ADEYANJU v. F.R.N (2020)

ADEYANJU v. F.R.N

(2020)LCN/14381(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, June 10, 2020

CA/A/213C/2016

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

HON. SIMON ADEYANJU APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

THE ONUS OF PROOF IN CRIMINAL TRIALS

The point must be emphasised to avoid any inclination or disposition to confusion that the primary onus of establishing the guilt of the Accused Persons was still or remains with the prosecution and this does not shift. What does shift is the secondary onus or the onus of adducing some evidence which may render the prosecutions’ case improbable and therefore unlikely to be true and thereby create a reasonable doubt. See Mufutau Bakare v. The State (supra) 1 at 32, 33 – 34. PER AGIM, J.C.A.

WHETHER OR NOT COURTS ARE CREATED BY STATUTES

It is trite that Courts are creatures of statute and it is the statute that created a particular Court that will also confer jurisdiction on that Court. See JAMES V. INEC (2015) 12 NWLR PART 1474 PAGE 538 AT 597 PARAC. PER ABOKI, J.C.A.

THE JURISDICTION OF THE FEDERAL HIGH COURT

It is also the law that where it is intended to confer exclusive jurisdiction on a Court, the relevant law must expressly provide for it. See SUN INSURANCE NIGERIA PLC V. UMEZ ENGINEERING CONSTRUCTION COMPANY LIMITED (2015) 11 NWLR PART 1471 PAGE 576 AT 612 PARA D-H.
The jurisdiction of the Federal High Court, is derived from Section 251 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 251 (1) provides that:
251. (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;
(b) connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation;
(c) connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties;
(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any act/on by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures: Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank;
(e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and A filed Matters Act;
(f) any Federal enactment relating to copyright, patent, designs, trade marks and passing-off; industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards;
(g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluents and on such other in/and waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the constitution and powers of the ports authorities for Federal ports) and carriage by sea;
(h) diplomatic, consular and trade representation;
(i) citizenship, naturalisation and aliens, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas;
(j) bankruptcy and insolvency;
(k) aviation and safety of aircraft.
(l) arms, ammunition and explosives;
(m) drugs and poisons;
(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas);
(a) weights and measures:
(p) the administration or the management and control of the Federal Government or any of its agencies;
(q) subject to the pro visions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and
(s) such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly: Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.
Section 251(3) of the 1999 Constitution provides that:
“The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of this section. PER ABOKI, J.C.A.

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/213C/2016 was commenced on 5-8-2015 when the appellant herein filed a notice of appeal against the judgment of the High Court of Federal Capital Territory in Criminal Case No. FCT/HC/38/2010 delivered on 8-6-2015 by Abubakar Idris Kutigi J. The notice of appeal contains 2 grounds for the appeal. It was amended with the leave of this Court. The amended notice of appeal contains 7 grounds of appeal.

Both sides filed, exchanged and adopted their respective briefs as follows- appellant’s brief, respondent’s brief.

The appellant’s brief raised the following issues for determination-
1. Whether the learned trial Judge of the Federal Capital Territory High Court ought not to decline jurisdiction and stop further hearing of the allegation made against the appellant after having realized that the allegations substantially had to do with corporate administration of Wise Health services Limited registered under the Companies and Allied Matters Act, 1990 (Distilled from Grounds 1 and 5)
2. Whether the learned trial judge was right to convict the

appellant for an offence allegedly committed by a corporate body when the company was not charged and arraigned along with him (Distilled from Grounds 3 and 4).
3. Whether the Learned trial Judge was right to convict the appellant for the offence of criminal breach of trust under Section 312 of the Penal Code when a key ingredient of the offence was not proved by the prosecution (Distilled from Ground 7).
4. Whether in the absence of prosecution visit to the universities, the holding of the learned trial Judge that Exhibit P4 was sufficient proof that the Appellant did not secure any life from the universities was not an invitation to him to prove his innocence of the alleged charges (Distilled from Grounds 2 and 6).

The respondent’s brief raised the following issues for determination-
1. Whether the trial Court has the jurisdiction to try and convict the appellant on offences prescribed under the Penal Code. Distilled from Grounds 1 and 5.
2. Whether the trial Court can lift the corporate veil of a company when the justice of the case so demands in a criminal trial. Distilled from grounds 3 and 4.
3. Whether the Respondent

has proved its case beyond reasonable doubt against the Appellant. Distilled from grounds 2, 6 and 7.

I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief.

Let me start with issue No. 1 which asks- “Whether the learned trial Judge of the Federal Capital Territory High Court ought not to decline jurisdiction and stop further hearing of the allegation made against the appellant after having realized that the allegations substantially had to do with corporate administration of Wise Health services Limited registered under the Companies and Allied Matters Act, 1990.”

