The Negative Implications of Oando’s Probe by SEC

The investigation of Oando’s operations by the Securities and Exchange Commission is sending wrong signals to companies and investors and capable of affecting the market negatively. The final outcome of the current investigations by the Securities and Exchange Commission (SEC)  into the operations of Oando Plc,  Nigeria’s largest indigenous oil & gas company, will go a long way in determining the level of confidence in the nation’s capital market.

While companies get listed in capital market to extract value for themselves, government and shareholders, investors buy shares in order to reap good returns on their investments. On the other hand, the regulators   in the market, SEC and the Nigerian Stock Exchange (NSE) are there to ensure that these objectives of companies, investors and other stakeholders are achieved. However, recent   actions by SEC regarding Oando Plc is being monitored by many stakeholders both locally and internationally  and it would go a long way to shaping the perception of investors about the  capital market in particular and the economy in general. Writes Bennett Oghifo

The Genesis
The decision by the SEC to probe Oando Plc began following petitions by Ansbury Inc. and Alhaji Dahiru Mangal.  The Securities & Exchange Commission (SEC) yesterday directed the Nigerian Stock Exchange (NSE) to place the shares of Oando Plc be placed on suspension.
The duo two had   petitioned SEC, claiming majority shareholding in Oando Plc and  that the  company was being mismanaged by  the Wale Tinubu-led management.
They had sought the removal of Tinubu as Group Chief Executive Officer of the company   so as to save it   from going under.
SEC, Wednesday, last week,  said   it carried out a comprehensive review of the petitions and  found: breach of the provisions of the Investments & Securities Act 2007; breach of the SEC Code of Corporate Governance for Public Companies; suspected insider dealing;  suspected related party transactions not conducted at arm’s length and  discrepancies in the shareholding structure of Oando Plc among others.
According to the regulator, these findings are weighty and therefore need to be further investigated.

Suspension of Trading in Shares
SEC said its   primary role as apex regulator of the Nigerian capital market is to regulate the market and protect the investing public, noting that the above findings are weighty and therefore needed to be further investigated.
The regulator added that after due consideration, the commission believes that it is necessary to conduct a forensic audit into the affairs of Oando Plc. This is pursuant to the statutory duties of the Commission as provided in section 13(k), (n), (r) and (aa) of the ISA 2017.
“To ensure the independence and transparency of the exercise, the forensic audit shall be conducted by a consortium of experts made up of auditors, lawyers, stockbrokers and registrars.”
SEC explained that to  further ensure that the interest of all shareholders of Oando Plc are preserved during the course of the exercise,  it directed the NSE  to place the shares of Oando Plc on technical suspension.
“However, in view of the fact that it is not technologically feasible for the exchange to effect a technical suspension except after 48 hours, the Commission directed as follows. Effective for 48 hours from today, 18 October 2017 to 20 October 2017, the NSE  should implement a full suspension in the trading of the shares of Oando Plc and effective from 20 October 2017 and until further directive,  the exchange  should implement a technical suspension in the shares of Oando Plc.”

