IMPROVING THE LAWS AND REGULATIONS HAMPERINGTHE EASE OF DOING BUSINESS IN NIGERIA: ISSUES,

CHALLENGES AND SOLUTIONS

ByProfessor Paul Obo Idornigie, SAN, PhD, FCIS, FCIArb (UK)

Chartered ArbitratorHead, Department of Commercial Law

Nigerian Institute of Advanced Legal StudiesAbuja, Nigeria

(PROTOCOL)

Introduction

I would like to thank the Law Media & Social Justice Development

Initiative for inviting me to deliver the Lead Paper at a Roundtable on

‘Improving the Laws and Regulations Hampering Ease of Doing

Business in Nigeria, Outdoor Advertising, Media & Communications:

Issues, Challenges and Solutions’. I would also like to thank the

ENABLE-DFID and GEMS 3 for funding an earlier research leading to a

Comprehensive Review of the Institutional, Regulatory, Legislative and

Associated Instruments Affecting Businesses in Nigeria.1 The research

was at the initiative of the Senate President, His Excellency, Dr Bukola

Saraki who is concerned with the ranking of Nigeria in the World Bank’s

Doing Business Report for 2016 and attraction of private investors into

the business space in Nigeria. The outcome of the research which was

validated by the Nigerian Bar Association and Nigerian Economic 1 See the Final Report of February 2016, hereinafter referred to as “the Final Report”.

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Summit Group was presented to the National Assembly at a Roundtable

on 21 March, 2016.

Nigeria is a blessed country – rich in human and natural resources.

Nigeria is, once again, the leading economy in Africa. Unfortunately, the

success story ends there. In almost other significant sectors, Nigeria

has done very badly. In education, in the Ranking of World’s University

published by the Times Higher Education on 22 September 20162, no

Nigerian University is in the first 500. Indeed the University of Ibadan

that is top in Nigeria is ranked among the 980 Universities. In Corruption

Perception Index (CPI), 2015 published by Transparency International,

Nigeria is ranked 136 out of 1673 .

In The Global Competitive Report for 2016-20174 published by the World

Economic Forum, Nigeria is ranked 124 out of 139 countries. South

Africa is ranked 49, Rwanda 58, Botswana 71, Namibia 85, Algeria 87,

Tunisia 92, Cote d’Ivoire 91, Kenya 99, Gabon 103, Ethiopia 109, Ghana

119 and The Gambia 123. The Global Competitive Report, which uses

one hundred and fourteen (114) indicators, serves as a critical reminder

of the importance of competitiveness in solving both our international

macroeconomic challenges and laying the ground for future prosperity.

The indicators which are grouped into twelve (12) pillars are:

2 Available at www.thewur.com accessed on 20 October, 2016.3 Available at http://www.transparency/cpi2015 accessed on 20 October, 2016.4 Available at www.weforum.org/gcr accessed on 20 October, 2016.

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institutions, infrastructure, macroeconomic environment, health and

primary education, higher education and training, goods and market

efficiency, labour market efficiency, financial market development,

technological readiness, market size, business sophistication and

innovation. The Report includes statistical data from internationally

recognised organisations notably the International Monetary Fund, the

World Bank and various United Nations specialized agencies. Taking

into account these indicators, it is apparent why Nigeria is not

competitive.

The Global Hunger Index (GHI) is a multidimensional statistical tool used

to describe the state of countries’ hunger situation. The GHI measures

progress and failures in the global fight against hunger. In the GHI for

20165, Nigeria scored 25.5 while South Africa scored 11.8 where a score

of 9.9 is considered as low; 10.0-19.9 as moderate; 20.0-34.9 as

serious; 35.0.49.9 as alarming and 50.0 and above as extremely

alarming. Thus in the GHI Severity Scale, the situation in Nigeria is

‘serious’.

One can go on and on and the picture is the same. We need to improve

on all the indicators used by the World Economic Forum and the World

5 Available at www.ghi.ifpri.org accessed on 20 October, 2016.

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Bank’s Doing Business Report. Inflation is now 17.85%, the highest

since February 2009.6

In this presentation, the focus will be on the World Bank’s Doing

Business Reports with a view to ascertaining why Nigeria has done

badly in this regard, examine the concept of independent regulator,

analyse the issues and challenges and make recommendations.

World Bank’s Doing Business Report

In the Final Report we observed as follows:7

a) Since the inception of World Banks’s Doing Business report series in

2005, Nigeria has not fared well when compared to other countries for

ease of doing business. For instance, in 2008, out of 183 countries,

Nigeria ranked 114. In 2009, 2010, 2011, 2012, 2013, and 2014, Nigeria

ranked 118, 125, 133, 133, 131, and 170 respectively.8

b) Nigeria is ranked 169th out of 189 Countries in the Doing Business 2016

Report published by the World Bank Group on October 27, 2015. The

Report gauges the relative ease or difficulty of opening and running a

small to medium-size business when complying with relevant

regulations. It, therefore, offers a useful and candid assessment of

6 See http://elombah.com/index-php/reports/11462-inflation-in-nigeria-hits-17.85-record-high-in-september accessed on 25 October, 2016.7 See pages 20-21 of the Final Report.8 See Doing Business 2008, 2009, 2010, 2011, 2012, 2013, 2014 and 2015: The International Bank for Reconstruction and Development/The World Bank, Washington DC.

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economies’ relative standings in the world as it concerns bureaucratic

barriers to business.

c) In arriving at an assessment, eleven (11) areas in the lifecycle of a

business are tracked and measured as indicators: starting a business,

dealing with construction permits, getting electricity, registering property,

getting credit, protecting minority investors, paying taxes, trading across

borders, enforcing contracts, resolving insolvency and labour market

regulation. The labour market regulation indicators are not included in

this year’s aggregate ease of doing business ranking.

d) According to the Doing Business 2016 Report, the methodology

adopted in the ranking has limitations. Other areas important to

business – such as an economy’s proximity to large markets, the quality

of its infrastructure services (other than related to trading across borders

and getting electricity), the security of property from theft and looting, the

transparency of government procurement, macroeconomic conditions or

the underlying strength of institutions – are not directly studied by Doing

Business.

e) The indicators refer to a specific type of business, generally a local

limited liability company operating in the largest business city. In Nigeria,

Lagos and Kano have been identified as the largest business cities.9

9 The following countries also have two cities: Bangladesh - Dhaka and Chittagong; Brazil – Sao Paulo and Rio de Janeiro; China – Shanghai and Beijing; India – Mumbai and Delhi; Indonesia – Jakarta and Surabaya; Japan – Tokyo and Osaka; Mexico – Mexico City and Monterrey; Pakistan – Karachi and Lahore; Russian Federation – Moscow and St. Petersburg; and United States – New York and Los Angeles.

