By Kortor Kamara, USA.
As we approach the one-year anniversary of the capsizing of the dredge at Sierra Rutile Limited (SRL) in July 2008, resulting not only in fatalities, injuries and property damage but triggering massive lay-offs and interruption of rutile production; my research into how the company, its insurers and reinsurers were handling this major national catastrophic loss, has also unearthed hitherto unpublicized unconscionable agreements between successive Sierra Leone governments and Titanium Resources Group (TRG).
What is TRG?
Titanium Resources Group (TRG), for readers unfamiliar with its operations, is the parent company, owner and operator of two of Sierra Leone’s major extractive mineral mining companies, namely Sierra Rutile Limited (SRL), the country’s largest private sector employer and TRG’s major source of revenues and until recently Sierra Minerals Holdings Limited, its wholly owned bauxite mining operations in Sierra Leone. The company is 59 percent owned and controlled by a Mauritian-born mining magnate, Mr. Jean Raymond Boulle and has as its Chairman, Mr. Walter Kansteiner, the former US Assistant Secretary of State for African Affairs and a Sierra Leonean, John Bonoh Sisay who serves as the Chief Executive Officer and also a Director.
A press release issued by the company in April, 2009 that it had successfully reached a settlement agreement on its $35 million dollar loss claims with Zurich Re, one of its major reinsurers, marked a major milestone and gives confidence that the other reinsurers will soon make whole the company’s losses from the dredge loss.
The major question now is whether the country which has made repeated sacrifices through tax subsidies and concessions and even allowed TRG to use as leverage its rutile and bauxite deposits in international financial circles will recoup some of the insurance recovery towards her development.
The collapse and loss of the dredge, estimated at 35 million dollars resulted in the company embarking on a series of cost cutting measures including a 25 percent workforce reduction, suspension of exploration activities and agreement with the government on a 2 year moratorium on interest payments to the government of Sierra Leone relative to a 45 million dollar EU loan.
However, despite the loss the company posted only a 5 percent loss in rutile production ( 78,908 tons in 2008 as opposed to 82,530 tons in 2007) while it increased ilmenite production from 15,750 tons in 2007 to 17,528 tons in 2008. The company nevertheless states that it “does not have sufficient cash reserves to rehabilitate Dredge D2 and no assurance can be given that the Company will be able to secure funds to rehabilitate the dredge”.
According to the company, “the mining concession in Sierra Leone is one of the largest natural rutile deposits known in the world” which has been mined since 1967 and currently has a projected mine life of 19 years, as estimated by Mine Development Associates in 2005. The company also extracts and produces ilmenite and zircon at the rutile facilities.
During its recently concluded shareholders meeting on June 11, 2009, TRG unveiled its 2008 annual report which essentially provides among other unreported financial statements, a virtual roadmap of how mining companies in Sierra Leone have been able to deprive our nation of millions in taxes.
Through utilization of coercive measures, insistence on secrecy of mining contracts and false accounting practices for example, TRG and Mr. John Bonoh Sisay were able to secure an unconscionable deal for Sierra Rutile (SRL) by having the Tejan-Kabbah government in 2004 grant his company a 10-year exception on fuel import taxes, a re-negotiation downwards of the government’s standard 3 percent royalties of turnover to 0.5 percent, in return for an equity stake in the mines. The turn over reported by TRG for periods 2006 to 2008 totals $168.57 million dollars. Absence the agreement of 2004, the country stood to gain in taxes at 3 percent the sum of approximately 6 million dollars. However, with the 0.5 percent rate subsequently agreed TRG would only pay the sum of approximately 900,000 dollars. The substantial difference clearly benefited someone at the detriment of the country and such an unconscionable agreement not only invites review by the regulatory bodies such as the ACC but glaringly renders such an agreement voidable in law.
Mr. Sisay who reportedly was rewarded with the Chief Executive Officer (CEO) position after this unconscionable deal was quoted as stating that “in effect the deal was renegotiated so that the government has an equity position in the company, with a 3 percent annual increase for 10 years, until it holds 30 percent”. The government and people of Sierra Leone according to very conservative estimates are however projected to loose more than a 100 million dollars in revenues between 2004 and 2016 as a result of the tax concessions granted to TRG.
It is note worthy that following the signing of the agreement; Mr. Sisay was granted options to common shares in the company in excess of 174,000 in 2005. Further in 2008 he was again rewarded with an additional 100,000 shares payable at 47.00p and 75.50p with maturity dates in 2010 and 2013 respectively.
The 2008 Annual Report:
The report with its accompanying independent auditor’s report by BDO De Chazal Du Mee, Chartered Accountants in Mauritius; its consolidated financial statements; balance sheet and notes to the consolidated financial statements provides a rare glimpse into the operations of a company, characterized by an intricate web of self-dealing, corporate exploitation and tax dodging schemes that have raped our nation’s strategic minerals with the covert and tacit accomplice of our nation’s political leaders.
It is thus of the utmost national economic interest and importance that TRG’s operations, business activities, subsidiaries, contracts and agreements with government officials and the local communities be subjected not only to scrutiny and transparency but an urgent legal and regulatory review by the Anti Corruption Commission (ACC) and or Parliament so that Sierra Leoneans can better understand why despite 40 years of rutile mining our nation basically has nothing of significance to show. Such a probe must be focused and designed to reform the existing agreements and to mandate an annual reporting by mining companies of capital expenditures, profits, taxes and fees and company funded community programs. Such a requirement will ensure public scrutiny of contracts and agreements with the general public better able to monitor compliance and avert the signing by politicians and bureaucrats of such catastrophic agreements, as the 2004 First Amendment Agreement.
