Uncategorized

28
Oct

A CUSTODIAN OF BLESSINGS FOR THE NEXT GENERATION.

It is important for us to understand our role in preserving the “destiny” of generations to come. This message is therefore addressed to youths at large; parents, future parents, those preparing for marriage, and those who desire to gain more understanding on their role in bringing about the agenda of God for generations to come.

There are many misconceptions about marriage and the place of the child. However, a deep search of the scripture reveals the right position –

The Psalmist helps us to understand in Psalm 127:4 that:

“Like arrows in the hand of a warrior, so are children of one’s youth

That means parents are to aim (guide, give direction, instruct) their children towards specific goals in life.

Put in another way; that the job of the parent is not about the “present” alone, but the “future” of the child.

But these goals will not just come to pass like that, and no parent will direct a child where he or she does not even know! So, what does this teach us? That we owe our children a duty – one of seeking the face of God just as Rebekah did (Gen. 25:22) so as to know, understand and initiate the proper roadmap for them.

The act of seeking God’s face to get instructions for our seeds is a good practice, one that is deeply rooted in scriptures, but is overlooked in our days.

Interestingly too, in the first place that God made mention of those to come from our bosom, He called them “seeds”, (Gen. 3:15). I believe that His choice of word was a careful one, and this, we can also understand through our reading of other instances where He addressed the men of old as touching His promise for their “seeds”.

In elementary science, we learn how one pollen grain can cause fertilization in flowers on a field, the same way, our seeds (children) are like pollens meant to be released by us to cause positive changes on the field of life!

How are these seeds (children) empowered? The scriptures records that “by faith”, Abraham (the receiver of a promise from God) believed God for His promise (Gen. 15:5-6, Heb 11:9), and passed the gospel of that promise to his seeds who in turn passed it from generation to generation confessing it, not having received the promise, but having seen them afar off and were assured of them, embraced them… until the ultimate fulfilment (Hebrews 11:13).

Search deeply into scriptures, there is something about the promises of OUR GOD which makes His words to us not just for us but for generations to come and our seeds unborn. The reason many promises are lost is because we (as the receiver) sometimes misconceive God’s promises expecting Him to act in our time, and off course, when we leave the earth, those who we hand over to (our seeds) keep living life without even knowing what to live for!

In order words, our seeds are empowered when we, as parents and “parents to be” begin to trust God for His promises to us and our children. This promise will ultimately guide the choice of our course, profession, and reasons for living.

In preparing these seeds (children) to take their rightful place in destiny, we (as carriers of those blessings) must understand our role as a prophet to them; we might not have been called to the ministry of the prophets, but we have all received the grace for the prophetic unction over our lives and families.

Note the words of Isaac in Genesis 27:4 as he called his son, Esau to prepare him a meal. He said “…make me savoury meal… that my soul may bless you before I die”. The words of Jacob is more convincing as he told his children “Gather yourselves and let me tell you things that will happen in the years to come” (Genesis 49). Even Paul refers to them as men who “Have seen the promise from afar” (Hebrews 11:13).

No doubt, that is the prophetic grace bestowed upon every parent, and “would-be parents”.

From the words of a wise woman in 2 Samuel 14:14:

“…….For we will surely die, and become like water spilled on the ground which cannot be gathered again, but God does not take away life, but rather has devised a means so that His banished ones (those who have received the promise) are not expelled from Him”.

My brothers and sisters, life is a relay race in which we must run by  keeping to the rules, and abiding in the faith that we may pass on the baton (a better legacy) to the seeds coming after us.

If we live well in our time and show our seeds the right path to follow, they will have no excuse to fail in their own time.

However, if we live a reckless and a careless life, we will still have to eventually pass the baton and that which we pass may turn out to be what generations may suffer for, simply because of our own errors.

I pray that when it is our turn to pass on the baton of life, we will have a well groomed runner (our seed) to pass it to.

Please affirm these words of prayer as you commit yourself to the Lord:

“Dear Lord, you have taught me from my youth,

And to this day, I declare your wondrous works.

Now also, when I am old and gray headed,

Do not forsake me, until I declare your strength to this generation,

And your power to everyone who is to come… So help me God.” (Psalm 71: 17-18).

 

You shall fulfil your purpose for living in Jesus name (AMEN).baby-1150109_960_720

12
Sep

7 Important Points to include in Software Agreements (Part 2)

If you have consulted a software developer to help you develop software, you may also have to enter into an agreement with the developer so that specifications are understood and duties are clearly stated.
Sometimes, off-the-shelf (ready-made) software may not be suitable for your company and you want a bespoke software that is developed just for you from the scratch. You will therefore have to engage your lawyer to prepare a comprehensive Software Agreement (“the Agreement”).
In addition to the standard clauses, below are some clauses that should be considered in the Agreement to protect your investment:
1. Change is the most constant thing in the field of Information Technology. You may not be able to predict the relevance/applicability of your software in the nearest future, but you can ensure immediate intervention by your software developer. The way to go about this is to instruct your lawyer to add a clause for periodic review of the software. Although, some developers will charge you a little more for the service, but you will get value for money and you will be well placed for future eventualities.

