In an increasingly interconnected world, companies often seek diverse talent, including foreign nationals, to serve in key positions such as General Counsel or Company Secretary. However, when it comes to hiring foreign professionals in Nigeria, there are specific legal frameworks and regulations that must be adhered to.

This article provides an in-depth analysis of whether a foreign national can legally serve as both General Counsel and Company Secretary in a Nigerian company, highlighting the relevant provisions of the law and practical considerations.

1. The Role of General Counsel and Company Secretary: Understanding the Differences

Before delving into the legalities, it is crucial to understand the distinction between these two roles:

● General Counsel: Typically serves as the chief legal officer of a company, providing comprehensive legal advice, overseeing legal strategy, and ensuring compliance with local and international laws. This role often requires a deep understanding of the legal system in which the company operates.

● Company Secretary: Acts as an administrative officer responsible for ensuring that the company adheres to corporate governance

standards, statutory compliance, and regulatory obligations. In Nigeria, this role also involves preparing board meeting minutes, filing statutory returns, and maintaining company records.

Both positions are vital, but they have distinct responsibilities. A foreign national seeking to fill either or both roles must navigate specific legal and regulatory requirements in Nigeria.

2. Legal Framework for Foreign Nationals Practicing Law in Nigeria

The primary legislation that governs the practice of law in Nigeria is the Legal Practitioners Act (LPA), 1975. This Act outlines who can practice law within the country, with specific emphasis on being called to the Nigerian Bar.

According to Section 2 of the LPA, only individuals whose names are on the Roll of Legal Practitioners in Nigeria can practice as lawyers. This means that for a foreign national to act as General Counsel and provide legal services in Nigeria, they must meet the following criteria:

1. Be Called to the Nigerian Bar: Foreign-trained lawyers who wish to practice law in Nigeria must attend the Nigerian Law School, pass the Bar examinations, and be called to the Nigerian Bar. This allows their names to be included on the Roll of Legal Practitioners.

2. Obtain a Practicing License: Even after being called to the Nigerian Bar, legal practitioners must obtain an annual practicing license to be eligible to provide legal services.

Given these stipulations, a foreign national who has not undergone the necessary process of being called to the Nigerian Bar cannot function as General Counsel in the full capacity of providing legal advice or representing the company in legal matters. However, they may serve in an advisory capacity or as an in-house counsel on matters involving international law or foreign jurisdictions.

3. Legal Provisions for Foreign Nationals as Company Secretaries

The appointment of company secretaries in Nigeria is governed by the Companies and Allied Matters Act (CAMA), 2020. CAMA sets out specific requirements for the appointment of company secretaries, particularly for public companies.

Section 330 of CAMA stipulates that every public company must have a company secretary, while Section 331 provides the qualification criteria for a company secretary, which include:

● Being a member of the Institute of Chartered Secretaries and Administrators of Nigeria (ICSAN);

● Being a legal practitioner within the meaning of the Legal Practitioners Act;

● Being a member of a recognized professional body; or

● Having requisite experience and having held the office of company secretary or a similar position in a public company for at least three

years.

While the Act does not explicitly prohibit foreign nationals from serving as company secretaries, it implies that they must meet the professional qualifications recognized in Nigeria. Additionally, a foreign national would need to satisfy work permit and residency requirements, as governed by the Nigerian Immigration Service and the Federal Ministry of Interior.

4. Immigration Requirements and Work Permits for Foreign Nationals

Even if a foreign national meets the legal qualifications under CAMA and the Legal Practitioners Act, there are additional immigration requirements that must be met:

● Expatriate Quota Approval: A Nigerian company must obtain expatriate quota approval to employ a foreign national for specific roles.

This approval is granted by the Federal Ministry of Interior and specifies the position the foreign national will occupy, ensuring that it is not one that could easily be filled by a Nigerian citizen.

● CERPAC (Combined Expatriate Residence Permit and Aliens Card): This serves as both a residence permit and work authorization for

foreign nationals. Without a valid CERPAC, a foreign national cannot legally work in Nigeria.

Failure to obtain these permits and approvals can result in penalties for both the foreign national and the company employing them.

5. Conclusion: Can Foreign Nationals Hold Both Roles in Nigeria?

In summary, while foreign nationals can theoretically serve as both General Counsel and Company Secretary to a Nigerian company, there are several regulatory and practical hurdles to consider:

● For the role of General Counsel, the individual must be called to the Nigerian Bar and obtain a practicing license. Without these, the foreign national’s role would be limited to advisory or consultancy services.

● For the role of Company Secretary, CAMA does not expressly restrict foreign nationals from holding this position, but they must meet the qualifications recognized in Nigeria and comply with immigration laws.

Companies considering appointing foreign nationals to these key positions should seek expert legal and immigration advice to ensure compliance with all statutory and regulatory requirements.