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DealHQ Partners

DealHQ Partners
In Finance

THE NIGERIAN SECURITIES AND EXCHANGE COMMISSION TO COMMENCE REGULATION OF DIGITAL ASSET AND DIGITAL ASSET OFFERINGS

In a bid to cater to innovators seeking legitimacy and relevance as well as enhance investor protection, the Securities and Exchange Commission (“SEC”) issued a statement on the 14th of September, 2020, indicating its intention to commence the regulation of Digital Assets and Initial Offering of Digital Assets which qualify as securities under the Nigerian Securities Law.

The participation of the apex regulator of the Nigerian capital market is expected to bolster market confidence, establish standards of operations and encourage ethical practices that will protect the investor community whilst entrenching fair market practices.Categories of Digital Assets falling within the SEC’s regulatory purview
The SEC has broadly defined Digital assets as any digital representation of value capable of being traded virtually and which functions as either a medium of exchange or a unit of account; or a store of value, which does not have legal tender status neither is it guaranteed or backed by the Government of any specific jurisdiction. Its operations are backed primarily by a subsisting agreement within the community of users and is clearly distinguished from Fiat Currency and E-money.

 

The implication is that the SEC has now categorized all Digital Assets as securities over which it exercises regulatory oversight by virtue of Section 15 of the Investment and Securities Act except where the Issuer or Sponsor is able to prove otherwise to the satisfaction of the commission.
The 4 categories of digital assets/instruments which have now been classified as securities by the SEC include:
1. Crypto Assets (non fiat virtual currencies): will qualify securities if issued as an investment or as commodities if traded on an exchange or capital trade point;
2. Utility Tokens or Non-Security Tokens (tied to the provision of an underlying product or service); will be treated as commodities or as securities if traded on an exchange or capital trade point. Spot trades of utility tokens are however excluded.
3. Security Tokens (which gives participation in a tangible underlying assets or its receivables in the form of distributions) will be treated as securities
4. Derivatives and Collective Investment Funds of Crypto Assets (any derivative or fund which underlying asset is a digital asset falling under the Purview of SEC Regulation) will be classified as securities under the relevant rules.
Registration of Digital Asset and Offerings to the Public:
Sponsors or creators of Digital Assets are required to apply to the SEC for an initial assessment via an initial assessment filing. Through this filing the Sponsor will provide information required to establish whether or not the asset qualifies as securities registrable with SEC. Without clearly stating the criteria for exemption the SEC has hinted that assets issued via a crowd funding portal will be exempt. It is expected also that where issuance will be by other means than an invitation to the public, such would also be exempt. Once the SEC determines that an asset is not exempt, the sponsors shall proceed with an Initial Asset Registration.
All Digital Assets Token Offering (DATOs), Initial Coin Offerings (ICOs), Security Token ICOs and other block chain based offers within Nigeria or by Nigerian issuers or sponsors or by foreign issuers targeting Nigerian investors will now fall under the SEC’s jurisdiction. Consequently, Sponsors or promoters of new issues will require registration whilst Sponsors/Issuers of already issued but qualifying Digital Assets now have 3 months to either submit the initial assessment filing or documents for actual registration.
HOW TO GET STARTED Do you require further information on the registration of Digital Assets in Nigeria? Our capital markets team is available to support to you. You may contact our team on: Email: info@dealhqpartners.com Telephone: +234 1 4536427 or +234 9087107575

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DealHQ Partners
In Business

HOW TO SERIES: HOW TO REGISTER A PATENT (NIGERIA), JULY 2020

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HOW TO REGISTER A PATENT IN NIGERIA

  1. A. What is a Patent?
    A patent is a right granted to an inventor, which allows the inventor to exploit the full rights and benefits from
    their invention/work (including the right to use, sell, produce, mass-produce) to the exclusion of all other users
    for a period of about 20 years. A registered patent gives protection against third party exploitation within the
    country where the right is obtained. B. What law guides the registration of patents and where do I apply for the
    registration of a patent? The registration of Patents in Nigeria is governed by the Patents and Design Acts Cap.
    344, Laws of the Federation of Nigeria 1990 (Act of 1970) administered by the Registrar of Trademarks, Patents
    and Designs, Trademarks Registry, Federal Ministry of Industry, Trade and Investment, FCT, Nigeria.
  2. B. What law guides the registration of patents and where do I apply for the registration of a patent?
    The registration of Patents in Nigeria is governed by the Patents and Design Acts Cap. 344, Laws
    of the Federation of Nigeria 1990 (Act of 1970) administered by the Registrar of Trademarks, Patents and
    Designs, Trademarks Registry, Federal Ministry of Industry, Trade and Investment, FCT, Nigeria.
  3. C. How do I know if my work/invention qualifies for registration of a patent?
    A patent may be granted for any work/invention that:

    1. is new (novel); the invention must be substantially different from anything else that is within public knowledge
    2. involves an inventive step; must not be obvious to a person skilled in the art of the invention and must not make reference to any matter that forms part of the prior existing invention
    3. is capable of industrial application; (useful)
    4. is not specifically excluded in the Act; (e.g. inventions which encourage immoral and offensive behavior)
    5. has an address for service in Nigeria (if the applicant’s address is outside Nigeria arrangement must be made for a verifiable delivery address in Nigeria).

