The required minimum share capital of a company is dependent on either the objects of the company, type of company or statutory provisions regulating that company. The primary law on the registration and regulation of companies in Nigeria is the Companies and Allied Matters Act, 2004 (CAMA) while the Corporate Affairs Commission (CAC) is the body empowered to ensure that the provisions of the CAMA are complied with during pre-incorporation and post incorporation stages.
As interesting as it may sound, the CAMA is not the only law that regulates the minimum share capital of a company as there are other laws, policies and regulations that dictates what the minimum share capital of certain companies should be. The CAC being the regulator at the initiation stage must ensure the compliance of companies before issuing a certificate of incorporation.
This article attempts to list regulated business activities and their required minimum share capital. It also discusses the laws and the regulatory agencies that ensure that the provisions of the law are complied with during the post-incorporation stage.
Minimum Share Capital By Category of Company
In this regard, a company’s nature determines its required minimum share capital. In general, the required share capital of companies is set at a very low amount in order to make registration of companies attractive to everyone. Thus it is stated in Section 27 (2) of the CAMA that the minimum share capital of a Private company shall be N10,000 whereas a public company cannot fall below N500,000.
Private Company: N10,000
Public Company: N500,000
Minimum Share Capital By Classification
By virtue of the CAMA, a company can also either be a company limited by shares, an unlimited company or a company limited by guarantee. A company limited by shares is required to have a share capital as earlier discussed whereas an unlimited company which is also required to have a share capital had hitherto and before the act not fallen under the type of companies required to have a share capital.
A company limited by guarantee, however, is not required to have a share capital. This provision is contained in section 26 (2) which states that a company limited by guarantee shall not be registered with a share capital; and every existing company limited by guarantee and having share capital shall, not later than the appointed day, alter its memorandum so that it becomes a company limited by guarantee and not having a share capital.
It is worthy to note that a company limited by guarantee is also defined in the section as a company formed for promoting commerce, art, science, religion, sports, culture, education, research, charity or other similar objects, whose income and property are to be applied solely towards the promotion of its objects and no portion thereof is to be paid or transferred directly or indirectly to the members of the company except as permitted by the Act.
Private Company Limited by Shares: N10,000
Public Company Limited by Shares: N500,000
Private Companies Limited by Guarantee: N0
Public Companies Limited by Guarantee: N0
Private Unlimited Company: N10,000
Public Unlimited Company: N500,000
Minimum Share Capital Of Regulated Objects
There are certain businesses activities and ventures that are regulated by specific laws that provide guidelines for the registration, licensing and regulation of the business activities or ventures. These rules, policies and guidelines place an obligation on promoters of certain types of companies to ensure that the minimum share capital requirement of these types of companies are met. Failure to meet the required share capital will result in the registration being queried by the CAC. The rationale behind setting a higher threshold for certain companies is to provide a means of assurance that in the event of liquidation of the company, the assets of the company will be sufficient to pay a substantial part of any debt owed. This means that any company which purports to carry out the activities under the regulated list whether public or private would not be registered by the Corporate Affairs Commission unless it complies with the minimum share capital requirement by law.
The regulated objects, the enabling law and the post-incorporation regulatory agencies are discussed below for better understanding of the minimum share requirements of the different categories of companies under this umbrella.
- COURIER BUSINESS
By virtue of its power to regulate Courier Business in Nigeria as contained in Section 43 of the Nigerian Postal Service Act, 1992 the Nigerian Postal Service has set its guidelines for registration, licensing and operation of courier companies in Nigeria. The requirements which must be complied with before a courier company can commence operations includes registration of the company with a minimum share capital of N2 Million.
Courier Company: N2 Million
- CAPITAL MARKET OPERATORS
The Securities and Exchange Commission (SEC) is empowered by section 8 of the Investment and Securities Act, 2007 to regulate investment and securities business in Nigeria as defined in the Act. Below are the list of investment companies regulated by the SEC and their required minimum share capital.
