It’s time to play by a different (ethical) set of rules Nigeria 7

___Even if justice takes time, be patient and never lose faith.

The International Tribunal appointed by the Chief Justice of the Federal High Court of Nigeria took four years to complete the process of arbitration. This included hearing from lawyers representing all the shareholders who had been involved in the original sale to Zain (the company from the Middle East), and also lawyers from Bharti Airtel (the company from India) that had bought Zain’s shares.

The Tribunal issued its ruling on 22nd December 2011. It was a great Christmas present!

Key findings in the Tribunal’s ruling:

# Econet had never ceased to be a shareholder despite the cancellation of its share certificate. We remain shareholders to this day, and those shares are now worth more than $200m.
# There was sufficient evidence that Econet had raised $1.5bn in cash to buy the shares that were sold illegally to Zain.
# The sale of shares, first to Zain of Kuwait, and then later to Airtel of India, were found to have violated Econet’s rights of first refusal under the Shareholder’s Agreement. The sale was declared “null and void” in law.
# The people who bought the shares (Zain and Bharti Airtel) were ordered to pay us hundreds of billions of Nigerian Naira in compensation, and damages for their violations.
# All shareholders who had supported the sale were ordered to pay compensation.
# The local shareholders who had stood with us throughout were absolved of any wrongdoing.

In short, after being presented years of evidence, the Tribunal agreed there been multiple breaches of the Shareholders Agreement.

Whilst most of the Nigerian local shareholders immediately paid the money due, Bharti Airtel and Zain refused to pay what they had been ordered to pay. This was despite the fact that all parties are supposed to accept an Arbitration ruling as final. Instead they took the unusual decision to go to court, in Nigeria, and try to overturn the decision of the international Tribunal:

First, they went to the High Court of Lagos State; it ruled in OUR favour. (October 2012)

Then, they went to the Nigerian Federal Court of Appeal; it also ruled in OUR favour, supporting previous rulings in OUR favour. (February 2014)

___We had our hearings. We were heard. We’ve had patience and faith, and the rule of law prevailed.

Finally, they went to the Nigerian Supreme Court. We are now waiting for their ruling. I will let you know when it comes.

In a separate ruling, the Nigerian Federal High Court and its Appeals Court dismissed the allegation that Econet had not originally paid for its shares. This allegation had been widely circulated in newspapers as the reason for our departure.

They accepted evidence that Econet paid for its shares just like all the other shareholders, calling the allegation spurious and malicious. It took 10 years to get this ruling from the courts.

Like in any major conflict, all sorts of skirmishes have taken place. We had to fight other related legal battles in England, in Denmark, and in The Netherlands (including at The Hague Court of International Arbitration).

Throughout this saga in Nigeria, I had with me a few Nigerian brethren (and sisters) who stood by me. They were prepared to risk all to ensure justice prevailed. I salute them and all who stand up to protect the rule of law.

During the long period that went by, more than 10 years, I never stopped going to Nigeria despite the threats. I never stopped investing in new things in the country that interested me. I deepened my understanding of the country. I learnt to avoid many of the pitfalls of the past. I stayed true to my deepest convictions.

__I enjoyed myself.
__I love Nigeria.

The ensuing years have also been years of unprecedented growth and expansion of our business interests in Africa and around the world. We set up businesses as far afield as New Zealand, and invested in places as far as Latin America.

Yes, we prospered and we went from strength to strength. The path of those who stand for justice is as a “shining light, getting brighter and brighter unto the perfect day…”(Proverbs 4:18)

The end.


It’s time to play by a different (ethical) set of rules Nigeria 6

___Rights, wrongs, and rule of law in Africa.

If this were a movie, I can only give you a trailer…

When we set up the company in Nigeria, all 22 shareholders had to sign an agreement governing our relationship, known as a Shareholders Agreement. This was April 2001.

The purpose of a Shareholders Agreement is to protect the shareholders’ investment in the company. It sets out the shareholders’ rights and obligations and regulates the sales of shares in the company. It also governs how a company is run and seeks to establish fair and transparent relationships between shareholders. Any company with more than one shareholder should ideally have such an agreement.

