INVESTING IN NIGERIA’S SECURITIES MARKET: DELINEATING THE REGULATORY OVERSIGHT POWERS 

INTRODUCTION

Oftentimes in securities transactions, the scope and limits of the regulatory powers of the various regulators such as the Corporate Affairs Commission ('CAC'), the Securities and Exchange Commission ('SEC'), the Nigerian Investment Promotion Commission ('NIPC') and even the newly created Federal Competition and Consumer Protection Commission ('FCCPC') come under microscopic evaluation. Investors, transaction counsel, the major regulators even sector - specific regulators sometimes engage in extensive negotiations or interface when trying to obtain regulatory approval for a transaction. Experience and practical realities have shown that the default approach of most regulators is to assert as much regulatory powers as possible and subject the transaction to their regulatory crucibles. It then behoves on the parties to the transaction and their counsel to accept or re-evaluate such plenary exercise of regulatory powers.

This Note seeks to highlight the main areas of in-bound securities investments and delineate the regulatory oversight of the main regulators in such transactions. It also looks at how some systemic challenges arising from regulatory interface can impact on the timeous completion of the transaction or the viability of the investment, months or years after its completion and implementation.

MODES OF IN-BOUND INVESTMENTS

In-bound investments mean any investment in securities involving foreign capital importation made by a foreign person (corporate body or individual) or by any Nigerian resident outside the country.[1] These in-bound investments are usually driven by institutional investors e.g. pension funds, unit trust funds, investment trust funds, institutional portfolio managers, nominee companies, asset management companies, or any other corporate body; there are also individual investors who are foreigners and/or Nigerians resident abroad that invest with foreign currency.[2]

Generally, in-bound investments in Nigeria are usually by way of foreign direct investment or portfolio investment.

A foreign direct investment may be carried out by way of 'greenfield investment' - this requires the setting up of a Nigerian company for the purpose of carrying on business in Nigeria. There are instances where the foreign company or investor involved in a greenfield investment will be exempted from registering or incorporating a Nigerian company.[3] The other type of foreign direct investment is what is called the 'brownfield investment' - here the investor buys the shares of an already existing Nigerian company or its core business assets.

Portfolio investment involves purchasing shares in already existing Nigerian companies through the Nigerian capital market or from an existing shareholder of the company. Investments covered by Nigerian securities law include transactions in securities traded on the primary and secondary markets, i.e. equities, government stocks, industrial loan stocks, bonds, unit trusts, investment trust, derivatives or any other securities registered by the SEC.[4]

Any person may invest in all securities traded on the primary and secondary markets or by private placements in Nigeria. Such securities, except those of private companies should be registered by the SEC in accordance with the Act and the rules and regulations made thereunder.[5] The SEC Rules 2013[6] provide for the modalities for portfolio investments and it stipulates that investors - subscribing in primary market securities should effect their transaction through capital market operators; and those transacting business in secondary market securities should effect their transaction through licensed brokers/dealers on the floor of a securities exchange.

The primary market is the new issue market, and it is concerned with the offering of new issues or securities. These new issues could be by way of initial public offer, public offer, right issue or private placement. The secondary market is concerned with the process of selling and buying securities already quoted on the stock exchange. For public companies, this is usually by way of mergers, takeovers and acquisitions. That is not to say that private companies are not involved in mergers, takeovers and acquisitions.  The secondary market provides liquidity in the financial system by providing facility for the easy conversion of investor's holdings into cash. Unlike the primary market, the proceeds from resale of security do not go to the issuer of the security, but to the last preceding investors. The primary and secondary markets are dependent on the primary market. This is so because no securities can be traded on the secondary market that has not been issued on the primary market.[7]