Issuing House: N200 Million
Brokers/dealers: N300 Million
Trustees: N300 Million
Fund/ Portfolio Managers: N150 Million
Stock Brokers: N200 Million
Stock Dealers: N100 Million
Inter- Dealer Broker (IDB): N50 Million
Corporate Investment Adviser (Registrar) : N150 Million
corporate Investment Adviser: N5 Million
Individual Investment Adviser: N2 Million
Market Maker: N2 Billion
Consultant Partnership: N2 Million
Consultant Individual: N500,000
Consultant Corporate: 5 Million
Under Writer: 200 Million
Venture Capital Manager: 20 Million
Commodities Exchange: 500 Million
Commodities Broker: 40 Million
Capital Trade Point: 20 Million
Rating Agency: 150 Million
Corporate/Su Broker: 5 Million
- BANKS AND OTHER FINANCIAL INSTITUTIONS
The Central Bank of Nigeria (CBN) is empowered by the Banks And Other Financial Institutions Act, 2004 to regulate the Banking Industry and by virtue of section 2 of the Act, No person shall carry on any business in Nigeria except it is a company duly incorporated in Nigeria and holds a valid banking license issued under the Act.
Through its powers to regulate the banking business, the CBN from time to time make policies relating to the minimum share capital of the type of companies under its purview. Below is a list of the companies and their minimum share capital.
Commercial Bank With Regional Authorization: N10 Billion
Commercial Banks With National Authorization: N25 Billion
Commercial Banks With International Authorization: N50 Billion
Merchant Banks: N15 Billion
Micro Finance Bank (Unit): N20 Million
Micro Finance Bank (State & Fct): N100 Million
Micro Finance Bank (National): N2 Billion
Primary Mortgage Institutions: N2 Billion
Finance Company: N20 Million
Bureau De Change: N35 Million
Non-Interest Banks (Regional): N5 Billion
Non-Interest Banks (National): N10 Billion
- REGISTERED INSURANCE BROKERS
The Nigerian Council of Registered Insurance Brokers is the body empowered in Nigeria to regulate the enrolment and operation of Registered Insurance Brokers. Section 15(1) of the Nigerian Council of Registered Insurance Brokers Act, 2003 empowers the Council to make rules while subsection (1) (a) mandates the council to ensure that a Practicing Insurance Broker business should have a working capital of not less than N5 Million made up of verifiable movable and immovable assets and cash in proportion as the council may decide. Below is a list of insurance-related businesses and their required minimum share capital.
Insurance Brokers: N5 Million
- INSURANCE BUSINESS
The National Insurance Commission Act, 1997 empowers the National Insurance Commission by virtue of section 6 to regulate insurance business in Nigeria. The section provides that the principal object of the commission shall be to ensure the effective administration, supervision, regulation and control of insurance business in Nigeria.
The commission through its powers has issued guidelines regulating the insurance business in Nigeria.
Life Insurance: N2 Billion
General Insurance Business: N3 Billion
Re-Insurance Business: N10 Billion
Life Microinsurance Business: N150 Million
General Microinsurance Business: N200 Million
General Takaful/Family Takaful: N200 Million
- PRIVATE GUARD BUSINESS
The requirements for registration of Private Guard Security Companies are contained in policies made by the Civil Defence Corps made pursuant to Nigeria Security and Civil Defense Corp Act, 2003. According to section 3 of the Act, the Civil Defense Corps (the Corps) has the power to recommend to the Minister the registration of private guard companies. The Corps is also to supervise and monitor the activities of all private guard command and keep a register for that purpose.
Private Security Company/Consultant: N10 Million
- PENSION FUND MANAGERS
The Pension fund business is regulated by the provisions of the Pension Reform Act 2004. The minimum share capital required for Pension Fund business is as follows:
Pension Fund/Asset Custodians: N2 Billion
Closed Pension Fund: N500 Million
Pension Fund Administrators: N1 Billion
- NATIONAL HEALTH INSURANCE BUSINESS
Health Insurance Business is regulated under the National Health Insurance Scheme, HMO Accreditation Guidelines. Under this scheme, the following are the required minimum share capital.
