FULL TEXT –Regulatory Decision on Stanbic IBTC Holdings Plc
IN THE MATTER OF FINANCIAL STATEMENTS OF STANBIC IBTC HOLDINGS PLC FOR YEARS ENDED 31ST DECEMBER 2013 AND 2014
1. Pursuant to Provisions of the Financial Reporting Council of Nigeria Act No. 6, 2011 (“FRC Act”) and Regulation 3 of the Financial Reporting Council of Nigeria – Guidelines/ Regulations for Inspection and Monitoring of Entities, 2014 (“the Regulation”) some matters came to the fore from the review of the financial statements of Stanbic IBTC Holdings Plc (Stanbic IBTC) and major subsidiaries of the holding company for the years ended 31st December 2013 and 2014. Material irregularities of the said entities were also brought to the attention of the Council by some minority shareholders of Stanbic IBTC relating to the Financial Statements of the said entity for years ended 31st December 2011, 2012, 2013 and 2014.
2. The issues raised by the minority shareholders were also addressed to some other regulatory agencies such as the National Office for Technology Acquisition and Promotion (NOTAP), Securities and Exchange Commission (SEC) the Central Bank of Nigeria (CBN), among others.
3. The Council met with NOTAP on 1st September, 2015 and have also exchanged several correspondences on the matter thereafter. A number of issues, even well beyond the complaint of the minority shareholders, which also bordered on the financial reporting of Stanbic IBTC for the relevant years, became manifest.
4. The Council wrote to the Securities and Exchange Commission on 3rd September, 2015 informing them that from the preliminary report from the documents at the disposal of our Council and the meetings held with Stanbic IBTC, there will be material adjustments required in the financial statements of Stanbic IBTC that may affect the decision of stakeholders. The Council requested SEC to consider withholding her authorisation of any request made by Stanbic IBTC on Rights Issue and Scrip Issue until the matter that is brought to our joint attention is resolved and the relevant financial statements corrected.
5. At the time, Stanbic IBTC’s attempt to enhance its operations by way of Rights Issue and Scrip Issue were publicly available. SEC graciously acceded to this request and issued a Public Notice on 7th September, 2015 suspending Stanbic IBTC’s Rights Issue pending the conclusion of the investigation by our Council.
6. Stanbic IBTC Holdings Plc is a company domiciled in Nigeria. Stanbic IBTC is made up of the following eight subsidiaries:
i. Stanbic IBTC Bank (including Stanbic Nominees Nigeria Limited)
ii. Stanbic IBTC Pension Managers Limited
iii. Stanbic IBTC Asset Management Limited
iv. Stanbic IBTC Stockbrokers Limited
v. Stanbic IBTC Trustees Limited
vi. Stanbic IBTC Ventures Limited
vii. Stanbic IBTC Capital Limited
viii. Stanbic IBTC Investments Limited
Stanbic IBTC Holdings Plc is a member of Standard Bank Group with headquarters in South Africa and with a controlling stake of 53.25% in Stanbic IBTC Holdings Plc.
7. The Inspectorate Unit (the Panel) had a number of meetings with representatives of Stanbic IBTC between August 3, 2015 and October 16, 2015. In the meetings, representatives of the KPMG Professional Services, Stanbic IBTC’s External Auditors, were in attendance. Various correspondences were also exchanged between Stanbic IBTC and the FRC.
8. The final meeting held on October 16, 2015 between FRC panel of inspectors and a team representing Stanbic IBTC made up of Stanbic IBTC’s Chief Executive Officer, Legal Adviser, as well as the Engagement Partner at KPMG Professional Services (Stanbic IBTC’s External Auditors) and six other staff of both Stanbic IBTC and KPMG. The purpose of the meeting was to afford Stanbic IBTC Directors a final opportunity to provide factual information regarding the discrepancies observed in its Financial Statements and general financial reporting, ensure fair hearing for the directors and reach an agreement for a resolution. The Panel was mindful of the fact that it is the duty of the directors to prepare financial statements for an entity; as provided for by Sections 331 to 334 of the Companies and Allied matters Act CAP C20 LFN, 2004. By virtue of Section 334 of the Act, the authors of the financial statements (of Stanbic IBTC) under review are its Directors.