Among the most important issues for us was to ensure legal compliance with two specific provisions:

1. What do shareholders do if they want to sell, transfer or dispose their shares in the company and get out?

Answer: They must first offer them to another member. They can only sell them to an outsider if the other members either decline or fail to pay within 30 days.

2. How do shareholders resolve any disputes between members involving the company?

Answer: Any aggrieved party must ask for Arbitration (rather than go to court). According to our Shareholders Agreement, a three-member international commercial arbitration panel had to be appointed by The Chief Judge of the Federal High Court of Nigeria. The decision of this panel was to be final and binding on signatory parties to the Shareholder Agreement.

When the other shareholders, led by Delta State Governor James Ibori, decided to throw us out of the company, they did two things that violated the provisions in our Shareholders Agreement, as well as Nigerian law:

1. They “cancelled” our shares and removed our name from the share register of the company. No one has power to do this except a court and usually only the highest court in a country, as it is tantamount to expropriation of property rights. They did it anyway and dared us to go to court. We did, and it took us exactly 10 years to reverse what they did. The judges of the courts of Nigeria were harsh in their criticism of this decision by the other shareholders. They called it “disgraceful.” It was a form of gangsterism!

2. They did not offer us the right of first refusal. Instead they offered their shares to a third party (a company from the Middle East) without first offering them to us as an existing shareholder. Of course, in their minds, it was not necessary because they had first “cancelled” our shares.

___There’s no legal right for other shareholders to say, “We no longer recognise you as a shareholder,” then hold private meetings and make resolutions as if you don’t exist. (Protection of shareholder rights is sacrosanct if we want to mobilise investment and see the people of our continent prosper. Otherwise the whole investment climate is thrown up in the air!)

To right these wrongs, we first had to approach the Chief Judge of the Federal Court of Nigeria. Her name was Hon. Justice Ukeje. She inexplicably refused to grant our request for nearly five years. When she retired in 2008, we petitioned her successor Hon. Justice Mustapha. He granted our request and appointed a three-member international panel of legal experts to serve on the Tribunal. Two of them, including a retired judge, were Nigerian. It took him less than three months to make the appointments, for which we have waited nearly five years!

This Commercial Arbitration Tribunal was constituted under the auspices of the UN Commission for International Trade Law. The Tribunal ordered all the shareholders to appear before them with their lawyers.

It took almost four years of hearing evidence and arguments from lawyers and financial experts. We counted that there were more than 50 lawyers involved in the case, many of them from Europe and the United Kingdom, as well as leading lawyers from Nigeria.

The Tribunal issued its ruling on 22 December 2011.

To be continued. . .


INVESTIGATION: How MTN ships billions abroad, paying less tax in Nigeria-Premium Times

MTN has consistently prided itself as the foremost telephone company that is getting Nigerians talking the most. Now the South African company is about to set tongues wagging across networks with revelations that it has routinely been shipping billions of naira overseas to avoid paying its fair share of tax in Nigeria.

An 11-month-long investigation by PREMIUM TIMES reveals that MTN has been running circles around Nigerian revenue authorities using a complex but noxious tax avoidance scheme called Transfer Pricing.

For any economy, it is a slow death.

The red flag was raised the moment our investigations showed that MTN Nigeria has been making payments to two overseas companies – MTN Dubai and MTN International in Mauritius – both located in tax havens.

It was discovered that in 2013 for example, MTN set aside N11.398 Billion from MTN Nigeria to pay to MTN Dubai. A similar transfer of N11.789 Billion was made by MTN Ghana to the same MTN Dubai, making it a total of N23.187 Billion that was shipped to the Dubai offshore account.

In a rare disclosure in 2013, MTN admitted it made unauthorized payments of N37.6 Billion to MTN Dubai between 2010 and 2013. The transfers were then “on-paid” to Mauritius, a shell company with zero number of staff and which physical presence in the capital Port Louis is nothing more than a post office letter box. The disclosure amounted to a confession given that MTN made the dodgy transfers without seeking approval from the National Office for Technology Acquisition and Promotion (NOTAP), the body mandated to oversight such transfers.