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The consequence of this is that the Report on Nigeria is based on the

laws, practices, processes, regulations and procedures in Lagos and

Kano States. Most of these practices, processes, regulations and

procedures are based on state laws such as urban planning laws, land

registry laws, environmental laws, state taxes,10 and local government

taxes. There are very few Federal Laws like the Land Use Act,

Companies and Allied Matters Act, Nigerian Investment Promotion

Commission Act, Value Added Tax, and Stamp Duties Act that impact

on ease of doing business. Apart from the Land Use Act that provides

for Governor’s consent, the procedures for obtaining the said consent

varies from state to state. Comparator economies and economies with

good business practices are also used to compare business practices.

In the case of Nigeria, United Kingdom, South Africa, Kenya and India

are used in the analysis as well a Regional Average. It is interesting to

note that between Lagos and Kano, there are different rankings in the 11

indicators.

In the Doing Business 2017 Report published on 25 October, 2016 by the

World Bank, Nigeria is again ranked 169 out of 190 countries. Somalia made

the 190th economy. All we said in respect of that of 2016 Report are also

10 In Lagos State, this is a summary of taxes or mandatory contributions: Corporate Income Tax, Social Security Contributions, Tertiary Education Trust Fund Contribution, Training Tax, Employee Compensation Contribution, Capital Gains Tax, Tax on money market interest, Land Use Charge, Stamp Duty on Cheques, State Business Levy, Entertainment Tax, Infrastructure Development Tax, Value Added Tax, Fuel Tax, Employee Labour Tax, National Housing Fund, Advertising Tax and Stamp Duty on Contracts. Kano State has similar taxes.

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relevant in 2017 Report. Now in its 14th Edition, the Doing Business Report,

demonstrates how government policies and regulations affect businesses.

Doing Business 2017 highlights the large disparities between high- and low-

income economies and the higher barriers that women face to starting a

business or getting a job compared to men.

We must state that the ranking of any country in the Doing Business

Report is not determined essentially by laws. According to the Doing

Business for Nigeria, 201711:

For policy makers trying to improve their economy’s regulatory

environment for business, a good place to start is to find out how it

compared with the regulatory environment in other economies.

Doing Business provides an aggregate ranking on the ease of

doing business based on indicator sets that measure and

benchmark regulations applying to domestic small to medium-size

businesses through their life cycle.

Laws and Regulations Hampering the Ease of Doing Business12

As is often the case, it is impossible to review statutes and regulations

without reviewing the Constitution which is the grundnorm of the

Nigerian legal system. In a federation like ours, legislative powers are

11 See Doing Business 2017 (Nigeria) page 6.12 See generally the Final Report, pages 70-71.

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shared between the Federal Government and the State Governments.13

The legislative powers of the Federal Government are vested in the

National Assembly made up of the Senate and the House of

Representatives while that of the federating states is vested in the

respective Houses of Assembly of each State.14

The National Assembly makes laws on matters on the Exclusive

Legislative List set out in Part I of the Second Schedule to the

Constitution. This is to the exclusion of the State Houses of Assembly.15

The National Assembly also has legislative powers over matters in the

Concurrent Legislative List set out in Part II of the Second Schedule to

the Constitution16

Similarly, the House of Assembly of a State can make laws on matters

not in the Exclusive Legislative List but in the Concurrent Legislative List

set out in Part II of the Second Schedule to the Constitution and any

other matter with respect to which it is empowered to make laws in

accordance with the provisions of the Constitution.17

However, there is a proviso. If any law enacted by the House of

Assembly of a State is inconsistent with any law validly made by the

National Assembly on matters in the Concurrent Legislative List, the law

13 See Section 2(2) of the 1999 Constitution, as amended.14 See section 4(1) and (6) ibid.15 See section 4(2) and (3) ibid.16 See section 4(4) ibid.17 See section 4(7) ibid.

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made by the National Assembly shall prevail, and that other law shall, to

the extent of inconsistency, be void.18

The Constitution has certain provisions that impede businesses in

Nigeria. Furthermore, because some of the said provisions are in the

Exclusive Legislative List (ELL), the States have no legislative

competence over them. Such provisions include:

a) Section 44(3) of the Constitution vesting the entire property in and

control of all minerals, mineral oils and natural gas in, under or

upon any land in Nigeria or in, under or upon the territorial waters

and the Exclusive Economic Zone of Nigeria in the Government of

the Federation

b) Section 315(5) of the Constitution that made the Land Use Act,

1978 as part of the Constitution and that the provision shall not be

altered or amended except in accordance with the provisions of

section 9(2) of the Constitution.

c) Section 251(1) of the Constitution deals with the jurisdiction of the

Federal High Court especially over tax matters. This is affecting

the jurisdiction of the Tax Appeal Tribunal (TAT) established under

the provisions of section 58 of the Federal Inland Revenue Service

Act of 2007.

18 See section 4(5) ibid.

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d) Item 34 of the Exclusive Legislative List deals with Labour. It is

arguable whether labour should be centrally controlled given our

experience with the minimum wage legislation.

e) Item 55 of the Exclusive Legislative List deals with railways. This

is hampering the reform the sector as states cannot established

railways without the consent of the Nigerian Railway Corporation.

f) Item 64 of the Exclusive Legislative List deals with water from

sources as may be declared by the National Assembly to be

sources affecting more than one state.19

In addition to the Constitution, the following laws should be reformed to

improve on ease of doing business in Nigeria.

Arbitration and Conciliation Act 20

This Act was passed on 11 March, 1988 and modelled after the

UNCITRAL Model Law on International Commercial Arbitration, 1985,

the Conciliation Rules of 1980 and the Arbitration Rules of 1976. All

these UNCITRAL instruments have been revised and reformed and yet

the Arbitration and Conciliation Act has remained the same.