Learned Counsel for the appellant argued that by virtue of S.251(1) e and (3) of the Constitution of the Federal Republic of Nigeria 1999(1999 Constitution) and S.650(1) of the Companies and Allied Matters Act, the trial Court lacked the jurisdiction to try the appellant for the offences in counts 2 and 3, which offences were committed by the directors of Wise Health Services Nigeria Limited, a registered company, in the administration and management of the affairs of the company, that the Federal High Court has the

exclusive jurisdiction to try such offences.

Learned Counsel for the respondent argued in reply that the appellant was tried for criminal breach of trust in contravention of the Penal Code and not for the operation and management of Wise Health Services Ltd, the trial Court has the jurisdiction to try the offence of criminal breach of trust contrary to the Penal Code, that the Supreme Court decision in FRN V. Nwosu (2017) All FWLR (Pt. 883) 1483 is instructive and relevant to the determination of this issue, that subsection (3) of S.251 of the 1999 Constitution deliberately did not use the phrase “to the exclusion of any other Court” in vesting criminal jurisdiction on the Federal High Court, so as to allow other Courts have concurrent criminal jurisdiction over the items listed in S.251(1) of the 1999 Constitution.

Let me now determine the merit of the above arguments of both sides.
By virtue of Section 257(1) of the 1999 Constitution, the trial Court has unlimited jurisdiction to hear and determine any criminal proceedings originating in it in respect of an offence committed by any person. The exact text of this provision reads

thusly-
“257(1) Subjecting the provisions of Section 251 and any other provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory, Abuja shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.“
It is glaring that Section 257(1) gives it the jurisdiction to entertain, hear and determine the criminal case against the appellant in respect of the offences allegedly committed by him.
The question that the arguments of both sides have thrown up is whether this jurisdiction of the trial Court was ousted by Section 251(1)and (3) of the 1999 Constitution which provides thusly-
“(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be

conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters.
(a) Relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;
(b) Connected with or pertaining to the taxation of companies and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation;
(c) Connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties;
(d) Connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and

other fiscal measures: Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank;
(e) Arising from the operation of the Companies and Allied Matters Act or any other enactments replacing the Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act;
(f) Any Federal enactment relating to copyright, patent, designs, trademarks, and passing-off, industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards;
(g) Any admiralty jurisdiction including shipping and navigation on the River Niger or River Benue and their effluents and on such other inland waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the constitution and powers of the ports authorities for Federal ports) and carriage by sea;
(h) Diplomatic, consular and trade representation;
(i) Citizenship, naturalization and aliens, deportation of persons who

are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passport and visas;
(j) Bankruptcy and insolvency;
(k) Aviation and safety aircraft;
(l) Arms, ammunitions and explosives;
(m) Drugs and poisons;
(n) Mines and minerals (including oil fields, oil mining, geological surveys and natural gas);
(o) Weights and measures;
(p) The administration or the management and control of the Federal Government or any of its agencies;
(q) Subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) Any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and
(s) Such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly.
Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking

redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment or equity.
(3) The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of this section.”
It is clear that subsection (1)(e) of Section 251 gives exclusive jurisdiction to the Federal High Court in civil cases and matters arising from the operation of the Companies and Allied Matters Act. Subsection (3) of Section 251 which gives the Federal High Court jurisdiction over criminal causes and matters arising from or relating to the subject matters over which subsection (1)conferred it jurisdiction, without expressly stating that its jurisdiction over criminal causes and matters arising from or connected to the subject matters listed in subsection shall be exclusively exercised by it. I agree with the submission of Learned Counsel for the respondent that the phrase “to the exclusion of any other Court” used by subsection (1) of S.251 in vesting

new anno exclusive jurisdiction on the Federal High Court over civil cases and matters arising from or relating to the items listed in (a) to (s) thereunder, is omitted from and not contained in subsection (3) of Section 251. The effect of the absence of that exclusionary clause in subsection (3) of Section 251 is that the existing concurrent jurisdiction of the trial Court over criminal cases arising from the matters listed in subsection (1) of the sections is not ousted and remains intact.
If subsection (3) of Section 251 intended that the Federal High Court shall exercise jurisdiction over criminal cases arising from the matters listed in subsection (1) to the exclusion of any other Court it would have expressed stated so as it did in subsection (1)concerning its jurisdiction over civil cases arising from the said matters listed in paragraphs (a) to (r)therein.
It cannot be implied or assumed that the jurisdiction vested in the Federal High Court over criminal cases arising from the matters listed in subsection (1) is exclusive to it because subsection (1) gave it exclusive jurisdiction over the civil cases arising from the same matters. This is because