2. Ensure that there is a clause for training and retraining of your team. You may also request for a user manual, maintenance guide, installation instruction, etc.

3. You may not be able to guarantee the availability of your software developer to attend to your queries. Sometimes too, events may happen that make it impracticable for the software developer to continue to operate or maintain the software. If it is intended that you will have the copyright in the software to be developed, one of the ways to ensure that the developer does not hold you to ransom is to insert a clause which mandates the developer to hand over the source code to you (including the updated source code any time there is an update). If the developer has an issue with this, you may request for a clause which mandates the developer to release the source code to a third party (usually known as an “escrow agent”) who would have custody and can only release it to you in circumstances where the software developer has defaulted or where other conditions have happened by which it is important for you to have access to the code. The practice of escrow agent is not common in Nigeria, but that is not to say that arrangement cannot be made for it particularly in multi-million naira software contracts.

4. One of the ways to have a healthy relationship with your software developer is to have problem solving clauses. I discussed this in my article 6 Important Points to Note in Software Agreements (Part 2: For software companies). One of the circumstances in which you can have such clause is in case of late delivery which was not caused by you or some unforeseen events; in which case you may have a clause that makes you entitled to a stated amount per day for the period of the delay. Although, you must also have a clause that allows you to terminate the Agreement if delay continues for an inexcusable length of time.

5. Your software developer is ordinarily the owner of copyright in the software, but that will not be the case if your agreement state that intellectual right in the software is yours. Therefore, if it is important that you have ownership of the software, then, make sure your Software Agreement states this in clear terms. An example is as follows:

“The Software Developer agrees that …………[your company name] will be the exclusive owner of the rights, interest and title in the software and its components”.

6. What if the software claimed to have been designed for you is actually the product of another person and you had thought it was designed from the scratch by your software developer? The easy safeguard will be for you to get your software developer’s undertaking in the introductory part of the Software Agreement that the software to be developed for you will be original and not a violation of an existing intellectual property of another person.
An example is as follows:
“The Software Developer undertakes that the software and its components will be original and not a violation of an existing intellectual property”

You don’t have to stop at the undertaking, you may also add that you have a right to refund and compensation if a third party claim of software ownership arises.
7. You might ask, “what if the software company offers me an already prepared agreement to sign?” simply get a competent lawyer to review it and advise you.

Other than the above suggested clauses, there are standard clauses which your Agreement should have. In essence, the points listed in this article are not exhaustive and the peculiarity of each client’s specification may differ, it is therefore important that you seek advice from an experienced legal practitioner.

3
Sep

TAX STRATEGIES FOR SMEs -Synopsis from Covenant Capital Annual Tax Seminar, July 29, 2017

By Audu Monday and Sunday Okpeh

Covenant Capital’s Annual Tax Seminar held on 29 July 2017 was an insightful session. We had seasoned tax professionals share their knowledge on the tax environment in Nigeria. One of the speakers, Mr Wale Ajayi, a Partner at one of the ‘Big 4’ Accounting Firms in Nigeria took us through the Nigeria tax regime for SMEs. We have summarized below the insights he shared at the Seminar.

1. What are taxes?

Taxes are the compulsory levies imposed by the government on people, entities, properties and transactions. According to Frederick the Great (18th Century), “no government can exist without taxation. This money must necessarily be levied on the people; and the grand art consists of levying so as not to oppress.”

A tax is not a quid pro quo payment by the people to the government. English speakers often use the term to mean “a favor for a favor”. The government is obliged to provide public goods, however, it is not meant to be a direct response to payment of taxes.

2. Overview of Nigerian taxes

Even though taxes are payable by individuals and corporate bodies, such taxes are not levied or imposed on such individuals and corporate bodies. Rather, taxes are levied on the incomes and transactions of these individuals and corporate bodies.
Taxes may be direct or indirect and may be imposed on individuals’ incomes, corporate entities’ incomes, assets and transactions.

3. Tax administration in Nigeria

The administration of taxation in Nigeria is vested in various tax authorities depending on the type of tax under consideration.

Broadly, there are three categories of tax authorities; the Federal Inland Revenue Service (FIRS), the States Internal Revenue Service and the Local Government Revenue Committee. The enabling law in respect of each type of tax will normally contain a provision as to the body charged with the administration of the tax.

4. Overview of SMEs

Small and medium enterprises (SMEs) form the core of majority of the world’s economies. The National Policy on Micro, Small and Medium Enterprises defines Small and Medium Enterprise (SME) as “An entity with between 10 – 200 employees and with an asset value (excluding land and buildings) of ₦5million – ₦500million”. They represent 50% of the GDP and employ about 84% of the labor force in Nigeria.
The Small and Medium Enterprises Development Agency of Nigeria (SMEDAN) was established in 2003 to facilitate the promotion and development of a structured and efficient Micro, Small and Medium Enterprises (MSMEs) sector that will enhance sustainable economic development in Nigeria.

5. SMEs Tax Incentives

There are a lot of incentives available to SMEs in Nigeria. Some of them are:

(a) Small business incentive

Companies within the SME bracket are charged to company’s income tax at the rate of 20% instead of the conventional 30% for their first 5 years, which can be renewed for an additional 2 years subject to certain conditions.