REGULATORY OVERSIGHT

The activities of companies and transactions on their securities were initially regulated exclusively by the CAC by virtue of the Companies and Allied Matters Act, 1990 ('CAMA'). The regulation of company securities transactions was granted to the SEC, when the Investment and Securities Act ('ISA') was re-enacted in 2007. The recent enactment of a Federal Competition and Consumer Protection Act ('FCCPA') has broaden the regulatory landscape; the newly created FCCPC is now charged with the promotion of competition in the Nigerian markets at all levels by eliminating monopolies, prohibiting abuse of dominant market position and penalizing other restrictive trade or business practices. The CAC did however retain general regulatory authority over companies, their management and operations. The NIPC also plays an important role in facilitating in-bound investments by putting in place policies that will promote foreign direct investments and most importantly portfolio investments. A dialogue on regulatory oversight would not be complete, if the regulatory role of the Central Bank of Nigeria in the foreign exchange market and issuance of certificate of capital importation is not mentioned.

1. The Central Bank of Nigeria

The Central Bank of Nigeria ('CBN') is the apex regulator of the monetary system and financial institutions in Nigeria. Akin to this role is that of regulating the foreign exchange market as stipulated by the CBN Act and the Foreign Exchange Monitoring and Miscellaneous Act ('FEMM Act').

An in-bound investment would ordinarily have foreign exchange implications for the prospective investor. Any person may invest in any enterprise or company security with foreign currency or capital imported into Nigeria through an authorised dealer[8] either by telegraphic transfer, cheques or other negotiable instruments in accordance with the provision of the FEMM Act.[9] The authorised dealer is required by law to within 24 hours of importation of the capital, issue a certificate of capital importation to the investor and within 48 hours thereafter, make returns to the CBN giving such information as the CBN may from time to time require.

The benefits of importing foreign currency into Nigerian for investment through the stipulated procedure cannot be overemphasised. Such investors are guaranteed the unconditional transferability of funds, through an authorised dealer in freely convertible currency relating to - dividends or profits (net of taxes) attributable to the investment; payment in respect of loan servicing where a foreign loan has been obtained; and the remittance of proceeds (net of all taxes) and other obligations in the event of sale or liquidation of the enterprise or any interest attributable to the investment.

Recently, the failure to comply with the provisions of the FEMM Act has attracted regulatory sanctions (fines) from the CBN. The rationale for the exercise of this sanction power is that as a regulator, CBN has and routinely exercises quasi-judicial powers including imposing penalties for the infraction of the extant foreign exchange law or CBN Act or the Bank and other Financial Institutions Act. On the otherhand some have questioned the powers of the CBN, given that the extant foreign exchange law provides for the method of computing fines as an administrative sanction for the infringement of the law. Further, another argument against the sanction powers of the CBN, is that it is only a court of competent jurisdiction that can determine the criminal culpability of any persons and apply the penalty stipulated by law and not the CBN who is merely a regulator.

To the best of my knowledge, there are no decided cases on the sanction powers of the CBN as most of the cases instituted by investor or investment banks over foreign exchange dealings were settled out of court or withdrawn by the parties. It is important to note that the CBN has not reneged in the wielding of its sanctions powers in cases of alleged financial infractions or breach of the foreign exchange law. The lesson here is that an investor involved in a security transaction must as a matter of necessity seek the legal guidance of transaction counsel so as to avoid an administrative or regulatory delay to the transaction or subsequent repercussions as a result of an alleged failure to comply with the extant foreign exchange law at the early stage of the investment process.

2. The Securities and Exchange Commission

The ISA and the Securities and Exchange Commission Rules & Regulations made pursuant to the ISA (the 'SEC Rules') are the primary legislations that govern securities transactions in Nigeria. These legislations did recognise that there are other legislations such as the Companies and Allied Matters Act, 1990; Central Bank of Nigeria Act, No. 24 of 1991; Banking and other Financial Institutions Act, No 25 of 1991; Nigerian Investment Promotion Commission Act, No. 16 of 1995; Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, No 17 of 1995[10] that are applicable to a security transaction that involve inflow of investment capital.