Section 257(1) of the same Constitution has expressly conferred unlimited original jurisdiction on the trial Court over all criminal cases in respect of an offence committed by any person. The law is settled that the jurisdiction expressly and competently conferred on a Court by the Constitution cannot be ousted or excluded by implication or assumption. It can be ousted or excluded only by clear and express exclusionary or ouster words in the same constitution.
The wordings of subsection (1) of the Constitution can only be read as part of subsection (3) only to the extent permitted by the clear words of subsection (3). The wordings that make subsection (1) override any other provision of the Constitution is limited to the vesting of exclusive jurisdiction to the Federal High Court over civil cases arising from the matters listed in (a) to (s) therein. There are no clear words in subsection (3) making it to override any provision to the contrary in the Constitution.
In the light of the foregoing, I hold that the High Court of the Federal Capital Territory and even High Courts of States have the jurisdiction to entertain and try criminal cases arising

from or connected with any of the matters listed in Section 251(1) (a) to (s) of the 1999 Constitution.
Issue No. 1 is resolved in favour of the respondent.

Let me now consider issues Nos. 2 and 3 which ask “(2) Whether the learned trial judge was right to convict the appellant for an offence allegedly committed by a corporate body when the company was not charged and arraigned along with him… (3) Whether the Learned trial Judge was right to convict the appellant for the offence of criminal breach of trust under Section 312 of the Penal Code when a key ingredient of the offence was not proved by the prosecution.“

The appellant was charged with three Counts of offences as follows-
COUNT ONE
“That you Dr. Godwin Adeogba and Hon. Simon Adeyanju, between 2006 and 2007 in Abuja in the Abuja Judicial Division of the High Court of the Federal Capital Territory did agree among yourselves to do an illegal act to wit: criminal breach of trust by misappropriating money being property of Wise Health Services Limited and thereby committed an offence punishable under Section 97(1) of the Penal Code Law Cap 532 Laws of the Federation of Nigeria (Abuja) 1990

COUNT TWO
That you Dr Godwin Adeogba and Hon. Simon Adeyanju being directors of Wise Health Nigeria Limited on or about the 1st day of December, 2006 in Abuja in the Abuja Judicial Division of the High Court of the Federal Capital Territory being entrusted with money property of Wise Health Nigeria Limited did dishonestly misappropriate the sum of N5,000,000 (Five Million Naira only) by paying the same to Hon. Simon Adeyanju as mobilization fees for services that were not offered and thereby committed an offence punishable under Section 312 of the Penal Code Law Cap 532 Laws of the Federation of Nigeria (Abuja) 1990.
COUNT THREE
That you Dr Godwin Adeogba and Hon. Simon Adeyanju being directors of Wise Health Nigeria Limited on or about the 18th day of October, 2007 in Abuja in the Abuja Judicial Division of the High Court of the Federal Capital Territory being entrusted with money, property of Wise Health Nigeria Limited did dishonestly misappropriate the sum of N7,000,000 (Seven Million Naira only) by paying same to Hon. Simon Adeyanju as brokerage fees for services not rendered and thereby committed an

offence punishable under Section 312 of the Penal Code Law Cap 532 Laws of the Federation of Nigeria (Abuja) 190.”

Section 312 of the Penal Code Law Cap. 532 LFN (Abuja) 1990 under which the appellant is charged in Counts 2 and 3 above reads thusly-
“Whoever commits criminal breach of trust shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.”

Criminal breach of trust is defined in S.311 of the said Penal Code thusly –
“Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust.“

The undisputed facts of this case are as follows. In pursuance of its policy to provide excellent health care for Nigerians in the public or private

sector at very reduced prices by paying the substantial part of the costs of any health care provided to any Nigerian, the Federal Government of Nigeria paid and deposited funds with the National Health Insurance Scheme (NHIS), the agency it established to administer the National Insurance Health Scheme. The National Health Insurance Scheme (NHIS) accredited Health Maintenance Organisations (HMO) to which it remits the said funds for payment of care givers for health care provided care recipients. The Health Maintenance Organisation (HMO) identifies and enlists care recipients within the group assigned to it by the National Health Insurance Scheme (NHIS), ascertains and confirms the provision of health care to each such recipient by a care giver registered with NHIS and ensures that the health care being delivered by the said registered care giver is of excellent quality and makes payment to the care giver from the funds given it by the NHIS. The Health Maintenance Organisation (HMO) acts as an intermediary between National Health Insurance Scheme (NHIS) on one hand and the care recipient and the care giver to ensure that the funds it receives from National

Health Insurance Scheme (NHIS) are paid by it to registered health care givers for the excellent health services they have provided to a care recipient. In consideration for the above services, the Health Maintenance Organisation (HMO) is paid service and administrative fees by the Accountant General of the Federation through the National Health Insurance Scheme (NHIS).