(b) Free Trade Zone/Export processing zone Incentives

Section 23(1s) of CITA also exempts a company that is established in an EPZ or free trade zone from payment of taxes. In addition, Section 35(i) – (v) provides that, the profit or gain of a 100% export oriented undertaking established within or outside an export free zone shall be exempt from tax for the first three consecutive assessment years subject to certain conditions.

(c) Agricultural business incentive

Companies carrying on agriculture trade or business will not be subjected to minimum tax. There is also exemption for interest on loans granted by a bank to companies engaged in agricultural trade or business, fabrication of any local plant and machinery and providing working capital for any cottage industry established by the company.

(d) Pioneer Status incentive

A company granted pioneer status will not pay income tax for the period stated in the pioneer certificate. The company will however, pay VAT and also render WHT returns. The pioneer company would however file normal income tax returns which would state ‘NIL’ tax liabilities. The Nigerian Investment Promotion Council (NIPC) is statutorily empowered to grant and issue Pioneer status under parameters laid down by the FG. The NIPC grants pioneer status ranging from 3 to 7 years and is conferred on a product(s) and not a company. Tax holiday begins on the date certified as production day.

(e) Gas Utilization Incentives

A company engaged in gas utilization (downstream operations) shall be granted an initial tax free period of three years, and which may be subject to the satisfactory performance of the business, be renewed for an additional period of two years.

6. Strategies for Managing Taxes

Taxes can be managed by an SME using three approaches. These are:

(a) Business process

● Proper Record Keeping – It is required by law to maintain good records. This among other things will discourage the tax authorities from raising best of judgment assessment which most times will be more than what a taxpayer would have paid if records were properly kept.

● Treat FIRS Correspondence/Tax documents as priority – This must be taken seriously and attended to promptly and professionally.

● Business Financing Method – Financing businesses with loan/debt is cheaper than using equity. Interest on loan is tax deductible. This option should be taken advantage of. Care should be taken however that loans are promptly repaid as and when due.

(b) Accounting and Tax Strategy

● Invest in basic tax knowledge. If you want to run a successful SME, then a little knowledge in tax should be considered.

● Engage tax expert. The use of auditors/tax adviser is not an option when preparing and filing returns. This will save the business a whole lot of money

● Take advantage of tax planning opportunities and incentives. Some examples of these incentives has been discussed above.

(c) Voluntary Tax Compliance

● The cheapest form of tax compliance is voluntary/self-compliance. The FIRS operates a self-assessment regime where a taxpayer can assess himself to tax and file returns on that basis.

● Use of tax amnesty. For example, the recent Voluntary Assets and Income Declaration Scheme (VAIDS) initiative by the Federal Government.

Conclusion

We should always remember that nothing is certain except for death and taxes. Taxes are here to stay, they won’t go away. It is not a punishment but our responsibility as citizens. So let’s brace up.

27
Aug

Tax Incentives for Companies in Different Industries in Nigeria

Tax is one certain obligation for every company doing business in Nigeria. Tax may be a burden but we have what I call “rest stops” on the journey to paying taxes or using the general term “tax incentives”.

In my article, I have described some of the tax incentives available to incorporated companies in different industries in Nigeria. This article relates to tax incentives for incorporated companies. In a subsequent article, we will examine the incentives for unincorporated entities.

1. Agriculture

The agricultural industry currently has the following tax incentives:

• An agricultural company with turnover of less than ₦1 million will pay CIT at 20% (instead of 30%) for the first five years in which its turnover is less than this amount

• Exemption from minimum tax

• Non-restriction of the capital allowance claimable on property, plant and equipment purchased

• 10% Investment Allowance on plant and machinery

2. Manufacturing

A lot of manufacturing activities are under the pioneer industries and products. However, there are still other tax incentives available to companies in the manufacturing sector.

• A manufacturing company with turnover of less than ₦1 million will pay CIT at 20% (instead of 30%) for the first five years in which its turnover is less than this amount

• Rural Investment Allowance of between 15% and 100% of the cost incurred in providing facilities/infrastructure in rural areas

• 15% Investment Tax Credit on replacement of obsolete plant and machinery

• 10% Investment Allowance on plant and machinery

• Accelerated capital allowance of 95% in the first year in respect of replacement of industrial plant and machinery.

3. Gas

• Gas Utilisation (Downstream Operations)

 Enhanced investment allowance of 35% on assets acquired, or a 3-year tax holiday which is renewable for an additional period of 2 years, subject to satisfactory performance

 An annual allowance of 90% plus an additional investment allowance of 15% after the tax-free period. Where a gas company opts for the enhanced allowance, it will not be entitled to the 15% investment allowance

 Tax free dividends during the tax holiday, subject to certain conditions

 Plant, machinery and equipment purchased for gas utilisation are exempt from value added tax (VAT)

 Profit from gas utilisation operations is subject to tax under the CIT Act

 Pre-production costs and investment required to separate crude oil and gas from the reservoir are tax deductible expenses

• Gas Utilisation (Upstream Operations)

 Capital investment on facilities and equipment required to deliver associated gas in usable form is treated as part of the capital investment for oil development

 Investment required to separate crude oil and gas from the reservoir into usable products is also considered as part of oil field development

 Gas transferred from a Natural Gas Liquid facility to the gas-to-liquids facilities is subject to 0% Petroleum Profits Tax and 0% royalty.