On the basis of an earlier management fees agreement that was technically quashed by NOTAP and on the basis of MTN’s reported revenues, it is estimated that N90.2 Billion could have been transferred out of Nigeria in management fees alone since the company was founded in 2002.

Transfer Pricing

For corporate organizations determined to escape the taxman but still cleverly staying on the right side of the law, Transfer Pricing is the new cellar door constructed by the most ingenious of accountants. It is a new global disease to which Third World economies are the most vulnerable.

Multinationals employ Transfer Pricing to move their profits offshore, leaving behind a shrinking tax base in their host countries and inexorable cuts to public services.

In Africa, tax avoidance has been named as one of the factors holding the continent back by starving governments of the revenues it needs for development.

A report jointly commissioned by the United Nations and the African Union and drafted by a high level panel led by former South African president Thabo Mbeki considered tax avoidance by multinationals to be an “illicit financial flow” and a significant drain on government resources across the continent.

In total illicit financial flows, which included corruption and the proceeds of crime, were determined to be costing the continent $50billion a year.

Just last year, South Africa’s deputy president Cyril Ramaphosa had harsh words for tax dodgers. He said: “Tax evasion is not only a crime against the state; it’s also a crime against the people of our country, ordinary people.”

Curiously, the same Cyril Rhamaposa was non-executive chairman of the board of MTN between 2001 and 2013 before he became South Africa’s No.2 man. In effect, the same tax practices which the deputy president strongly condemned in his country as financial crime is vigorously being promoted in Nigeria.

MTN is the largest cell phone company in Africa with 227.5 million subscribers. The company, which operates in more than 20 countries across Africa and the Middle East, has Nigeria as its biggest operation.

Until now, tax justice investigations had focused on computer giants, corporations in the extractive industry, food and beverages; in fact everywhere but the mobile phone sector despite the cell phone industry in Africa being one of the largest and most important industries for the continent.

Mobile phone has been a cheap and quick way of rolling out the vital communications infrastructure that has underpinned Africa’s growth story over the last decade. As a result the industry has seen explosive growth. With 685million mobile phone users in Africa, the success story means that cell phone companies are now the largest contributor to government revenues in many African countries. That is when they pay their fair share of taxes.

Artificial operating costs

To pay little or no tax, companies determined to cheat begin by seeking ways to create artificial operating costs in the country where they operate. For example, a company is in Nigeria but has a parent or subsidiary company in another country. It makes huge profit but decides to declare a much lower profit-before-tax. To achieve this, it pays the parent and/ or subsidiary company for services not rendered and ships cash to them. Where services are rendered, the costs are inflated. Such services may include royalty for the use of brand name, procurement services, technical services and management services.

Typically, the recipient company is located in an offshore territory under a different financial jurisdiction. MTN has a substantial network of subsidiaries in offshore tax havens, including the British Virgin Islands, Dubai and Mauritius.

Because of the growing concerns that multinationals are using intra-company trading to shift profits around the world by overcharging for services delivered or in more extreme cases by creating artificial transactions where no services was rendered at all, respective countries have a maximum percentage of profits it can allow companies to pay out as management fees.

For example, in Senegal, accounts from the company Sonatel show that the company has a ‘cooperation agreement’ with parent company France Telecom that is capped at 1.43% of revenue.

Until 2010 MTN Nigeria had an agreement with MTN Dubai to pay 1.75% of revenues to the company for management, and royalties for the use of the MTN trademark. Nigeria requires that management fees paid by multinationals are approved by the National Office for Technology Acquisition and Promotion (NOTAP). The fee payments had been reversed following a failure to come to a new agreement on management fees with Nigerian regulators.

MTN’s previous agreement with NOTAP expired in 2010.

Notwithstanding, MTN has continued to make payments overseas. When we sent questions to MTN over these unauthorized payments, the company told us that this was because they expected NOTAP to approve a new deal and backdate it to the date of the expiry of the previous deal.

MTN’s financial activities are now being questioned by more than one tax authorizes in Africa.