The ISA establishes the SEC[11] and confers it with powers to serve as the apex regulatory organization for the Nigerian capital market, carry out the functions and exercise all the powers prescribed in the ISA. Specifically, the SEC[12] is required to amongst others: regulate investments and securities business in Nigeria as defined in the ISA; regulate all offers for securities by public companies and entities, register securities of public companies; register and regulate corporate and individual capital market operator as defined in this Act; register and regulate the workings of venture capital funds and collective investment schemes in whatever form; facilitate the establishment of a nationwide system for securities trading in Nigerian capital market in order to protect investor and maintain fair and orderly markets; keep and maintain a register of foreign portfolio investments; protect the integrity of the securities market against all forms of abuses including insider trading; review, approve and regulate mergers, acquisitions, takeovers and all forms of business combinations and affected transactions of all companies as defined in the ISA; authorize and regulate cross-border securities transactions; enter and seal up the premises of person illegally carrying on capital market operations; in furtherance of its role of protecting the integrity of the securities market, seek judicial order to freeze the assets (including bank accounts) of any person whose assets were derived from the violation of this Act, or any securities law or regulation in Nigeria or other jurisdictions; disqualify persons considered unfit from being employed in any arm of the securities industry; and perform such other functions and exercise such other powers not inconsistent with this Act as are necessary or expedient for giving full effect to the provisions of the ISA.

An evaluative reading of the functions of the SEC shows that the body has wide and far-reaching regulatory powers over securities transactions. These powers are aimed at ensuring the protection of investors; maintenance of a fair, efficient and transparent market and reduction of systemic risk. But they must be exercised within the confines of the law, particularly the enabling law which is the ISA, 2007.[13] The provisions of the ISA are meant not just to regulate the capital market but to serve as a springboard for its rapid development. These provisions strengthened the path to both domestic and foreign investments through the Nigerian capital market by providing for the establishment of new securities exchange market facilities and instruments. They are also aimed at enhancing the efficiency, competitiveness, and transparency of the market in order to improve participation, liquidity, and its international standing.[14]

The need to delineate the functions and powers of the SEC in securities transactions irrespective of whether it is in the primary or secondary markets become even more apparent where one party is a foreign entity or in those transactions where the merging or business combining entities are foreign entities who own or their foreign subsidiary owns Nigerian registered companies. The question then becomes whether the regulatory approval of the SEC should be obtained by the parent companies who are the actual parties to the merger transaction.

The provisions of the ISA envisage that the SEC would exercise regulatory powers over companies and their securities. In the transactions involving business combinations, the ISA and the SEC Rules provide that every of such deals between or among companies in Nigeria shall be subject to the prior review and approval of the SEC.[15] These provisions have filled an open vacuum in the process of the combination of enterprises by preventing monopolistic tendencies or an undue restriction of business enterprises to the detriment of general economic activities in the country. It is important to bear in mind that with the enactment of the FCCPA, the SEC no longer has the powers to review a transaction so as to prevent monopolistic tendencies or an undue restriction of business enterprises: Sections 17 and 104 of the FCCPA.

The definition of 'company' in the ISA is said to mean the same as defined in the CAMA.[16] Section 567 of the CAMA defines a company to mean that which is formed and registered under the CAMA or as the case may be, formed and registered in Nigeria before and already in existence on the commencement of the CAMA. Going by this definition, the SEC can only regulate Nigerian companies and their securities. Thus, when a business combination will be done overseas between foreign parent companies, the SEC has no regulatory role to play. At best, the new entity created by this combination will only be required to regularise its interest in the Nigerian entities by filing relevant returns with the CAC.