Health Maintenance Organisations (HMOs) (National): N400 Million
Health Maintenance Organisations (HMOs) (Zonal): N200Million
Health Maintenance Organisations (HMOs) (State): N100 Million
- LOTTERY, CASINO AND BETTING BUSINESS
Setting up a lottery business in Nigeria requires compliance with the regulatory authority which is the National Lottery Regulatory Commission. The commission is empowered by the National Lotteries (Amendment) Regulations, 2007. Also, the Lagos State has its own Lottery Regulatory Commission with a different set of permit requirements. Below are the required minimum share capital for Lottery Businesses.
Non-Sports Lotteries: N5 Million
Sport Lottery Businesses: N30 Million + Approval In Principle (AIP).
- AIR TRANSPORT BUSINESS
The air transport business is regulated by the Nigerian Civil Aviation Authority which issues guidelines to the operators in the sector. Section 32 of the Civil Aviation Act gives the Authority the power to regulate and issue licenses to aircraft operators. The Authority from time to time have issued guidelines and directives to airline operators and some of the guidelines relate to the minimum share capital.
Air Transport (International): N2 Billion
Air Transport (Regional): N1 Billion
Air Transport (Local): N500 Million
Air Ambulance/Fumigation/Private Jet: N20 Million
Aerial Aviation Services: N20 Million
Aviation (Ground Handling Services): N500 Million
Aviation (Air Transport Training Institutions): N2 Million
Agents Of Foreign Airlines: N1 Million
- AGRICULTURE BUSINESS
Generally, the agriculture business is not strictly regulated. However, the National Agriculture Seeds Act, 2004 regulates the business of Agricultural Seeds, Productions, Processing And Marketing. The Act establishes a National Agricultural Seed Council and gives it oversight functions over any business, actions, or activities regarding seed development and the seed industry in general including legislation and research on issues relating to seed testing, registration, release, production, marketing, distribution, certification, quality control, supply and use of seeds in Nigeria, importation and exportation of seeds and quarantine regulations relating thereto.
Thus any business relating to seed business is within the purview of the council and the minimum share capital is as stated below:
Agricultural Seeds, Productions, Processing And Marketing: 10 Million.
- SHIPPING AND MARITIME BUSINESS
The maritime business is controlled and regulated by the Nigerian Maritime Administration and Safety Agency (NIMASA) which was created by the enabling law, the Nigerian Maritime Administration And Safety Agency Act, 2007.
By virtue of section 22 of the Act, the agency is saddled with the responsibility of pursuing the development of shipping and regulatory matters relating to merchant shipping and seafarers.
Shipping Company/Agent: N25 Million
Cabotage Trade: N25 Million
Freight Forwarding: 5 Million
Notwithstanding, a company can choose to increase its share capital above the required minimum either at the time of registration or subsequently. However, the same company cannot reduce its share capital below the minimum either at the time of registration or subsequently unless it alters its object clause to exclude the activities requiring the required minimum share capital.
ABOUT THE AUTHOR
Ezra Akintonde is a lawyer with over six years of court room and non-courtroom practice experience. He is seasoned in many areas of law including civil and criminal litigation, business registration, company secretariat services, corporate compliance and the general practice of law.
He has won several cases for his clients both in court and in alternative dispute resolution. He is a writer and has written several legal articles.
CORE PRACTICE AREAS: Civil Litigation, Criminal Defence, Corporate Practice, Divorce & Matrimonial Matters.
Developments in competition law in post-pandemic Africa
Image Credit: Getty Images/iStockphoto
With the growth of economies across Africa, competition law has remained one of the key drivers for effective market participation, consumer protection and fair business practices. However, the global pandemic introduced new challenges for competition authorities in Africa and abroad, with each enforcer pursuing the most beneficial enforcement method for its national or regional jurisdiction.
According to Lerisha Naidu, Partner in Baker McKenzie’s Competition & Antitrust Practice in Johannesburg, “These efforts were aimed at curbing the persistence of unjustified price hikes, anti-competitive cooperation between competitors and other harmful business practices that sought to undermine competition. In addition to the urgent responses to the unprecedented impacts of the global COVID-19 crisis, competition authorities in countries and regions across Africa continued to introduce new laws and amend existing legislation as a sign of the rapidly increasing prioritisation of competition law enforcement on the continent.”