    NOTE: Each application must relate only to one invention but may cover claims for multiple numbers of products or processes i.e. an invention can be a modification or novation of one or more existing inventions in the market

  4. D. What are the practical steps for registering a patent in Nigeria?Step 1: Fill Application Form together with written declaration
    There are two classes of application forms available for patent registration;

    1. Form 1A: being the application form for the registration of a conventional/local patent; and
    2. Form 1B: being application form for the registration of a non-conventional/international patent.

    I. Filling of Form 1A (Local Application)

    Form 1A is the applicable form for local applications for works created and originating in
    Nigeria. The name, address, email address and contact number of the applicant is required to
    be provided and in cases of multiple/joint inventors or inventors under the employ of a
    company, the name, address, email and contact number of a representative of the company
    or the joint inventors will be appropriate.

    A declaration by the true inventor will be required to be submitted alongside the application
    form and Form 3. The true inventor is the individual responsible for the ideation of the
    invention.

    II. Filling of Form 1B (Foreign Application)

    Form 1B is the applicable form for applicant seeking foreign priority for works or inventions
    which did not originate from Nigeria and which is already registered in another foreign
    jurisdiction. The application will be accompanied by a written declaration consisting of:

    1. The date and the number of the earlier application:
    2. The country in which such application was made; and
    3. The name of the inventor who made it.

    The applicant will also fill a Form 3 as detailed below, to accompany the Form 1B and the
    written declaration. Not more than 3 months after filing the application, the applicant will be
    required to furnish the Registrar with a copy of the earlier application certified by the
    appropriate industrial property office of the foreign convention country.

    Step 2: Fill the Specification Form (Form 3)

    All Applicants (Local or Foreign) are required to fill Form 3 – Complete Specification Form.
    Form 3 is very crucial to any Patent application; it contains a detailed description of the
    invention and its claims (a claim is any information detailing the innovation of the invention
    provided by the applicant in hopes of creating an extent/scope of protection for the said
    invention from infringement by a subsequent invention). The applicant would have to explain
    in the technical terms what makes the invention different from what already exists in the
    market in hopes to protect it from subsequent inventions.

    The contents of Form 3 would include;
    1. The title of the invention;
    2. An abstract on the functionality of the invention;
    3. Background and History of the Invention;
    4. Detailed description of the invention supported with diagrams and illustrations;
    5. Claims (starting from general claims to specific ones):
    6. Summary of what society/ mankind stands to gain from the invention

    Step 3: Submit application to the Registry and pay of application fees

    The Applicant will pay the application fee as may from time to time be advised by the Registrar
    and submit application forms together with evidence of payment of the prescribed fees.

    Step 4: Application is granted and patent is valid for 20 years

    After submission, the patent application is examined by the Registrar merely to ascertain
    formal compliance, the Registrar assumes regularity. Once the application satisfies the
    statutory requirements as to the completion of form, payment of appropriate fees amongst
    others, the Registrar is likely to grant the patent without enquiries into its novelty,
    inventiveness and industrial applicability or sufficiency of disclosures in Form 3.

    Patents are granted at the risk of the patentee and without guarantee as to their validity. Once
    granted, a patent is valid for 20 years.

  5. E. Can a foreigner register a patent in Nigeria?
    A foreigner or a foreign corporation can seek foreign priority in Nigeria if it has a subsisting
    local application which has been admitted for registration by the approving authority in its
    own home country. Upon application for foreign registration such will be admitted for
    registration by virtue of the Nigeria Patent and Designs Convention Order 1971. The Convention
    provides that if a Nigerian application is made within 12 months of the making of the earlier
    application in the foreign country, such application will be treated as having been made on
    the same date on which the foreign application was made.
  6. F. What Legal Rights do I have as Patent holder?
    As a patent holder under Nigerian Law:

    • You have a valid cause of action against anyone who infringes on your right to the
      Patent during its subsistence;
    • You have the legal and beneficial right over the patent which may be sold, assigned
      or granted for the use of others in the form of a license.

