Company Law

Legal Framework For The Protection Of International Investors In Nigeria

The minimum standard of international law is the principle of international investment law which protects foreign investors from oppressive host countries. This is the obligation to provide fair and equitable treatment to foreign investors by host countries (full protection and security). This standard may vary from treaty to treaty.

This is the minimum standard which states must comply with regardless of domestic regulation. By this principle, the infraction of fair and equitable treatment must be so egregious it must be manifest injustice, bad faith and wilful neglect of duty on the side of the host countries.
Thankfully, the Nigerian legal framework provides for the protection of foreign investors and in brief they include;

1. The constitution of the federal republic of Nigeria 1999
Section 33 guarantees the right to life of citizens; this right also flows to foreigners’ resident and carrying on business in Nigeria.

Section 36 guarantees the right to fair hearing; investors can ventilate their grievance in any court in Nigeria without fear of miscarriage of justice, if they ever have grievance against any tier of government

Section 35 guarantees the personal liberty of every person even foreigners lawfully resident in Nigeria

Section 42 protects foreign investors from been subjected to disability by any tier of the government which citizens of Nigeria are not subjected to; this section also provides that foreign investors will not be granted special privilege or subjected to favouritism by any tier of Nigerian government while in Nigeria

Section 43 guarantees the right to acquire and own moveable properties
Section 44 guarantees that the enterprise of foreign investors will not be nationalised except in accordance with lawful means

2. Nigerian investment protection commission Act 1995
This is primary law regulating foreign participation and investment promotion activities in Nigeria. The Nigerian investment protection commission is the body responsible for regulating investment activities in Nigeria.

The commission is saddle with the responsibility of analysing and advising on investment opportunities in Nigeria, providing current information on incentives available to investors including foreign investors.

However, investors are prohibited from carrying out certain business activities, this is dubbed as the negative list under section 31 of this act like; ammunition business, narcotic business, military and para military wears and accoutrement.

Foreign enterprises can buy shares of any Nigerian enterprise, furthermore foreign enterprises are protected from being nationalized by any government of the federation, compelled by the government to surrender his or their interest in capital to another person unless for national interest. This is line with the principle of the minimum standard of treatment under international law.

In the event of a dispute between a foreign investor and any tier of government in Nigeria, provision has been made for settlement through mutual discussion, if either parties are not satisfied with the outcome of the amicable settlement can be submitted by arbitration within the framework of any bilateral or multilateral agreement which Nigeria is a party to.

3. Executive order No. 001 0f 2007 on the promotion of transparency and efficiency in the business Environment.
In its bid to promote the ease of doing business in Nigeria, the administration of president Mohammed Buhari issued this executive order to promote transparency and efficiency in the business environment, foreign investors are also protected from unfair practises of MDAs (ministry department and agencies) while in Nigeria components of this executive order include

i. Transparency in MDAs: by this, ministry department and agency (MDA) are required to publicly publish all requirements for licence, permit, waivers and tax related information. By this provision, foreign investors will not be blindsided by dubious public officers who may charge additional fees to foreigners not knowledgeable about the practise in Nigeria

ii. Default approval: this section is a welcome development as it states that in the event that any MDA fails to communicate the approval or rejection of an application within a stipulated time, such application will be deemed approved. This provision has in effect prevented undue sloth foreign investors may face in Nigeria.

iii. One government: if in dealing or registering with an MDA and one of its condition ought to be met with another MDA, a photocopy will suffice, the onus will be on the originating MDA to seek verification this provision mandates the speed in the process where and investor has applications in more than one MDA

iv. Entry experience of visitors and travellers: business entry visa shall be issued within 48 hours, foreign investors can obtain visa on arrival , furthermore immigration websites are required to publish comprehensive list of requirement on their websites for foreigners to follow.

v. Business registration: foreign investors seeking to invest in Nigeria do not need to experience unnecessary delay in their application to incorporate a company because this order requires that the entire process be automated to promote transparency and prevent foreign investors from been subject to unfair delay and corrupt practises. In furtherance of the goal of ease of doing business, foreign investors can pay online.

4. Immigration act 2015
Only persons with valid work or business permit are allowed into Nigeria with the consent of the comptroller general of immigration, failure to comply with this requirement such individual will be liable for deportation, the comptroller general can on public interest revoke the visa of foreign investors.
The ground for deportation of foreigners is fair and not stringent and are spelt out in section 44 (1) of the immigration act 2015.

5. Immigration Regulation 2017
Business permits are subject to the conditions which are periodically prescribed by the minister of interior; such permit may be revoked or cancelled by the minister. Citizens of countries which have reciprocal visa abolition agreement for employment purpose they need not show visa and foreigners are not to stay beyond the period stipulated on their visa.

According to this regulation a body corporate must renew its expatriate quota periodically, failure to do that is an offence, it is required to employ Nigerians as understudy of expatriate employees failure to do so will attract a fine of three million naira for each month of default, no other body corporate shall make use of the expatriate quota of another body corporate, if it is eventually discovered, such employee will be deported.