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Bill Analysis

House of Reps Passes Bill Establishing Institute of Environmental Practitioners of Nigeria

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On Thursday July 23, 2020 a bill seeking to establish an Institute of Environmental Practitioners of Nigeria scaled 3rd Reading in the House of Representatives.

 

The bill titled: A Bill for an Act to Provide for the Establishment of the Institute of Environmental Practitioners of Nigeria and for Related Matters (HB. 353) is sponsored by the lawmaker representing Ohaozara/Onicha/Ivo Federal Constituency of Ebonyi state on the platform of the Peoples Democratic Party (PDP), Hon. Livinus Makwe.

 

According to the lawmaker the idea for the bill was borne out of the critical need to respond to issues of climate change which according to him is something that Nigeria must take very serious as there are already serious scientific evidences that climate change may in fact, be the greatest challenge confronting humanity.

 

Speaking further, Makwe told EPARLIAMENT that the bill when it eventually becomes law will help different sectors of the Nigerian society to “protect our environment, which is our most enduring resources as the Bill seeks to establish an Institute charged with the responsibility of regulating and managing environmental practices in Nigeria.”

 

Makwe said that Nigeria is already facing series of environmental challenges ranging from desert encroachment, erosion, oil spillage, flooding and many other environmental issues that pose serious threat to the economy and lives of Nigerians.

 

Explaining how the bill will work when it eventually becomes law, the lawmaker said  that the “Institute of Environmental Practitioners of Nigeria will regulate the way human actions affect our environment.’ According to him, just like other professional bodies, the Institute will ensure that people respect the laws that regulate all manner of constructions, agricultural practices, and activities of extractive industries as well as individuals in relation to sustainable alteration of the natural environment.

 

The Institute according to the lawmaker will operate independent of the government, but will have representatives of various government ministries and agencies including, representatives of the Ministries of Environment, Health, Petroleum Resources, Agriculture and Works and Housing.

 

Other agencies of the government that will be part of the Institute’s board are Environmental Health Officers Registration Council of Nigeria and the National Environmental Standards Regulatory and Enforcement Agency of Nigeria (NESREA). Nigerian Environmental Society and the Waste Management Society of Nigeria will also be part of the institute’s council for effective environmental management action.

 

 

The passage of the bill for 3rd reading followed the unanimous support of the bill by lawmakers in the House who had earlier on Tuesday July 21, 2020 when the details of the bill was considered and unanimously approved at the House’ Committee of the Whole.

 

The Green Chamber will now proceed for other legislative actions on the bill for it to get the concurrence approval from the Senate in readiness for its presentation to President Muhammadu Buhari for assent to become a substantive law of the Federal Republic of Nigeria.

 

Bill Analysis

Eleven Key Provisions of the Newly Signed CAMA Act 2020 You Need to Know

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History was made on Friday August 7, 2020 when President Mohammadu Buhari signed the Companies and Allied Matters  Acts (real and amendment bill) , 2020 into law thereby breaking a 30 year jinx on Nigeria’s corporate business practice legislation.

 

The Senate hand on March 10, 2020, passed the  bill.

The CAMA Bill sought to establish an efficient means of regulating businesses, minimize the compliance burden of small and medium enterprises, enhance transparency and shareholder engagement and promote a friendly business climate in Nigeria.

 

The new CAMA Act started its journey in the 8th National Assembly led by Senator Bukola Saraki and Hon. Yakubu Dogara. The 8th Assembly had passed the bill in May 2018, but the President withheld his assent thereby aborting what was seen then as a new vista in the annals of Nigeria’s business environment.

 

Hope in the bill was, however, restored when in November 2019 President Muhammadu Buhari wrote the Senate seeking an amendment to a section of the Companies and Allied Matters (CAMA) law.

In the letter, the president sought to preserve the powers of the Attorney-General of the Federation to approve the registration of companies limited by guarantee.

“Pursuant to Section 58 of the Constitution of the Federal Republic of Nigeria 1999 as amended, I hereby forward the Companies and Allied Matters and other related matters Bill 2019 for consideration and passage into law by the Senate.

“The Senate may wish to note that in this bill, Section 26(5) of the extant companies and Allied Matters Act has been amended to:

  1. Preserve the powers of the Attorney-General of the Federation to approve the registration of companies limited by guarantee and
  2. Reflect the ease of doing business principles in a veto order (1) of 2017 on the promotion of transparency and efficiency in the business environment.

“While I look forward to the usual expeditious consideration and passage of this bill, please accept the assurances of my highest consideration,” the letter read.

Here are some of the watersheds provisions of the new CAMA Act that you need to know:

 

 

 

 

  1. Provision of Single Member/Shareholder Companies

Sec 18(2) of the new CAMA  now makes it possible to establish a private company with only one (1) member or shareholder.