Competition authorities across the continent had already established strategies for maintaining competition and limiting instances of customer exploitation in their respective countries by early March 2020.
“Competition authorities in Kenya, Malawi, Mauritius, Namibia, Nigeria and South Africa reacted quickly to pandemic impacts by introducing new guidelines and regulations,” noted Angelo Tzarevski, a senior associate in Baker McKenzie’s Competition Practice in Johannesburg.
Amendments to existing laws
Various jurisdictions have recently strengthened their competition law regimes by way of amendments to the existing legislation or by introducing entirely new laws to facilitate their enforcement efforts.
“For example, Botswana’s Competition Act came into force at the end of 2018. Kenya recently introduced a host of new laws, guidelines and rules that relate to buyer power, the valuation of assets in merger transactions, block exemption of certain mergers from notification, merger thresholds and filing fees, market definition, and new guidelines for the determination of administrative penalties. Ghana’s Draft Competition Bill is currently before parliament awaiting passage into law, and Egypt and Mauritius amended their competition legislation by introducing or giving effect to new provisions and regulations. In South Africa, price discrimination and buyer power provisions that were previously introduced by the Competition Amendment Act have since come into effect. Regulations were also issued to facilitate the interpretation and application of these provisions,” said Tzarevski.
In addition to country-specific regulation, a number of regional competition regulators in Africa are impacting domestic markets. Such regulators include the West African Economic Monetary Union (WAEMU), the East African Community (EAC), the Common Market for Eastern and Southern Africa (COMESA), the Economic Community of West African States (ECOWAS) and the Economic and Monetary Community of Central Africa (CEMAC). While not a regional regulator, the African Competition Forum, an association of African competition agencies, promotes competition policy awareness in Africa and the adoption of competition policies and laws. The Forum also facilitates regular contact between authorities, creating a platform for the sharing of best practice and domestic competition trends.
“African competition law continues to develop at a rapid pace, boosted by the implementation of protective strategies necessary during the peak of the pandemic. An increasing number of jurisdictions have adopted laws and regulations, established authorities, secured membership to regional antitrust regimes and ramped-up enforcement of suspected violations of prevailing competition laws at both domestic and regional levels.
As such, organisations transacting across borders in Africa must ensure they are compliant with a myriad of local and intersecting regional competition laws to avoid facing the wrath of the continent’s competition authorities. Access to standardised, cross-border information on the latest competition law developments in Africa has become essential for those transacting in the region,” added Naidu.
Baker McKenzie recently produced a comprehensive guide covering the latest developments in African competition law in 25 countries across the continent – An Overview of Competition & Antitrust Regulations and Developments in Africa: 2021
By Angela Matthewson for Baker McKenzie Johannesburg
Tiyani Majoko: New York City based legaltech startup Founder on 10 years in the legal industry
Tiyani Majoko is a lawyer and the Co-founder of New York City based legaltech startup Anü, a legal services marketplace. She is experienced in product design, identifying customer segments (user and buyer personas), data analysis and Agile. Tiyani talks to Alaba Ayinuola on her 10 years journey in the legal industry, starting from Biglaw, to in-house counsel, to running a small firm, to starting a legal tech company and I am always exploring something new. Excerpt.
In the beginning:
Life in Biglaw
On 3 January 2011, I pulled up to 22 Fredman Drive which were the offices of Eversheds (now Hogan Lovells). It was my first day at work as a Candidate Attorney, a 2-year journey as an apprentice in a law firm which culminates with passing the attorney bar/board exams. I bounced out of bed both nervous and excited that I was taking the first step in my career. I asked my dad to help me iron my outfit for the day; white shirt and black slacks, then I tied back my dreadlocks and put on my sensible black heels that he had bought me.
My dad, who is also a lawyer, was visibly beaming that I had been selected as a Candidate Attorney at an international law firm and I was following his footsteps. He had taken 2 weeks off to help me furnish my apartment, get comfortable with the route to work (though I didn’t have a driver’s license yet) and settle into my new life as a solicitor. Then he returned to his own law firm and practice in Zimbabwe.
