OPERATING A BUSINESS IN IMO
Imo State has an estimated population of about 5million people, who are generally enterprising and hospitable. The labour market is very flexible with highly skilled, low cost labour, highly motivated and productive workforce. Imo labour market is highly educated, efficient, responsible, and healthy with the willingness to learn and commitment to making improvement - in both production and performance.
NATIONAL MINIMUM WAGE
The current national minimum wage is about 36,000 naira, about 100 United States dollars per month. An employer, defined as someone employing 50 or more persons, is required to pay the minimum wage, defined as the total emolument payable to a worker.
MINIMUM REQUIREMENT IN EMPLOYMENT CONTRACT
Rights are usually determined by the terms in the contract of employment. When a hire is made, the Nigerian Labour Act requires employers to provide an employment contract setting out the following:
The terms and condition of employment within three months of the commencement of employment:
• The name of the employer
• The undertaking by which the worker is employed
• Name, address, and date of hire of the worker
• Nature of the employment
• Date of expiration if the contract is for a fixed term
• Period of notice for termination with attention to section 11 of the Nigerian Labour Act
• Rate of wages, method of calculation, and frequency of pay
• Terms and conditions relating to hours, holidays, incapacity (including any provision for sick pay), and any special conditions in the contract.
Employers may use the first three months before providing the contract as a probationary period, and if spelled out in the contract time thereafter as well. With regards to contracts for a fixed term, contracts must be in writing, but otherwise there are no statutory limitations or restrictions on employment contracts for a fixed term.
In certain situations, an employer may desire to use independent contractors rather than hiring employees. Status as an independent contractor and vicarious liability for torts committed by an independent contractor is determined by the level of control exercised by the employer over the contractor.
Normal hours of work are fixed by mutual agreement, or by collective bargaining, or by an industrial wages board where there is no machinery for collective bargaining.
REST HOURS, SICK LEAVE AND HOLIDAYS
If a worker is at work for more than 6 hours a day, he she must be given at least 1 hour of rest-interval in that day. Further, in every period of 7 days, a worker is entitled to at least 1 day of rest which must not be less than 24 consecutive hours.
Every worker is also entitled to 12 days' sick leave for temporary illness certified by a registered medical practitioner.
Every employee after 12 months of continuous service is entitled to a holiday with full pay of at least 6 working days or in the case of a person under the age of sixteen (16) years (including an apprentice), at least twelve (12) working days (this is exclusive of all the public holidays). An exception to the entitlement to a holiday after 12 month's continuous service is that such holiday can be deferred to a later date by agreement between the employee and employer provided that the holiday earning period shall not be increased beyond 24 months' continuous service.
All female employees are entitled to take up to 12 weeks of maternity leave with full pay. Of this period, six weeks must be taken after the birth. Women may start their leave at any time from six weeks before the expected date of birth, on producing a medical certificate issued by a registered medical practitioner stating that confinement will probably take place within six weeks. Nigerian labour Act does not recognize paternity leave and makes no such provisions.
There is a general prohibition of discrimination in employment on the grounds of ethnic group; place of origin; community; sex; religion; political opinion; and circumstances of birth.
SAFETY AND WELFARE OF EMPLOYEES
The factories Act places an obligation upon employers owners or occupiers of a factory to ensure the health, safety and welfare of employees within the factory. Thus, it is the duty of the employer to ensure the provisions of the factories Acts relating to cleanliness, overcrowding, ventilation, lighting, drainage and sanitary conveniences complied with.
Furthermore, the Act makes it the duty of the employer to provide a safe means of access and safe place of emploment, sections 47 and 48 of the Act also make it mandatory for factory workers to be provided with protective clothing and appliances, where they are employed in any process involving excessive exposure to wet or to injurious or offensive substance. Similarly, where necessary, suitable gloves, footwear, goggles and head coverings should also be provided and maintained for use by the workers.
Employers must apply for an "expatriate quota." The quota allows a company to employ foreign nationals in specifically approved job designation as well as specifying the validity period of the designations provided on the quota. There are two types of visas which may be granted, depending on the length of stay. for short term assignments, an employer must apply for and receive a temporary work permit, allowing the employee to carry out some specific tasks. The temporary work permit is a single-entry visa, and expires after three months. There are no numerical limitations on short-erm visas, and foreign nationals who meets the conditions for grant of a visa may apply for as many short term visas as required.
For long-term assignments, the employer shoukd apply for a "subject-to-regularization" visa (STR). To apply for an STR, an employer must apply for and obtain an expatriate quota. The expatriate quota states positions in the company that will be occupied by expatriate staff.Upon arrival in Nigeria, the employee will need to validate his or her visa by applying for a work and residence permit.