The powers of the SEC are domesticated as to the parties, same is the case even if the transaction will be consummated in an international capital market, the SEC can only regulate a Nigerian company involved in that transaction. No provision in the ISA nor the SEC Rules and Regulations confers extraterritorial powers or jurisdiction to regulate non-Nigerian companies or offshore transactions between two non-Nigerian companies, simply because they directly or indirectly own Nigerian registered subsidiary companies. There are policy considerations for this position. The Nigerian legislature cannot through its enactments legislate for companies, persons or offshore transactions that do not touch or concern Nigeria. Even international financial centers that seek the highest standards of transparency and probity in their markets are reluctant to advance a policy that their securities laws have an extra-territorial effect.[17]

A prospective investor or the transaction counsel interfacing with the SEC in its role as the apex securities or even competition regulator may sometimes experience standoff especially in those instances where the SEC is seeking to maximise or assert plenary powers that the investor considers ultra vires. It is interesting to note that in its bid to ensure a 'speedy' determination of securities investment disputes, the ISA made provisions for an Investments and Securities Tribunal ('IST') which shall to the exclusion of any other court of law or body in Nigeria exercise jurisdiction to hear and determine any question of law or dispute involving amongst others: a decision or determination of the SEC in the operation and application of the ISA and in particular to any dispute between capital market operator and clients; between an investor and a securities exchange or capital trade point or clearing and settlement agency; an investor and the SEC; an issuer of securities and the SEC.

The merit and demerit of this administrative system of dispute resolution is a topic for another paper, particularly when one takes into account that the Federal High Court by the virtue of the 1999 Constitution of Nigeria as amended, has exclusive jurisdiction over companies and its operations; as well as matters involving agencies of the Federal Government of Nigeria of which the SEC is one. In theory a specialised administrative dispute resolution system that deals with securities disputes as created by the ISA is desirable, but practice has shown that IST might just be another layer added to the adjudicatory process. Savvy investors and transaction counsel would rather work out a solution with the SEC so as to get their transaction approved and completed within stipulated time or in the worst case scenario; approach the Federal High Court as the court of first instance to resolve their securities dispute.[19]

3. The Federal Competition and Consumer Protection Commission

The Federal Competition and Consumer Protection Commission ("FCCPC") is a creation of the Federal Competition and Consumer Protection Act ("FCCPA"). Section 17 of the FCCPA charges the FCCPC with the promotion of competition in the Nigerian markets at all levels by the eliminating monopolies, prohibiting abuse of dominant market position and penalizing other restrictive trade or business practices. Section 104 of the FCCPA further provides that notwithstanding the provision of any other law, but subject to the provisions of the Constitution of the Federal Republic of Nigeria, in all matters relating to competition and consumer protection, the provision of this FCCPA shall override the provision of any other law.

Unlike most Nigerian enactments, the FCCPA has extra-territorial applicability. The FCCPA applies to conduct outside Nigeria under a defined scope: (a) a citizen of Nigeria or a person ordinarily resident in Nigeria; (b) a body corporate incorporated in Nigeria or carrying on business within Nigeria; (c) any person in relation to the supply or acquisition of goods or services by that person into or within Nigeria; or (d) any person in relation to the acquisition of the shares or other assets outside Nigeria resulting in the change of control of a business, part of a business or any asset of a business in Nigeria. So long as the FCCPC is authorised by the National Assembly through the FCCPA to regulate extra-territorial conducts that touch and concern Nigeria, the validity of its provision cannot be successfully questioned or challenged.

In terms of M&A transactions, Part XII of the FCCPA provides for such matters. The FCCPA is empowered to approval a proposed merger subject to the notification of threshold to be determined from time to time. Unlike the provisions of the ISA and the SEC Rules, the FCCPA simply states that the threshold for a "small merger" or "large merger" shall be stipulated by the FCCPC through its regulations. The FCCPA did exempt a party to a merger determined as a "small merger" pursuant to the FCCPC Regulation, from notifying and obtaining the approval of the FCCPC unless it is required to do so by the FCCPC. It is important to bear in mind that the FCCPC still has the statutory powers within six months after a small merger is implemented, to require the parties to notify it of the merger in the prescribed form and manner; if in the opinion of the FCCPC having regards to the provision of the section, the merger may substantially prevent or lessen competition.

