How PENCOM defied Court orders to seize pension firm, triggering prolonged battle

A lengthy ownership tussle triggered by a 2011 takeover of one of Nigeria’s top pension administrators, has sparked fresh allegations of fraud and forgery.

First Guarantee Pension Limited was taken over by the regulator, the National Pension Commission, PENCOM, in defiance of multiple court orders and directives from the nation’s Attorney General.

The decision has remained in place for five years amid conflicting claims that the commission lacks powers to take over pension administrators.

Now, some shareholders are accusing the Director-General of the National Pension Commission, PENCOM, Chinelo Anohu-Amazu, of failing to render accounts of the FGPL, in violation of the Companies and Allied Matters Act which mandates yearly filings of a company’s financial report.

They also accuse an official appointed by PENCOM to run the firm of forgery.

Mrs. Anohu-Amazu turned down repeated requests for interview over months. She did not also respond to questions sent to her office through PENCOM’s spokesperson. She also declined responding to letters, telephone calls and text messages from PREMIUM TIMES for this report.

History of controversy

The controversy began in March 2011 after FGPL sacked Wilson Ideva as its managing director.

Three weeks after Mr. Ideva’s removal, PENCOM wrote to the management of the firm, informing it of a pending stress test to evaluate the company’s viability.

The notification curiously came less than a month after FGPL had been given a clean bill of health by the same regulator.

In February 2011, shortly before Mr. Ideva was fired, PENCOM had declared FGPL the “most improved pension fund administrator”.

The rating was based on the company’s performance in 2010, the year it paid out its first ever dividends to shareholders since entering market in 2004.

Mrs. Anohu-Amazu was the Company Secretary/Legal Adviser at PENCOM at the time. (She was appointed acting director-general in 2012, and later confirmed as director-general in 2014.)

In June 2011, PENCOM released its report of the stress test, and predictably, the verdict was damning.

Titled: “Target Examination Report of First Guarantee Pension Limited”, the report accused the FGPL’s directors of malfeasance, and moved to replace them with an interim management.

The seven-man Board of Directors of the company at the time comprised Orlando Ojo, chairman; Nze Duru, vice chairman; Derrick Roper, director; Tsegba Tsengu, director; Johan Henn, director; and Frank Nweke, an independent director.

It is not clear what role the removal of Mr. Ideva exactly played in the unfolding events.

But a year later after he was fired, Mr. Ideva was hired by a rival PFA, Premium Pension Limited, which is run by the family of the Pencom Director-General, Chinelo Anohu-Amazu.

Defying the Courts

After initial efforts to negotiate failed, South African Novare Holdings, which is one of FGPL shareholders, instituted a court action to restrain PENCOM from interfering in the affairs of FGPL and its shares.

On August 11, 2011, the Abuja Division of the Federal High Court ordered PENCOM to stay all actions.

The presiding judge, Justice Donatus Okorowo, ordered all parties in the case to maintain the status quo pending determination of the substantive suit.

But on August 15, 2011, PENCOM, defied the ruling and dissolved the management of FGPL and appointed an interim management committee.

The regulator appointed Funmi Oluwo as the compliance officer, while names of FGPL original directors remained at the Corporate Affairs Commission as the genuine managers of the company.

Ms. Oluwo was later named secretary/legal adviser of the firm on December 12, 2011.

Analysts say the emergence of Ms. Oluwo contradicts Section 296 of the Companies and Allied Matters Act which says a secretary shall be appointed by the directors.

But on August 17, 2011, the then Attorney-General of the Federation, Bello Adoke, wrote to PENCOM, urging it to respect the court orders.

Without compliance, Mr. Adoke sent a reminder on September 8, 2011. PENCOM continued to administer FGPL.

Illegal take over?

Aggrieved shareholders say the takeover of the company was illegal. They argue that Section 82 of the Pension Act requires that the regulator, PENCOM, presents the findings of its stress to the evaluated PFA’s board for action.

They also argue that the commission lacks the powers to take over a PFA. Other analysts back that claim.

“Unlike the CBN, PENCOM does not have the power to sack the board of a company,” said Liborous Oshoma, a Lagos-based lawyer.

“The essence of the administration is the fund. Without the fund the company effectively becomes carcasses. So that is why the system is made so complicated that it is almost impossible for a PFA to mismanage money.