9. TECHNICAL ISSUES
a) SALE, PURCHASE AND ASSIGNMENT AGREEMENT
On 6th July, 2012, Stanbic IBTC issued a final signature version of a Sale, Purchase and Assignment Agreement between Standard Bank of South Africa Limited and Stanbic IBTC Bank Plc on a banking Application Software. The said Application Software was developed by Stanbic IBTC Bank Plc, Nigeria. The Source Code was disclosed without a Non-Disclosure Agreement signed by both parties. It should be noted that Standard Bank of South Africa operates in 17 (seventeen) countries in Africa and claim that they engage in shared use of banking software wherein the developer gets annual fee from the others in the group as long as the banking application software is in use. Accordingly, Stanbic IBTC Bank Plc (a subsidiary of Stanbic IBTC Holdings Plc) and the Group, as the developer of the software, are expected to disclose its expenses on Research and Development costs relating to the development of the software in the Statement of Profit or Loss and Other Comprehensive Income and carry a figure for its intangible asset in its Statement of Financial Position for the capitalised portion of the expenses (as contained in the accounting policy on intangible asset in the Stanbic IBTC financial statements for year ended 31st December 2014).
Instead, on 3rd July, 2013 (one year after) Stanbic IBTC submitted the said Sale, Purchase and Assignment Agreement between Stanbic Bank Plc and Standard Bank of South Africa Limited to NOTAP requesting NOTAP to approve and register that the application Software is sold to Standard Bank of South Africa for a fee of ZAR 151,586,277 and that the Nigeria bank has ceded all its rights to the software to the purchaser and now have the Nigeria bank become one of those in the seventeen countries paying annual license fees for the use of the software. NOTAP declined the application and advised that Stanbic IBTC license the application software in Nigeria instead.
This was not adhered to by Stanbic IBTC but went ahead with their plan anyway and neither reported the sale of the said software nor showed any annual fee income relating to it in their Statement of Profit or Loss and Other Comprehensive Income nor carry the intangible asset in their Statement of financial Position in the financial statements for years ended 31st December 2013 and 2014.
b) STATUTORY AUDIT AND AUDITOR INDEPENDENCE
It was disclosed in the financial statements that the auditors earned “Fees for other services” in addition to the audit fee as follows – 2014: N7,000,000; 2013: N5,000,000; 2012: N37,000,000; 2011: 13,000,000.
The Council was interested in knowing the nature of these non-audit services, the fees actually earned and the possible impact on auditor independence and objectivity. The schedules supplied to the Council by Stanbic IBTC revealed that the total fee paid to KPMG Professional Services for non-audit services was inconsistent with what was disclosed in the financial statements for the years under review.
c) PRESENTATION OF INFORMATION
Current and Deferred Tax Assets and Liabilities –Stanbic IBTC contravened the presentation requirements of taxes in IFRS. IAS 1 requires current and deferred taxes assets and liabilities to be presented separately in the Statement of Financial Position since they are not of the same substance. However current and deferred tax assets and liabilities were lumped together and presented as a single line item in the statement of financial position.
d) CONCEALMENT OF INFORMATION
OTHER OPERATING EXPENSES
Upon a preliminary review of the financial statements of Stanbic IBTC, the Council discovered that the group’s “Other Operating Expenses” contained line items that required further explanation. Consequently, the bank was directed to provide schedules showing the composition of each of the line items in Other Operating Expenses for all financial years from 2011 to 2014. Notable among these was the line item “professional fees”.
As disclosed in the group’s financial statements, professional fees were incurred as follows – 2014: N6,083,000,000; 2013: N4,467,000,000; 2012: N6,057,000,000; 2011: N4,041,000,000.
The schedule submitted to our Council by Stanbic IBTC revealed that professional fees which was simply a line in the financial statements contained several expenses that are unrelated to professional fees and which required separate disclosures on their own to give users of the financial statements good understand on the transactions and events of the bank.
i. Franchise Fee –Included in professional fees for 2014 and 2013 were franchise fees of N2.3b and N1.9b respectively which were provisions made for franchise fee to be paid to Standard Bank of South Africa. See section below for more discussion of this matter.
ii. Tax advisory fee and provision for tax liability assessment –Also included in the 2014 professional fees figure was N711m for “tax advisory fee and provision for tax liability assessment”. The Council was concerned that provisions for tax liability were included in professional fee.
iii. Provision for litigation –In 2014, the sum of N752m which the schedule revealed included “provision for litigations” was also included in professional fees when there is a financial reporting standard which requires separate disclosures of issues relating to litigations.