    HOW TO GET STARTED

    Are you interested in registering a patent for your invention? Our corporate services team is
    available to provide registration and start up support to you. You may contact our team on:
    Email: info@dealhqpartners.com Telephone: +234 1 4536427 or +234 9087107575

    A patent holder may consider the option of applying to have his patent registered under the
    World International Property Organization (WIPO) which currently has over 189 member
    states including Nigeria.

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DealHQ Partners
In NGOs

HOW TO SERIES: HOW TO REGISTER a NOT FOR PROFIT ORGANIZATION (NIGERIA), JULY 2020

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What is a not for profit organization?

Simply, a not for profit organization (NFP) is one that is set up to promote a charitable or other non – profit cause. It could be a social, cultural, educational, religious or other cause underlined primarily by impact.

B. What are the possible options for registration of an NFP under Nigerian Law?

Under Nigerian laws, a Not for profit organization can be registered as either of the following:

  1. Incorporated Trusteeship under Section 590 of CAMA: This involves the selection of Trustees as legal representatives of a body or community of people bound together by religion, custom, kinship or nationality or a body of people established to achieve religious, educational, scientific, social, development, cultural or charitable purpose. The Trustees are given the status of a legal corporation and granted legal personality making them custodians of the rights, duties and responsibilities of the body, community or association (which could be a church, a social club or an educational institution). The trustees have fiduciary powers and duties of trustees under common law. The name of the NFP will typically read like “Incorporated Trustees of the Daily Progressive Association”
  2. Company Limited by Guarantee: Section 26 of CAMA provides for the registration of a category of companies referred to as limited by guarantee. This category of registration is suitable for a company set up to promote science, beauty, religion culture, education, research or charity. The income and property of such company can only be used towards the promotion of its objects, it is restricted from utilizing any part of its income or property for personal use of its members or stakeholders, it is also restricted from distributing profit. Like a typical Company, the Limited by guarantee has its affairs led by its Board of Directors whilst the Company is owned by its shareholders whose liability are limited to the extent they have determined at inception (this means that the shareholders are responsible for the future debts or liabilities of the Company to the extent they pledged at the time of registration – this is usually quantified as a monetary limit )The name of the NFP will typically read like “Excel Educational Resources LTD.GTE”.

C. Should I register my not for profit as an Incorporated Trusteeship or as a Company Limited

Either of the 2 processes will suffice. However entities who intend to be involved in some form of business seem to generally have a preference for being registered as a Company Limited by Guarantee as this is a more familiar arrangement in the business world – the company will be a legal entity, with a Board of Directors and can contract, sue or be sued in its name. The Incorporated Trusteeship on the other hand has its legal personality vested in its Trustees – it can only contract, sue and be sued in the joint name of its trustees. In the case of the Company Limited by guarantee there is a requirement to procure the prior consent of the Attorney General of the Federation, this makes the registration process slow and often cumbersome. Where time is of the essence, an incorporated Trusteeship is often a preferred choice.

D. Is a Not For Profit Organization prohibited from doing business? 
It is an erroneous assumption that a not for profit must be an association or a social club that primarily does no business. An NFP can do business provided that the intent is to utilize any profit generated from its operations toward promoting its cause without distribution of such profit to members or stakeholders.

E. What matters do I need to consider before commencing registration? 

Typically, the registration of an entity is undertaken by the Promoter(s). The promoter is any one or more individuals that have conceived the idea of setting up the organization. They will have to answer a number of preliminary questions which will help determine the structure and approach to registering the entity.
  1. What are the objectives, beliefs, mission, and purpose of the organization? 
  2. How the organization will be funded?
  3. Who will run the affairs of the organization?
  4. To what extent do the promoters or the organization’s leaders desire to be liable for the actions of the organization?
  5. What will the organization be called? (it is advised that a minimum of 2 possible names be selected as approval of names is usually subject to availability the name will only be approved where it is not statutorily restricted or close enough to the name of an existing entity such that it may confuse the public) 
  6. Does the organization intend to do business or distribute profit to its stakeholders?

F. What documents are required for registering an Incorporated Trusteeship? 

  1. Two printed copies of the Constitution 
  2. Duly signed copies of the Minutes of the Meeting appointing the Trustees and authorizing the application.
  3. Production of Iron Seal.
  4. Identity Cards and Passport Photographs of each Trustee.
  5. Duly completed Form CAC/IT/1 (Application Form) (https://www.cac.gov.ng/wp-content/uploads/2019/12/cac_it_form_001-1.pdf)
  6. Duly completed CAC1.1 (Registration Form) (https://www.cac.gov.ng/wp-content/uploads/2019/12/CACform1.1.pdf)