4. Export

• A company engaged in wholly export trade with turnover of less than ₦1 million will pay CIT at 20% (instead of 30%) for the first five years in which its turnover is less than this amount

• Export Expansion Grant

• The profits of a company whose supplies are exclusively inputs to the manufacturing of products for export are exempt from CIT

• The profits of a company established within an export processing zone is exempt from CIT

• Tax-free dividends from investment in wholly-export-oriented business

5. Mining

• A mining company with turnover of less than ₦1 million will pay CIT at 20% (instead of 30%) for the first five years in which its turnover is less than this amount

• A new company engaged in the mining of solid minerals will enjoy a tax holiday of three years

• Plant, machinery, equipment and accessories imported exclusively for mining operations in Nigeria are exempted from customs and import duties

6. Services Industry

• 25% of incomes in convertible currencies derived from tourists by a hotel shall be exempt from tax, subject to certain conditions

• Interest payable on any loan granted by a bank for the purpose of manufacturing goods for export, shall be exempted from tax

• Tax exemption of the interest earned from agricultural loans subject to certain conditions

• Companies engaged in research and development activities for commercialization are entitled to 20% investment tax credit

7. General Tax Incentive

• Companies with approved business in the free trade zones/export processing zones are exempt from tax

• Exemption from minimum tax for new companies

• Income from investment in bonds and treasury bills is exempt from tax

• Interest earned on foreign currency domiciliary account in Nigeria is exempt from tax

• Investment (dividend, rent, interest and royalty) income derived by the beneficiary from outside Nigeria and brought into Nigeria through government-approved channels are tax-exempt

Companies in different industries are encouraged to take advantage of these tax incentives. It is important that you engage with a tax professional to confirm your eligibility and the application process (if any) for enjoying these incentives.

5
Aug

6 Legal Ways to Operate an Unregistered Business Name

@eyitayolaw
Quoted as we understand it, section 573 of the Companies and Allied Matters Act says that:
You do not have to register your business name if:
(a) As a firm, your firm’s name is the combination of the surname of all partners, or the surnames and their other names.
(b) Your individual business is operated in your real names
(c) Your Company (i.e. LTD, PLC, GTE, and ULTD) decides to operate a business name that does not consist of any addition to its corporate name
The following instances are additionally allowed:
(a) Situation where the word added is merely to show that the business operates in succession to a former owner. This is common in family businesses.
(b) Situations where the partners have the same surname and “s” is added at the end of the last surname. For instance Akinyele & Akinyele’s Firm
(c) The business is carried on by a receiver or manager appointed by any court.
In summary, you do not have to register your business name if you are using your actual names- your surname with or without your other true names or initials of those names to run your business.
Furthermore, if there is an addition that merely indicates that the business is carried on in succession to a former owner of the business; or where two or more partner have the same surname and decided to add an “s” at the end of that surname; or where the business is carried on by a receiver or manager appointed by any court, registration will not be necessary.
It is understandable that you can do business in your natural names because you are a legal person by reason of your natural names (particularly if you are 18 years or above). So, I as EYITAYO OGUNYEMI could decide to have a legal retainership with your company in my natural names. If I however operate as “Law Accent”, I need to register it because it is not my natural name.
It is not surprising that a person that does business in a name other than a natural name must register because there is a need for the public to put a face to anybody behind transactions done in unnatural names.
Here are however some reasons that may necessitate that you register your business name either ways:
 Banks usually request for certificate of business registration before opening a corporate account for corporate clients. By implication, you may not be able to open a corporate account.
 Foreign investors prefer to deal with entities that are registered with government agencies, and that begins with the Corporate Affairs Commission.
 It is almost impracticable to have your name alone (without any addition) for a business name. For example “Eyitayo Ogunyemi”- looks quite absurd without any addition like “Law Office of Eyitayo Ogunyemi” “Eyitayo Ogunyemi & Co” etc. It is however assumed under this heading that the law will be reviewed to capture this situation because the law ought not to be construed in such a way as to demand the impossible.
You may therefore conclude on registering your business name notwithstanding the leverage allowed by the law as this puts your business in a prime position for opportunities.

28
Jul

Feedback matters…!

UbongNkanta | Feedback Works

ˈfiːdbak/
noun
information about reactions to a product, a person’s performance of a task, etc. which is used as a basis for improvement.

The continuous change in customers’ needs and expectations is a clarion call on businesses – established, growing and startups to engage their customers satisfactorily. Businesses spend time to develop, review and evaluate their business strategy periodically, however, very little (if anything) is done to seek and review the feedback on the customers’ experience with their products and services. A best-in-class business strategy is incomplete without a clearly defined customer feedback plan.

A research conducted by Esteban Kolsky shows that 70% of companies that deliver best-in-class customer experience use customer feedback, versus industry average of 50%, and 29% for laggards.
Every business expectedly, is set up to operate optimally and be the ‘top mind’ brand for their customer at all times. However, as services are being rendered round the clock, customers’ feedback on their perception of the experience are not also gathered on the go. So many organizations do not have structured, clearly defined and effective customer feedback channels, thus they only get to know of their customers’ experience with their services when the customer has already gone public – the power of social media! Today, we all have access to media platforms through which we provide unsolicited feedback on a/an good, bad, ugly experience with brands at any time. This liberty for experience expression is also a very good, bad and ugly form of brand exposure, depending on the usage and for what purposes.