When considering a merger or a proposed merger, the FCCPC is required to (a) determine whether or not the merger is likely to substantially prevent or lessen competition, by assessing the factors set out in subsection (2); (b) if it appears that the merger is likely to substantially prevent or lessen competition, then determine - (i) whether or not the merger is likely to result in any technological efficiency or other pro-competitive gain which will be greater than or off-set, or is likely to result from the merger and would not likely be obtained if the merger is prevented, and (ii) whether the merger can or cannot be justified on substantial public interest grounds by assisting the factors set out in subsection (3); (c) otherwise, determine whether the merger can or cannot be justified on substantial public interest grounds by assessing the factors set out in subsection (3).

In assessing the strength of the competition in the relevant market and the probability that the undertaking in the market after the merger will behave competitively or co-operatively, the FCCPC is required to take into account any factor that is relevant to the competition in that market including - the actual and potential level of import competition in the market; the ease of entry into the market; tariff and regulatory barriers; the level and trends of concentration and history of collusion in the market; the degree of countervailing power in the market; the dynamic characteristics of the market, including growth, innovation and product differentiation; the nature and extent of vertical integration in the market; whether the business or part of the business of a party to the merger or proposed merger has failed or is likely to fail; and whether the merger or proposed merger will result in the removal of an effective competitor.

When it appears that a merger or proposed merger is likely to substantially prevent or lessen competition, the FCCPC shall determine if the merger is likely to result in any technological efficiency or other pro-competitive advantage which will be greater than and offset the effect of any prevention or lessening of competition, while allowing consumer a fair share of the resulting benefit; and whether the merger can or cannot be justified on substantial public interest grounds by assessing factors such as effect on (a) a particular industrial sector or region; (b) employment; (c) the ability of national industries to compete in international markets; and the ability of small and medium scale enterprises to become competitive.

The FCCPC is empowered to revoke its own decision to approve or conditionally approve a small or large merger if (a) the decision was based on incorrect information for which a party to the merger is responsible; (b) the approval was obtained by deceit; (c) the parties fail to implement the merger within 12 months after the approval was granted; or (d) an undertaking concerned has breached an obligation attached to the decision of the FCCPC approving the merger. When the FCCPC exercises its powers to revoke, it may prohibit a merger even though any time limit set out under the relevant provision of the FCCPA may have elapsed and the merger was approved on account of the failure of the FCCPC to reach a decision within the period stated under this FCCPA.

The FCCPA also confers the FCCPC with the powers to hear any person other than parties to a merger transaction, who, in the opinion of the FCCPC is able to assist in making a determination or merger notification. This can be done through a public or private hearing and notice of the date, time and place so appointed and of the matter to be considered at the hearing shall be given to the persons entitled to be present at the hearing.

4. The Corporate Affairs Commission

Section 1 of the CAMA establishes the CAC. The Section provides that the CAC shall be a body corporate with perpetual succession and a common seal, capable of suing and being sued in its corporate name and of acquiring, holding or disposing of all property for the purpose of its functions.

Section 7 of the CAMA provides for the functions of the CAC and these are to: administer the Act including the regulation and supervision of the formation, incorporation, registration, management and winding-up of companies under or pursuant to the Act; establish and maintain companies registry and offices in all states of the Federation, suitably and adequately equipped to discharge its functions under the CAMA or any other law in respect of which it is charged with responsibility; arrange or conduct an investigation into the affairs of any company where the interest of the shareholder and the public so demand; perform such other functions as may be specified by an Act or enactment; and undertake such other activities as are necessary or expedient for giving full effect to the provision of the CAMA.

Of great importance to this Note are the provisions of Sections 7(a) - (b) of the CAMA. Prospective investors would usually, interface with the CAC during the incorporation and registration of a Nigerian company; the constitution or reorganisation of the board of directors; or during the course of any dealings on its securities by way of transfer, purchase, transmission etc. Its role as a registry for companies cannot be treated lightly as any meaningful information about the affairs of a company can and is usually available at the CAC. The above functions of the CAC should not be implemented or read to conflict with the powers, duties or jurisdiction of the SEC as provided by the ISA.

