THE BUSINESS FACILITATION ACT 2022.

Yesterday the 6th of April 2023, I attended the sensitization workshop on the Business Facilitation (Miscellaneous) Act 2022 organized by the Adeoye Adefulu -led Nigerian Bar Association Section on Business Law (NBA SBL) in collaboration with the secretariat of the Presidential Enabling Business Environment Council (PEBEC) The Presidential Enabling Business Environment Council (PEBEC) Secretariat It was an interactive session among stakeholders including representatives of some MDAs. I had the opportunity to listen to industry experts like Toyin Bashir , and Folasade Olusanya alongside the Special Adviser to the President on Ease of Doing Business Dr Jumoke Oduwole all of whom also facilitated the emergence of the Business Facilitation Act.? Aramide Nwokediuko was also a speaker at the workshop and she raised important observations about the Act.?

On February 8, 2023, the Business Facilitation Bill 2022, which is also known as the (Omnibus Bill) was signed into law; therefore making it the Business Facilitation Act 2022( BFA 2022). The Act is a product of the efforts of the current administration to address some of the difficulties associated with doing business in Nigeria and to put Nigeria on a higher ranking in Global Ease of Doing Business (EDB). As of 2016, Nigeria had a very low ranking in Global Ease of Doing Business. Nigeria's EDB rating significantly experienced a decline in 2016 from 2015, after it had marginally improved in 2014. As a result of this, the current administration aimed to improve Nigeria's EDB rating. Consequently, the President inaugurated the Presidential Enabling Business Environment Council (PEBEC), which is headed by the Vice-President, Prof Yemi Osinbajo in July 2016. The PEBEC comprises 10 ministers, the Head of Civil Service of the Federation, the Governor of the Central Bank of Nigeria, representatives of two state governments of the Federation, representatives of the National Assembly, and representatives of the private sector.

The objective of the PEBEC is to remove bureaucratic constraints to doing business in Nigeria and make the country a progressively easier place to start and grow a business.[1] The BFA 2022 amongst other things codifies the Executive Order 001 of 2017, issued by the acting President on the 18th of May, 2017. In the words of Dr Jumoke Oduwole , "The BFA consolidates the last 7 years of PEBEC-led reforms and demonstrates the administration's sustained commitment towards business climate reforms. The Act speaks to what is possible when public and private stakeholders collaborate to tackle pressing challenges and it is a product of impute from a wide range of public and private sector contributors, including the Federal Ministry of Justice, the NBA SBL through pro bono participation of over 40 law firms and the Nigerian Economic Summit Group".

The workshop was organized as an opportunity for stakeholders to come together and discuss various provisions of the Act, its potential impact on the business community, and the practical steps that can be taken to ensure its effective implementation. Stakeholders were also allowed to highlight the challenges that the Act has failed to address and potential implementation problems.

The Act to actualize its objective of promoting the ease of doing business in Nigeria and eliminating bureaucratic constraints has amended various business-related legislations. This is why it is referred to as the Omnibus Bill (Now Act)

In this piece, I will be highlighting a few innovations of the BFA 2022 that were highlighted at the workshop with a focus on the provisions of the Act that stem from Executive Order 001 of 2017 and some amendments made to the various business-related legislations, the potential impact of the Act on businesses in Nigeria as well as the comments by stakeholders on the highlighted amendments and Innovative provisions.

PROMOTION OF TRANSPARENCY AND EFFICIENCY THROUGH COMPELLING THE USE OF SERVICE LEVEL AGREEMENTS BY MDAs

Toyin Bashir , a Partner at Banwo & Ighodalo highlighted the fact that the Act codifies the Presidential Executive Order 001. Executive Order No 001 addresses the issue of Transparency and Efficiency in the Business Environment. ?Section 6 of the Act mandates MDAs to have Service Level Agreements (SLAs) that provide for a list of products and services rendered; documentation requirements; timelines for processing applications amongst other things. This provision aligns with the Executive Order No.001 of 2017. It promotes transparency and Efficiency. ?MDAs are to be held accountable to the timelines that are published and the SLAs are enforceable.?

DEFAULT OF DEEMED APPROVALS

The law also makes it mandatory for MDAs to communicate the approval or rejection of an application within the timeline stipulated in the list published by such MDAs. Where an MDA fails to do so, all applications for products and services not concluded within the stipulated timeline will be deemed approved and granted. This provision purports to put MDAs on their toes and to curb situations where businesses apply for certain products or services and are made to wait endlessly for approvals. It is important to note that although the draftsman intends to speed up the processes and avoid unreasonable delays and hardship which such delays may cause, certain legal issues may spring up as a result of this provision.