So many organizations are spending millions in protecting their brand from poor reputation resulting from bad publicity and some are trying to salvage theirs from one that has gone awry. This is the power of the Voice of Customer (VOC) at work. So many businesses make little or no effort in putting in place a structured, easy and convenient process to gather and listen to real-time feedback from their customers. Today’s customers do not wait or give you a second chance to improve on a poor service (if at all you know about it); they are at liberty to talk about their experiences in the public (virtual) space even while being served. This is a big dilemma for established businesses that move like cruise ships.

”Only 1 out of 26 unhappy customers complain. The rest churn. A lesson here is that companies should not view absence of feedback as a sign of satisfaction. The true enemy is indifference”. – Kolsky

In Customer Feedback management, the customer is in charge! So handling it must be from the customers’ perspective and not on perceived assumptions. Organizations, irrespective of market size must strategically develop and implement a seamless, effective, easy and accessible feedback process. It must be a deliberate act and the customers clearly informed. The feedback channels should serve all cadre of customers and must be available and managed at all times.

Most importantly, the organization should have an empowered team to listen to, engage personally and act real-time on the voices of their customers. Effective customer feedback process is a veritable tool for continuous improvement and a sure pathway for business growth.
Forrester found that 80% of companies say they deliver superior customer service. However, only 8% of people think these same companies deliver customer service worthy of a superior rating.
What kind of customer experience are you providing? Have you asked your customers? Have you asked your employees? Engaged customer-facing employees have a better idea of the customer experience than non-customer facing employees. Disengaged employees don’t care.

How do your customers define an acceptable, unacceptable, and outstanding customer experience? Ask them. That is the only way you will ever know.

Talk to your customers to let them know you care about what they think. They will be amazed that you care about them as individuals.

Recognize employees who provide an outstanding customer experience so other employees will know what you value – beyond revenue.

Today, so many organizations have improved on their product offerings and service models; increased their customer base, market share and profitability from customer feedback. This in turn enhances their customers’ experience, which today is the competitive battleground and marketplace differentiator.

Credits –
http://www.insightsfromanalytics.com/blog/what-kind-of-customer-experience-are-you-providing

Customer Experience Management Definition


http://www.insightsfromanalytics.com/blog/what-kind-of-customer-experience-are-you-providing

15
Jul

6 Important Points to Note in Software Agreements (Part 1)

One of the most interesting jokes that I have seen about the herculean task of software developers is illustrated in the above picture, yet the picture represents the dilemma of their work. That is why I have always emphasized that every software developer should take interest in learning the law (at least as it applies to them).
Are you a software developer and you are reading this piece? Below are 6 clauses that you must instruct your lawyer to note in preparing software agreements for your clients.
1. Do not give 100% guarantee that nothing would go wrong with your software. You probably will agree with me that something sometimes go wrong at some point. It is therefore important to have a balanced agreement with clauses that allows you and your client to share risk and responsibilities in a workable manner.

2. Correction of certain errors may take time, sometimes, you might need to deploy entirely new codes or even rewrite the software, so, do not agree to a fixed time within which to correct errors. The right thing to do is to provide in Agreement that your company will evaluate the extent of error and advice on the time frame within which the errors will be corrected.

3. Save yourself the headache of litigation by asking your lawyer to add problem solving clauses. Most times, we lawyers place emphasis on dispute resolution clause instead of problem solving clause by which parties to an agreement are made to work as a team in resolving problems. One of the beautiful things about working as a team to resolve problems is that you create a teaming bond with your client and avoid unnecessary confrontations which eventually may lead you and your client to the court room.

4. How would you feel, if your client identifies the staff that happened to be the brain behind the software and then lure him or her from your company? Terrible, I guess. Moreover, your team members may have access to the source code of the software- and that may be a top trade secret of your company. That is why you must have a clause against staff poaching by which your client agrees not to engage any of your staff for a period of time following the completion of the software.

5. Beware of the clients that are always changing their software specifications. One way to address such tendency is to insert a clause for software specification so that any proposed variation that amounts to an added task can be paid for.

6. When you have done all you can to keep a relationship and it seems that it has headed for the walls, your best bet will be to resort to third party intervention (mediation, arbitration, litigation etc.). Bearing in mind the technical nature of your profession, it is important that you opt for a dispute management mechanism by which the dispute settlers have considerable knowledge in your profession, and that necessarily means that you make court litigation your last option.

Other than the above suggested clauses, there are standard clauses which your agreement should have. In essence, the points listed in this article are not exhaustive and the peculiarity of each client’s specification may differ, it is therefore important that you seek advice from an experienced legal practitioner.