In a security transaction, it is expected that at completion, the parties are to carry out filings of statutory documents and corporate forms at the CAC. This will enable the CAC comply with its functions of maintaining and updating the company's information in its registry. Nevertheless, there may be challenges when the records or statutory documents and returns of a regulated entity are not up to date in the company's file at the CAC, or the investing company is not registered with the CAC, but they are involved in a transaction that involves the securities of a registered company. This may lead to the CAC withholding its approval to the filing of statutory documents and corporate forms relating to the transaction, subject to the update of the company's file or the carrying out of a know your client (KYC) exercise on the unregistered entity. Envisaging that these challenges are likely to arise, the draftsman of the CAMA unlike the ISA, included a provision that states that the CAC may apply to the court for direction in respect of any matter concerning its duties, powers and functions; and make such further order as it thinks fit in the circumstances.[20] Further, the CAC may conduct enquires with respect to the compliance with the provisions of the CAMA by any person or company.[21]

The implication of this Section 563 of the CAMA is that in those transactions of first impression, gray areas, or where the CAMA appears to be silent or somewhat 'self-contradictory'; the CAC is required by law to approach the court and seek for direction. There is no doubt that this provision is business-friendly and it allows for a timeous resolution of any disagreement between the CAC and the parties to the transaction especially when the issue involves the extent and scope of the CAC's regulatory powers and duties.

5. The Nigerian Investment Promotion Commission

The NIPC is a creation of the Nigerian Investment Promotion Commission Act No.16 of 1995. It is a body corporate with perpetual succession and a common seal and may sue and be sued in its corporate name.

The primary function of the NIPC is to encourage, promote and co-ordinate investment in the Nigerian economy and accordingly it is required to amongst others - promote investment in and outside Nigeria through effective promotional projects; register and keep records of enterprises to which this Act applies; collect, collate, analyse and disseminate information about investment opportunities and source of investment capital and advise on the availability, choice or suitability of partners in joint-venture projects; register and keep records of enterprises to which the NIPC Act applies; maintain liaison between investors and ministries, government department and agencies, institutional lender and other authorities concerned with investments; assist incoming and existing investors by providing support services; advice the government on policy matters including fiscal measures designed to promote the industrialization of Nigeria or the general development of the economy; participate in the negotiation of investment promotion and protection agreement (IPPA) and other functions as are supplementary or incidental to the attainment of the objectives of the NIPC Act.

In relation to securities transactions, the NIPC Act authorizes a foreign investor to buy the shares of any enterprise in any convertible foreign currency. The Act also stipulates that the purchase of the shares of any Nigerian enterprise shall be completed through the Nigerian Stock Exchange.[22]

Of great significances are the investment protection assurances to investors that the NIPC Act provides. These protections are that - no investment shall be nationalized or expropriated by any government of the federation; no person who owns, whether wholly or in part, the capital of any enterprise shall be compelled by law to surrender his interest in the capital to any other persons; there will be no acquisition of an enterprise by the Federal Government unless the acquisition is in the national interest or for a public purpose under the law which makes provision for: (a) payment of fair and adequate compensation, and (b) a right of access to the courts for the determination of the investor's interest of right and the amount of compensation to which he is entitled. There is also a dispute settlement provision, which allows an investor and the government to settle by negotiation or as a last resort, submit to arbitration a dispute arising from an investment in Nigeria.

The pivotal role of the NIPC in regulating in-bound investments, requires a foreign investor to register with the NIPC considering that it is the government agency that coordinates and monitors all investment promotion activities in Nigeria. This function gives the NIPC an oversight power over a foreign entity seeking to invest in Nigeria as documents relating to that entity, source of funding and the nature of investment will be evaluated by the relevant regulatory bodies before registration is carried. The One-Stop Investment Centre ('OSIC') set up by the NIPC creates an investment facilitation mechanism where relevant government agencies are brought to one location, co-ordinated and streamlined to provide efficient and transparent services to investors. In addition, the OSIC provides statistical data and information on the Nigerian economy, investment climate, legal and regulatory framework as well as sector and industry-specific information to aid existing and prospective investors in making informed business decisions.