In 2007, under the direction of Chief Bayo Ojo, SAN as Attorney General

of the Federation and Minister of Justice, a new law was drafted and

19 See also the Nigerian Inland Waterways Act, Cap N47 LFN, 2004. There are concerns about the constitutionality of this Act in relation to waterways within a state. For instance, the Lagos State Government, since 1998, has argued that State Governments have legislative competence to regulate the waterways within their states so that the Federal Government should control inter-state and international waterways.20 Cap A18 LFN 2004

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sent to the National Assembly. This new draft which is also now

outdated is still in the National Assembly.

At the moment the Chartered Institute of Arbitrators (UK), Nigerian

Branch is sponsoring the redrafting of the law.

Companies & Allied Matters Act 21

This law was passed in 1990 and has remained substantially the same

since then. It should be reformed as follows:

a) Sections 18 and 246 – number of shareholders and directors.

According to SMEDAN, a micro enterprise is one with total assets

(excluding land and buildings) of less than five million naira with a

workforce not exceeding ten employees; a small enterprise is one

with total assets (excluding land and building) of above five million

naira but not exceeding fifty million naira, with a total workforce of

above ten, but not exceeding forty-nine employees while a medium

enterprise is one with total assets (excluding land and building)

which are above fifty million naira but not exceeding five hundred

million, with a total workforce of between 50 and 199 employees.

In view of the fact that MSMEs account for 96% of businesses in

Nigeria, there is the need to re-examine what a small company is

vis-a-viz MSMEs and private and public companies. We also are

21 Cap 20, LFN 2004.

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aware that what appears to be private companies are essentially

one-man companies with one man co-opting a wife, friend, or

relative to meet the statutory minimum of two shareholders and

two directors. Why can’t we have one director and one

shareholder for MSMEs?

b) Sections 21 and 22 – types of companies – the dichotomy into

private and public companies does not take into account the

MSMEs. These provisions should be re-examined.

c) Section 26 – companies limited by guarantees and Part C dealing

with Incorporated Trustees. There seem to be an overlap between

the provisions of sections 26 and 591 in terms of aims and objects

of the two entities. There is the need to either streamline the two

provisions or phase out companies limited by guarantee.

d) Section 27(2)(a) – Minimum Share Capital – out of 189 countries

studied in the Doing Business Report, 2016, 103 no longer have

provision on minimum share capital to incorporate a company. We

are aware of the reason for this in the Nigerian Law Reform

Commission Report of 1988 and that of 2009. Indeed in the

Report of 2009, the Nigerian Law Report Commission is proposing

an increase. We think that this issue should be revisited and the

requirement of minimum share capital be either eliminated or

reduced drastically.

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e) Section 35(3) – Statutory Declaration of Compliance – if we are

proposing e-filing of documents of incorporation, we do not think

that this requirement is still necessary as the Corporate Affairs

Commission (CAC) should not incorporate if the requirements of

CAMA especially those provided in section 35 are not met.

f) Sections 50-53 deal with conversion and re-registration of

companies. Unfortunately, there is no provision on the conversion

of a company limited by guarantee to either a private or public

company.

g) Section 54(1) – Meaning of ‘carry on business in Nigeria’ – in the

age of ICT, we think that this provision should be more specific as

many businesses can now be done without coming to Nigeria.

h) Section 74 – Company Seal – according to the Doing Business

database, obtaining a company seal adds 4.2% to the cost of

starting a business in Nigeria. Similarly 60% of economies

measured in the Report do not require a seal. In Ghana and

Tanzania, this has been eliminated or made optional. Over and

above all, ICT has made corporate seals increasingly unnecessary

and easy to forge.

i) Section 281 – multiple directorship – this matter featured

prominently in 1988 when the Report of the Reform of Company

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Law in Nigeria was published.22 The Report recommended a

maximum of 4 companies but was not accepted when CAMA was

published. During the trial of bank directors in the era of failed

banks in Nigeria, it became obvious that there is the need to revisit

this provision in CAMA.23 We believe that the number should be

pegged at 4 companies.

j) Section 351 – qualification of a small company – this should be re-

considered in view of our definition of micro, small and medium-

enterprises. Similarly to be a small company in Nigeria, an alien

shall not be a member. This is inconsistent with the provisions of

section 17 of the Nigerian Investment Promotion Commission Act,

2004.24

k) Penalties – there are several provisions in CAMA dealing with

penalties as low as N25.00 They have become unrealistic.25

l) Sections 105 – 111 – Reduction of Share Company – the

procedure hurts the MSMEs especially section 107 dealing with

application to court for order of confirmation. The provisions need

to be reviewed.

22 See paras 117-121 of the 1988 Report.23 It is noteworthy that section 19(3) of the Banks and Other Financial Institutions Act, Cap B3, LFN 2004 prohibits multiple directorship.24 This section provides that “Except as provided in section 18 of this Act and subject to this Act, a non-Nigerian may invest and participate in the operation of any enterprise in Nigeria”.25 See sections 42, 43(2), 53(7), 55, etc.

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m)Sections 159-165 – Financial Assistance by a company. The

provisions do not draw a line between private companies and

public companies nor take into account the interests of the

MSMEs. For small entities, the shares are usually closely held

and shareholders have greater control over the decisions of the

board. It will be tidier if these provisions relate to public companies

only.

n) Sections 197 and 198 – registration of charges. Are shares

registrable? We believe that shares should not be subject to

registration.

o) Sections 357 and 370- 375 – Audit and Annual Returns. In

relation to the audit of a company and filing of annual returns, the

present provisions are a huge burden on MSMEs. We recommend

a different set of rules for MSMEs or private companies and public

companies. In our view, this accounts for why MSMEs do not

prepare and file their Annual Returns.

p) Section 338 – meaning of holding and subsidiary company and

small company in section 351 on the one hand and a small

company and MSMEs on the other. A proper definition of these

entities is imperative.

q) Absence of provision on corporate social responsibility as in

section 172 of the UK’s CA 2006. Although the Codes on

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Corporate Government have largely addressed the issues of

corporate social responsibility, a mandatory provision in our

company law is now imperative.