Spouses of authorized workers may also work in Nigeria, provided they obtain a work and residence permit as well. Nigeria does not employ a labor market test, although the Nigerian Content Act does state that emploers should exercise a preference for local employees.
The Nigerian Labour Act defines redundancy as an involuntary and permanent loss of employment caused by excess manpower. The law in nigeria recognizes the right of the employer to terminate the contract of employment of an employee on ground of redundancy. The labour Act specifically provides that in the event of redundancy:
• The employer is to inform the trade union or workers' representative concerned.
• The principle of "last in, first out" shall be adopted in the discharge of the particular category of workers affected, subject to all factors of relevant merit, including skill, ability and reliability.
• The employer is to use his best endeavours to negotiate redundancy payments to any discharged worker who are not protected under the Labour Act.
TERMINATION OF EMPLOYMENT
The Nigerian Labour Act provides the following as minimum notice periods for the termination of an employment contract:
• Where the employee has been employed for a period of 3 months or less, either party may terminate the contract with a minimum of 1-day notice.
• Where the employee has been employed for a period of 3 months but less than 2 years, either party may terminate the contract with a minimum of a 2-week notice.
• Where the employee has been employed for a period of 2 years but less than 5 years, either party may terminate the contract with a minimum of a 2-week notice.
• Where the employee has been employed for a period of 5 years or more, either party may terminate the contract with a minimum of 1-month notice. When giving notice of termination of employment contract where the notice is 1 week or more, the notice must be in writing.
EMPLOYEE COMPENSATION SCHEME
The Employee Compensation Act (ECA) provides for adequate compensation for employees or their dependants in the event of death, injury, disease or disability arising out of, or in the course of employment. The Act is also intended to provide for safer working conditions for employees, by ensuring that all relevant stakeholders contribute to the prevention of occupational hazards and disabilities. To this end, employers are required to contribute 1% of their payroll costs to the National Social Insurance Trust Fund (NSITF) to cover employees from work-related accidents and death.
SOCIAL SECURITY AND OTHER CONTRIBUTIONS:
CONTRIBUTORY PENSION SCHEME
Under the Pension Reform Act of 2014, employers and employees are required to make a minimum contribution of 10% and 8% respectively of the employee’s monthly emoluments to a Pension Fund Administrator chosen by the employee. In addition, an employer is also required to maintain a Group Life Insurance Policy for each employee for a minimum of three times the annual total emolument of the employee.
NATIONAL HOUSING FUND
The NHF seeks to facilitate the provision of houses to Nigerians at affordable prices. Employers are required to deduct 2.5% of employee’s basic salary and remit same to the Federal Mortgage Bank of Nigeria within one month of such deduction.
HEALTH INSURANCE SCHEME
The National Health Insurance Scheme (NHIS) provides all employees access to affordable health care. Companies with a minimum of ten (10) staff are expected to provide health insurance for their staff and their dependants.
INDUSTRIAL TRAINING FUND
The ITF was established to promote the acquisition of skills in industry and commerce with a view to generating a pool of indigenous trained manpower sufficient to meet the needs of the economy. Employers are required to contribute 1% of annual payroll costs to the ITF, if they
• Have five (5) or more employees or an annual turnover of ₦50million and above
• Bid for or solicit contracts, businesses, goods and services from public and private establishments
• Require approval for Expatriate Quota or
• Utilize Customs services for import and export. However, the ITF Governing Council may refund of up to 50% of an employer’s contributions if he submits evidence of providing relevant training to his employees.
SUMMARY OF CONTRIBUTIONS
|Employer contribution||Employee Contribution|
|Pension Contribution||10% of employee’s salary||8% of salary|
|National Housing Fund||None||2.5% of basic salary|
|National Health Insurance Scheme||10% of employee’s basic salary||5% of basic salary|
|Industrial Training Fund||1% of annual payroll||None|
|Employee Compensation Scheme||1% of annual payroll||None|
ECOWAS RESIDENCE CARD
Citizens of countries that are members of the Economic Community of West African States (ECOWAS) can reside and work in Nigeria without residence permits; they are however required to apply for the ECOWAS Residence Card within 90 days of their arrival in Nigeria.
TAXATION OF EXPATRIATES
An expatriate is liable to tax in Nigeria if his employment costs are recharged to a Nigerian company; or he is in Nigeria for up to 183 days in a year (including leave and temporary absence); or where he is not liable to tax in another country which has a double tax agreement with Nigeria.