Wisehealth Services Limited a company incorporated in 2004 was accredited by the National Health Insurance Scheme (NHIS) on 25-7-2005 as a national Health Maintenance Organisation (HMO).

The appellant was at all times material to this case, a co-founder, shareholder and director of Wisehealth Services Limited. By a letter dated 1-12-2006, the appellant applied to the then Managing Director and Chief Executive of Wisehealth Services Limited for a short term loan of 5 million naira for a term of 6 months till mid January 2007 to assist him resolve some immediate personal problems. As guarantee that he will pay the loan sum, he issued a post dated cheque in favour of Wisehealth Services Ltd. He was paid this money. He admitted receiving the said sum. He has not refunded the loan sum to

Wisehealth Services Limited as he promised. By a letter dated 18-10-2007 to the Managing Director/Chief Executive of Wisehealth Services Ltd, Remisco International Agency Nig Ltd a company in which the appellant is a shareholder and the Chairman of the Board of Directors, requested thusly –
“Further to our discussion on the above subject, we request for your organisation in Benue, Lagos and Students in eight Universities covered by Wise Health Service Limited. We have entered into discussions with the states and the Universities and confirm that we shall secure them for your organization.
Our professional fees for the provisions of the services shall be N15 million and would require advance payment of 50% which would be refunded in the event of our failure to secure the States and Universities for your Organisation.
In anticipation of your approval, please find attached our Post-dated cheque for the sum of Seven Million Naira (N7,000,000.00) only”.

The appellant as director of Wisehealth Services Ltd signed the two Wisehealth Services Ltd cheques of 5 million Naira to the appellant and the one of 6 million naira to

Remisco International Limited and also signed the post dated cheques of 5 million naira and 7 million naira deposited with Wisehealth Services Ltd as guarantee that the loan sum would be repaid as agreed and that the 7 million naira received by Remisco International Ltd would be repaid if it fails to enlist care recipients as it promised. The 5 million naira loan sum was not repaid. Remisco International Ltd did not refund the 7 million it received in cash of 1 million naira and 6 million naira cheque.

The disputed facts are that Wisehealth Services Limited converted the 5 million naira loan sum to payment for appellant’s services in marketing for health care recipients, that the appellant did not render any such marketing services, that Remisco International Ltd failed to render the marketing services for which it received 7 million naira, that the above sums have not been paid back to Wisehealth Services Limited, that the Board of Directors of Wisehealth Services Limited did not authorise the above payments to appellant and Remisco International Ltd.

The prosecution elicited evidence through 5 witnesses. The appellant testified as DW2 in his

own defence. The 1st and 3rd accuseds testified as DW1 and DW3 respectively in their respective defence. Following the adoption of their respective written addresses, the trial Court rendered its judgment on 8-6-2015 convicting the appellant for the offences in counts 2 and 3 and sentenced him on each count to imprisonment for a term of 6 months with the option to pay fine of N500,000.00, which sentences it ordered to run concurrently.
In the said judgment the trial Court found on the evidence that the appellant as director of Wisehealth Services Ltd was entrusted with the funds belonging to the company over which he and other principal officers superintend in order to deploy it judiciously in pursuit of the objectives and interest of the company. The exact text of that part of the judgment reads thusly- “Now on the evidence, it is not in dispute that the complainant, Wise Health Nigeria Ltd (hereinafter referred to as WSHL or the Company) is a frontline Health Maintenance Organisation (H.M.O) incorporated on 27th July, 2004 and duly accredited with the National Health Insurance Scheme (NHIS) to provide health care for Nigerians at affordable prices

or rates. The moneys subject of the extant charge belongs to WSHL.
The 1st and 2nd Accused Persons were indeed founding members of the said company. 1st Accused is a shareholder and pioneer Managing Director of Wisehealth Services Limited. The 2nd Accused is a shareholder, Director and later the chairman of the Board of Directors. The 1st and 2nd Accused together with one Mr. Okala are the signatories of the account of the company at all times material.
There is therefore really no dispute that the moneys subjects of the charge or various counts belongs to the company or W.S.H.L and both Accused Persons were principal officers of the company. It is therefore safe to say that by the respective positions of authority they hold in the company that the Accused Persons were indeed entrusted with an accountable to the company for any funds belonging to the company and over which they superintend in order that it was deployed judiciously in the interest of t he company and its shareholders.
As such on the evidence, I should have no difficulty in holding and I hereby hold that the prosecution clearly established the first essential ingredient of

criminal breach of trust against the 1st and 2nd Accused Persons.“

There is no ground of this appeal complaining against these findings and holding. By not appealing against this finding, the appellant accepted it as correct, conclusive and binding. See Iyoho v. Effiong (2007) 4 SC (Pt III) 90 and Dabup v. Kolo (1993) 12 SCNJ 1.