- Provision for Contingent and Other Known Losses
Another major line item under “Other Operating Expenses” was provision for contingent and other known losses of N972m. Included in this amount was another N340.8m also described as “provision for litigation”. The Council is concerned that the group did not seem to have a systematic method of recognizing and classifying its expenses as similar and related items were found under several expense categories.
- “Others” in Other Operating Expenses
The Council has always made it stance known to reporting entities and their external auditors that descriptions in the financial statements such as “others”, “sundries” and “miscellaneous,” especially when these were substantial and material, was poor disclosure and should be avoided at all cost.
- “Others” in Other Operating Expenses of Stanbic IBTC were as follows:
2014: N1,907,951,000; 2013: N2,477,201,000; 2012: N1,632,000,000; (whereas N1,946,000,000 was disclosed in the 2013 financial statements as 2012 comparative); 2011: N2,685,000,000.
The Council therefore investigated the balances further and discovered the following:
- Donations –Several donations were concealed in “Others”. The group disclosed its donations in the annual report in compliance with the requirement of CAMA CAP C20 LFN. However, just one line item of donations in “Others”, N275,000,000, far exceeded the aggregate donations disclosed in the annual report (N162,468,098). They also could not confirm the entity that this amount was donated to when questioned further at the meeting of 16th October 2015.
- Directors’ fees and expenses –Also concealed within “OTHERS” was directors’ fees and expenses of N223,000,000 (2013: N218,000,000). This is aside the directors’ fees and emoluments disclosed in a separate note in the financial statements. All fees, remuneration and emoluments of directors should have been disclosed as part of related party disclosures in the group’s financial statements. This is the only way users of general purpose financial statements who are unable to demand for additional information (schedules, analysis etc) can have relevant and reliable information for decision making.
- Several expenses with their individual and separate classifications in the financial statements were also found within “OTHERS”
o Pension administration expenses – 2013: N227,000,000
o Penalties and fines – 2014: N34,000,000; 2013: N29,000,000
o Pension commission paid to agents & sales executives– 2014: N99,000,000; 2013: N514,000,000.
o VAT – 2014: N308,000,000; 2013: N148,000,000
o Loss on disposal of fixed assets – 2014: N42,000,000; 2013: N33,000,000.
e) TRANSACTION WITH HOLDING COMPANY – MISLEADING DISCLOSURE
One of the “transactions with holding company” was simply disclosed in the financial statements as “information technology and professional fee”. Stanbic IBTC’s submissions to our Council however revealed that these are franchise fees and royalties paid to Standard Bank of South Africa. The Council is concerned about the group’s disclosure to users of the Financial Statements in this regard as it does not reflect fairness and faithful representation of the transactions to stakeholders.
f) INTANGIBLE ASSETS
The Council is concerned that the group does not recognise intangible assets like computer software in its financial statements despite the technology driven banking business that its runs and the huge IT infrastructure that drives it and the fact that Stanbic IBTC Bank Plc, Nigeria, developed a banking Application Software.
This may not be unconnected to the issue of franchise fees and royalties paid to the South African parent (see below). The bank, rather than own its software, pays royalties to Standard Bank South Africa perpetually.
g) FRANCHISE FEES/ MANAGEMENT FEES (NOTAP RELATED MATTERS) –
The Council’s Concerns are as follows:
1. The Group makes yearly provisions and remittances to Standard Bank South Africa as Management/Franchise fees. This is despite the fact that Stanbic IBTC could not secure relevant registration from NOTAP.
2. Standard Bank does not trade in Nigeria under the name, “Standard” Bank. Stanbic IBTC could not prove to the Council how and where the “branding” benefit lies for the Nigerian group that trades under a different name and in another jurisdiction such as would warrant making provisions and payments of huge franchise fees annually to the parent company.
3. Since the amounts of provisions and remittances to Standard Bank South Africa are concealed in other balances in the financial statements, the Council requested for schedules showing details of the provisions and remittances.
4. Two different submissions were made at two different times. One signed by a Finance staff of Stanbic IBTC and another signed jointly by the same finance staff and Stanbic IBTC Holding’s Chief Executive Officer. The Council was however alarmed to discover that there were material discrepancies in the two submissions made by them.