Nigerian Investment Promotion Commission Act 1995

a) Section 2(2) of the Act provides for composition of the

Commission. Given the pivotal position of the Ministry of Justice;

role of the Corporate Affairs Commission in company regulation

and management; and the attention being given to agriculture in

the presence dispensation especially in relation to MSMEs, the

absence of these organs in the Commission is a major deficiency.

b) Section 20(1) of the Act provides that an enterprise in which

foreign participation is permitted under section 17 of the Act shall,

before commencing business, apply to the Commission for

registration. The interpretation of this section is creating problems.

Does it mean that the enterprise is merely to apply for registration

without waiting to be registered?26

26 In Interocean Oil Development Company and Interocean Oil Exploration Company [Claimants] v Federal Republic of Nigeria [Respondent], ICSID Case No. ARB/13/20, filed on 31 July, 2013, one of the issues for determination in the Preliminary Objection to the Jurisdiction of the International Centre for the Settlement of Investment Disputes (ICSID) Arbitral Tribunal was the import of section 20 of the NIPC Act. The Respondent contended that the Claimants could not invoke section 26 of the NIPC Act dealing with the revocation of ICSID jurisdiction because the Claimants were not registered with the NIPC as required by the provisions of section 20 of the NIPC Act. Once it is ascertained that an enterprise is not registered under the NIPC Act, then such an enterprise cannot enjoy the protection provided in the NIPC Act including referring to arbitration under ICSID. The main issue before the Arbitral Tribunal was as between the Claimants and the Respondent, who bore the responsibility for ensuring that an enterprise is registered. While the Respondent contended that it was the responsibility of the Claimants, the Claimants contended otherwise. On

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c) There is no penalty if an enterprise fails to register under section

20 of the NIPC Act.27

d) The NIPC regulates investment in Nigeria but section 26(3) would

seem to limit the right to resort to ICSID arbitration to the Federal

Government only.

Infrastructure Concession Regulatory Commission Act (ICRC Act) 2005

This ICRC Act and the Public Enterprises (Privatization and

Commercialization) Act are in conflict as some of the public enterprises

listed for privatization or commercialization are also listed for

concessioning and other public-private-partnership (PPP) transactions

with the result that there is no way of knowing whether it is the

Commission established under the ICRC Act that carries out concession

or the Bureau of Public Enterprises (BPE) established under the Public

Enterprises (Privatization and Commercialization Act).

Federal Highways Act 28

a) Under Section 2 of the Act, the Minister has powers to erect, equip

and maintain toll gates on the any Federal Highway. This power

can be delegated to any officer, agent or person.

29 October, 2014, the Arbitral Tribunal gave its decision on the Preliminary Objection and ruled that the matter would be decided on its merits at the end of the hearing. See also the Report of the Review of the NIPC Act by the Nigerian Law Report Commission, 2009.27 Section 54(1) and (2) of CAMA prohibits foreign companies from carrying on business in Nigeria without first being incorporated under CAMA and in default such a company is penalized under section 55 of CAMA. A similar provision in the NIPC Act is imperative.28 Cap 135 LF 1990.

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b) Under Sections 5-18, various offences are created but no provision

is made to specify what court has jurisdiction.

c) Clearly, the government alone cannot fund the regular

maintenance and re-construction of Federal Highways. However,

there is no provision on the establishment of a ‘Highway Fund’ for

the maintenance and re-construction of Federal Highways.

Fiscal Responsibility Commission Act 2007

a) This is also a major enactment on greater accountability and

transparency in fiscal operations at the federal level in Nigeria.

b) The Act has created several offences but there is no provision for

punishment. This is inconsistent with the provisions of section

36(12) of the Nigerian 1999 Constitution that provides that a

person shall not be convicted of a criminal offence unless that

offence is defined and the penalty therefor is prescribed in a

written law.

Federal Inland Revenue Service Act, 2007

a) Section 59(2) of the Act provides that the Tax Appeal Tribunal

(TAT) shall have power to settle disputes arising from the

operations of the Act and under the 1st Schedule to the Act.

b) The 1st Schedule to the Act provides for the legislations over which

the TAT shall have jurisdiction. They include the Companies

Income Tax Act, the Petroleum Profit Tax Act, the Personal

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Income Tax Act, the Capital Gains Tax Act, the Value Added Tax

Act, the Stamp Duties Act, etc.

c) The 5th Schedule to the Act provides for the establishment,

jurisdiction, authority and procedure of the Tax Appeal Tribunal

(TAT). There are various conflicting decisions of the Courts on the

Constitutionality or otherwise of the jurisdiction of the TAT in view

of the powers vested in the Federal High Court in section 251 of

the 1999 Constitution. Furthermore, there are several arbitral

proceedings challenging the jurisdiction of the TAT.29

d) Tax issues are pivotal in the operation of MSME and the economy

as a whole. Indeed in Doing Business Report, 2016, Nigeria is

ranked 181 out of 189 economies.

Nigerian Minerals and Mining Act, 2007

Consistent with the Constitutional provisions, section 1(1) of the Act

provides thus: “The entire property in and control of all Mineral

Resources in, under or upon any land in Nigeria, its contiguous

continental shelf and all rivers, streams and water courses through out

Nigeria, any area covered by its territorial waters or constituency and the

29 NPA v Eyamba (2005) 12 NWLR (Pt 939) 409 at 441 and in Federal Inland Revenue Service v Nigerian National Petroleum Corporation & 4 Others (FHC/ABJ/CS/774/11), Bello A, Judge. Judgment delivered on 29 February, 2012. Ajaab Global Investment & Anor v FIRS & Anor (2011) 5 TLRN 24. Construces Internacionals & Anor v FIRS, Suit No FHC/ABJ/TA/11/12-TSKT II, (Unreported). Nigerian National Petroleum Corporation v TAT & Ors, Suit No. FHC/L/CS/630/2013 (Unreported).

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Exclusive Economic Zone is and shall be vested in the Government of

the Federation For and on behalf of the people of Nigeria.”

Nigerian National Petroleum Corporation Act 30

a) There are several laws in the energy sector that are not investor-

friendly especially with the constitutional provision vesting

minerals, gas, and oil rights in the Government of the Federation.

b) Sections 7(4), 11(2) and 12 of the Act are inconsistent with the

provisions of section 162 of the Constitution, which requires that

revenues collected by the government be paid into the Federation

Account.

