ accessed 8 May 2025. [15] Martins Arogie, Adedolapo Adebayo, and Francis Nzene, "Do International Oil and Gas Transport Companies Owe Taxes in Nigeria?" Tax Notes Int'l, Mar. 25, 2024, p. 1785 Do International Oil and Gas Transport Companies Owe Taxes in Nigeria? | Tax Notes accessed 8 May 2025. [16] Section 21 of Nigeria Tax Administration Bill - Monthly Returns by Non-Resident Shipping Companies [17] Section 18 of Nigeria Tax Bill – Non-Resident person engaged in shipping or air transport [18] Akinwale Alao KPMG Tax & Regulatory Hot Takes – Episode 1.mp4 https://www.youtube.com/watch?v=S-jXtNzVbi4 accessed 8 May 2025. [19] Ibid. [20] Ibid [21] Section 18 of Nigeria Tax Bill – Non-Resident person engaged in shipping or air transport
Foundation Chambers - 04 June 2025