G. What documents are required for registering a Company Limited by Guarantee? 

  1. Application Letter
  2. Memorandum and Articles of Association
  3. Letter of Consent of Attorney General of the Federation (this can be procured by submission of an application letter and approval by the AGF)
  4. Payment of Stamp Duty Fee to the Federal Board of Inland Revenue.
  5. Notice of address of the registered office.
  6. Identity Cards and Passport Photograph of the Directors.
  7. Duly Completed Form CAC 1.1 (Registration Form)

H. What is the process of registering an incorporated trusteeship? 

Step 1: Name Selection, Availability Check and Reservation: 
The promoters of the Incorporated Trustees would decide the name of the IT and conduct an availability check on the CAC website. The Commission will reserve the name for 60 days upon payment of the prescribed fees. ​1 
Step 2: Collation of Application documents and information 
The Promoters would ensure the Trustees of the proposed IT fill the application documents and will collate the documents for submission to the Corporate Affairs Commission.   
Step 3: Application and Submission to the CAC.  
The prescribed application fees are paid, and the application documents are submitted to the CAC.  
Step 4:PublicationofNoticeofIntentiontoregister
Where the CAC is satisfied that the application requirements have been met, it shall cause the application to be published in two daily newspapers. The purpose of this publication is to invite for objections from the members of the public on the registration of the body.
Step 5: Transmission of File and Issuance of Certificate
The files are transmitted to the office of the Registrar General of the CAC for Consent and approval. Upon approval, CAC will issue a Certificate of Incorporation.
I. What is the process of registering a Company Limited by Guarantee?  
Step 1: Name Selection, Availability Check and Reservation:  
The Promoters of the company will conduct an availability check on the CAC website. (https://www.cac.gov.ng/)The Commission will reserve the name for 60 days upon payment of the prescribed fees. Where the name is not available, the promoters of the IT will have to select another name for the proposed company.  
Step 2: Collation of Application documents and Information 
The promoters of the company will ensure that all application documents are properly filled by the proposed Directors of the Company and Company Secretary and collate them for 
submission to the CAC.  
Step 3: Payment of Stamp Duties  
The payment of Stamp Duties is made to the Federal Board of Internal Revenue Service.   
Step 4: Approval and Issuance of Certificate 
The Corporate Affairs Commission transfers the filed documents to the office of the AGF for approval. A Certificate of incorporation is issued by the CAC upon the approval of the AGF. 
HOW TO GET STARTED 
Are you interested in setting up a not for profit organization in Nigeria? Our corporate services team is available to provide registration and start up support to you. You may contact our team on:  Email: info@dealhqpartners.com  Telephone: +234 1 4536427 or +234 9087107575 

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DealHQ Partners
In Finance

UNDERSTANDING THE OFFICIAL FOREIGN EXCHANGE (FX) WINDOWS IN NIGERIA – JUNE 2020

UNDERSTANDING THE OFFICIAL FOREIGN EXCHANGE (FX) WINDOWS IN NIGERIA

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The Foreign Exchange market is regulated by the Central Bank of Nigeria (CBN) by virtue of the Foreign Exchange Act and the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act. The Apex Bank is also responsible for implementation of the Exchange Rate Policy

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DealHQ Partners
In Regulation & Policy

OVERVIEW OF THE NIGERIAN CONTENT DEVELOPMENT AND ENFORCEMENT BILL – APRIL 2020

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The Nigerian Content Development and Enforcement Bill (“The Bill”) seeks to promote indigenous participation in key sectors of the economy (Information and Communications Technology (ICT), Mining, Construction, Oil and Gas and Power.

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DealHQ Partners
In Finance

FEDERAL GOVERNMENT OF NIGERIA APPROPRIATION ACT 2020 – JANUARY 2020

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The 2020 Appropriation Bill, “budget of sustainable growth and job creation”, was presented by the President to the National Assembly on the 9th of October 2019 along with the draft Finance Bill (which has now been passed into law as Finance Act) which is intended to effect crucial changes to the existing fiscal laws that will enable the Federal Government increase its revenue generation capacity. The Appropriation Bill was signed into law by the National Assembly on the 5th December 2019 and assented by the President on the 17th December 2019….

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DealHQ Partners
In Regulation & Policy

SEPTEMBER NEWSLETTER–APCON: POWER TO REGULATE ONLINE ADVERTISING IN NIGERIA – SEPTEMBER 2019

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Online advertising involves the delivery of advertorial contents to Internet/online users via web, e-mail, ad-supported software and Internet-enabled smartphones. This mode of advertising differs majorly from terrestrial or offline advertising in that its reach is not limited by space or time – everyone across the world with access to the internet could be a recipient. Apart from its expansive reach, online advertising has become increasingly important to business owners and service providers across the world because in comparison to offline advertising; it is cheaper and more cost-efficient, it offers measurability (the advertisers ability to keep empirical data of the reach and impact of the campaigns) and delivers an unmatched  speed of dissemination…

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