Nigerian Inland Waterways Authority Act 31

a) The focus of the Act is on the government regulating, managing,

financing and operating the sub-sector.

b) Under section 13 of the Act, persons are prohibited from taking

sand, gravel or stone from the waterways, without the consent of

the Authority.

c) Under section 23(i) of the Act, it is an offence for any person to

carry out the activities and functions of the Authority without 30 Cap 320, LFN 1990.31 Cap 47, LFN 2004.

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limitation even when it is clear that such activities are minor

economic activities of the locals in the affected areas.

d) The Authority is not well equipped to perform the functions listed in

the Act.

e) The powers vested in the Authority by sections 8, 9 and 11 of the

Act are also covered by sections 7, 8 and 30 of the Nigerian Ports

Authority Act32 without qualification or a proviso.

f) There is the need to open up the sector to private sector

participation.

Nigerian Railway Corporation Act 33

a) The present Act, passed in 1955 is incompatible with Public

Private Partnership (PPP) in ports operations and regulation

thereby limiting efficiency.

b) Section 29 of the Act prohibits the construction or extension of rail

lines without the prior permission of the Minister of Transport.

c) When the Bureau of Public Enterprises (BPE) reformed the ports

and concessioned the port terminals in Lagos, Calabar, Warri and

Port Harcourt in March 2005, it was expected that the Ports and

Harbours Bill then in the National Assembly would be passed into

law. The Bill has not been passed. The consequence is that the

ports have been reformed without an Economic and Technical 32 Cap 126, LFN 2004.33 Cap 129, LFN 2004.

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Regulator. Instead the Shippers Council has been made a

Regulator when the core mandate of the Shippers Council does

not include regulation.

Petroleum Act, 1969.

Section 1 of the Petroleum Act, like the Nigerian Minerals and Mining

Act, vests the entire ownership and control of all petroleum in, under or

upon any lands in the Federal Government. The section applies to all

land (including land covered by water) which is in Nigeria or is under the

territorial waters of Nigeria or forms part of the continental shelf.

This Act should be repealed and the new Petroleum Industry Bill passed

into law.

Public Procurement Act 2007

There is also a conflict between the provisions of this Act and that of

ICRC Act. It is not very clear whether a PPP transaction is the same as

the procurement of works, goods and services. It is conceded that the

procurement of a Transaction Adviser is the procurement of services but

is entering a concession agreement or grant of concession within the

jurisdiction of the Bureau of Public Procurement?

Other Bills in the National Assembly

There are also several bills in the National Assembly that if passed into

law, the business climate will be improved. They include:

a) Federal Competition and Consumer Protection Commission Bill

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b) Federal Roads Authority Bill

c) Nigerian Inland Waterways Bill

d) National Roads Fund Bill

e) National Transport Commission Bill

f) Nigeria Postal Commission Bill

g) Franchise Bill

h) Electronic Transactions Bill

i) National Payment System Bill

j) Nigerian Independent Warehouse Regulatory Agency Bill

k) Secured Transactions in Movable Assets Bill

The Concept of Independent Regulator

It has aptly been stated that around the world, governments perform

three main functions: they tax, they spend, and they regulate. And of

these three functions, regulation is the least understood.34 Nigeria falls

in this category. One way of appreciating what regulation is all about is

to highlight the attributes of an independent regulator or the benchmark

used in evaluating regulators. The regulator must be organizationally

separate from existing Ministry or Departments (organizational

independence), earmarked, secure and adequate source of funding

(financial independence) and autonomy over internal administration

34 Brown A C et al Handbook for Evaluating Infrastructure Regulatory Systems, The World Bank, Washington, D.C. 2006, p xi.

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and protection from dismissal without due cause (management

independence).35 The other attributes include:

Accountability – regulators need to be held accountable for their

action by providing for appeal rights in their enabling laws, ethical

and procedural obligations and substantive reporting and audit

obligations.

Transparency – the entire regulatory process must be fair and

impartial and open to extensive and meaningful opportunity for

public participation.

Predictability – the regulatory system should provide reasonable,

although not absolute, certainty as to the principles and rules that

will be followed within the overall regulatory framework.

Clarity of Roles – roles of the regulator as well as other sector

agencies should clearly be defined so as to avoid duplication of

functions, mixed signals to stakeholders and policy confusion.

Completeness and Clarity of rules – through laws and agency

rules, the regulatory system should provide all stakeholders with

clear and complete timely advance notice of the principles,

guidelines, expectations, and consequences of behaviour.

35 Brown et at, op cit at 50.

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Proportionality – regulatory intervention in the sector should be

proportionate to the challenges the regulators are addressing.

Requisite powers – regulators must possess the powers to

perform their functions. These include the powers to set tariffs,

establish, modify, and monitor market and service quality rules.

Integrity – there must be strict rules governing the behavior of

decision makers as to preclude improprieties or any conduct

appearing to be improper. For instance prohibition against bribes

and gratuities of any kind, prohibition of all forms of conflicts of

interest and reasonable disclosure of financial interests.

How have we incorporated these into our laws? To a very large extent,

the provisions of the Nigerian Communications Commission Act, 200336

and the Electric Power Sector Reform Act, 200537 have incorporated all

these. However, in the energy sector, various versions of the Petroleum

Industry Bill38 have not recognised the concept of independent regulator

as public officers are members of some of the regulatory agencies.

Issues and Challenges

The Doing Business Report is a survey conducted by the World Bank. It

measures the burden imposed by regulation across 190 different

36 See sections 4, 5 and 8 of the Nigerian Communications Commission Act.37 See sections 31, 32 and 34 of the Electric Power Sector Reform Act.38 See sections 6, 8, 9, 10, 13, 15, 43, 45 and 48 of the Petroleum Industry Bill, 2012.

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countries. It looks at ten sub-indicators which represent regulatory

processes that a typical business will face over its life cycle. Nigeria has

performed poorly in this regard. The indicators are:

a) Starting a Business

b) Dealing with Construction Permits

c) Getting Electricity

d) Registering Property

e) Getting Credit

f) Protecting Minority Investors

g) Paying Taxes

h) Trading Across Borders

i) Enforcing Contracts

j) Resolving Insolvency.

We will now examine these indicators.