15
Jul

SYNOPSIS FROM THE PRESIDENCY’S EXECUTIVE ORDER AND POSSIBLE IMPLICATIONS FOR BUSINESSES

@lawunmiolatunji
Three executive orders were signed by the Acting President of the Federal Republic of Nigeria on the 18th of May, 2017. The orders have a strong potential to positively impact the operation of businesses in Nigeria, in the sense that when fully integrated & effected, they would help to eliminate bureaucratic bottle necks in government parastatals and result in a heightened ease of doing business in Nigeria. These should in turn attract significant tangible investments, both local and foreign investors.
The three orders are:
1. Executive Order on the Promotion of Transparency and Efficiency in the Business Environment.
2. Executive Order on Support for Local Content in Public Procurement by the Federal Government.
3. Executive Order on Budgets.
Executive Order One (Promotion of transparency & efficiency of business environment)
a) All MDA have been directed within 21 days to publish on website and conspicuously paste within their premises, embassies, commission, etc, an up to date;
• list of requirement or conditions for obtaining products and services within the MDA’s scope of responsibility,
• processing fees and timeline
b) Acceptance and rejection of applications which must be communicated with at least two (2) modes, including emails and publication on the MDA website, before the expiration of the stipulated time. All rejections must be given with reasons and records of such duly kept.
c) In addition is “the one government directive”. Applicants are only expected to provide photocopy of documentation in a case where another MDA is in possession of the original copy of same. “Direct verification or certification of the document is the responsibility of the originating MDA”.
d) A tourist’s or investor’s visa application must be granted or rejected with reason, within 48 hours. Processing and issuance of visas on arrival must be transparent.

Touting, loitering and bribery by officials and non-official is banned and punishable as only staff on duty is allowed at the port. Only designated dignitaries, whose names are on a pre-approved list can be received by protocol officers. Within 30 days, all relevant MDAs must merge their respective departure and arrival interfaces into a single customer interface. Also, all agencies at the Nigerian ports must harmonize their operations into a single interface within 60 days and provide a weekly update to bureau of statistics.

There’s an order for every port to dedicate an export terminal for agriculture products within 30 days of this Order, and Apapa Port resuming a 24- hour operations within 30 days of the issuance of this Order.
e) All registration process at the CAC are ordered to be fully automated through its website, from start to completion of application, including the availability of an online payment platform.

Executive Order Two (Support for Local Content in Public Procurement by FGN)
f) All MDAs of the FGN are mandated to procure at least 40% of their requirement of some specific locally made goods and services.
g) All solicitation documents (invitation to tender) for the supply or provision of goods and services shall expressly indicate the preference for local manufacturers, contractors and service providers.
h) All Solicitation Documents shall require bidders to provide a verifiable statement on the local content of the goods or services to be provided.
i) All heads of MDAs are mandated within 90 days to;
a. assess the monitoring, enforcement, implementation, and compliance with this Executive Order
b. propose further strategies to optimize and enshrine the procurement and principal use of indigenous goods and service
c. submit the proposed to strategy to the Minister of Industry, Trade & Investment
j) Within 180 days of the date of this order, the Minister of Industry, Trade & Investment shall submit to the President, a report on the Made-in-Nigeria initiative.

Executive Order Three (Budgets)
This order focuses on preparation of adequate and detailed budgeting by all MDAs.
k) Budgets are to be prepared in addition with a three-year financial model in conformity with the national plan and the financial and budgetary regulations, and are to be submitted to the Minister of Finance and Minister of Budget and National Planning.
l) Heads of ministries, agencies and government owned companies must supervise the process of preparation, harmonisation and collation of budget and take must take full responsibility of any failure to comply with this order.
m) No payment shall be made in respect of any capital or recurrent liability of an Agency, other than payment of due salaries and allowances.
n) Any revenue or other funds of an Agency in excess of the amounts budgeted and duly expended shall accrue to the consolidated revenue fund of the Federal Government.

Each one of the orders is set to make things better, nonetheless there are chances that the order which focuses on improving transparency and efficiency in the Ministries Departments and Agencies (MDA) of the Federal Government will have a very significant impact.

12
Jun

Amazing Differences between Business Name and Limited Company Registration in Nigeria

Eyitayo Ogunyemi | @eyitayolaw
One of the questions that I usually ask my students during my training sessions for Entrepreneurs is for them to tell me what they understand by a Limited Liability Company and a Business Name, and why they will choose the business option that they are opting for.

Unfortunately, I usually do not receive an answer that captures the basic differences, and it is unfortunate too that many Investors have chosen their business option without proper guidance.

This article proffers keynote differences between a Business Name and a Limited Liability Company in Nigeria. The points stated below are not exhaustive, but they constitute some of the basic differences between a Limited Liability Company and a business name under the Nigerian Law:

DIFFERENCE NO 1:
DO YOU WANT YOUR BUSINESS TO BE YOU OR DIFFERENT FROM YOU?

Business Name: A Business Name is the name and style with which you trade; remember that it is just a “style”, and it is therefore not different from you. Being a mere style, the business does not assume a separate legal entity; cannot sue, nor be sued and properties cannot be purchased in the name of the business.

Another point that you can identify with the above is that, when the owner dies, the business also dies (since in the first place, it does not have a life of its own).

Company: The moment your Company is registered, it becomes a separate entity different from you (otherwise known in law as an “Artificial person”). The best way to understand this severance process is to consider pregnancy, and delivery process- once a child is born, the child has an independent life; can grow, stand alone (with time), and even die. The process of the growth of the child is not hinged, as such, on that of the mother.