The trial Court also found and held on the evidence that the appellant dishonestly misappropriated or converted to his use or that of Remisco International Ltd or dishonestly used the funds of Wisehealth Services Ltd. The exact text of that part of the judgment reads thusly- “The evidence of PW1 and PW3 is clear to the effect that as shareholders and Board members of W.S.H.L, there was never a time that the board sat and authorised the payments made. PW1 who also is signatory to the accounts of the company never at any time signed any of the cheques for the disbursements made. Indeed from the evidence of the key witnesses for the prosecution, they only became aware of these disbursements after an audit report was made with respect to the accounts of the company which then prompted the petition, Exhibit P3 to EFCC

which led to investigations by the body and the filing of the extant charges against Accused Persons. It may be necessary to state at this juncture that the audit report was never produced at plenary hearing.
On the part of the 1st Accused and also 2nd Accused, the substance of their narrative is that all disbursements which they never denied, were done in good faith and with the approval of the board in furtherance of the core objectives of the company.
The crucial question to be resolved in determining the culpability of the Accused persons for the offence of criminal breach of trust is whether the disbursement was undertaken with dishonest intent or not?
In resolving this poser, it is critical in my view to situate the essence of what the company stands for. As stated earlier and on the evidence, the company is a health maintenance provider (HMO) and acts as an intermediary between care givers and care recipients. The H.M.O also oversee the quality assurance of health care delivery.
On the key question of the operations of the company and how it acquires “lifes,” the evidence of 1st Accused who was the founder and pioneer

Managing Director of the company and PW5 who also served as Managing Director of WSHL appears insightful and interesting for its divergence. I will refer to their evidence in –extenso. Let me however at the outset streamline precisely what a “life” means as it is a term that appears severally in the narrative of parties. On the evidence and in the context of the business of Wisehealth Services Limited, a life simply means a head or heads of health care recipients. Having stated what a life means, I return to the evidence of DW1 or 1st Accused.
He stated in evidence that the company sources for lifes by actually visiting and liaising with the principal officers of the universities and the unions especially ASUU. They also arrange for seminars to convince the lecturers who are their targets. He stated further that directors were encouraged to source for lifes and for incentive, they had to initiate a standard brokerage agreement which set the frame work for remunerating such efforts. The 1st Accused explained that to achieve this, three board meetings were held and that the people making the present accusations were not part of the board.

Also that at the time, all their clients were federal civil servants and payments to the HMO’s were done through the NHIS. He further explained that payment of fees by the NHIS is dependent on whether you were allocated or affiliated. That the first group of HMO’s were allocated core ministries and payment was for covering whosever is in their personal record. That in their case since they were only affiliated to universities, they had to do the entire registration of staff and they were paid based on the level of registration. That for example ABU had 7000 members of staff ad that it took them nearly 2 years to even reach 65% of the staff.
On the part of PW5, his evidence on the sourcing of lifes is that what HMO’s like Wisehealth do is to register people and in their case, these people are employees of Federal Government Parastatals. That the role of HMO’s is to pay the health care providers for looking after the lifes f those registered.
He stated that initially lifes were given to them by NHIS but later the onus fell on the HMO’s to look for lifes. That throughout his tenure as Managing Director which is obviously

after that of 1st Accused, no lifes were brought by anybody nether can he recollect from an examination of documents at his disposal that any lifes were brought in before his tenure beyond the initial ones given by NHIS.
Now with the above background, lets attempt to situate the factual or legal basis for the disbursements made allegedly to secure lifes.
The 1st Accused in evidence stated that the approval to operate brokerage transaction which supports the disbursement in counts 2 and 3 was given within the first four to five board meetings.
Now I have carefully read Exhibits P8 (1-3), which are board meetings of the company for 26th January, 2005, 19th April, 2005 and 15 June, 2005. In the minutes of meetings of 26th January, 2005, it is clear that brokerage considerations were discussed and the 1st Accused as MD/CEO explained the features and technicalities of brokerage of social Health Insurance and how W.S.H.L can exploit the vast and lucrative captive market nationwide. The board meeting of 19th April, 2005 similarly discussed the brokerage consideration and the Managing Director informed the board that a standard brokerage agreement has

