Introduction

When many non-profit managers think of registration in Nigeria, their checklist typically excludes the Corporate Affairs Commission for different reasons, because before now, it was not a factor that affected operations.

Prior to 2020/2021, it was easy and perhaps legal for an international non-profit to commence operations in Nigeria after obtaining a permit/Cooperation Agreement from the then National Planning Commission, now Ministry of Finance, Budget and National Planning (“MFBNP”). With the permit from the MFBNP, international non-profits could obtain visas for expatriates, get tax identification numbers, buy SIM cards, and register with other government agencies that had a direct bearing on their operations.

However, the Federal Government’s efforts to check terrorism financing and consolidate the records of entities carrying on business (whether for profit or not-for-profit) in Nigeria has made it difficult for international non-profits to either undertake or complete regulatory processes without evidence of registration with the Corporate Affairs Commission ( the “CAC”).

In the last few months, many international non-profits either having existing operations or intending to establish operations in the country have had to grapple with regulatory roadblocks because of their non-registration with the CAC. For example, among others, non-profits that are not registered with the CAC face difficulty with the following: –

• Obtaining a Tax Identification Number from the Federal Inland Revenue Service (FIRS);
• Registering with the Special Control Unit against Money Laundering (SCUML);
• Opening a corporate bank account; and
• obtaining visas and residence permits for expatriates.

In this Morsel, we shall briefly examine some of the typical reasons international non-profits approach registration with the CAC with skepticism and the available corporate structures for non-profits under the Companies and Allied Matters Act, 2020 (the “CAMA”).

Misconceptions about Registration with the CAC

#Misconception 1

We are an ‘international organisation’.
Some international non-profits believe that because they are already registered in a foreign country or have operations in multiple countries, there would be no need for a separate or further registration with the CAC. It is important to note that only organisations whose membership consists of sovereign states or that were established by international conventions/treaties or that are agencies of foreign governments are exempt from registering with the CAC because their in-country operations are typically based on recognised treaties. Therefore, non-profits that are established or run by individuals or private entities do not qualify for such exemptions.

#Misconception 2

We are a ‘non-profit’
Non-profit organisations are not exempt from the requirement to be registered pursuant to the CAMA. Also, registration with the CAC does not strip or affect the non-profit status of an organisation. What is important is the structure the organisation elects to adopt in registering, which is what ultimately determines whether the organisation will be treated as a for-profit or non-profit entity.

#Misconception 3

All the directors, members and trustees ‘must be Nigerians’.
This is proposition is totally incorrect. There is no provision in the CAMA that restricts the membership, directorship or trusteeship of non-profit entities to Nigerians. A non-profit registered in Nigeria can have100% foreign participation.

#Misconception 4

Since we are already registered with the MFBNP, we do not need to register with the CAC’.
Registration with the MFBNP which culminates in the signing of a Cooperation Agreement with the Federal Government of Nigeria does not exempt a non-profit from the registration with the CAC. Whilst registration with the MFBNP affirms Nigerian Government’s recognition and permission to operate in Nigeria, registration with the CAC legitimises the operations of the entity.

#Misconception 5

We are already ‘registered with the State Government’
Registration at the level of the State Government does not relieve the organisation from its obligations under federal legislation. It must be noted that under the Nigerian law, registration and management of corporate entities is governed by a Federal law (the CAMA) and as such, compliance is mandatory,regardless of any other requirements at the State level.

Structures for Non-Profits under the CAMA

Under the provisions of the CAMA, there are 2 structures under which non-profits can be registered and they are:

• Company Limited by Guarantee; and
• Trusteeship (Incorporated Trustees).

Company Limited by Guarantee (“CLG”)

Having a structure like that of for-profit companies, a CLG is one which is formed for the promotion of commerce, art, science, religion, sports, culture, education, research, charity, or other similar objects. Differing from for-profit companies, the income and property of a CLG must be applied solely towards the promotion of its objects and no portion is to be paid or transferred directly or indirectly to its members.