“The only thing PENCOM could do if there’s any misconduct on the part of a PFA is to have negotiation. Where that fails, then you can be talking about moving assets away but not the board.”

The respective Section 88 of the PENCOM Act 2004 says “Notwithstanding the provisions of any other law without prejudice to the penalties stipulated under this Act, the Commission shall, in addition to the penalties stipulated under this Act, cause to be removed from office any director or officer of a pension fund administrator or custodian that violates the provisions of sections 60 and 86 of this Act.”

An amendment of that law after the 2011 takeover, gave explicit powers to the commission to appoint replacements.

A PREMIUM TIMES’ review of court documents and FGPL filings at the Corporate Affairs Commission show cases of arbitrariness.

The first is the appointment of Ms. Oluwo as secretary by FGPL’s Head of Corporate Services, Nneka Amobi.

Analysts say the decision violates CAMA and memorandum and article of the FGPL, as the appointment of a company secretary/legal adviser is a responsibility of company’s board, not a staff.

More so, Ms. Oluwo’s appointment came with conflicting designations, highlighting the controversy surrounding PENCOM’s decision.

On December 13, she signed a letter as the compliance officer of FGPL, and two days later, wrote to the Corporate Affairs Commission as acting company secretary/legal adviser.

Three days after, Ms. Oluwo described herself in letters to regulators as company secretary/legal adviser, compliance officer and acting company secretary/legal adviser.

Forgery too

Shareholders say In the December 15 letter, Ms. Oluwo submitted a forged CAC2 of FGPL with names of individuals who signed as directors of the company.

In that filing, PENCOM altered the shareholding structures of FGPL and completely removed Novare Holdings’ shares and substantially reduced the shares of other shareholders, BP Outsourcing and Grand Towers.

They also say that on July 13, 2012, Ms. Oluwo “forged” the resolution of shareholders of FGPL purporting to change the Directors of FGPL at a meeting held at Valencia Hotel Abuja same day. This was filed with the Corporate Affairs Commission.

“If you check the CAMA Act you’ll see that what Pencom did in connivance with Ms. Oluwo amounts to forgery,” Mr. Duru said.

Sections 234 and 237 of Companies and Allied Matters Act say such decisions shall only be passed at general meetings.

This was done in defiance of an earlier order by another judge of the Lagos Division of the Federal High Court restraining the holding of an Annual General Meeting of FGPL scheduled for July 13, 2012 at Transcorp Hilton Hotel.

The judge, Okechukwu Oke, relied on Section 217 and 218 of Companies and Allied Matters Act which outlined the requirements for convening shareholders’ meeting.

He restrained Ms. Oluwo from holding the AGM, and ordered that she desist from substituting the names of FGPL original directors.

Ms. Oluwo declined comments for this story, saying she is only an employee of the company working under instructions from her superiors.

Shareholders kick

On July 18, less than a week, Mr. Okorowo delivered his judgement in the Novare Holdings vs. Pencom case.

In his ruling, Mr. Okorowo slammed PENCOM’s takeover of FGPL and the actions of Ms. Oluwo as prejudicial and ordered them to reverse their activities.

The FGPL shareholders have taken steps to retrieve control of their firm from PENCOM, including sending petitions to President Muhammadu Buhari.

The shareholders urge the president to order full investigation into the activities of PENCOM in the affairs of FGPL for the past five years that it had failed to render account to the shareholders as well as all the infractions and abuse of court process.

The shareholders at a requisitioned emergency general meeting on March 28, 2016 appointed George Ozodinobi as the chairman of FGPL. But PENCOM thwarted the move and refused to hand over to him.

Mr. Ozodinobi told PREMIUM TIMES that the takeover has adversely affected the performance of FGPL in the market.

“People are stuck with FGPL now because PENCOM has made it impossible for them to change their PFA in defiance of the law,” he said.

Novare Holdings has, once again, approached the Lagos Division of the Federal High Court to reverse the elimination of its shares in FGPL.

The shareholders also accused Mrs. Anohu-Amazu of plotting to transfer FGPL portfolio to Premium Pension, where her brother, Victor Anohu, is a director.

Mrs. Anohu-Amazu’s mother was also a long time director in Premium Pension before stepping down after two terms.

“The reason why they’re frustrating us is because they want to collapse our company into Premium Pension which is their family business,” Mr. Ozodinobi said.

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