At the end of orientation week, I knew the law firm life was not for me. I started my first 8 months rotation in a litigation team, where the only highlight of that rotation was the team and free lunches at advocates chambers. During that rotation I may or may not have forgotten to go to court to note a judgment. The daily time sheets, indexing and pagination of court files, carting files up and down to advocates offices for a 0.4 time entry and forced interactions at month end drinks were the bane of my existence. People would look forward to, or dread, the month end billing report as it revealed who was rising or bubbling under budget.
It was only later when I learned what really matters isn’t what you bill, but what you invoice and eventually collect!
I also learned about office politics and the power players of the firm if you wanted to be offered a position as an associate at the end your 2 year period as a Candidate Attorney.
The rainmaker whose team operated by its own rules (coming in at 10am and leaving at 4pm), the partner who had been at the firm all his 40 year career, the partners who struggled to make budget and how we all tried to stay away from them because they wouldn’t be in a position to retain you as an associate. There was also the partner who never took on a female or black associates, the partner who only took on LGBTQ associates and so I made a concerted effort to join the team of the partner who only took on Black associates.
She ran the mining team, working with international mining companies in helping them to obtain and retain their licenses to operate. This was the first time I felt like I was doing something I enjoyed- it was an all Black, female team. We would go on long road trips to visit mining clients, communities or regulators. I got to spend a lot of time out of the office- away from my time sheet, going to mines and meeting regulators- often these trips would allow for some sight seeing, such as visiting the Big Hole in Kimberly and going underground in a coal mine.
“As a mining lawyer I felt like I was doing something important by contributing to the development of communities. I got my first glimpse into politics in the wave of Marikana, investigating unsafe working conditions, developing environmental plans for rehabilitating mine property, working with corporate executives to understand their strategy and the adrenalin of speeding down the N1 from Joburg to Pretoria to meet arbitrary regulator deadlines for various submissions.“
I loved the centrality of the role and how each matter brought new challenges.
Each client had a different problem and the partner I worked for gave us free rein on matters. This built my professional confidence to execute and communicate as a professional. Although she would manage the relationship with the client, I would send the emails, they clients would call me if they had questions, etc. My criticism of the team was that it was too familial for a work environment and we could have used more intelligent tools to track matters, create reports and be efficient- which would have helped us to bill more. In 2013 the Black bubble was burst and the gang broke up.
Throughout my career I wanted to maintain that feeling of being connected to people, processes and policies while creating a product that’s profitable.
After Biglaw, I tried a couple of different things. I went in-house in an oil and gas company, where my boss lived in Durban and I was based in Joburg- so basically I have been remote since 2013. It was my first time working alone, after being accustomed to an office with 400 lawyers. I had to learn to trust my work, be thorough, do research and create my own support network of mentors. I was running legal and business affairs- so I would put together decks, find co-investors on projects and lead meetings after a short phone call with him. He was part of the young, new money Black elite that had made money from government contracts and had former President Jacob Zuma on speed dial. He opened my eyes to a whole class of Black, young, rich entrepreneurs that traveled to Bali on private jets. In those environments I quickly learned how political favor is volatile and qualifications to do the work are optional. At the time Zuma was ousted, a lot of them- including my boss- went broke.
I was 5 years into my career and had been disappointed by employers, so I made a bet on myself. I had some savings, worked out a rent free living situation and talked my varsity best friend into starting one of the first legal consulting firms in South Africa. I learned about finding clients, keeping clients, expanding revenue streams, business models, leadership, networking and expansion. We were so adorable when we started, see our launch video below.
I also launched Africa’s first lawyer on demand service. As a founder, I was able to find that feeling again, but I quickly realized that our service was too manual for scale in a way that mattered. Part of it was not knowing what tools we could use for a small services focused businesses and as I set my sights on moving away from a lifestyle business- I knew that technology would essential to our success. I was 8 years into my career at this point, running a good profitable company and contemplating the hard pivot to grad school in a foreign country, with a 6 figure price tag.
Ultimately I made the decision and attended Cornell with the vision of going back to my business then things changed. Instead, I become a founder- again- which I wrote about here.