The Nigerian Electricity Regulatory Commission (NERC) regulates the business of electricity generation, transmission, distribution and marketing in Nigeria. Electricity is supplied directly to customers by the distribution companies (popularly called DisCos) which cover specific geographical areas as shown in the table below. There is also provision for licensing Independent Electricity Distribution Networks (IEDN) in addition to the DisCos.
The Multi-Year Tariff Order (MYTO) is the methodology adopted by NERC for setting electricity tariffs in Nigeria. It provides a 15-year tariff path with annual minor reviews, and major reviews every 5 years.
The Multi-Year Tariff Order (MYTO) is the methodology adopted by NERC for setting electricity tariffs in Nigeria. It provides a 15-year tariff path with annual minor reviews, and major reviews every 5 years.
A customer who uses his premises exclusively as a residence. E.g. house, flat, or multi-storey house.
A customer who uses his premises for any purpose other than exclusively as a residence or as a factory for manufacturing goods.
A customer who uses his premises for manufacturing goods including welding and ironmongery.
Agriculture and agro-allied industries, water boards, religious houses, government and teaching, hospitals, government research institutes and educational establishments.
Street Lights (S)
Enugu Distribution and District Company cover Imo state with an average tariff of 35 per Distribution Company.
ISIPA consultancy department will assist you.
The procedure for obtaining electricity is as laid out below:
• The new consumer, through their licensed electrician, completes a new service application form requesting electricity supply from their distribution service centre. It is important for the customer to provide accurate information on their appliances to enable the DisCo determine the appropriate type of meter supply (single or 3-phase).
• The DisCo conducts an installation inspection of the consumer’s location to assess the electrical wiring, confirm the electricity load requirements and assign the appropriate customer class.
• The DisCo issues a list of required connection materials to the customer.
• The customer purchases the required connection materials and presents them to the DisCo Service Centre for quality validation.
• The Service Centre effects the connection at the customer premises within 48 hours, in addition to providing a meter and meter accessories.
The customer does not pay meter or installation costs as these are already covered by the electricity tariff.
Generally, especially in urban areas, boreholes are a major source of water for commercial and residential properties. However, the state government is working relentlessly with USAID to restore pipe born water to every home and office in the state.
There are four major GSM (Global System for Mobile communication) operators in Nigeria: Airtel, Globacom, MTN and 9mobile with a combined subscriber base of about 150 million. The launching of GSM in the country has significantly improved the country’s domestic and international telecommunication services. Fixed Wired and Wireless services are provided by MTN, Glo and 9-Mobile. Under the current unified licensing regime, which was introduced by the Nigerian Communications Commission in 2006, there is no more segmentation of wireless licences into mobile and fixed service categories. On allocation of a spectrum, all licensees are free to offer voice, data or multimedia services as they deem fit. This harmonised platform has led to increased competition from all the telecommunication service operators in the country.
Each telecoms provider has an array of voice and data plans for customers to choose from. The number of internet users in Nigeria is about 90 million (or 53% of the population), which is the highest in Africa. Data services are provided by the afore-mentioned GSM operators, as well as several Internet Service Providers (ISP). Many of these offer fibre-optic services across the country, with 4G LTE available in Lagos, Ibadan, Abuja and Port Harcourt. Data plans vary by ISP, city, duration and choice of plan but monthly subscriptions start around $5.60 (excluding the cost of the modem).
The government of Imo State recognizes the fact that there is a long term link between transportation and the State’s economic productivity, growth and stability within the context of the government’s commitment to sustainable development.
A massive rehabilitation and construction of roads, most especially the outer ring road is being undertaken by the government.
The outer ring road also known as the Imo freeway is a super-highway passing through the twenty seven (27) Local Government Area of the State.
Imo state has an International Cargo Airport in Owerri, and access to seaports of Portharcourt and Calabar. Our state offers a cost-competitive advantage for investors seeking out new growth opportunities in Nigeria and Africa at large.
The Land Use Act of 1978 vests ownership of all urban land within a state in the State Governor who holds land in trust for the people and allocates same for residential, commercial, agricultural and other purposes. Similar powers with respect to rural (or non-urban) areas are vested in the Local Governments. This means the government becomes the lessor, responsible for granting leases.
There are two rights of occupancy: a statutory right of occupancy granted by the State Government and a customary right of occupancy granted by the Local Government. Leases are typically granted for 99 years, subject to review upon expiration. Title deeds/documents serve as documentary evidence of ownership and include:
(i) Certificate of Occupancy (C of O)
This is a title document issued by the President, Governor or Local Government Chairperson which contain the terms of lease and grant rights of occupancy to the holder for the leasehold term stipulated therein.