5. IAS 37 specifies conditions for making provisions. One of such conditions is that there must be “a present obligation arising from a past event.” A key “obligating event”, which creates a legal obligation, is the NOTAP approval/registration. Lack of approval/registration of application made to NOTAP, the regulatory authority in Nigeria, makes any agreement between Stanbic IBTC and its parent company, Standard Bank of South Africa and other countries, null and void as far as provisioning is concerned. There is therefore no basis for accruing management/Information technology/franchise/royalties fees etc.
6. Even if it were authorized and legal, the Council questioned the following disclosure matters as follows:
- Why is the company concealing the management/franchise fees under professional fees and royalty fees under information technology?
- Why was it not properly disclosed in the financial statements for users to be well informed of the transaction between the Nigerian subsidiary and its South African parent?
- Why is there no distinct and clear information whatsoever (yearly charge, accrued liability, beneficiary, basis for computations etc.), disclosed anywhere in the annual reports since 2011 when provisions started? Not even in the “Business Review Section” of the annual report.
- Why is Stanbic IBTC not complying with the disclosure requirements of International Financial Reporting Standards on provisions and extant laws and regulations applicable in Nigeria?
h) REGULATORY BREACHES
The Council observed that Stanbic IBTC regularly flouts CBN regulations. In 2014 for instance, a total penalty of N28,000,000 was imposed on the group.
Among the contraventions was improper disclosure of public sector deposits in 2014. Stanbic IBTC seems to have a penchant for poor disclosures which further corroborates the findings in this report.
10. REGULATORY DECISION OF THE PANEL
a) The Directors of Stanbic IBTC are hereby directed to withdraw the Financial Statements of Stanbic IBTC Holdings Plc for years ended 31st December 2013 and 2014 and restate them in accordance with the provisions of Section 64 (2) of the Financial Reporting Council of Nigeria Act No. 6, 2011 and Regulation 21 of the Financial Reporting Council of Nigeria – Guidelines/ Regulations for Inspection and Monitoring of Entities, 2014.
b) The FRC number of the following persons who attested to the misleading Statements of Financial Position of Stanbic IBTC Holdings Plc for years ended 31st December 2013 and 2014 are hereby suspended until the investigation as to the extent of their negligence in the concealment, accounting irregularities and poor disclosures in the said financial statements is completed in accordance with Section 62 of the Financial Reporting Council of Nigeria Act No. 6, 2011. Accordingly, they are not allowed to vouch the integrity of any financial statements issued in Nigeria.
The persons are:
i. Atedo N. A. Peterside FRC/2013/CIBN/00000001069;
ii. Sola David-Borha FRC/2013/CIBN/00000001070;
iii. Arthur Oginga FRC/2013/IODN/00000003181; and
iv. Dr. Daru Owei FRC/2014/NIM/00000006666.
c) The Council shall require evidence of a second partner review and audit approach that the external auditors of Stanbic IBTC (KPMG Professional Services) adopted on quality control on the said financial statements that could not reveal these infractions. Accordingly, the FRC number of Ayodele H. Othihiwa (FRC/2012/ICAN/00000000425) the Engagement Partner of the audit of Stanbic IBTC Holdings Plc for years ended 31st December 2013 and 2014, is hereby suspended until the investigation as to the extent of the negligence of KPMG Professional services is ascertained.
d) The Central Bank of Nigeria is requested to assist in this effort by taking regulatory disciplinary actions against those whom the CBN expects to guarantee the integrity of the aforementioned financial statements in order to safeguard the interest of stakeholders of Stanbic IBTC. We are convinced that once the monies are properly accounted for and used to shore up their Tier 1 capital, the institution shall become stronger.
e) The Federal Inland Revenue Service is requested to ensure that the related taxes are paid and the government is not unduly short changed.
f) The Economic and Financial Crimes Commission is requested to assist in this effort by questioning those involved in the concealment and sale of the banking application software that was developed in Nigeria which, other than the financial implication, has also robbed Nigerians of national pride.
The FRC requires entities in Nigeria, and their directors, to exercise all due care to ensure that the information contained in the financial statements they provide to stakeholders are not misleading, false or deceptive but, communicate economic information that will permit informed judgment and decisions by the users of such information.
The FRC is committed to ensuring that our capital market is fair, efficient and transparent and that public entities comply with high standards of financial reporting, applicable rules, regulations and relevant legislations in Nigeria.