Consent Requirements

To successfully complete the registration process at the CAC, a CLG requires consent at two levels: (a). From the Registrar-General of the CAC; and (b). From the Attorney-General of the Federation (the “AGF”). However, there is an exception to the requirement for the AGF’s consent in the CAMA.

Structure

The statutory internal structure of a CLG comprises of Members, which must be a minimum of 2 individuals or registered- entities (registered either in Nigeria or another country); Directors (Also a minimum of 2 individuals); and a Company Secretary.

Governing Documents

The primary governing documents of a CLG are its Certificate of Incorporation and the Memorandum and Articles – of Association. The Memorandum sets out the objects of the CLG, the undertaking of the members to guarantee, as well as its general powers while the Articles of Association sets out the internal governing rules of the CLG.

Financial Liability

Each Member of a CLG is required to guarantee a contribution of not less than N100,000.000 (One Hundred Thousand Naira) to the assets of the CLG in the event of its being wound up.

Returns

As with limited liability companies, CLG’s are required to file Annual Returns once each year. In addition, where any changes are made to the Memorandum and Articles of Association, or composition of the Board of Directors, Members or Company Secretary; notification must be sent to the CAC.

Winding Down

When a non-profit registered as a CLG no longer wishes to carry on operations in Nigeria, it can wind-up and dissolve the CLG in compliance with the provisions of the CAMA. Upon winding-up, if the CLG still has assets after discharging its debts and liabilities, the CAMA requires that the asset/property is either transferred to another CLG having similar objects or applied to some other charitable object.

Trusteeship/Incorporated Trustees (“IT”)

The trusteeship structure in Part F of the CAMA is adopted where two or more trustees are appointed by any community of persons bound together by custom, religion, kinship or nationality or by anybody or association of persons established for any religious, educational, literary, scientific, social development, cultural, sporting or charitable purpose.

Non-profits registered as trusteeships are referred to as Associations under the CAMA and are classified as follows: (a). Religious; (b). Educational; (c). Literary; (d). Scientific (e). Social; (f). Developmental; (g). Cultural (h). Sporting; and (i). Charitable.

Income generated or realized on the assets or property of such Association can only be applied towards the promotion of its objects and cannot be transferred or divided among its members.

Consent Requirements

In registering under Part F, only the consent of the Registrar-General of the CAC is required. In addition to the consent, the association is also required to publish its- application to register its trustees in 2 daily newspapers inviting objections, if any, to the registration of the association.

Structure

The primary organs of an Association with registered trustees are the Members; and the Trustees (which must be a minimum of 2). The CAMA does not require the submission of any record of membership. An Association is also empowered by the CAMA to appoint a Council or Governing Body which will be responsible for assigned administrative and management functions.

Governing Documents

The primary governing documents of an IT are its Certificate, which outlines the names of the trustees and Constitution. The Constitution sets out the objects of the Association, the minimum and maximum number of trustees, the term of the trustees, among others.

Financial Liability

Unlike CLGs, neither the trustees nor members are required to contribute any amount of money upon the winding-up of the association. However, if any trustee or member misapplies the income or property of the entity, he/she will be liable to refund such income or property.

Returns

In addition to the Annual Returns, Trustees are required to submit a Bi-Annual Statement of Affairs made up to 30th of June and 31st of December each year and filed not later than the 15th of July and 15th of January, respectively. Also, when the association intends to change its trustees or alter the provisions of its constitution, such changes must be published in the newspapers.

Winding Down

Upon winding-up, if the association still has property after discharging its debts and liabilities, the CAMA requires that the property is either transferred to another institution having similar objects.

What Structure is Suitable for an International Non-Profit?

With the enactment of the CAMA in 2020, the CAC is empowered to suspend the trustees of an Association in certain circumstances and order the transfer of monies left in dormant accounts of an association to any association that they deem fit.

While both structures are meant for non-profits, the CLG is better suited for international non-profits because of its structure, minimal requirements for returns and the absence of the requirement to publish certain structural changes in newspapers.

The information provided in this article is for general information purposes only and does not constitute legal advice.

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