(ii) Deed of assignment
This is a document of transfer of land from a seller to a buyer. It outlines the agreement between the person with the rights to a piece of land and the person to whom the rights are being transferred. It contains a detailed description of the land (including its ownership history), the agreed cost, and the date from which transfer takes effect.
(iii) Governor’s Consent
This is a legal document authorizing the transfer of land from one person to another.
ISIPA consultancy department will assist you.
Land Acquisition Procedure in Imo
Contact ISIPA One-Stop-Center
Contact ISIPA One-Stop-Center
Construction Permit Procedures
A building plan approval is necessary before construction can commence. Imo state ministry land and Owerri Capital Development Authority (OCDA) is responsible for issuing land permits.
Obtaining Construction Permit
• Obtain the application form and a copy of the Development Control Guidelines
• Complete the form: Depending on the type of permit being requested, it may be necessary to consult the neighbours of the property in question, especially those that will be affected by the proposed construction.
• Submit the application alongside the following documents:
1. Evidence of rights over the land (Right of occupancy, Certificate of occupancy, Title Deed Plan and fulfillment of financial obligations).
2. A site plan and detailed site analysis report certificate by a registered town planner.
3. Environmental Impact Analysis (EIA) Report for commercial, industrial, public building, recreational, large scale residential development, change of use of plot or on existing buildings and any other land use as may be deemed necessary, prepared and authenticated by a registered town planner.
4. All application in respect of Special Development such as Petrol Filling Station, Water Supply, drilling/Outlets, private health and educational facilities, child welfare related developments etc. shall be accompanied by letters/license of the relevant regulatory body
5. On assessment/verification of content of application, appropriate acknowledgment letter shall be issued to the applicant by the OCDA, alongside bills for processing application.
6. Applicants must pay full processing fee within two (2) weeks of receipt of acknowledgment and bill before the permit is processed.
INTRODUCTION TO THE IMO LEGAL SYSTEM AND FOREIGN INVESTMENT
LAW COURTS IN NIGERIA
• The Supreme Court is the highest court in Nigeria with original and appellate jurisdiction in certain constitutional, civil and criminal matters prescribed in the Constitution.
• The Court of Appeal hears appeals from the National Industrial Court, Federal and State High Courts and Customary Courts of Appeal.
• The Federal High Court has jurisdiction in matters connected with the revenue, admiralty, banking, foreign exchange and other currency and monetary or fiscal matters.
• The State High Court has jurisdiction to hear and determine both civil and criminal proceedings.
• The National Industrial Court has jurisdiction in labour and industrial relations matters.
• Customary Courts of Appeal exercise jurisdiction in civil proceedings on customary law.
• Magistrates’ Courts, District Courts, Area Courts and Customary Courts all have original jurisdiction in civil and criminal matters.
Imo state in the bid to boost foreign investment employs laws and regulatory bodies as
1. Companies and Allied Matters Act Cap C20, LFN, 2004. (CAMA) sets out the role of the Corporate Affairs Commission (CAC). It regulates the incorporation of companies, business names names, incorporated trustees and other incidental matters. Except where a foreign entity is exempt from registration and granted exemption status by the CAC, registration is a requirement for doing business in Nigeria. A foreign company may be granted exemption status from company registration by the CAC if:
a. it is invited into Imo by or with the approval of the State Government for a specified project or
b. Where it is in Imo for an individual project on behalf of a donor country or international organization or
c. It is engaged solely in export promotion activities or the foreign company contains technical and engineering consultants executing a specific project.
2. Imo State Investment Promotion Agency (ISIPA) established by law in 2010 to facilitate, coordinate, grow and monitor all investments in the state economy with special focus on making the economy private sector driven. ISIPA has set up its “One-Stop-Centre” making it possible for investors to access all relevant information, documents and statutory approvals that are needed to set up an investment project in Imo. A foreign investor is required to register with ISIPA prior to operating in the State.
The ISIPA Act also sets out a “negative list” that prohibits private investment (domestic and foreign) in production of arms, ammunition, paramilitary wares and accoutrements as well as the production of and dealing in narcotic drugs and pyschotropic substances.
3. The Securities and Exchange Commission (SEC) established by ISA as the key regulatory authority for capital markets in Nigeria. It places the duty on directors to ensure the integrity of a company's financial controls and reporting.
The most common corporate form in Imo is the limited liability company, registered by the CAC and regulated by the provisions of the CAMA. Once a limited liability company is incorporated, it will have a legal personality separate and distinct from its shareholders.