been prepared in readiness for execution with interested parties. Finally the board meeting of 15th June, 2005 is clear to the effect that the Managing Director explained that W.H.S.L has executed Standard Brokerage Agreement with various parties, some in the insurance industry, while others are in accounting firms or even banks and it was resolved that efforts be continued in following such avenues to their logical conclusion.
On the evidence, it is clear that as stated by 1st Accused, the issue of brokerage agreements was indeed discussed at the board meetings of W.S.H.L. it is also interesting to see that on the minutes apart from PW3, none of the key prosecution witnesses was then part of the board when deliberations on the issue was discussed. Indeed by Exhibit P8(3), PW3 was then a member of the board but he was not in attendance due to engagements elsewhere. He however in evidence agreed that he attended a board meeting where this issue was discussed and the 1st Accused was given the go ahead.
Having provided the above platform, the next key question is whether the payments or disbursements made were for purposes of brokerage as alleged. With

regards to the specifics of the disbursement of N5Million and N7 Million Naira, the 1st Accused stated that a company 2nd Accused was acquainted to was introduced by the 2nd Accused because of their activities in helping to secure lives. He stated that they received a letter for a loan to engage in securing lives. He stated that as Managing Director, he justified the loan. That it should be part of the remuneration that should come from brokerage and since the brokerage agreement had not been standardized at that time, that he requested for a post-dated cheque to be deposited for that amount. That after the standardization of the brokerage agreement and the company started receiving payments, they netted the amount due for brokerage fee minus the loan and that since the brokerage fee due to them was substantial they returned the post-dated cheque.
On the N7Million, he stated that since at the time the brokerage fee was substantial, the N7Million was not regarded as a loan but as part payment that was due to the company, Remisco. That 1% was due to Remisco on a monthly basis and as at that time over 25Million was due to them as they have procured 33m217

families from 8 universities which is equivalent to 115,000 lives and that based on the lives suckered by Remisco, they took an advanced payment bond or those lives before they could collect money from HHIS and that it was the same NHIS that directed them to where they got the bond.
On his part, the 2nd Accused in evidence stated that they worked for the disbursements made by procuring lifes for WSHL from the 8 universities. That companies like Remisco were utilized to get lives and they got 116,260 lifes and that Remisco was supposed to be paid 10% of administrative fee. That N836.5k is paid for each enrolee or life, and that if this was multiplied by the number of lives, what was due to Remisco from July 2005 to end of October, 2007 was supposed to be about N25Million but only N12Million was paid and that this is the same amount said to be misappropriated.
That indeed at the time W.S.H.L was registered, they had to set up offices and buy equipments and because there was no money, he had to ask for a loan to enable them get lifes so that the company can survive.
Now as stated earlier, the witnesses for the prosecution and in particular PW1, PW3

and PW5 from the company debunked the entirety of the above narrative. That the company was never aware of such transactions, neither were they informed and there was no authorization by the Board. They also added that the lifes said to have been acquired was untrue and PW2, the I.P.O stated that their investigations did not reveal or prove that any such lives were acquired.
Now I have critically evaluated the evidence on record and as stated earlier, W.S.H.L was incorporated in 2004 and accredited in 2005. At least by Exhibits P8 (1-3), the minutes of board meeting show that the company despite teething problems was fully operational. If as stated by 1st Accused that the company introduced by 2nd Accused applied for a loan by letter to help in securing lifes, no such letter was produced in evidence. Indeed even if such letter exist, the next question is whether any such template exist for the grant of such loans. The company WSHL is obviously not a bank or an institution created to function as a loan granting institution either to its directors or members or to anybody. I have carefully again read the relevant minutes, and while the issue of brokerage

may have been discussed, nowhere was the issue of granting loans to secure lifes discussed and nowhere was such authorization given. Neither the 1st and 2nd Accused has provided any basis in evidence to support the exercise and as much as I have sought to be persuaded, I have not been so persuaded that the grant of loans by 1st Accused can be fixed or situated within a verifiable parameter.
Furthermore, even on the evidence, legitimate questions as to whether the said disbursement was a loan or for purposes of brokerage still arise in addition to the issue of security allegedly obtained for the loans. In respect of the N5Million as stated already, 1st accused stated that a company 2nd Accused was accused was acquainted with applied for a loan to secure lifes and that he justified the loan because it will form part of the remuneration but that since the brokerage agreement was not then standardized, he requested for a post dated cheque to be issued.
Even if I accept that no standard brokerage agreement was ready at the time, I find it really strange that for moneys which neither belongs to the Accused persons, there is absolutely nothing on record to