Aramide Nwokediuko who was a speaker at the workshop painted a scenario where for instance the proprietor of a Trademark applies to register a Trademark but does not get approval or rejection from the Registrar of Trademarks within the time specified for such approval and then such proprietor acting based on the default approvals section of the BFA 2022[2] deems such application as granted, problems may arise when it comes to enforcement of an infringement by the proprietor of such Trademark. This is because, under the Trademarks Act, registration is a prerequisite for the institution of an infringement action. The Act provides that, “no person is entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trademark...”[3]flowing from the above provision of the Trademarks Act, for the proprietor of a Trademark to prove registration of such Trademark, the Trademark in question must have been entered into the Register of Trademarks. Section 67 of the Trademarks Act defines a “Registered Trademark” to mean a Trademark that is actually in the register.?Where a proprietor is suing for Trademark infringement and is relying on a deemed approval, a party being sued may claim that such trademark is not registered in accordance with the provisions of the Trademarks Act since the Trademark in question may not have been entered into the Register of Trademarks, this may create a problem to the practicability of the concept of deemed approvals. ?In response to this, Baba Alokolaro who was the moderator at the workshop noted that the potential issues raised as regards the concept of the deemed approval can easily be solved by the deployment of technology. He stated that technology can be deployed to make sure that your deemed approval could automatically have your mark listed on the Register of Trademarks once the period for approval or rejection has passed and the Registrar of Trademarks has failed to communicate the approval or rejection of same within the time stipulated for such approval or rejection.

ONE GOVERNMENT DIRECTIVE

One government in the context of the BFA 2022 means collaboration between MDAs to process and deliver products and services to the public.[4] The directive aims to remove the hurdles to trade-in services. It simplifies administrative procedures, protects consumers and businesses, and fosters cooperation between MDAs. It allows for the consolidation of resources and the processing and verification of documents submitted by consumers without recourse to the consumers. The one government directives are entrenched into Section 5 of the BFA 2022. MDAs are expected to build communication lines between themselves to make this process efficient. This directive is a useful tool for the decongestion of MDAs.

PROVISIONS ON THE PORTS OPERATIONS

Ports are pivotal to the growth of any economy around the world. Countries need to make sure that consumers, business entities, and stakeholders that make use of the various ports are not met with unnecessary difficulties and delays caused by administrative corruption. The BFA makes provisions that are intended to ease the operations at the ports. Under section 7 of the Act, touting is expressly prohibited in any port in Nigeria. This is a welcomed development; however, issues like enforcement and monitoring of the activities of port officials who engage in touting have been raised. Nonetheless, the codification of the prohibition of touting activities is a great step towards achieving administrative efficiency at ports in Nigeria.

AUTOMATION OF CORPORATE ADMINISTRATION PROCEDURES

Under section 8 of the Act, the Registrar-General of the Corporate Affairs Commission is mandated to ensure that all application processes at the CAC are fully automated from start to completion. ?

All the above-highlighted provisions on the BFA are a codification of the Executive Order 001 of 2017.

The Act also made substantive amendments to various laws. Some of the laws amended include the Companies and Allied Matters Act (CAMA), the Industrial Training Funds (ITF) Act, the Nigerian Investment Promotion Commission (NIPC) Act, the National Housing Fund Act, the Immigration Act, the Customs and Excise Management Act, the Export (Prohibition) Act and a host of other legislations. In subsequent Articles, I will be touching on some of the substantive amendments made to particular legislations.?

CONCLUSION

Drawing from the above, it is clear that the Business Facilitation Act 2022 also known as the Omnibus Act is a great step in the unending journey of easing the business climate in Nigeria, through legislative interventions. The Act also sets a partway for technological advancement in the operations of MDAs by mandating the use of modern technology in the operations of MDAs. Technological Advancement is pivotal to the practicability of the Business Facilitation Act, and as such, every MDA must strategically advance its current technological status to fit the current global realities and reduce face-to-face interactions in its operations.

[1] Section 5(3) of the Business Facilitation Act 2022

[2] Section 4 of the Business Facilitation Act 2022.

[3] Section 3 of the Trademarks Act [1965]

[4] https://statehouse.gov.ng/policy/councils-committees/presidential-enabling-business-environment-council/