In Ghana the MTN subsidiary, Scancom, has been paying vast management fees to companies located offshore. Our investigations reveal that Scancom paid 758m GHS in management and technical fees to MTN Dubai between 2008 and 2013. This was 9.64% of the company’s revenue. Normally the maximum fee level allowed in Ghana is 6%.

We can reveal that the high levels of fees attracted the attention of Ghana’s intelligence services, which launched an investigation into “economic fraud” between 2012 and 2013.

MTN’s management fees need approval from the Ghana Investment Promotion Centre (GIPC). The Ghanaian “National Security Taskforce” has called for a “review of all technology transfer and management service agreements currently held by GIPC to remove sections which are inapplicable and wrongly provided for” and upgrading and training of state systems and staff.

In response to this, MTN in Ghana told us: “The technical and management services agreements between Scancom and Investcom were duly approved by the GIPC.”

The current head of the GIPC is Mrs. Mawuena Trebarh, who between 2007 and 2012 was responsible for government relations at MTN Ghana. This reporting team asked Mrs Trebarh to comment on whether her previous role could be perceived a conflict of interest. She did not respond to our requests.

In response to our enquiries MTN confirmed that the company paid 12 billion West African Francs in 2012 and 14 billion West African Francs in 2013 in management fees to MTN International. The figure for 2013 is equivalent to 5% of the revenue made by MTN in Cote d’Ivoire.

Dubai paradox

Dubai is one of the places MTN ships huge profits to. Meanwhile, MTN does not operate any mobile phones in Dubai, yet it has significant operations in the small city state.

MTN told us that it employs around 115 people in Dubai who provides services to the MTN group such as group procurement, group finance, legal services, human resources and other corporate functions.

One tool that campaigners have said will be helpful is to look at company reporting on a country by country basis. If a company is making huge revenues in a country where it has few employees but there is a low tax rate, which would suggest that there may be some profit shifting taking place.

In Uganda, a dispute between the Uganda Revenue Authority and MTN has revealed that the company is paying 3% of its turnover in management fees to MTN International.

The fees have been challenged by the Uganda Revenue Authority (URA) who issued MTN with a “notice of assessment” in 2011. This was for a number of tax issues between 2003 and 2009, but a large portion was to do with a dispute over management fees, most of which had been paid to Mauritius.

Correspondence between the URA and MTN seen by us show that the URA questioned the legitimacy of these fees, and pointed out that MTNI, the company providing “management services” to MTN Uganda had not spent any money in the years they had looked into. The URA said this could only mean two things: that management services provided to MTN Uganda had either already been paid for by MTN Uganda (and so MTN was in effect charging twice for the same thing) or they were never provided at all.

The Ugandan authority told the company: “We have repeatedly asked for evidence of specific work performed by MTN Group for MTN Uganda for each of the tax years 2003 to 2009. We have only been provided with very little information relating to 2009 and the latter years. This information is very far from justifying a payment of 3 per cent of MTN Uganda’s turnover as management fees.”

NOTAP keeps mum

Asked to confirm the amount of fees paid out to MTN Dubai and Mauritius based on the company’s reported revenue between 2002 and today, MTN told PREMIUM TIMES: “There is no disclosure obligation for this information in South Africa or Nigeria.”

Asked to explain the possible justification for MTN Nigeria to pay fees for management and technical services to a company with no employees, MTN said: “It is the contracting party’s prerogative as to how it elects to discharge its contractual obligations.”

Meaning is that MTN Mauritius can perform its task without a single staff member.

PREMIUM TIMES made sustained efforts to get NOTAP and the Federal Inland Revenue Service (FIRS) to comment on the MTN practices in Nigeria.

The Director in charge of Technology Transfer and Agreement, Ephraim Okejiri, initially pleaded that he was in a meeting, and that the reporter should wait.

But after over four hours of waiting, he sent a secretary to say he would not be able to give any information on MTN.

Similarly at Nigeria’s tax agency, the Federal Inland Revenue Service, the Director of Public Communications, Emmanuel Obeta, who had earlier promised on three occasion to make information available on the matter suddenly had a change of mind.

He said relevant officials who should provide him with the information sought were all not available.

Additional report ‎by Bassey Udo and Nicholas Ibekwe.