Starting a Business (Rank: 139 in 2016, 138 in 2017)

According to the World Bank Report, 2017:39

Formal registration of companies has many immediate benefits for

the companies and for business owners and employees. Legal

entities can outlive their founders. Resources are pooled as several

shareholders join forces to start a company. Formally registered

companies have access to services and institutions from courts to

39 See Doing Business, 2017, Economy Profile for Nigeria, page 17.

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banks as well as to new markets. And their employees can benefit

from protections provided by the law. An additional benefit comes

with limited liability companies. These limit the financial liability of

company owners to their investments, so personal assets of the

owners are not put at risk. Where governments make registration

easy, more entrepreneurs start businesses in the formal sector,

creating more good jobs and generating more revenue for the

government

Doing Business records all procedures officially required, or commonly

done in practice, for an entrepreneur to start up and formally operate an

industrial or commercial business, as well as the time and cost to

complete these procedures and the paid in minimum capital requirement.

These procedures include obtaining all necessary licenses and permits

and completing any required notifications, verifications or inscriptions for

the company and employees with relevant authorities.

Where does the Nigerian economy stand today? What does it take to start

a business in Nigeria? According to data collected by Doing Business,

starting a business there requires 8.7 procedures, takes 25.2 days, costs

31.0% of income per capita for men, and requires 8.7 procedures, takes

25.2 days, costs 31.0% of income per capita for women. A requirement of

paid-in minimum capital of 0.0% of income per capita is legally

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mandatory for both men and women.

More specifically, the Report for 2017 shows as follows:

i) Reservation of company name – 2 days

ii) Preparation of incorporation documents and payment of stamp

duties – 7 days

iii) Signing of declaration of compliance before a Commissioner for

Oaths or Notary Republic – 1 day

iv) Registration of the company and payment of fees – 10 days

v) Making of company seal – 1 day

vi) Registration for income tax and VAT – 1 day

vii) Registration for personal income tax PAYE at the State Tax

Office – 2 days

viii) Registration of Business Premises with the Lagos State

Government and payment of the Business Premises levy – 1 day

Economies around the world have taken steps making it easier to start a

business—streamlining procedures by setting up a one-stop shop,

making procedures simpler or faster by introducing technology and

reducing or eliminating minimum capital requirements. Many have

undertaken business registration reforms in stages—and they often are

part of a larger regulatory reform program. Among the benefits have been

greater firm satisfaction and savings and more registered businesses,

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financial resources and job opportunities.

As compared to 2016, the World Bank Doing Report for 2017 shows that

Nigeria made starting a business easier by improving online government

portals and that the reform applies to Lagos and Kano.

Dealing with Construction Permits (Rank: 175 in 2016, 174 in 2017)

According to the World Bank Report for 2017:40

Regulation of construction is critical to protect the public. But it

needs to be efficient, to avoid excessive constraints on a sector that

plays an important part in every economy. Where complying with

building regulations is excessively costly in time and money, many

builders opt out. They may pay bribes to pass inspections or simply

build illegally, leading to hazardous construction that puts public

safety at risk. Where compliance is simple, straightforward and

inexpensive, everyone is better off. What do the indicators cover?

Doing Business records all procedures required for a business in

the construction industry to build a warehouse along with the time

and cost to complete each procedure. In addition, this year Doing

Business introduces a new measure, the building quality control

index, evaluating the quality of building regulations, the strength of

quality control and safety mechanisms, liability and insurance

regimes, and professional certification requirements.

40 Ibid, page 32.

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What does it take to comply with the formalities to build a warehouse in

Nigeria? According to data collected by Doing Business, dealing with

construction permits requires 16.1 procedures, takes 106.3 days and

costs 23.6% of the warehouse value.

In Lagos, the procedures include the following:

i) To obtain soil investigation report – 14 days

ii) Obtain sworn affidavit for search at the Commission for Oaths –

1 day

iii) Obtain an Environmental Technical Analysis Report – 7 days

iv) Obtain a certified true copy of the survey plan and that of the

land ownership title – 3 days

v) Obtain development permit from the Lagos State Physical

Planning Permit Authority – 42 days

vi) Hire a private engineer to conduct inspections – 1 day

vii) Obtain certificate of structural stability (first pouring of concrete) –

7 days, etc

Note: On the whole, there are about 17 procedures.

Getting Electricity (Rank: 182 in 2016, 180 in 2017)

According to the World Bank Doing Business Report for 2017:41

Access to reliable and affordable electricity is vital for businesses.

To counter weak electricity supply, many firms in developing

41 Ibid, page 49.

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economies have to rely on self-supply, often at a prohibitively high

cost. Whether electricity is reliably available or not, the first step for

a customer is always to gain access by obtaining a connection.

What do the indicators cover? Doing Business records all

procedures required for a local business to obtain a permanent

electricity connection and supply for a standardized warehouse, as

well as the time and cost to complete them. These procedures

include applications and contracts with electricity utilities,

clearances from other agencies and the external and final

connection works. In addition, this year Doing Business adds two

new measures: the reliability of supply and transparency of tariffs

index (included in the aggregate distance to frontier score and

ranking on the ease of doing business) and the price of electricity.

What does it take to obtain a new electricity connection in Nigeria?

According to data collected by Doing Business, getting electricity there

requires 9.0 procedures, takes 195.2 days and costs 422.8% of income

per capita.

The reliability of supply and transparency of tariffs index encompasses

quantitative data on the duration and frequency of power outages as well

as qualitative information on the mechanisms put in place by the utility for

monitoring power outages and restoring power supply, the reporting

relationship between the utility and the regulator for power outages, the

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transparency and accessibility of tariffs and whether the utility faces a

financial deterrent aimed at limiting outages (such as a requirement to

compensate customers or pay fines when outages exceed a certain cap)

Registering Property (Rank: 181 in 2016, 182 in 2017)

According to the World Bank Report for 2017:42

Ensuring formal property rights is fundamental. Effective

administration of land is part of that. If formal property transfer is too

costly or complicated, formal titles might go informal again. And

where property is informal or poorly administered, it has little chance

of being accepted as collateral for loans—limiting access to finance.

What do the indicators cover? Doing Business records the full

sequence of procedures necessary for a business to purchase

property from another business and transfer the property title to the

buyer’s name. The transaction is considered complete when it is

opposable to third parties and when the buyer can use the property,

use it as collateral for a bank loan or resell it. In addition, this year

Doing Business adds a new measure to the set of registering

property indicators, an index of the quality of the land administration

system in each economy.

What does it take to complete a property transfer in Nigeria? According to

data collected by Doing Business, registering property requires 12.1

42 Ibid, page 62.

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procedures, takes 69.6 days and costs 10.5% of the property value.

