TYPES OF INCORPORATIONS IN NIGERIA

There are various types of business structures and incorporations in Nigeria, each with unique features, benefits, and legal requirements. This article briefly overviews the types of incorporations in Nigeria, focusing on their features, formation processes, and regulatory obligations. The principal law governing the incorporation of entities in Nigeria is the Companies and Allied Matters Act (CAMA) 2020, while the government agency regulating the incorporation process all over Nigeria is the Corporate Affairs Commission (CAC).

Types of Incorporations under CAMA

Below is the list of incorporations recognized under Nigeria law (CAMA 2020):

1.????? Sole Proprietorship

2.????? Limited Liability Partnership (LLP)

3.????? Limited Partnership (LP)

4.????? Private Limited Company (Ltd/LLC)

5.????? Public Limited Company (PLC)

6.????? Unlimited Company

7.????? Company Limited by Guarantee

8.????? Incorporated Trustees (NGO)

1. Sole Proprietorship

A Sole Proprietorship is the simplest form of business in Nigeria. It is an unincorporated business owned and operated by a single individual. It is registered as a business name by the CAC. The owner has complete control over the business operations and receives all profits generated by the business. However, this also means the owner is personally liable for all the business's debts and obligations.

Key Features:

• Ownership: Can be owned by one person.
• Liability: Unlimited personal liability; the owner’s personal assets can be used to settle business debts.
• Taxation: Income from the business is taxed as the personal income of the owner.
• Formation: Easy to set up with minimal regulatory requirements.
• Regulation: The business name must be registered with the Corporate Affairs Commission (CAC) if it is different from the owner's name.

Advantages:

• Simplicity in formation and operation.
• Full control of business decisions.
• Direct receipt of all profits.

Disadvantages:

• Unlimited liability exposes personal assets.
• Limited capacity to raise capital.
• The business ceases to exist upon the owner’s death.

2. Limited Liability Partnership (LLP)

A Limited Liability Partnership (LLP) is a hybrid business structure that combines elements of both partnerships and limited liability companies. Under CAMA 2020, an LLP is a corporate body, meaning it is a separate legal entity from its partners. This allows the LLP to own assets, enter into contracts, sue, and be sued in its own name, just like a company.

Key Characteristics:

• Limited Liability: The primary advantage of an LLP is that it offers limited liability protection to its partners. This means that the personal assets of the partners are protected from the debts and liabilities of the LLP. Partners are only liable to the extent of their contribution to the LLP.
• Separate Legal Entity: An LLP is distinct from its partners, which provides continuity even if partners change or leave the partnership.
• Management Flexibility: LLPs provide partners with the flexibility to manage the business internally, according to an agreed-upon partnership agreement. This agreement outlines the rights and responsibilities of the partners.
• Formation: An LLP must be registered with the Corporate Affairs Commission (CAC). The registration process requires a minimum of two partners, and the LLP must have a name that includes "Limited Liability Partnership" or "LLP."
• Taxation: An LLP is treated as a partnership for tax purposes, meaning the profits are not taxed at the entity level. Instead, profits are distributed to the partners, who are then taxed individually.

Advantages:

• Simplicity in formation and operation.
• Liabilities are limited to the formed entity
• Direct receipt of all profits by the partners

Disadvantages:

• Difficulties in making business decisions since both partners must agree on all decisions.
• Limited capacity to raise capital or loan

3. Limited Partnership (LP)

A Limited Partnership (LP) is another form of partnership recognized under CAMA 2020. Unlike an LLP, an LP is not a separate legal entity but is instead an arrangement between partners where there are two types of partners: general partners and limited partners.

Key Characteristics:

• Number of Partners: Must have at least two persons, but not more than 20
• Formation: Like LLPs, LPs must be registered with the CAC. The formation process requires a partnership agreement that clearly distinguishes the roles and contributions of general and limited partners.
• Taxation: LPs are also treated as partnerships for tax purposes. The income generated by the partnership is passed through to the partners, who are then taxed individually.

Advantages:

• A corporate entity can form a limited partnership
• LPs are considered as separate entities different from their owners; therefore, the liabilities of the owners are limited to their contributions to the entities.
• LPs are not taxed on their profits. All profits can be distributed to the partners

Disadvantages:

• The decision-making process can be slower since all partners must agree before making a decision.
• The number of members cannot exceed 20 persons
• Members are also liable to pay income taxes on their profits

4. Private Limited Company (Ltd)

A Private Limited Company (Ltd) is one of Nigeria's most popular business structures, especially among small and medium-sized enterprises. It is a separate legal entity from its owners, meaning that the company can own assets, incur liabilities, sue, and be sued in its own name.

