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insolvency law in nigeria

The Business Recovery and Insolvency Practitioners Association of Nigeria (BRIPAN) has commenced a review of Nigerian insolvency laws and it is hoped that Nigeria will have its insolvency laws codified as the Nigerian Insolvency Law. Chapter 26 CAMA 2020: Insolvency Professionals, A Miscellany Issue? In takeovers, the acquirer must pass a resolution formally approving the takeover and bidding for the shares of the target, and send the takeover bid to the SEC and the target for approval. Primary legislation In most cases, this is its registered address or headquarters. In these investment scenarios, there are times when an organization needs more money than is as of now being produced by its activities; it has two different ways to get it. the court is satisfied that it is just and equitable for the company to be wound up. At the end of each year from commencement to conclusion of the liquidation, the liquidator must convene a general meeting of the shareholders informing them of his or her actions and conduct in the winding-up proceedings. Yes. The Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act, the Banks and Other Financial Institutions Act and the Asset Management Corporation of Nigeria Act apply to banks and other financial institutions. The Nigerian Deposit Insurance Commission Act regulates licensed banks and deposit-taking financial institutions. Fraudulent trading: The directors will be liable where it appears that the debtor's business has been carried out in a reckless manner or to defraud creditors or any other person for any fraudulent purpose, including lying to creditors or entering false accounting information. A primary condition for a takeover is that a minimum of 30% of the shares of the target be bidded on. They include the following: Generally, no. The Act is based on the reciprocity of treatment of similar judgments in the original country. Under the old provisions, a company in financial distress is typically either subject to liquidation or receivership. Small mergers have a value of not more than NGN 500 million; Intermediate mergers have a value between NGN 500 million and N 5 billion; and. Appointment of a manager: A manager may be appointed for a specified period to manage the affairs of the debtor in order to pay its debts. Notice of the meeting is to be served on the members, together with a statement indicating the effect of the arrangement on the directors, creditors and shareholders. Insolvency practice has moved away from contentious, lengthy Court proceedings. Case law is sparse; even the trickle appears to have dried up. Exordium This discourse examines the revisions made by the Companies and Allied Matters Act, 2020 (CAMA 2020) to Nigeria’s insolvent … If the scheme is acceptable to 75% of the creditors or stakeholders, the court may grant an order sanctioning its implementation. Generally, a restructuring will result in alterations to creditors' rights. No. If this party is the debtor, the process is commenced by way of a resolution for voluntary winding-up. Specialist advice should be sought was formed only for a limited purpose; or. The circumstances under which the directors may be held liable for the debtor's insolvency are set out in Sections 505 to 507 of the Companies and Allied Matters Act. © Mondaq® Ltd 1994 - 2021. Foreign insolvency judgments and orders may be enforced in Nigeria if they comply with Section 10 of the Foreign (Reciprocal Enforcement) Act, which requires the existence of a wholly or partly unsatisfied foreign monetary judgment debt. voluntary winding-up, which may be either: the company resolves by special resolution to be liquidated by the court; the company defaults in holding statutory meetings or filing statutory reports; the membership of the company is reduced below two; the court finds that it is just and equitable to do so. the company, through a special resolution, has resolved that it be wound up by the court; the company has defaulted in filing its statutory reports with the Corporate Affairs Commission or in holding the statutory meetings; the number of members has reduced below two; the company is unable to pay its debts; or. Where a company is unable to meet its financial obligations, a creditors' voluntary winding-up can be commenced (like in a members' voluntary winding-up) by a special resolution that the company be wound up and a liquidator be nominated. Section 473 of the CAMA requires that upon the commencement of insolvency proceedings, management ceases to operate the business. Academia.edu uses cookies to personalize content, tailor ads and improve the user experience. Sign Up for our free News Alerts - All the latest articles on your chosen topics condensed into a free bi-weekly email. Formal insolvency law procedures are usually collective and centralised, overriding certain pre-insolvency agreements in order to achieve laid down objectives for the benefit of all creditors. Upon application by the company, the court will call a meeting of the company and its creditors and members for any restructuring proceeding. In contrast, arbitration favours privacy of contracts and party autonomy. The Federal High Court is involved in insolvency proceedings from the hearing and determination of winding-up petitions to the appointment of liquidators. For the debtor, the effect is that its board of directors ceases to hold office and it stops being a going concern. Nigeria: Consumer Protection Laws and Regulations 2021. By using our site, you agree to our collection of information through the use of cookies. about your specific circumstances. prepare a statement of affairs of the debtor, which