 

  1. Restriction on Multiple Directorship In Public Companies

Sec 307(1) of the act prohibits a person from being a director in more than five public companies

 

  1. Exemption from the Appointment of Company Secretary

The appointment of a company secretary is now optional for private companies. According to section 330(1) of the New CAMA, the appointment of a company secretary  is only mandatory for public companies

Section 265 (6) restricts firms from appointing  a director to hold the office of the Chairman and Chief Executive Officer of a Private Company

 

  1. Procurement of a Common Seal is no Longer a Mandatory Requirement

According to Sec 98 of the New CAMA  every company is required  under the previous Act to have a common Seal , the use of which is to be regulated by the Articles of Association . This amendment is in line with international best practices as most jurisdictions have expunged the requirement from their respective laws.

 

  1. Limited Liability Partnerships (LLPs) and Limited Partnerships (LPs)

The new CAMA introduces the concept of Limited Liability Partnerships (LLPs)  and Limited Partnerships (LPs). This combines  the organizational flexibility  and tax status of a partnership with the limited  liability of members of a company

By this provision, two or more persons desirous of carrying on a lawful business with a view to profit may form or incorporate a limited liability partnership under the Act as a legal entity separate from that of its partners having perpetual succession. For such limited liability partnerships, at least one of the partners must be resident in Nigeria. Upon registration, a limited liability partnership becomes a body corporate that by its name is capable of suing and being sued, holding property and having a common seal (if it decides to have one) among others. It is worthy of note that Lagos State Partnership Law 2009 provides for Limited liability partnership (LLP) which allows investors that register their businesses under this law to enjoy reduced responsibility in the event the partnership breaks up or the venture fails.

 

 

  1. Articles of Association

The Bill seeks to abolish the mandatory prescription of Model Articles by the Commission and instead gives the Commission powers to prescribe model articles which will only apply where a company is unable to provide its Articles of Association to the Commission. This is a welcome development as it will give companies the flexibility to create their own Articles as against the current practice of the Commission insisting on the adoption of the model Articles in CAMA.

 

 

  1. Electronic Signature

Where a document or proceeding is required to be authenticated by a company, the Bill provides that an electronic signature on such document or proceeding shall suffice. The Bill states: “A document or proceeding requiring authentication by a company may be signed by a director, secretary, or other authorized officer of the company, and need not be signed as a deed unless otherwise so required in this Part of this Act, provided that an electronic signature shall be deemed to satisfy the requirement for signing under this section.”

 

  1. Resolving issues of Insolvency

The Act enables a company in distress to explore options such as winding-up, merger, acquisition and compromise. The Bill however introduces a company rescue and insolvency legal regime which is not focused on a Company’s demise, but on rescuing companies from insolvency. As such the Bill expands the scope of options available to a company in distress to include Administration. In contrast to the options provided by the CAMA, the Bill focuses instead on resuscitating the company. Administration serves as a rescue mechanism for insolvent entities and allows such entities to carry on running their businesses. Once an administrator is appointed, any petition for the winding-up of the company will be dismissed except if the petition was presented under grounds of public interest or with the leave of the court or if the petition was presented under special banking provisions of the Banks and Other Financial Institutions Act, the Nigerian Deposit Insurance Act or any law and rule by a financial services and markets regulator. One of the main advantages of this model is that the administrator is appointed to act in the interest of the Company and not, as the case of receivership, in the interest of the person that appointed him.

 

 

 

  1. Provision For Electronic Filing, Electronic Share Transfer And E-Meetings For Private Companies

 

E-registration Electronic registration of companies will now be possible by virtue of the provisions of the Bill. According to Section 34(2) of the Bill, the Corporate Affairs Commission (“CAC”) would be able to establish companies using any means of electronic communication to facilitate an automated reservation of names and registration. This will definitely speed things up and result in a hassle-free process of registration of companies. It should be noted that independent of the Bill, the CAC has already commenced electronic registration of Business names and companies. Therefore, when passed into law, the effect of the provision of the Bill in this regard will be to codify an existing administrative practice.

 

  1. Consent of the Attorney General of the Federation for memorandum of Companies Ltd by Guarantee.

Section 26(5) of CAMA 2004, which provides that the Memorandum of a company limited by Guarantee shall not be registered without the authority of the Attorney General of the Federation, has been deleted by the Bill. The Bill replaces this with a duty on the Commission to cause the application to be advertised in Three (3) national newspapers. In removing the requirement for the authorization of the Attorney –General, the new law has dealt with a matter of considerable difficulty often encountered by promoters of non-profit organizations to wit – the bottlenecks associated with obtaining the AG’s consent, who may in his absolute discretion withhold such consent.

 

According to to section 861, the new CAMA provides that certified true copies of electronically  filed  documents are admissible  in evidence, with equal  validity with original documents. Section 176(1) also provides  that instruments of transfer of shares shall include electronic instruments of transfer

 

  1. Virtual/Electronic Annual General Meetings (AGMs)

The new CAMA also provides for remote or virtual general meetings, provided that such meetings are conducted with the article of Association  of the company. This will facilitate participation from any location at minimal costs.  This is especially relevant today given the disruptions caused by COVID-19 pandemic

 

 

 

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