A key feature of the limited liability company is that its assets and liabilities are separate from those of its shareholders (whose interest is limited to the shares held in the company and the rights such as dividends flowing there from). The liability of a shareholder in relation to a limited liability company is limited to the cost of the shares subscribed to by such shareholder. A limited liability company may be set up at the CAC within five business days.
INCORPORATION FORMALITIES FOR A LIMITED LIABILITY COMPANY
The procedure for incorporating a limited liability company is as follows:
1. Securing a name – a person seeking to incorporate a company at the CAC will, as a first step, need to apply for and reserve a name for the company. There are restrictions on the type of name that may be reserved (the CAC will not approve any name that is similar to the name of an existing company or contains certain prohibited words). An approved name is reserved for the applicant’s use for a period of 60 days (this is extendable) within which the incorporation must be completed.
2. The subscribers are required to prepare the necessary documentations such as Memorandum and Articles of Association and complete all other relevant forms and pay the appropriate fees for a company to be registered.
3. Fees – the registration cost comprises stamp duty registration fee and other miscellaneous costs for example, the cost of incorporating a company with a share capital of one million Naira (NGN) is approximately NGN20,000.
REPATRIATION OF FUNDS BY INVESTORS
The ISIPA Act provides for Investment guarantees, transfer of capital, profits and dividends. Where funds have been imported for the purpose of investment in a lawful enterprise, a foreign investor is guaranteed unconditional transferability or repatriation of their profits, dividends, payments in respect of loan servicing where a foreign loan has been obtained, proceeds (net of all taxes), and other obligations in the event of a sale or liquidation of the enterprise or any interest attributable to the investment through an authorised dealer, in freely convertible currency.
In addition, the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act 1995 (Forex Act) provides that no foreign currency imported into Nigeria will be seized, forfeited or expropriated by the government save where such transactions relate to goods or services which are prohibited under Nigerian Law.
Investments made in foreign currency must be imported through an authorised dealer and converted into Naira at the official exchange rate. The authorised dealer subsequently issues a Certificate of Capital Importation to the investor as evidence of the capital importation. This is to guarantee shareholders and investors the unconditional transfer or repatriation of their profits, dividends, etc. which are attributable to their investment.
PROTECTION OF PROPERTY
The ISIPA Act guarantees ownership and protects against the threat of nationalisation or compulsory acquisition of a foreign investor’s interests by the government. Should a need arise for compulsory acquisition, the law makes provision for payment of fair and adequate compensation and a right of access to the courts for the determination of the investor’s interest or right and the amount of compensation to which he is entitled.
TRANSFER OF TECHNOLOGY
The transfer of technology in Nigeria is governed by the National Office for Technology Acquisition and Promotion Act 2004, which established the National Office for Technology Acquisition and Promotion "NOTAP). The principal function of NOTAP is to encourage a more efficient process for the identification and selection of foreign technology.
The state government has put in place several tax incentives to encourage and attract foreign investors. Tax relief is available to companies operating in pioneer industries or producing pioneer products. Such companies can enjoy an income tax holiday of up to seven years. In addition to income tax holidays, pioneer companies enjoy other benefits. Companies operating in Tax Free Zones and Export Processing Zones are exempt from tax obligations in Nigeria for operations carried out in the zones provided that all the companies’ activities are performed exclusively within the zone. Further, tax relief/exemptions are available in respect of interest on loans obtained to do business or invest in Nigeria. Other tax incentives relating to VAT, petroleum tax, and company income tax are covered in more detail in later Chapter.
The Immigration Act 2015 was enacted to make easier to do business in Nigeria and to align Nigerian laws with international standards with respect to employment, administration, deportation etc. In the main there are 4 types of visas applicable for non-residents visiting for work purposes.
The first is the Business Visa which is issued to allow an investor to attend meetings in the country.
The third is Expatriate Quota, this allows companies to employ expatriates and the company must apply for and be granted the quota of expatriates that may be employed by that organisation. Employees will be considered as residents for tax purposes.
Finally, there is the Combined Expatriate Residence Permit and Aliens Card (CERPAC) which permits non-residents to reside and work in Nigeria. This permit is valid for 3 years and it is renewable.
Following an Executive Order in 2017, the Government has now adopted a policy of “visa on arrival”. This is a class of short visit visa issued at the port of entry. The facility is available to frequently travelled High Net Worth Investors and Intending Visitors who may not be able to obtain visa at the Nigerian Missions/Embassies in their countries of residence due to the absence of a Nigerian those countries or exigencies of urgent business travels. There is further information on the Nigerian Immigration Service website.