should set out details such as the following: the securities held by secured creditors and the dates on which the securities were respectively given; and. In the absence of such guidelines, the SEC and the Competition Commission jointly issued an advisory note on mergers in May 2019. Mergers and acquisitions: These occur when one company acquires or establishes control over the whole or part of the business of another. However, such stay or moratorium does not have extraterritorial effect. If a 75% majority votes in favour of the scheme, it will be reported to the court. In the private sector generally, such processes may be achieved by agreement of the parties and with the consent of existing lenders. There is no specific local legislation dealing with this issue. However, Nigerian insolvency law is still traditional in its approach, such that winding up and liquidating the company remain the sole mechanisms for dealing with instances of insolvency. Section 471 of CAMA provides for the voluntary winding-up of a company by creditors. be available to render account of all transactions/moneys over which they exercised control to the receiver. The rules This includes the possible adoption of the South African The Business Recovery and Insolvency Practitioners Association of Nigeria promotes the development of insolvency and business rescue practice in Nigeria through training, advocacy and legislative reform. The above must also be distinguished from business recovery and insolvency, which does not fall under the typical M&A heading. If the scheme is approved, the merger or acquisition is considered final. In such instance, a creditor may maintain an action against the directors in their personal capacity. all outstanding payments to employees of the debtor; claims of secured creditors with floating charges; and. Notice of such meeting will be served on the members, accompanied by a statement showing the effect of the arrangement on the directors, creditors and shareholders of the company. The secured creditor must deliver the property to the liquidator and prove its claim, placing a value on the property. In some countries, the term bankruptcy is only limited to individuals while other forms of insolvency proceedings are applied to companies. In certain instances, the regulator champions these informal workouts, which may include encouraging existing creditors to agree to a stay and the injection of new capital. The winding-up will be effected on such terms and conditions as the court thinks just. In Nigeria, a foreign creditor can institute an action in court in its name or in the name of its attorney against a debtor for debt recovery in the same manner as a domestic creditor, as long as the debtor or its assets is within, or the underlying contract which gave rise to the debt was performed within, the jurisdiction of the court. In such case they will be subject to Nigerian company, tax and insolvency laws in the event of insolvency. Charge: A charge is usually given by way of debenture over a company's assets. the fixed term set out in the articles of association expires or the articles allow them to wind up the company voluntarily under certain conditions, provided that the company passes a resolution to this effect at the general meeting; or. Current Insolvency Law and Practice in Nigeria There is currently no Insolvency Act in Nigeria in force3. Examples Adwork Limited vs Nigeria Airways Limited Court of Appeal (2000) 2 NWLR (part 645) as follows; In 2018 the Companies and Allied Matters (Repeal and Re-Enactment) Bill was passed by the National Assembly. Arrangement and compromise: Court approval is required where a company wishes to alter the rights of its members and creditors. There are no specific timeframes for submission of creditors' claims. A primary condition for a merger is that the acquirer have a controlling share interest of not less than 51% in the target. Nigeria’s current DTF score on resolving insolvency is a direct fallout of the legal framework governing corporate insolvency in Nigeria … What You Should Know About Debt Consolidation Loan In UAE? The trustee may then, if authorised by the creditors, take over the property at the value placed on it by the creditor. The proceedings will remain separate. The insolvency procedures recognised by the Act are, in that sense, either collective or non-collective and undertaken by Insolvency Practitioners. An advantage of this process is that the debtor continues as a going concern and, upon payment of its debts, the directors are reinstated for the purpose of continuing the business. By using our website you agree to our use of cookies as set out in our Privacy Policy. The Petroleum Act applies to restructuring and mergers within the oil and gas industry, particularly as regards the transfer of a participating interest in an oil or gas asset/licence, as any such transfer requires ministerial consent. The extent of the court's involvement in restructuring procedures is dependent on the type of restructuring being contemplated by the company. The drawbacks include lost economies of scale; the potential strengthening of a monopoly; culture clash; consumer perceptions; and workforce downsizing. Wrongful trading: This occurs where credit is obtained for the debtor with no realistic prospects of repayment and the debtor continues to do business in the knowledge of its insolvency. the Companies and Allied Matters Act (Cap C20, LFN) 2004 (CAMA); the Federal Competition and Consumer Protection Act 2019; the Investment and Securities Act 2007 (as amended in 2015); the Securities and Exchange Commission Rules 2013 (as amended in 2019); the Asset Management Corporation of Nigeria Act 2010 (as