While in school I thought of becoming a Product Manager, however it wasn’t presented to the law students as a career option, it was solely for Engineers and MBAs. Initially, I didn’t care because I didn’t understand most technical terms and I was just trying to keep up with my own course work. In January 2020, the blitz interview season was upon us, the technical students and MBAs were filling up their diaries so fast and law students were high key scrambling. I started to look at the PM job requirements and I was like “Hey, I know this stuff.. well some of it.” I went to the career services office like:
I have always been of the opinion that whatever an MBA graduate can do; a lawyer can do- just with a calculator.
I was benched very hard and told to stay in my lane- to look for roles in legal tech companies- maybe doing business development, or sales if I no longer wanted to practice law.
If the school didn’t see what I saw for myself, then I had to make it happen. All this was happening on the backdrop of a Coronavirus outbreak, BLM protests and many graduates being unable to find work. I half-heartedly applied for jobs, while I turned my full attention to a class project that had some real-world traction. When I went full time with Anü, I looked at this as an opportunity to do 2 things — either run a successful tech startup or have enough skills to rebrand myself as a PM. Either way I was setting myself up to win.
My 5th pivot is loading as I am staring down another path. It’s less scary because I have learned how to get good at taking wild bets on myself adaptability. In contrast, my father has been a lawyer his entire life. He graduated from law school 32 years ago, each year he has renewed his practicing license and I honestly envy him for finding the thing he is good at, that he also enjoys. I enjoy certain aspects of the law, but not all the ways that it is practiced. I need room to experiment, to be playful and to also not always follow precedent. I am extremely blessed because my dad has supported these expeditions. Now it’s time for his investment to pay off.
5 Tips on Making Career Pivots
- Create A Big Vision for Your Life.
- Be Intentional About Skills To Acquire.
- Know Your Core Competency.
- Network Like Crazy.
- Community (I created The Legal Werk for mid-career legal professionals who want to make a pivot, switch, climb or reset their careers to have a source of support.) If you want to join us sign up for updates here.
- Know Your Tolerance for Pain.
- Have Faith.
Derivatives: Enforceability of Close out Netting in Nigeria
By: Olayemi Anyanechi, Managing Partner at Sefton Fross
The Companies and Allied Matters Act (CAMA 2020) is a game changer for derivative transactions in Nigeria. It introduces innovative provisions that will impact financial collateral arrangements typically used by parties involved in derivative trading. This article will examine the novel provisions introduced by CAMA 2020 as it relates to financial collateral arrangements.
An examination of financial collateral arrangements under the CAMA 2020
Until recently, the enforceability of derivative transactions in Nigeria had lingering questions. This was mainly due to the uncertainty over enforcement of the close out netting provisions. To mitigate this, counterparties were typically advised to pursue the Automatic Early Termination route.
Netting is a reconciliation and payment mechanism which involves the aggregation and conversion of mutual payment obligations into a single claim, so that the party owing the greater aggregate amount makes a net payment to the party owing the lesser aggregate amount. Forms of netting include contractual/settlement, insolvency and close-out netting.
Netting under extant Nigerian laws
Prior to CAMA 2020, Nigerian laws supported contractual netting and insolvency netting.
Insolvency netting is a mandatory right of set-off that arises when a company goes into liquidation. It is automatic and applies at the date on which the liquidation commences
Insolvency netting is recognised under the provisions on mutual credit and set-off in section 33 of the Bankruptcy Act 1 and implied by reference in the previous CAMA 2. Section 33 of the Bankruptcy Act provides that where there has been mutual credits, mutual debts or other mutual dealings between a debtor and any other person claiming to prove a debt in the debtor’s liquidation, an account of what is due from one party to the other in respect of such mutual dealing and the sum due shall be set off against any sum due from the other party and the balance of the account and no more shall be claimed or paid on either side respectively. Thus, it required the claim and cross claims to be between the same parties in the same right.
Contractual or settlement netting is the netting of reciprocal deliveries or payments which are due on the same date. It provides for mutual payment obligations of contracting parties to be discharged by a single net payment obligation from one party to the other. This form of netting addresses the risk presented when parties’ obligations are not performed simultaneously, particularly where payment obligations are in the same currency to be performed on the same date. It assesses the parties’ mutual payment obligations and requires physical payment only from one of the parties, usually the one with the larger debt.