By implication, ‘your company’ is considered to be different from you after registration; you can be broke while the company is rich, and the death of the founder does not necessarily mean the death of the company, because the company has a life of its own.

DIFFERENCE NO 2:
DO YOU WANT TO RUN A ONE MAN BUSINESS? ONLY A BUSINESS NAME WILL DO.

Company: If you intend registering a company, it takes two or more persons to form the company. The popular form of company is “Company Limited by Shares”, and at least two people must subscribe to being shareholders in the company.

Business Name: If you are interested in running a one man business where everything will revolve around you and you alone, registration of a Business Name may be suitable.

Note however that you can also register Business Name where you and any other person intend to operate as partners.

DIFFERENCE NO 3:
DO YOU WANT THE VALUE OF YOUR INVESTMENT TO BE STATED IN THE PUBLIC DOCUMENTS OF YOUR PROPOSED BUSINESS? A COMPANY MAY BE YOUR BEST OPTION

Company: If your level of ownership, stake, investment, or interest in your proposed business differs from that of your co-investors and you want this to be recorded publicly, you may choose to incorporate a company (i.e. Limited Company).

Business Name: If you register a Business Name, your level of ownership, stake, investment, or interest will not be publicly recorded. If for any reason you prefer to register a Business Name and you want the extent of your ownership, stake, investment, or interest to be clearly spelt out, you can do this preparing a Memorandum of Understanding between you and your partners. You may consult your choice Legal Consultant for further information.

DIFFERENCE NO 4:
DO YOU WANT AN EXISTING COMPANY TO OWN SHARES IN A BUSINESS THAT YOU ARE ABOUT TO START? ONLY A COMPANY REGISTRATION WILL BE SUITABLE

Company: If you operate a company that is registered, and you want that company to own shares in a business that you are about to register, or you are a foreign investor with a company already registered in your Country, you may choose to register the intended business as a Company and then purchase shares for the existing company from the allotted shares of the proposed company.

If the existing company is however undergoing a process of being wound up, it cannot join in the formation of the company to be incorporated.

In a like manner, if you already have a company in operation and what you intend to register is a Business Name but you want your existing company to have a stake in the Business to be registered, you can give instruction to your Legal Consultant to record the existing company as a partner in the new Business Name to be registered.

Business Name: You cannot use your Business Name (as an entity) to own shares in a company neither can you start a partnership in the name of your registered Business Name.

For non- Nigerians (aliens) and foreign companies seeking to do business in Nigeria, once you have complied with Nigerian laws regulating the rights and capacity of aliens who want to undertake or participate in trade or business in Nigeria, you will be allowed to join in forming company in Nigeria.

DIFFERENCE NO. 5:
IF YOU HAVE MORE THAN 20 PARTNERS, YOU MAY HAVE TO REGISTER A COMPANY

Company: Where a business is intended to be carried on as a partnership, and the partners are more than 20 people, the business can only be registered as a company but not as a business name.

Business Name: You can register these three businesses as a business name notwithstanding that the partners are more than 20 are;

a. Co-operative Societies registered under any law in Nigeria;

b. Partnership of more than 20 Lawyers each of whom is qualified to practice as a lawyer in Nigeria; or

c. Partnership of more than 20 Accountants each of whom is qualified to practice as an accountant.

DIFFERENCE NO. 6:
IF YOU HAVE MORE THAN 50 INDIVIDUAL INVESTORS, YOUR ONLY OPTION MAY BE TO START A PUBLIC COMPANY.

Company: Where the total number of persons who intend to own the shares of a proposed company is more than 50 people, the company can only be registered as a public company. In other words, a private company in Nigeria must not have more than 50 shareholders.

There are exceptions to this rule; for instance, where an employee becomes a member/shareholder upon his employment, or where the employee continues to be a shareholder during and upon the expiration of his employment; his tally may not be taken for the purpose of numbering the 50 members.

Consider the following illustrations:

1. If AZ Private Company has 50 shareholders and Bob was given a number of shares in AZ Private Company upon his employment, he is not going to be numbered as Number 51 shareholder; rather, the number of shareholders will still stand at 50 in the eye of the law.

2. In a similar vein, if Bob continues to hold shares as an employee until he stops working for AZ Private Company, and he continues to own the shares after his employment, he is not going to be numbered for the purpose of counting the 50 benchmark.

3. Two or more people, or even an Association or a Group can invest in a company jointly. They are treated as a single member for the purpose of numbering the members of the company. It is however important that your Association or group must have been registered under the appropriate law.

For further information under this heading, you may check my article titled: How to Register Your NGO, Church, Mosque, and Other Associations with Corporate Affairs Commission (C.A.C.)

DIFFERENCE NO. 7:
THE STATUS OF YOUR KEY INVESTORS DETERMINE THE KIND OF BUSINESS ARRANGEMENT

Company: In a company arrangement, your shareholders are considered as the joint owners of the company. The shareholders elect the Board of Directors who are responsible for the daily affairs of the company and also give periodic account of management to the shareholders.
Note however that a shareholder may also be a director or even the company secretary.