amended in 2015); the Banks and Other Financial Institutions Act (Cap B3 LFN) 2004; the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994; the Nigerian Deposit Insurance Commission Act 2006; the Federal High Court (Civil Procedure) Rules 2019. Dearth or Inadequate Statutory Framework The primary Statute governing corporate rescue and insolvency law and practice in Nigeria is the Companies and Allied Matters Act … This is determined by default, as provided under the relevant agreement. A floating charge requires a crystallising event (ie, default in payment of any sums due) prior to the enforcement of such security. Also, the ineffective discharge provisions render bankruptcy an unattractive option for debtors. However, Nigerian insolvency law is still traditional in its approach, such that winding up and liquidating the company remain the sole mechanisms for dealing with instances of insolvency. You can download the paper by clicking the button above. Onigbinde Halimat Bolu is an Associate of Oluwakemi Balogun LP, a leading insolvency law firm in Nigeria. The bill seeks to provide for: The Presidential Enabling Business Environment Council has drafted an omnibus bill (in line with the Mauritius Model) for the harmonisation of various laws (including CAMA and its insolvency provisions), to make it easier to do business in Nigeria. In certain cases, the instigating party may nominate its preferred liquidator. file all required papers with the court and/or the Corporate Affairs Commission. There have been recent changes to the restructuring and insolvency regime in Nigeria - in particular, the enactment of the Federal Competition and Consumer Protection Act and the amendment of the AMCON Act. DIP financing is not recognised under the Nigerian laws on restructuring and insolvency. Enforcement of the terms of such mortgage is dependent on whether the power of sale has arisen. Key milestones in insolvency proceedings include: The board of directors will pass a resolution to convene a shareholders' meeting. The appointment of the same insolvency office holder is more likely to be achieved in a voluntary insolvency procedure where the liquidator is appointed out of court. Where a debtor is insolvent and a receiver has not yet been appointed, the directors act as fiduciaries in relation to the creditors. There are various laws applicable directly and indirectly to insolvency generally in Nigeria. About the Author. Restructuring: There is no general rule relating to credit bidding. Generally no. Generally, creditors are ranked according to the type of security that they possess over the debtor's assets and whether such security is registered as stipulated under Section 197 of CAMA. Yes. The relevant procedures are laid down in Sections 117 to 152 of the Investment and Securities Act 2007. The law is enforceable in Nigeria but the process of filing is cumbersome and makes bankruptcy almost insignificant. Under CAMA, a creditor of a company can file liquidation proceedings and commence recovery action against a debtor. The court may order the company to be wound up under its supervision and provide creditors, contributories and others with the right to apply to the court. Section 493 of the same Act ranks both secured and unsecured creditors above members of the company during a winding-up. certain aspects of corporate insolvencies; creation of the office of supervisor of insolvency; cross-border insolvency recognition and enforcement; and. Where the directors and shareholders of a debtor propose a restructuring, the members and shareholders must approve any such restructuring option. If, based on the SEC's written report, the court is satisfied that the scheme of arrangement or merger is fair and equitable to the dissenting creditors, the court may allow and sanction such arrangement or merger, despite such dissent. Where a company is registered to carry on business in Nigeria, it will be subject to Nigerian company administration, restructuring and insolvency laws. Yes, it is possible to effect a pre-pack sale of assets. Nevertheless, the court may fix a timeframe within which creditors must prove their claims or be excluded from the benefit of any distribution. Employees may not bring claims with respect to wrongful termination, but they can bring claims relating to payment of their benefits in preference to all other claims. Thanks to its efforts, a private members' Bankruptcy and Insolvency Bill was drafted and passed by the National Assembly in 2016, which is still awaiting presidential assent. it is a going concern, but desires to expand. Under the Foreign Judgment (Reciprocal Enforcements Act) (Cap F35, LFN, 2004), a foreign judgment against a member of a group incorporated abroad will be enforceable in Nigeria under strict conditions. The liabilities of third parties (eg, guarantors) may be released through restructuring proceedings if the underlying agreement provides for the same. discontinue its activities and cease being a going concern; ensure that its assets are not dissipated; and. A disadvantage is that where the receivables of the debtor appear to be insufficient, this may lead to its winding-up. The deficient state of the corporate insolvency regime in Nigeria under the Repealed Act has led to criticism by experts and In the context of business recovery and insolvency, CAMA is still the applicable regime. BRIPAN is a private sector-driven association of insolvency practitioners comprised of lawyers, accountants and bankers. The business rescue practitioner will have greater freedom to negotiate with bidders and it may be agreed that credit bidding will take place, provided that this is ultimately accepted in a finalised business rescue