PenCom and First Guarantee Pension: The Fallacies, the Facts

By Rabiu Usman

The National Pension Commission, PenCom, recently announced to the joy of workers and managers of the economy, that the nation’s pension assets hit N5.9 trillion as at September 2016.  That was from about N2 trillion deficit in 2004.

 However, this steady rise in pension assets could not have been possible without sound and strict industry regulation by PenCom.

 PenCom and First Guarantee Pension

 Of the regulatory interventions of PenCom since inception, its sack, in 2011, of the Board of the First Guarantee Pension Limited (FGPL) and institution of an Interim Management Committee (IMC) in line with Section 88(2), Section 20(i), and Section 21(j) of the Pension Reform Act (PRA) 2004 has been largely misrepresented in public domain by mischief makers.

 The former Vice Chairman of the Board of the FGPL, Hon. Nze Chidi Duru and his allies have capitalised on PenCom’s studied silence in deference to litany of lawsuits surrounding the PFA to peddle blatant lies through publications and petitions to different quarters. But if PenCom cannot speak, persons knowledgeable in the industry should be able to speak up.

Why PenCom Struck 

Findings show that PenCom’s regulatory intervention in FGPL was informed by the results of the various regular and special examinations by the regulator on FGPL spanning 2007, 2008, 2009, 2010 and 2011. They all revealed persistent infractions and corrupt corporate governance practices, which exposed pension assets in the custody of FGPL to severe risk.

 For instance, PenCom’s report on the Special Examination in March 2011 indicted Chief Orlando Ojo, the erstwhile Chairman of the PFA; Nze Chidi Duru, erstwhile Vice Chairman of the PFA; and Mr. Derrick Roper, former director of the PFA Novare Holdings (Pty) Ltd, South Africa, of serious violations of the Code of Ethics and Business Practices, Code of Corporate Governance for Licensed Operators issued by the regulator, and provisions Pension Reform Act (PRA) 2004, etc.

 It also accused them of double invoice payments and reckless award of contracts to companies they had interests, while Chidi Duru was specifically alleged to have obtained initial shares with Guardian Express Bank cheques Nos. 221 and 227 as well as a Diamond Bank cheque all totalling N30 million, which value could not be traced to FGPL’s account.

 It was, therefore, in view of the grave implications of the above infractions and need to protect the N42.2 pension assets of over 163,617 Retirement Savings Account (RSA) holders, that PenCom summoned a meeting of all shareholders where the various infractions were revealed to the astonishment and displeasure of stakeholders.

 Based on the negotiated soft-landing at that meeting of 11th May 2011, Nze Duru resigned through a letter dated 21st July 2011. But he later backtracked on the resignation and sued the Commission.

 Is PenCom Disobeying any Court Orders?

 Although Chidi Duru and his allies have consistently accused PenCom of flouting court orders and directives of the Minister of Justice/Attorney General of the Federation (AGF), findings reveal that PenCom has only ensured the maintenance of status quo in FGPL in line with the orders of court. Contrary to the misinformation, the status quo is to stay the execution of the Judgment of the Federal High Court obtained by Chidi Duru pending the appeal separately filed by PenCom and the AGF.

 Curiously also, Duru has failed to disclose in his narratives that the enforcement of the fundamental rights of Derrick Roper and Novare Holdings (Pty) Limited had been stayed, pending the appeal, which is currently before the Court of Appeal, Abuja Division.

 Besides, were PenCom in breach of court orders, there is something in our legal jurisprudence called contempt and the court could have taken care of that.

  The Five-Year Regulatory Intervention

 The argument over the length time spent PenCom’s regulatory intervention vide the Interim Management Committee (IMC) has lasted does make sense as there is no way time spent in the intervention could be considered in disregard to lingering plethora of litigations surrounding the FGPL.

 It can therefore be said that the period of the intervention had been stretched by litigations consistent with the constitutional rights of the parties concerned on one hand and the refusal of the individuals and shareholders involved to make concessions due to their selfish ego.  The resolution of the issues and impasse resulting therefrom can only be attained by judicial intervention, which was opened by Chidi Duru in the first place. PenCom was only compelled to resort to appealing the judgment of Justice Okorowo and the fate of that appeal is also bound by the factor of time.

  Rendering Account of the FGPL

 The misinforming petitions by Duru that the IMC currently running FGPL has not rendered account of the PFA for years in compliance with the Company and Allied Matters Act (CAMA) is just what it is- cheap propaganda.  Findings show that there has been no appropriate Board and Management of the PFA for nearly five (5) years since the regulatory intervention due to the litigations earlier explained. Therefore, non-rendering of the account of the FGPL’s cannot be attributed to PenCom because you can only render account to a properly constituted Board and Management. 

It is even worth mentioning that just like many meetings aimed at settling the impasse, the shareholders AGM on 13th July 2012 pursuant to a directive issued by the Corporate Affairs Commission (CAC), was frustrated by Nze Duru himself vide Suit No. FHC/L/CS/145/2012, which he filed against the shareholders and CAC. The case is still ongoing. So, it is such FGPL shareholders’ duels and ego, not PenCom, that have frustrated efforts to hold AGM/EGMs to resolve the issues in FGPL.

 Alleged Forgery by the Secretary to FGPL with Abetment of PenCom?

 Duru has variously alleged that PenCom instigated the Company Secretary of FGPL, Ms Funmi Oluwo, to forge and file changes in the share structure of FGPL.

 Although the issue of shareholding of FGPL is an internal affair of the company and its shareholder, findings show that in order to ensure good corporate governance practices, PenCom drew the attention of FGPL’s shareholders to the dilution of shares of FGPL allegedly by Nze Chidi Duru, who had been allegedly illegally underwriting perceived allowances and refunds to equities and converting them as shares in the names of his companies.

 Again, since the external solicitors engaged by Nze Chidi Duru as company secretaries of FGPL before PenCom’s regulatory intervention relied upon technicalities to insulate themselves from liability arising from alleged breaches of Code of Corporate Governance in favour of Duru, PenCom introduced a corporate governance practice in the pension industry, compelling operators to appoint Company Secretaries from within.

 Ms. Olowo was an in-house lawyer employed by Nze Chidi Duru himself before PenCom’s regulatory intervention that sacked him. So, why is he challenging the legitimate action of this staff whom he engaged ab initio if not the fear that she knows so much about what transpired regarding the shareholdings and structure of FGPL?

 PenCom must not relent 

Everything considered, PenCom is a creation of law and its actions and activities guided by the relevant statutes and other extant laws and regulations. Even in the instance of FGPL, PenCom deserves commendation for its transparent and timely intervention. As the figures above show, PenCom has turned around FGPL business from loss to profitability and growth in market share.

 The recent “Excellent and Emphatic Leader” award bestowed on the PenCom DG, Mrs. Anohu-Amazu, by the Trade Union Congress also clearly show that we, the Nigerian workers. pensioners, and pension industry stakeholders, appreciate that PenCom leadership insistence on strict regulation and enforcement is to secure and grow our life savings.

 Good enough, President Muhammadu Bubari showed strong political will and backing to PenCom when he commended its enforcement efforts during the last World Pension Summit and tasked it to step on more defaulting toes. So, PenCom must not capitulate. Spurious allegations and shadow boxing should not save offenders from the wrath of the law. 

 –Usman writes from Kebbi