support this loan transaction or the brokerage relationship with 2nd Accused or the company Remisco. It would appear that the precise terms of this N5 Million loan transaction or relationship is only within the knowledge of 1st and 2nd Accused Persons and they similarly jointly signed the cheque which by the way the regulations of the company allow which enabled the said payment to be made. One would have expected that because of the obvious conflict of interest between 2nd Accused and Remisco, that 1st and 2nd Accused Persons would have allowed wise counsel to prevail by allowing the other signatory to sign the cheque and furthermore this relationship ought to have been disclosed to the board and a proper verifiable template to determine the basis for mutual reciprocity of legal relationship established. If the third disinterested party had perhaps appended his signature, the board would have certainly become aware even if constructively of the payments. All these steps were not taken.
This analysis equally applies to the N7 Million. The 1st Accused stated that by the time of this transaction, the brokerage fee had become substantial and so the N7Million

was not regarded as a loan but as part payment due to the company Remisco, because he said that by then, Remisco had procured 33,217 families from 8 universities which is equivalent to 115,000 lifes and that what was due to Remisco then was about N25Million.
Now for all this oral assertions and when were vehemently challenged there is absolutely nothing to provide a basis that this transactions happened. The only semblance of reality to show that moneys belonging to WSHL were given out are the post-dated cheques, Exhibits P5 and P6. Exhibit P5, the cheque dated 19th January, 2007 issued by 2nd Accused with a value of N5,000,000 has no beneficiary. The second cheque of N7,000,000, Exhibit P6 also signed by 2nd Accused has no beneficiary at all and is not even dated and this for me raises serious questions on the sincere intention or bonafide of the entire loan/brokerage business. How shareholders funds are secured in this manner suggested by 1st Accused really is difficult to understand.
Now its true that in evidence, the 1st Accused tendered the singed memorandum of understanding with respect to brokerage between WSHL and Remisco. Now I really

don’t see how this aids the case of the 1st and 2nd Accused Persons. The said agreement is dated 10th December, 2006 and predates the first cheque of N5Million issued by 2nd Accused dated 19th January, 2007 by nearly a month. This agreement detracts from the assertion of 1st Accused that as at the time he granted the loan and converted it to brokerage, there was no standard agreement which was why he asked for the post-dated cheque. The bottom line is that this agreement was already in place, and there was therefore no room for any grant of loan to secure lifes.
Now with respect to the second payment of N7Million, from the unchallenged evidence of PW4, this transaction occurred in November, 2007 when 2nd Accused applied for N7Million to secure social health insurance contract in Benue State and some other universities. It is clear here to that this loan was granted about a year after the M.O.U. was signed with Remisco and it is difficult to understand the basis of this loan in the light of the express terms of the Agreement.
This agreement Exhibit D1 as stated earlier is the document that necessarily regulates the relationship between parties.

It is the basis of the mutual reciprocity of legal relation between WSHL and Remisco. It is therefore strange that loans are given out to a party to fulfil its own side of the bargain. This perhaps explains why these transactions were not made known to the Board. Let me out of abundance of caution refer to the specifics of the agreement.
“WHEREAS Messrs ‘Broking-Associate’ are engaged in the business of providing Resource Support Services particularly towards assuring an enabling environment suited for varied client-industries in Nigeria.
WHEREAS Messrs Wisehealth Services Limited are engaged as a National “Health Maintenance Organisation (HMO)” in conformity with National Health Insurance Scheme (NHIS) as enabled by FGN Act 35, 1990;
WHEREAS Wisehealth Services Limited have requested ‘Broking-Associate’ to solicit for the Affiliation of Contributors (Organizations, State Governments and Community Groups) with Wisehealth Services Limited in effectuating the nation’s Social Health Insurance Scheme and Broking-Associate’ have accepted the engagement, agreeing to render such services to secure

such affiliations with Wisehealth Services Limited as required based on Terms of Reference (T.O.R) outlined herein-below:
1. That affiliations shall be packaged by ‘Broking-Associate’ into Formal or Informal Sector Groups, whereby Formal are for organisation with formal staff payment structures while informal are for other entities coordinated by registered Faith-Based Organisation (FBO), Community-Based Organisation (CBO) or Non-Governmental Organisation (NGO).
2. That each packaged Formal Sector Group (FSG) shall comprise not less than 10(ten) contributor-members, while each packaged Informal Sector Group (ISG) shall have not less than 500 contributor-members.
3. That for each FSG, affiliation with Wisehealth Services Limited will attract payment by Wisehealth Services Limited to ‘Broking-Associate’ of a maximum Brokerage Fee of 10% (ten percent) of the Maximum Administrative Component of NHIS stipulated contributions.
4. That of each ISG, affiliation with Wisehealth Services Limited will attract payment by Wisehealth Services Limited to ‘Broking-Associate’ of a maximum Brokerage Fee of 5% (Five