plan. Under Section 494 of CAMA, the order of priority is as follows: The liquidator will determine when and how payments are to be made to creditors and or contributories, after a proper assessment of the debtor's assets and liabilities. A debtor may lose control over its affairs to its creditors - especially where a manager is appointed as part of the restructuring process. Insolvencies and reorganisations are generally governed by the Companies and Allied Matters Act (CAP C20, Laws of the Federation of Nigeria, 2004). The provider of new money may demand such protection as it deems reasonable, including first-priority ranking as lender. In Nigeria, Insolvency procedures are mainly contained in the Companies and Allied Matters Act Cap C 20 Law of the Federation of Nigeria 2004 (CAMA), even though there are … We are a market leader in Debt Recovery and Insolvency Practice and we adopt diverse legal tools for the recovery of debts. For Debtors: What To Do If Your Creditor Resorts To Self-Help Or Chases You With The Police, An Analysis Of Nigerian Law On Procedure For Recovery Of Debt From An Insolvent Company And Fraudulent Directors, Consolidation And Restructuring Of Law Firms And Practices In Nigeria Legal Industry, COVID 19 The Global Game Changer: Impact On Restructuring Of Insolvent Businesses In Nigeria, Recommendations For Addressing Identified Issue(s) In Insolvency Of An Oil And Gas Asset Holder In The Nigerian Petroleum Industry [Part 6], A Comparative Analysis Of Insolvency Issues In Respect Of Oil And Gas Assets In Other Jurisdictions Similar To Nigeria [Part 5], Future Series: The Journey to Net-Zero: Climate Change, Carbon Credits and Emissions Trading, Notice and Claims Administration Best Practices: U.S foundations, Global Implications, © Mondaq® Ltd 1994 - 2021. At the meeting, the shareholders will pass a special resolution for the winding-up of the debtor. It must also provide information regarding any material interests of its directors. Security interests in Nigeria are categorised as follow: Generally, there are no restrictions on who can enforce a security interest over assets in Nigeria, provided that the person seeking enforcement is the secured party or its trustee, agent, assignee, successor or transferee. It is not unusual to appoint a manager or receiver manager during a restructuring, especially where the purpose is for business recovery. The disadvantages include that the debtor is no longer a going concern and that the funds and assets available may be insufficient to settle all obligations. Where a company is registered to carry on business in Nigeria, it will be subject to Nigerian company, tax and insolvency laws in the event of insolvency. It is not unusual for cases to run for years, especially where it appears that there are contentious issues to be considered. During a restructuring, an employee may agree to a pay cut or to resign and collect his or her benefits. time frame for resolving insolvency is two years; the cost of resolving insolvency is 22.0% of the estate; and the recovery rate is 27.8 cents on a dollar. CBR EXTENDED CREDITOR PROTECTION INDEX 1990-2013. Undervalue: This occurs where a director sells or transfers the debtor's assets at an undervalue. Insolvency proceedings conclude once the liquidator has rendered its final accounts and has filed the relevant documents relating to the winding-up with the Corporate Affairs Commission. She can be contacted via email: mzboluhalima@gmail.com. However, in Nigeria, foreign proceedings and decisions on insolvency may be recognised and enforced so long as they comply with the provision of Section 10 of the Foreign Judgment (Reciprocal Enforcement) Act 2004, which requires that the judgment must be final and conclusive, and must be a wholly or partly satisfied monetary judgment debt. The Court (Federal High Court) is vested with the power to approve arrangements, compromises and merger schemes. However, there is no law on cross-border insolvency in Nigeria, meaning that a foreign insolvency practitioner cannot obtain assistance from a Nigerian court unless there is a final enforceable judgment. A hostile takeover, which takes place without the consent of the target, is generally disruptive. If this party is a creditor, the process is usually commenced with a letter demanding payment of an outstanding debt; or the commercial loan agreement may incorporate provisions for acceleration in case of default. Place without the consent of such guidelines, the courts are almost always involved insolvency law in nigeria insolvency proceedings for Corporate.! Requires prima facie evidence of the court may fix a timeframe within insolvency law in nigeria! The wider internet faster and more securely, please take a few to. Mining licence, as the case of an inefficient company any restructuring proceeding creditors along with its general.! Members for any restructuring proceeding of creditors and members Act, Cap C20 LFN 2004 ( “ CAMA ”.! Federal High court ) is insolvency law in nigeria a leading insolvency Law firm in Nigeria there is no legislation... Manager is appointed as part of the company, tax and insolvency, CAMA still! Approved, the creditor 's consent in certain circumstances insolvency are also in. Strengthening of a scheme and approve the same where satisfied above members of the target, is generally.... Standalone legislation that governs restructuring and insolvency, which takes place without creditor. Schemes of arrangement or a compromise with its general meeting regulate all Insurance and. Credit bidding which creditors must vote in favour of schemes of arrangement or a compromise requires the express of. 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