Close-out netting on the other hand, is typically employed to minimise the risk of exposure to an insolvent counterparty. It applies to contracts having different settlement dates and results in dealings between the counterparties coming to a close.
Prior to CAMA 2020, insolvency netting was mandatory and it was not possible to enforce certain provisions under such agreements after the commencement of winding up without a court order. This was because under Nigerian law, any disposition of the property of the company made after the commencement of the winding up shall, unless the court otherwise orders, be void.
Furthermore, in line with the provisions of section 499 of the erstwhile CAMA, where the termination of obligations under netting agreements do not occur prior to commencement of winding up, the liquidator may have been able to “cherry-pick” and require the performance of contracts that he deemed beneficial while disclaiming the onerous contracts.
New close out netting provisions
CAMA 2020 now recognises and provides a legal framework for termination and close-out netting.
Close out netting is defined under CAMA 2020 to include the occurrence of “the termination, liquidation or acceleration of any payment or delivery obligation or entitlement under one or more qualified financial contracts entered into under a netting agreement”. Netting agreements are recognised to include a ‘master netting agreement’, a ‘master-master netting agreement’, and a ‘collateral arrangement’.
Section 721 of CAMA 2020 further provides that:
(1) “The provisions of a netting agreement is enforceable in accordance with their terms, including against an insolvent party, and, where applicable, against a guarantor or other person providing security for a party and shall not be stayed, avoided or otherwise limited by-(a) Any action of the liquidator;(b) Any other provision of law relating to bankruptcy, reorganisation, composition with creditors, receivership or any other insolvency proceeding an insolvent party may be subject to; or(c) Any other provision of law that may be applicable to an insolvent party, subject to the conditions contained in the applicable netting agreement.”
With this provision the perennial issue with derivative transactions in Nigeria, which was to the effect that only insolvency netting was possible, has been addressed.
In terms of obligations of the parties to a netting agreement surviving the commencement of insolvency proceedings, the only obligation/right, if any, of either party is to make/receive payment or delivery under a netting agreement which shall be equal to its net obligation/entitlement with respect to the other party as determined in the netting agreement.
Furthermore, the provisions under CAMA 2020 limit the liquidator’s powers to disclaim netting agreements as onerous contracts. It provides that:
“Any power of the liquidator to repudiate individual contracts or transactionswill not prevent the termination, liquidation or acceleration of all payment or delivery obligations or enforcements under one or more qualified financial contracts entered into under or in connection with a netting agreement, and applies, if at all, only to the net amount due in respect of all of such qualified financial contracts in accordance with the terms of such netting agreement”.
Section 721(6) of CAMA 2020 also provides protection for netting agreements in that a liquidator is prohibited from avoiding the terms of such agreement unless there is clear evidence that the enforcing party made such transfer or incurred such obligation with actual intent to “hinder, delay or defraud any entity to which the insolvent party was indebted or became indebted”. The relevant time period is the period on or after the date that such transfer was made or such obligation was incurred.
These new provisions mitigate the risks hitherto inherent in “qualified financial contracts” which includes a whole range of derivatives and will go a long way to enhance financial stability and investor confidence in the Nigerian financial sector.
There is no doubt that with the improved regulatory landscape, the CAMA 2020 has commendably set the tone for the actualisation of key innovations in the market, providing enabling legal backing for netting, bankruptcy remoteness and attendant regulatory frameworks for the smooth functioning of financial markets in Nigeria which would ultimately impact positively on transactions between counterparties and other participants in the market.
The Companies and Allied Matters 2020 is currently awaiting gazetting as the last step to its effectiveness.
1. The Bankruptcy Act, CAP B2, LFN 2004, s 33.
2. The Companies and Allied Matters Act CAP C20 LFN 2004, s 493.
3. The Companies and Allied Matters Act CAP C20 LFN 2004, s 413.
4. The Companies and Allied Matters Act 2020, s 718.
5. The Companies and Allied Matters Act 2020, s 721(2),(3).
6. The Companies and Allied Matters Act 2020, s 721(4).
Article by: Olayemi Anyanechi, Managing Partner at Sefton Fross