Economies worldwide have been making it easier for entrepreneurs to

register and transfer property—such as by computerizing land registries,

introducing time limits for procedures and setting low fixed fees. Many

have cut the time required substantially—enabling buyers to use or

mortgage their property earlier. What property registration reforms has

Doing Business recorded in Nigeria? Nigeria made transferring property

in Lagos less costly by reducing fees for property transactions.

Getting Credit (Rank: 44)

According to the WB Report for 2017:43

Two types of frameworks can facilitate access to credit and improve

its allocation: credit information systems and borrowers and lenders

in collateral and bankruptcy laws. Credit information systems enable

lenders to view and consider a potential borrower’s financial history

(positive or negative) when assessing risk and they allow borrowers

to establish a good credit history that will facilitate their access to

credit. Sound collateral laws enable businesses to use their assets,

especially movable property, as security to generate capital—while

strong creditors’ rights have been associated with higher ratios of

private sector credit to GDP. What do the indicators cover? Doing

Business assesses the sharing of credit information and the legal

43 Ibid, page 80.

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rights of borrowers and lenders with respect to secured transactions

through 2 sets of indicators. The depth of credit information index

measures rules and practices affecting the coverage, scope and

accessibility of credit information available through a credit registry

or a credit bureau.

Consistently and incredibly, Nigeria has done fairly well in this area.

Nigeria strengthened access to credit by creating a centralised collateral

registry. However, the ranking here will further improve if we pass the

Secured Transactions in Movable Assets Bill that will establish a National

Collateral Registry and the Independent Warehouse Regulatory Agency

Bill as it will securitise commercial warehouse receipts.

Protecting Minority Investors (Rank: 20 in 2016, 32 in 2017)

According to the WB Report for 2017:44

Protecting minority investors matters for the ability of companies to

raise the capital they need to grow, innovate, diversify and compete.

Effective regulations define related-party transactions precisely,

promote clear and efficient disclosure requirements, require

shareholder participation in major decisions of the company and set

detailed standards of accountability for company insiders. What do

the indicators cover? Doing Business measures the protection of

minority investors from conflicts of interest through one set of

44 Ibid, page 87.

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indicators and shareholders’ rights in corporate governance through

another.

Economies with the strongest protections of minority investors from self-

dealing require detailed disclosure and define clear duties for directors.

They also have well functioning courts and up-to-date procedural rules

that give minority shareholders the means to prove their case and obtain

a judgment within a reasonable time. As a result, reforms to strengthen

minority investor protections may move ahead on different fronts—such

as through new or amended company laws, securities regulations or civil

procedure rules.

What minority investor protection reforms has Doing Business recorded in

Nigeria? Nigeria strengthened minority protections by requiring that

related party transactions be subject to external review and to approval by

disinterested shareholders.

This is also one area where Nigeria has done well as it is ranked 32 out of

190 economies. Although the ranking here was based on survey of

corporate and securities regulations, company law and court rules, we do

not share in the ranking.

Paying Taxes (Rank: 181 in 2016, 182 in 2017)

According to the WB Report, 2017:45

Taxes are essential. The level of tax rates needs to be carefully

45 Ibid, page 95.

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chosen—and needless complexity in tax rules avoided. Firms in

economies that rank better on the ease of paying taxes in the Doing

Business study tend to perceive both tax rates and tax

administration as less of an obstacle to business according to the

World Bank Enterprise Survey research. What do the indicators

cover? Using a case scenario, Doing Business records the taxes

and mandatory contributions that a medium-size company must pay

in a given year as well as measures of the administrative burden of

paying taxes and contributions and dealing with post-filing

processes.

In Lagos State, there are 18 taxes and other mandatory contributions

including:

i) Tertiary Education Trust Fund

ii) Corporate income tax

iii) Social Security Contributions

iv) Employee Compensation Contribution

v) Training Tax

vi) Capital Gains Tax

vii) Land Use Charge

viii) Stamp duty on cheques

ix) Road licence

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x) State business levy

xi) Value Added Tax

xii) Fuel Tax

xiii) Infrastructure Development Tax

xiv) Employee Labour tax

xv) National Housing Fund

xvi) Advertising Tax

Economies around the world have made paying taxes faster, easier and

less costly for businesses—such as by consolidating payments and filings

of taxes, offering electronic systems for filing and payment, establishing

taxpayer service centres or allowing for more deductions and exemptions.

Many have lowered tax rates. Changes have brought concrete results.

Some economies simplifying tax payment and reducing rates have seen

tax revenue rise. What tax reforms has Doing Business recorded in

Nigeria?

Trading Across Borders (Rank: 182 in 2016, 181 in 2017)

According to the WB Report for 2017:46

In today’s globalized world, making trade between economies

easier is increasingly important for business. Excessive use of

paper documents, burdensome customs procedures, inefficient port

operations and inadequate infrastructure all lead to extra costs and

46 Ibid, page 103.

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delays for exporters and importers, stifling trade potential. What do

the indicators cover? Doing Business records the time and cost

associated with the logistical process of exporting and importing

goods. Under the new methodology introduced this year, Doing

Business measures the time and cost (excluding tariffs) associated

with three sets of procedures— documentary compliance, border

compliance and domestic transport—within the overall process of

exporting or importing a shipment of goods.

The indicators reported here for Nigeria are based on a set of specific

predefined procedures for trading a shipment of goods by the most widely

used mode of transport (whether sea or land). The information on the time

and cost to complete export and import is collected from local freight

forwarders, customs brokers and trader.

Nigeria’s score is 181 out of 190 economies showing that a lot has still to

be done.

Enforcing Contracts (Rank: 143 in 2016, 139 in 2017)

According to the WB Repot for 2017:47

Effective commercial dispute resolution has many benefits. Courts

are essential for entrepreneurs because they interpret the rules of

the market and protect economic rights. Efficient and transparent

courts encourage new business relationships because businesses

47 Ibid, page 110.

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know they can rely on the courts if a new customer fails to pay.