Key Characteristics:

• Ownership: Between 2 and 50 shareholders.
• Liability: Shareholders have limited liability, meaning they are only liable up to the amount of their shares in the company.
• Taxation: The company pays corporate tax on its profits, and dividends distributed to shareholders are taxed as personal income.
• Formation: Requires at least two directors and a company secretary. The company must be registered with the CAC, and the Memorandum and Articles of Association must be filed.
• Regulation: Subject to more stringent regulatory requirements, including annual returns and financial reporting.

Advantages:

• Limited liability protects shareholders' personal assets.
• Ability to raise capital by issuing shares.
• Perpetual succession: the company continues even if the owners change.

Disadvantages:

• More complex and costly to set up and maintain.
• Regulatory compliance requirements are more demanding.
• Restricted in the transferability of shares.

5. Public Limited Company (PLC)

A Public Limited Company (PLC) is a more complex form of company that can raise capital from the public through the sale of shares. This type of company is often larger and operates on a national or international scale.

Key Characteristics:

• Ownership: A minimum of seven shareholders, with no maximum limit.
• Liability: Shareholders have limited liability.
• Taxation: Subject to corporate tax on profits, and shareholders are taxed on dividends.
• Formation: Requires a minimum of two directors, a company secretary, and registration with the CAC. The company must publish a prospectus before offering shares to the public.
• Regulation: Subject to strict regulatory oversight, including compliance with the Securities and Exchange Commission (SEC) and Nigerian Stock Exchange (NSE) requirements.

Advantages:

• Ability to raise large amounts of capital by issuing shares to the public.
• Limited liability for shareholders.
• Perpetual succession.

Disadvantages:

• Highly regulated with extensive reporting and disclosure requirements.
• More expensive to establish and maintain.
• Vulnerability to market fluctuations and shareholder pressures.

6. Unlimited Company

An Unlimited Company is a less common form of business structure in Nigeria. It is similar to a private limited company but with one key difference: the liability of the members is not limited. If the company is wound up, members may be required to contribute to settling the company's debts without any limit.

Key Characteristics:

• Ownership: Can be owned by one or more individuals or entities.
• Liability: Members have unlimited liability.
• Taxation: Subject to corporate tax on profits.
• Formation: Registered with the CAC, similar to a private limited company.
• Regulation: Less regulatory oversight compared to a PLC.

Advantages:

• Greater flexibility in managing company affairs.
• Can raise capital through equity, though not as easily as a PLC.

Disadvantages:

• Unlimited liability for members.
• Higher risk for shareholders.

7. Company Limited by Guarantee

A Company Limited by Guarantee is a unique type of company typically used for non-profit purposes. This type of company does not have a share capital, and its members do not receive dividends. Instead, the company’s profits are reinvested into its objectives, such as education, charity, or social causes.

Key Characteristics:

• Ownership: No shareholders, only members who act as guarantors.
• Liability: Members' liability is limited to the amount they guarantee to contribute if the company is wound up.
• Taxation: Tax-exempt if registered as a non-profit.
• Formation: Requires approval from the Attorney General of the Federation, in addition to registration with the CAC.
• Regulation: Strict regulation to ensure the company operates within its defined objectives.

Advantages:

• Limited liability for members.
• Suitable for non-profit and charitable organizations.
• Tax-exempt status if conditions are met.

Disadvantages:

• Cannot distribute profits to members.
• Requires government approval, which can be time-consuming.

8. Incorporated Trustees

Incorporated Trustees are entities formed for religious, educational, literary, scientific, social development, cultural, or charitable purposes. This structure is often used by NGOs and community-based organizations.

Key Characteristics:

• Ownership: Managed by a board of trustees rather than shareholders or members.
• Liability: Trustees' liability is limited to the assets of the entity.
• Taxation: Tax-exempt if registered as a non-profit.
• Formation: It can be registered with CAC; however, the consent of the Registrar General must be sought and obtained before the registration.
• Regulation: Must adhere to specific reporting and regulatory requirements to maintain its status.

Advantages:

• Limited liability for trustees.
• Ideal for non-profit activities and social causes.
• Tax-exempt status.

Disadvantages:

• Cannot engage in profit-making activities.
• Strict regulatory oversight.

In conclusion, the choice of a company structure in Nigeria depends on various factors, including the nature of the business, the level of liability protection desired, the potential for raising capital, and the regulatory obligations the business is willing to comply with. Each structure offers distinct advantages and challenges, making it essential for entrepreneurs and investors to carefully consider their options before deciding on the most appropriate form for their business.

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By Corporate & Commercial Law Team at Resolution Law Firm

Email: [email protected]

Tel/WhatsApp: +2348099223322

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