What is the First Amendment Agreement?
According to the First Amendment Agreement dated February 4, 2004 between the government of Sierra Leone (GOSL) and Sierra Rutile Limited, the government assigned to SRL “all its rights, title and interest in, to and under the future PAYE taxes due from SRL to the GOSL in an amount not exceeding 37 million US dollars. In consideration for the foregoing assignment, SRL agreed to transfer up to a 30% equity interest in Sierra Rutile Holdings Ltd to the GOSL within 60 days of the end calendar year commencing on April 1, 2005, equal in value to the PAYE amounts accrued during such calendar year”.
According to the company’s financial statements, as of December 2007 and 2008 only a total of 2,466 shares have been transferred and PAYE accrued for the year in Sierra Rutile Limited amounted to 1,840,000 USD(one million eight hundred and forty thousand dollars) and in 2007 USD1,288,000 (one million two hundred and eighty eight).
The above assignment in lieu of PAYE taxes resulted in GOSL obtaining a 2.063% ownership interest in Sierra Rutile Holdings Limited (SRHL). SRHL is one of several subsidiaries of TRG whose main business is listed as an “intermediate holding company”. Thus, as can be noticed the country’s revenue stream from PAYE taxes payable by SRL has cleverly and or corruptly been transferred into a worthless minority share ownership in a company with essentially no independent source of revenues. As a British Virgin Islands incorporated company, SRHL has no legal requirement to prepare and file audited accounts in Sierra Leone. TRG thus has been able to reap off Sierra Leone of over 3 million dollars just in 2007 and 2008 through such an unconscionable agreement.
Despite being a minority shareholder, GOSL does not have a seat on the board of directors of TRG. Decisions thus affecting a company and country that the nation has obtained loans on its behalf, provided subsidies and deferred collection of interest payments and owes equity shares in are made without any participation by representatives of the government. I would be pleasantly surprised if our Ministers of Finance and Mines and at least the High Commissioner in London were present at the concluded June 11, 2009 TRG shareholders meeting in London. Rather Mr. Alex Kamara, a CEMMATS Group Director was appointed to the TRG board on March 10, 2008. According to TRG, CEMMATS has a “number of contracts for the supervision of the construction of the capsized dredge and a new power house at SRL”.
Moreover, compounding the loss to the nation by such an unconscionable agreement signed in 2004, the financial statements for 2008 showed a negative loss of shareholders interests. The company’s loss before interest, tax, depreciation and amortization for 2008 is reported at 22.8 million dollars. The losses attributed thus to the minority shareholder (GOSL) exceeded their equity shares and as such the company absorbed the losses. However, any future reported profit by SRHL and SRL would be allocated to the majority interest until the government’s share of losses previously absorbed by the company is recovered.
The scheme of equity ownership on the surface appears economically viable to a layman, however what it entails in actuality is increasingly the country becomes saddled with the liabilities of a company in proportion to its shares. Thus as an example, with a projected 30 percent shares in the company and losses of 22.8 million in 2008, Sierra Leone is assessed a 30 percent share of the entire losses of the company. It is interesting to note that since the signing of the agreement, TRG has not posted any profits thus robbing the country of royalty payments and saddling the nation with additional debts.
Currently aside from the salaries of its workers and the 10 percent mandatory company contribution into NASSIT, the company does not provide any retirement benefit plan for its employees. The agricultural development fund the company contributes for development of agriculture in the mining communities represents a paltry $75,000.00 per annum. This annual amount is allegedly paid into a separate fund under the management of the government. An audit of this account by the ACC on behalf of the chiefdom communities would be highly in order to ensure that the intended recipients are benefiting.
In conclusion, a cursory review of TRG’s financial statements reveals that this company Is highly leveraged with loans and guaranties from international financial institutions Sierra Leone is signatory to forming the bulk of capital for its operations. For example, the European Union provided the GOSL the sum of 25 million Euros, to be on lent to Sierra Rutile in 2006. The loan carries an interest rate of 8% per annum with the principal and interest paid to support socio-economic development projects in Sierra Leone. However, upon capsizing of the dredge, TRG in 2008 secured a moratorium on payment of the interest with GOSL, thus impeding our nation’s development.
It is envisaged that any reforms in the mining arena especially as relates to TRG’s rutile mining operations must ensure a return to the status quo ante were the company is made to pay royalties as originally agreed instead of the bogus equity shares in SRHL, divestiture of shares in the SRHL company, recession of moratorium of interest payments on the EU loan, repeal of tax subsidies and concessions and greater transparency and regulation by the Anti-Corruption Commission (ACC) to ensure compliance with the terms of mining agreements in the country.
As previously postulated in my article “Enterprise Risk Management: a national Risk Management & Insurance Strategy for Sierra Leone” (http://www.articlesbase.com/authors/kortor-kamara/70274.htm), the country needs a national risk management and insurance office to serve as a repository of governmental contracts and agreements; provide technical risk management and insurance review of all past, present and future governmental contracts; provide insurance and loss control oversight of all governmental contracts to ensure compliance with appropriate terms and conditions. For with such an agency in existence in our country unconscionable agreements, moratoriums and the 2004 First Amendment Agreement would never have been swept over the heads of our nation.
It is now of the utmost urgency that the Minister of Mines and the entire government embark upon a new round of negotiations with TRG to ensure that the interests of the people of Sierra Leone are adequately protected and agreements as negotiated by Mr. Sisay in 2004 are rescinded immediately. It should be noted that TRG’s operations are subject to the laws and regulations of Sierra Leone and changes in legal requirements, terms and conditions of existing permits and agreements are within the legal purview of government to revisit and reform.
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