Business Name: In a Business Name arrangement, there is no clear-cut difference between the business holder and the director because in most cases, the director is the owner of the business.

CONCLUSION:
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This article has been designed for information purposes alone and is not intended to take the place of a legal advice. Readers are therefore advised to seek proper legal advice.

31
May

Are you “Forward” looking in your business?

The year 2016 marked a season of inflation and scarcity for various commodities; tomatoes, pepper, imported rice and not forgetting the world’s most desirable currency, the USD dollar. The free fall of the exchange rate of the Naira to the dollar has been a sore point in the political discussions and an index, in tandem with price of PMS and electricity supply, for judging performance of the current Government. The enlightened populace has been waiting for the Central Bank of Nigeria’s pronouncement on how the new Foreign Exchange (FX) regime.

This article is simple to explain how companies and business owners can hedge against FX fluctuations which affect their businesses.

Hedging as defined by the Oxford Advanced Learner’s Dictionary means to protect yourself against losing money. Therefore, I will attempt to explain how hedging can be done by business owners due to the fluctuations in FX rate.

Sometimes last year,A few days back, I stopped by the roadside sales woman on my way home to buy a bunch of plantain. While still expressing shock at how costly this small bunch was, a neighbour of mine who met me there was regaling me with stories of how expensive tomato wasis and how a piece wasis more costly than an apple – I hadve seen that on twitter, then I remembered that my dear wife had hedged against this risk by buying a basket full of tomato’s months back at Mile 12 market and we don’t have to worry about tomato prices in the medium term – Good woman.

So what are the hedging tools we might see take centre stage in the Nigeria market.

Firstly, the Fisher effect

The International Fisher effect postulated by American economist Irving Fisher shows the relationship between interest rates, inflation rate and exchange rates. Basically, one can predict the future exchange rate of a country’s currency against a reference country currency. So let’s assume that the Naira currently goes for N200 to the $ and the year-on-year inflation for Nigeria and the USA is 10% and 5% respectively. The expected exchange rate for Nigeria at the end of Year 1 would be N209.5/$ (N200 x 110/105). This simple theory also has a relationship with the Interest Rate parity theory which states that expected future movement in Interest rates can also use be used as a basis for determining the future exchange rate at a forward date (assuming variables related to the reference currency remain static). Therefore if the current N/$ exchange rate is N200/$1 and Interest Rates are expected to rise from 10% to 15% in the next year, the future forward exchange rate would be N209.09/$1 (N200 x 115/110). However, we don’t live an ideal world and exchange rate movements are not as simplistic as this.

Now, Hedging Options

It’s June 30 2016 and Mr. Alao needs $100,000 to buy a tractor by December 31 to for use on his cocoa plantation by 1st January 2017. The current dollar buy rate is N200 and therefore Chief Agbabiaka would need N20,000,000 today to buy the tractor. However, he is concerned that using N20m would not be a wise option since he could invest this amount in treasury bills at 10% and just keep it in a fixed deposit account till he actually needs to sell it in December 2016. Worse still, he might not have the N20m to trade with at this time, what can he do?

1. FX Forward Contract

This is used when you want to hedge your foreign currency risk in a simple way up to a predetermined worst-case exchange rate. This is done by exchanging a sum of money into a different currency on a particular date (or within a particular timeframe) in the future at a predetermined exchange rate.

In this case, Mr. Alao goes to the Bank and enters into a forward contract to buy $’s from the Bank on December 2016 at a certain rate. The Forward Rate is agreed at the time the contract is entered into (June 30) and we assume this is N220/$1. It’s unlikely that the Bank would enter into an agreement at the current spot rate as the impact of Interest Rates and Inflation would imply a change in rates at a future date. Mr. Alao assess that this rate is fine and signs the deal. On 31 December, he goes to the Bank collects his $100k and parts with N22m – deal closed. If the rate in the market is now N240/$1, Chief has saved a cool N2m but if it’s the converse and rates are still at N200/$1, he’s lost N2m. However, he’s sure of his cash outlay well ahead of time and therefore reduces the risk of uncertainty in future exchange rates.

2. FX Options

Moving from the first scenario in No. 1, Mr. Alao can take advantage of an appreciation in exchange rate by entering into an Option agreement with the bank. So he says “Mr. Banker, I agreed to buy dollars from you in future at N220 but if it’s N210 in the market, I lose N1m”. So Mr. Banker says he can actually enter an agreement with the bank at a lower rate at the future date but would have to pay an option fee. So he agrees to pay N200K today for the risk the Bank will take on future appreciation in exchange rates. Therefore if the Naira depreciates to N210/$1 in the future, Mr. Alao’s outlay is N21,000,000 (N210 x $100k).

However, he has paid an option fee upfront so his total outlay is actually N21,200,000 which translates to an effective exchange rate of N212/$1. If the Naira/$1 exchange rate depreciates to N240/$1, he simply doesn’t exercise this option and goes ahead to buy at N220/$1 which makes his effective cash outlay as N22,200,000 and effective exchange rate as N222/$1.

An effective cash flow management through hedging can greatly reduce the probability of a company suffering from currency issues in the future.

Please note that the above analysis is done from the perspective of the business owner.