Speedy trials are essential for small enterprises, which may lack the

resources to stay in business while awaiting the outcome of a long

court dispute. What do the indicators cover? Doing Business

measures the time and cost for resolving a standardized

commercial dispute through a local first-instance court. In addition,

this year it introduces a new measure, the quality of judicial

processes index, evaluating whether each economy has adopted a

series of good practices that promote quality and efficiency in the

court system. This new index replaces the indicator on procedures,

which was eliminated this year. The ranking of economies on the

ease of enforcing contracts is determined by sorting their distance

to frontier scores. These scores are the simple average of the

distance to frontier scores for each of the component indicators. The

dispute in the case study involves the breach of a sales contract

between 2 domestic businesses. The case study assumes that the

court hears an expert on the quality of the goods in dispute. This

distinguishes the case from simple debt enforcement.

How efficient is the process of resolving a commercial dispute through the

courts in Nigeria? According to data collected by Doing Business, contract

enforcement takes 509.8 days and costs 57.7% of the value of the claim.

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Resolving Insolvency (Rank: 143 in 2016, 140 in 2017)

According to the WB Report, 2017:48

A robust bankruptcy system functions as a filter, ensuring the

survival of economically efficient companies and reallocating the

resources of inefficient ones. Fast and cheap insolvency

proceedings result in the speedy return of businesses to normal

operation and increase returns to creditors. By clarifying the

expectations of creditors and debtors about the outcome of

insolvency proceedings, well-functioning insolvency systems can

facilitate access to finance, save more viable businesses and

sustainably grow the economy. What do the indicators cover? Doing

Business studies the time, cost and outcome of insolvency

proceedings involving domestic legal entities. These variables are

used to calculate the recovery rate, which is recorded as cents on

the dollar recovered by secured creditors through reorganization,

liquidation or debt enforcement (foreclosure or receivership)

proceedings. To determine the present value of the amount

recovered by creditors, Doing Business uses the lending rates from

the International Monetary Fund, supplemented with data from

central banks and the Economist Intelligence Unit.

Data on the time, cost and outcome refer to the most likely in-court

48 Ibid, page 119.

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insolvency procedure applicable under specific case study assumptions.

According to data collected by Doing Business, resolving insolvency takes

2.0 years on average and costs 22.0% of the debtor’s estate. The

average recovery rate is 27.8 cents on the dollar.

Solutions/Recommendations

In the Final Report, we made recommendations that are still relevant

today. They include the following:

a) The Federal and State Governments must collaborate if the

ranking of Nigeria in Doing Business is to be improved upon.

This is so because the ranking of economies in the Doing

Business Report is determined by regulatory processes,

procedures and practices in states and not necessarily Federal

Laws. In Nigeria, commercial cities of Lagos and Kano were

used to determine the ranking of Nigeria and not Abuja. In other

words, the regulatory environment in Lagos and Kano States

determined the ranking of Nigeria. We believe that similar

results will be found in other states. For instance, in Lagos and

Kano States, there are about 18 taxes or mandatory

contributions that business entities pay. While we believe that

there is the need to widen the revenue base, the Government

should also bear in mind the effect of such revenue drive on

MSMEs. International best practice requires the implementation

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of self-assessment system and an e-system for filing and paying

taxes.

b) Several state practices that adversely affect MSMEs should be

stopped immediately. These include absence of access to

finance and land by such entities.

c) Out of 189 countries studied in Doing Business, 2016, 103

countries no longer require a minimum paid up capital to start a

business. International best practice is to reduce or eliminate

such requirement and simplify the company registration process.

The Corporate Affairs Commission (CAC) and the Nigerian

Investment Promotion Commission (NIPC) should collaborate in

this regard in ensuring that the One-Stop Shop is improved

upon. ‘Same Day’ registration initiated by the CAC should be

sustained. Similarly we should take advantage of using

electronic processes in company registration.

d) The procedural requirements for obtaining construction permits

to build a house or warehouse or factory should be published in

a dedicated website and applicants should be given various

options of paying the required fees. Furthermore fees should be

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collected once and by one entity on behalf of the others.

e) While the challenges of regular supply of electricity are well

known, there is the need to streamline application and approval

processes, increase transparency of connection costs and

implement automated system for outage warning and

restoration. In Doing Business Report, this is one area that

Nigeria did very badly. Nigeria is ranked 180 out of 190

economies not on the basis of regular supply of electricity but on

regulatory processes.

f) The procedure for legally transferring title on immovable property

is cumbersome. Apart from the constraints imposed by the Land

Use Act, time limits should be set in obtaining other approvals

from the Ministry of Lands and Physical Planning, Land Registry,

Lands Bureau, Land Services Department, Surveyor General’s

Office and Stamp Duties Office.

g) Trading across borders is one area that Nigeria has done badly

as she is ranked 182 out of 190. International best practice

requires electronic submission and processing of documentation

in trading across borders.

h) Small claims courts, specialized commercial courts, case

management systems and automation of court processes should

be introduced in the dispute resolution process. Furthermore,

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alternative means to resolve disputes should be encouraged by

the judiciary by referring pure commercial disputes to the

commercial courts and urging parties to adopt Alternative

Dispute Resolution (ADR) processes. Where counsel

unreasonably fail to adopt these processes, costs should be

personally paid by the counsel.

i) The rights of creditors should be strengthened by streamlining

insolvency proceedings. The option of liquidation or winding up

of a company should only be pursued if it is clear that the

company cannot be saved.

j) We also recommend that the bills now before the National

Assembly referred to in this paper should be passed into law

immediately.

Concluding Remarks

In this presentation, we have examined the laws and regulation

hampering the ease of doing business in Nigeria. Other than examining

some relevant laws, the main basis for the examination is the World Bank

Doing Business Reports since 2005 especially 2016 and 2017.

The point was made that for Nigeria to improve its ranking, the regulations

in states especially Lagos and Kano that are used for the World Bank

study should be improved upon.

The paper also examined the concept of independent regulator and

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wondered whether the regulatory agencies created in Nigeria especially in

the infrastructural sector are really independent.

There are several bills in the National Assembly aimed at improving the

ease of doing business in Nigeria especially access to finance for the

micro, small and medium enterprises. There are also reform bills aimed

at reforming the remaining key economic sectors that are in the National

Assembly. The bills should be passed immediately.

Finally, we will like to thank the Law Media & Social Justice Development

Initiative for the opportunity to share our thoughts on this subject and

ENABLE-DFID and GEMS 3 for funding an earlier research leading to the

publication of the Final Report.

Thank you all for your attention.

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