By GODWIN DUNIA
The embattled Director General of the Securities and Exchange Commission, Mr. Mounir Gwarzo, who was recently acquitted by an Abuja High Court, of all charges proffered against him by the Independent Corrupt Practices and Other Related Offences Commission (ICPC), may need not heave a sigh of relief yet, as the Commission has filed an appeal against the judgment.
The FCT High Court presided over by Justice Hussein Baba-Yusuf, had said ICPC failed to prove the charges against Gwarzo, which resulted in a no case submission and subsequently his acquittal of all the charges on April 16, 2019.
But most Nigerians are concerned about the existing corporate governance crisis in Oando Plc. Before the allegation and subsequent arraignment of the SEC DG and what he told the House of Representatives members during a public hearing issues which were contrary to that of the former Minister of Finance, Mrs. Kemi Adeosun.
It would be recalled that, Gwarzo took over from the former Director General of the Commission, Ms. Arunma Oteh, in acting capacity in January 2015.
Before taking over as Acting DG, he was the Executive Commissioner, Operation in the Commission and had acted in Nigerian Capital Market as an operator and a regulator.
Gwarzo is an Associate Member of the Chartered Institute of Stock Brokers and became a Fellow of the Institute in 2005.
However, sometime in 2017 Gwarzo opened an investigation over the operations of Oando Plc, which the National leader of the ruling All Progressives Congress, Asiwaju Bola Tinubu is believed to have some substantial interest. Indeed, his younger brother, Mr. Wale Tinubu, is the managing director of the company.
But the hunter soon became the hunted; while Gwarzo was investigation Oando Mrs. Adeosun his supervising minister ordered an immediate stop to it. He refused. Then the
ICPC began its own probe and charged Gwarzo and Zakwanu Garba, who was the Executive Commissioner of the commission to court over N104 million severance package he got in June 2015.
Apart from the severance package, the ICPC also flagged another N10m that he allegedly took as excess car grant paid to him. He was later suspended by the former Minister of Finance, Kemi Adeosun.
Gwarzo was accused of paying himself the severance allowance as executive commissioner after he was appointed Director General. But the defence witnesses had all disputed the charge claiming that a person could not occupy the offices of executive commissioner and Director General at the same time.
Alleged Reasons for Suspension of Gwarzo
The former Minister of Finance, Kemi Adeosun, had based her suspension of Gwarzo on alleged proven cases of financial misconduct, unlawful carting away of sensitive documents.
Also, at a press briefing on 8th December 2017, the former minister also claimed that she suspended Gwarzo because he failed to satisfactorily respond to queries issued to him.
Although, on a normal circumstance, the minister of finance has the power to suspend
the SEC DG to allow for unfettered investigation in a situation where necessary and most especially when there are charges against him. But Gwarzo described the charges brought against him by the ex-minister as deliberately sourced against him to provide an excuse for a pre-determined action.
In his defence against the charges at a public hearing summoned on the matter by the House of Representatives Committee on the Capital Market and Institutions and headed by Hon. Tajuddeen Yusuf, Gwarzo denied the allegations, even before the former minister.
Although, the former minister of finance who was also present denied the claims of Gwarzo before the committee, she offered no more than a denial despite the fact that, such a weighty allegation required detail rejoinder from the ex-minister, which gave the impression that the matter is somewhat suspicious.
Gwarzo disclosed before the Committee that Adeosun allegedly suspended him due to his insistence on the forensic audit of Oando plc, which he claimed the former minister had conflicting interest in. Gwarzo told members of the House of Representatives Committee that, “SEC received a petition from Ansbury Investment Inc. an indirect shareholder of Oando and another petition from another shareholder of Oando Plc Alhaji Dahiru Mangal, all dated 2 May and 4 May 2017 alleging the Management of Oando of financial fraud and corporate governance breaches.
SEC reviewed the petitions and constituted a technical committee to examine the conflicts which reveals many infractions that includes insider dealings on the sale of
1.21billion shares amounting to N21.5b and related party transaction in which Oando paid over N200b”.
During the hearing of the House Committee, it was revealed that Gwarzo, never minced any words throughout about the real reason he was suspended. He had claimed that the ex-minister had vested interest in the Oando matter and was desperate to stop the investigation of the oil giant. He even mentioned names of people connected to the company that had personal relationships with the ex-minister.
However, what could be regarded as Gwarzo’s whistle blowing was drowned in the media frenzy generated by the financial allegations against him of the severance allowance and the car grant.
On the Severance Allowance and Car Grant
Based on the existing procedures and facts concerning the matter of severance allowances and car grant, Gwarzo was an executive commissioner before May 2015 when he was appointed SEC DG. And they had told the court that the office of executive commissioner was for a fixed period and by so doing, when Gwarzo left the office of executive commissioner that tenure came to an end. What that means is that the severance pay of over N104 million for which Gwarzo was docked, was not illegal after all, because the payment was after he completed his tenure as executive commissioner.
On the N10.4 million car grant, it was also established by the defence that a board resolution approved the car benefit for an executive director who had spent more than two years in office and on that, the charge of illegally approving car grant against him could not hold water. Since the prosecution witnesses confirmed the board resolution as lawful and that the car grant was non-refundable, thereby showing that Gwarzo had no role in deciding what he was entitled to and as such could not have used his office to enrich himself.
Report on Panel of Inquiry
Report of the Administrative Panel of Inquiry into Allegations of Violations of Public Service Rules, Financial Regulations and other Extant Rules and Regulations set up by the then Minister of Finance had allegedly found that Gwarzo actually used his position in SEC to award contracts worth over N33 million to companies he was a Director
in, all whilst serving as SEC DG.