Oando Reacts to SEC’s Actions
Although   Oando recognises SEC as the market regulator, it has said the actions of the commission appear to be biased and illegal.  Oando said in a statement that   the SEC’s directives are illegal, invalid and calculated to prejudice the business of the company.
Dissatisfied with the most recent actions taken by the SEC and to safeguard the interests of the company and its shareholders immediately, Oando took steps to file an action with the Federal High Court (FHC), Ikoyi, Lagos, against the SEC and the NSE.
And on Monday,   October 23, 2017 the company obtained an ex-parte order from the FHC granting an interim injunction, via an order restraining the NSE from effecting the directive of the SEC to implement a technical suspension of the shares of the company, and an order restraining the SEC from conducting any forensic audit into the company’s affairs pending the hearing and determination of the matter.
According to the company, the  NSE and SEC were served with the court order on Tuesday, October 24, 2017 and the NSE and the SEC were  legally obliged to comply with the interim orders pending the substantive determination of the suit.
However, an  Oando source advised that the company’s reasons for taking this stance against the commission is the clear bias that has been shown towards the petitioners and the mismanagement of the investigation from inception.
Oando has raised questions as to why the Commission has investigated a petition brought on by an indirect shareholder (Ansbury Inc.) domiciled outside Nigeria, in a jurisdiction outside the SECs purview and one currently in arbitration court in the United  Kingdom when the SEC’s Complaints Management Framework says it shall not consider any matter which is currently in arbitration.
Furthermore, in a recent letter to Oando, the SEC re-categorised the petitioner as a “whistle blower”, contrary to its former position as a “shareholder”, which according to Oando shows a clear bias as it suggests the SEC re-categorised the petitioner’s position to ensure it is able to carry on investigating the petitions.
In the Company’s statement, it highlights letters sent by its Chairman HRM Oba M. A. Gbadebo to the Director General of the SEC ‘Mounir H. Gwarzo’ alleging bias and lack of due process in the way and manner in which the SEC has conducted this investigation. It goes on to say that the chairman asked to be granted an audience to present the company’s case, a request that the SEC repeatedly denied, whilst the regulator has granted an audience to Ansbury Inc and gone so far as to offer what is tantamount to legal advice to them.
Oando stated that  that the most recent action taken by the regulator confirms that the commission appears to be working to its own conclusion rather than looking at the facts before it, and acting in the best interests of the company and the minority shareholders whom it claims it seeks to protect.
To further reinforce the company’s strong reservations with the SEC’s findings, Oando outlined all of the alleged infractions identified by the SEC and details  its  position, for the most part disagreeing with SECs pronouncements and going so far as to highlight the prescribed penalties as set out by the regulators for said infractions none of which singularly or together warrant the institution of a forensic audit, full or technical suspension of trading of the company’s shares on the NSE.
According to the company,  it does not believe that the SEC has presented a strong enough case to support the engagement of a forensic auditor to conduct a forensic audit into their affairs and highlights seven reasons to support this belief.
Reasons include SEC requesting a forensic audit in order to investigate whether its findings are true which is a clear contradiction.
“How did the SEC arrive at its findings if it cannot be sure of the veracity of those findings, and more importantly how did it ascribe the appropriate level of weight to be given to those findings, enough to warrant an immediate suspension followed by a technical suspension of the shares of the company, especially if those findings are still mere allegations at this point, as the Commission has clearly communicated? ,” the company queried.
In a letter from the SEC, the Commission informed Oando that the N160 million cost of the forensic audit will be borne by the company, to which Oando responded by saying that this must be an error in light of all its submissions to date, and not the best use of shareholder funds at this time.
Also,  the company has highlighted that in the letter sent to Oando by the SEC, both the petitioners were copied, Alhaji Mangal and Ansbury Inc. Oando stressed  that it is unheard of and prejudicial for petitioners to be copied on correspondence to the investigated party on findings yet to be concluded.

Shareholders’ Concerns
Some shareholders of Oando have    raised concerns that if an indirect and foreign shareholder could wield so much power over a public listed company, with the backing of the SEC, with no regard for all the other shareholders, then none of us is safe.
“Contrary to their mission to protect the capital market and Nigerian shareholders, the SEC has folded its arms and watch is  the investment of hundreds of thousands of Nigerian shareholders go down the drain while the public has had to appallingly watch what should have been a closed door investigation play out in the media. For those of us who have invested in Oando and seen the drastic nose dive that its share price has taken, we are deeply saddened by the SEC’s management of this investigation,” of the shareholders said.
Another shareholder, Mr. Olatunde  Olufemi going by the decision of SEC that Oando Plc will bear the cost of N160 million for the forensic audit,  the shareholders already losing money.
“This penalty begs the question, is this  the most effective use of shareholders money? How independent and objective is the process?  Oando has confirmed that they weren’t carried along on the panel selection, they have not received a scope of work and timeline for the audit and accordingly a justification for the N160 million bill. So how did SEC arrive at this cost. What SEC is doing is   setting a bad precedent in the market,” he said.
Equally, some shareholders have  displeasure at the SEC’s neglect of minority shareholders in favour of the majority shareholders. They have also expressed distaste at the public display of unprofessionalism stating that the leak from the SEC on the proceedings of the investigation is mind boggling.
According to them,  SEC can’t have reached an objective conclusion especially because it’s clear they’ve been working in favour of the majority shareholders to the detriment of the over two hundred and seventy-thousand shareholders whose investments are languishing as a result of the saga.
“The financial results in contention was approved by the NSE, the SEC and audited by leading international auditors. If financials of the company was truly ‘cooked’, then all the regulatory bodies should also bare the cost as well and be investigated,” a shareholder said.