Given its statutory and administrative functions, it appears that to the extent an investment touches or is to be carried out in Nigeria, a foreign investing entity seeking to participate would have to go through the regulatory crucibles of the NIPC particularly in relation to obtaining permits, licences and certificates required by some sector-specific regulators. However, it is suggested that the OSIC should provide a checklist of the documentation processes a prospective investor could have to comply with, as this would shorten and simplify the various registration and administrative procedures as well as reduce the cost of doing business.

CONCLUSION

An understanding of the role of the regulators in securities transactions whether in the primary market or secondary market remains a crucial investment determinant. Investors and their transaction counsel must possess the skills required to navigate the Nigerian investments regulatory landscape, if the transaction is to be completed within stipulated time or saved from avoidable regulatory scrutiny months or years after the transaction has already been completed and implemented.

To create an investment climate anchored on certainty and predictability, the main sector regulators for securities transactions such as the CAC, SEC, FCCPC and NIPC should synergise to ensure that there is a given measure of policy consistency as it relates to their regulatory oversight powers. Their regulatory roles though different are closely related and involve investments, companies - their management and operations. With the exception of complex transactions or transactions of first impression, there should be a given measure of certainty as to processes, durations and outcomes across these commissions and their branch offices when the issue of regulatory interface arises or approval of a transaction is sought.

*Author - Ikemefuna Stephen Nwoye Esq.

Disclaimer: This article (first published on 27 January 2019 and updated on 21 May 2019) should not in any way serve as a substitute for a legal advice or opinion. This updated version takes into account the role of the newly created Federal Competition and Consumer Protection Commission as a regulator in the Nigerian Securities Market. The views expressed are personal to the author . 

Endnotes:

[1] See Rules 405 of the SEC 2013 which defines foreign investment.

[2] Ibid.

[3] See Section 56(1) of the CAMA.

[4] Rule 405 of the SEC Rules 2013.

[5] Rule 406 of the SEC Rules 2013

[6] Rule 410 of the SEC Rules 2013.

[7]Nwachukwu Cecil Okubor, The Role of Securities and Exchange Commission in Public Issue of Securities and the Structure of the Nigerian Capital Market. Available at https://www.ajol.info/index.php/naujilj/article/view/136297/125787. (accessed on 21 December 2018)

[8]Section 41 of the FEMM Act defined an "Authorised Dealer" as any bank licensed under the Banks and Other Financial Institutions Act, and such other specialize bank and issue with licence to deal in foreign exchange.

[9]Section 15 of the FEMM Act.

[10] See Part H1 of the SEC Rules 2013. This is not in any way an exhaustive list of the legislations that may have implications for transactions that involve in-bound investments. There are other legislations that are of importance such as the Nigerian Investment Promotion Commission Act, Stamp Duties Act, Federal High Court Act etc.

[11] Section 1(1) of the ISA 2007.

[12] Section 13 of the ISA 2007.

[13] Ebong v. Securities and Exchange Commission (2017) LPELR - 43547 (CA).

[14] Supra 7.

[15] Section 118(1) of the ISA and Rule 423(1) of the SEC Rules, 2013.

[16] Section 315 of the ISA.

[17]In Morrison v. National Australia Bank Limited whilerelying on the EEOC v. Arabian American Oil Co. 499 U.S 244, 248 decision, the U.S Court of Appeal for the Second Circuit held that it is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.

[18]Section 128 (1) of the ISA 2007.

[19] Section 251(1)(e) of the 1999 Constitution of Nigeria as amended.

[20] Section 563 (1) of the CAMA. There is also the Companies Proceeding Rules that stipulate the means of filing an application that involves matters pertaining to a company.

[21] Section 563 (2) of the CAMA.

[22] The shares of private companies or unquoted public companies are not transferable on the floor of the Nigerian Stock Exchange. Recently, the NASD OTC was established to take care of deals involving the shares of unquoted public companies.