How Gwarzo was Acquitted
On 16 April, 2019, the FCT High Court dismissed a five-count charge of financial misconduct proffered against him by the Independent and Corrupt Practices and Other Related Commission (ICPC). Gwarzo was discharged and acquitted after his arraignment alongside an Executive Commissioner in SEC, Zakawani Garuba, who was charged with two-counts by the ICPC before the court.
The ICPC told the court that the SEC DG conferred undue advantage upon himself by receiving N104.8m as severance benefit and N10.4m car grant while still in service.
Part of ICPC’s five count charge against him read, “That you Dr Mounir Haliru Gwaiorzo (M) between May and June 2015 or thereabouts at Abuja within the jurisdiction of this honourable court, during the period of your appointment as the Director-General of the Security and Exchange Commission (SEC), being entrusted with the management of SEC did commit criminal breach of trust to wit: dishonestly misappropriating the sum of N104,851,154.94 (One Hundred and Four Million, Eight Hundred and Fifty One Thousand ,One Hundred and fifty four Naira and Ninety Four Kobo), as your severance package which you were not entitled to, and you thereby committed an offence contrary to Section 311 and punishable under 312 of the Penal Code Act Cap 532 volume 4
Laws of the Federal Capital Territory Abuja, 2007”.
Also the second charge against the second defendant read, “That you Zakawany Garuba (M) on or about June 2015 or thereabouts at Abuja within the jurisdiction of this honourable court, while being a public officer as a Commissioner in the Securities and Exchange Commission (SEC) used your position to confer a corrupt advantage upon another public officer to wit: approving the sum of N104,851,154.94( One Hundred and Four million, Eight Hundred and Fifty-One Thousand, One Hundred and Fifty-Four Naira Ninety-Four Kobo) as severance package to the then Director-General of SEC; Dr Mounir Haliru Gwarzo which he was not entitled to and you thereby committed an offence contrary to and punishable under 19 of the Corrupt Practices and Other Related Offences Act 2000”. But both Gwarzo and Garuba had filed a no-case submission against the agency.
Consequently, in his ruling, Justice Husseini Baba-Yusuf held that the ICPC failed to prove any of the essential elements of the offence against Gwarzo. The judge also held that ICPC’s evidence against the suspended SEC DG was contradictory.
Therefore, the judge held that the first defendant “is hereby discharged and acquitted of counts 1, 2 and 3 and by inference, all the charge against him.” Justice Baba-Yusuf also discharged the two-counts against the second defendant, Garba.
Justice Baba-Yusuf held that the prosecution did not prove beyond a reasonable doubt that the accused persons committed the offence for which they were charged. He said by its own admission, the prosecution through its witnesses and evidence confirmed that the action of the defendant was by a decision of the governing board of SEC, which is the highest decision-making body of the commission.
What the court did not say, since the prayer was not before it, is that the suspension of Gwarzo as SEC DG was trumped up and is a classic case of executive temerity. It also highlights the desperation of those who suspended him; that they were determined to get him out of the way at all cost.
The Judge had said the Board of SEC was the highest authority in the SEC and had by resolution approved Gwarzo’s severance benefit and car grant. ICPC expressed its dissatisfaction to the court judgment, because the board resolution the trial judge relied on did not decide severance benefit but retirement and resignation benefits.
ICPC Reaction to Court Judgment
In a telephone chat with BusinessHallmark, spokesperson to the ICPC, Rasheedat Okoduwa, confirmed that the Commission is not satisfied with the judgment and that it has filed an appeal appropriately.
She said: “We gave a press statement on the stand of ICPC a day after the acquittal that we are going to file an appeal against the judgment and it was published by some newspapers. But right now, I can confirm to you that the appeal has already been filed”.
On when the matter may likely be heard, she said, “that I cannot really say since we all know how the courts operate, but the major issue there is that the appeal has been filed and we hope it would be in favour of the Commission”.
Public Reactions to Gwarzo Acquittal
Following the excitement after Gwarzo’s acquittal and the call to reinstate him as SEC DG by his sympathizers, concern Nigerians have continued to raise dissenting voices over the judgment. Prominent among them is National Image Solidarity Group (NISG). The group had called for “an in-depth look into the facts before us. They have stressed that the charges against Gwarzo were not false as the offences allegedly took place”.
Also, contrary to Gwarzo’ claim of unwillingness to carry out a forensic auditing of Oando Plc, a reliable source from Oando, who preferred to speak anonymously to BusinessHallmark, said, “even in March this year, the then acting SEC DG Dr Abdul Zubair, had announced during a press conference that Deloitte had been asked to proceed with the forensic audit of Oando after the regulator was accused of delaying the process and the press conference came a day after Oando withdrew its lawsuit against the Commission”.
The source also confirmed that Gwarzo’s suspension was not as a result of his unwillingness to drop the forensic audit into Oando. Since then Zubair has been replaced as acting SEC DG and before the naysayers speculated as to his removal the reoccurring character in this drawn out saga, Adeosun resigned from her post as the Minister of Finance.
Mary Uduk is the current acting SEC DG, a role she took on in April 2018 and you could effectively argue that from the onset she has presided over the forensic audit into Oando.
When BusinessHallmark requested to speak to the spokesperson of the Securities and Exchange Commission (SEC), Efe Ebelo, on the matter, he said he has nothing to say or any information on the issue that transpired between the Director General and his acquittal in court. He said whatever BusinessHallmark want to know about the matter is in the public domain.
When asked if the suspended DG has been re-instated back to his previous position, the SEC spokesperson said, “Whatever you want to know about the matter should be channelled through the Ministry of Finance”.
However, when a call was put across to the spokesperson of Oando by Business Hallmark, he responded with a text message, that “Please text me”, thereafter some of the questions were texted to him with e-mail address for response. But up till press time, he had not responded and efforts to also call him proves abortive as the phone indicate line busy.