percent) of the Maximum Administrative Component of contributions agreed with the Board of Trustees of the ISG.
5. That each ISG member shall pre-specify a choice of payment method as either fixed-period or flexible period payment; whichever the case, payments shall cover only the contributor and shall not be presumed to cover any spouse or dependent as in the case of the Formal Sector.
6. That the Fixed-Period Payment Contributors in any ISG, payments shall as agreed with the Board of Trustees Concerned, such payments being not less than N750 (Seven Hundred and Fifty Naira Only), that is about US$6 (Six US Dollars) per month; any individual default shall warrant immediate conversion to a flexible payment structure or total exclusion as may be agreed with the Board of Trustees.
7. That of Flexible-Period Payment Contributors in any ISG, payments shall be as indicated herein-below:
Every weekly contributor is to make a payment of minimum of N300 (Three Hundred Naira only), that is less than US$3 (three US Dollars) not later than a waiting period of 6(six) weeks in advance of the week(s) concerned.
Every monthly contributor is to make a

payment of minimum N1,000 (One Thousand Naira Only), that is, about US$8 (Eight US Dollars) not later than a waiting period of 6(six) weeks in advance for the month concerned.
8. That in order to obviate duplication of efforts and/or circumvention problems, ‘Broking-Associate’ shall inform Wisehealth Services Limited of each targeted prospective client and also the expected duration of the affiliation solicitation exercise involved.
9. That, on a case-by-case basis, all parties involved shall agree the modalities of engagement with due recognition given to every cost center and every financing center without any premise construed to allow any form of Master-Servant modus operandi.
10. That all payments due including any Imprest Account(s) amount shall be paid within an agreed specified period of confirming and clearing the payment instrument of each affiliation contract.
11. That the Modus Operandi of each affiliation assignment shall be necessarily discreet with due observance of standard non-circumvention code of ethics and project forum as minimized as possible without jeopardizing authenticity and integrity of any side.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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This M.O.U is valid from the moment of its execution as specified herein below on the day specified herein-above.
The M.O.U may be annulled by a notice of not less than 90 (ninety) working days by either party.
The M.O.U is hereby executed by the appending of authorized signatures, dates and stamps/seals by both ‘Broking-Associate’ and Wisehealth Services Limited as presented herein-below.”
The agreement speaks out for itself. The modalities for brokerage payment were clearly streamlined on the bases of getting affiliations or carrying out the contract and no more. There is clearly even under the agreement no basis to support the kind of payments authorised by 1st Accused to be made to 2nd Accused or Remisco.
Critically if these moneys or disbursements were used to secure lifes, as alleged, beyond the viva voce testimony of 1st and 2nd Accused which was strenuously denied by PW1 to PW5, nothing was put forward by the Accused Persons to put the Court in any position to accept their version of events that they secure lifes for the company. It is possible that liefs may have been secured by the 2nd Accused or Remisco, but

beyond Exhibit D1, the brokerage agreement between W.S.H.L and Remisco, nothing has been put forward in real times to show the affiliations that were secured by this company for which these payments were allegedly made. What Exhibit D1 shows is that a brokerage agreement exists. It does not however show and this is critical that the agreement was carried out or concretised. If it was executed, where was the execution done? What are the states, organisations or universities allegedly covered? The Court obviously is given to speculations, but if lifes were secured in various universities, there must be some basis, even if minimal, to provide a basis for the Court to so hold.
I had earlier stated the burden of proof on the prosecution. I had similarly referred to the provision which states that if the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted to the Accused Person(s). What this simply means is that where the prosecution establishes or crosses the threshold of proving its case beyond reasonable doubt, the onus then shifted to the defence to adduce evidence capable of creating some

reasonable doubt in the mind of the trial judge.
The point must be emphasised to avoid any inclination or disposition to confusion that the primary onus of establishing the guilt of the Accused Persons was still or remains with the prosecution and this does not shift. What does shift is the secondary onus or the onus of adducing some evidence which may render the prosecutions’ case improbable and therefore unlikely to be true and thereby create a reasonable doubt. See Mufutau Bakare v. The State (supra) 1 at 32, 33 – 34.
In this case, in addition to the evidence of PW1, PW2 and PW3, the prosecution also produced Exhibit P4 from the NHIS which shows the 8 universities affiliated to W.S.H.L and the fact that from June, 2006 to June 2009, W.S.H.L was paid the sum of N1,623,924,376,27 (One Billion, Six Hundred and Twenty Three Million, Nine Hundred and Twenty Four Thousand, Three Hundred and Seventy Six Naira, Twenty Seven Kobo) under the Public Sector Social Health Insurance Programme. Another N38,868,784.00 was also paid to the company under the N.H.I.S/MDG/MCH project in Gombe State for the months of January, 2009 to August, 2009.
The

above evidence was not in any manner challenged or controverted. At the risk of prolixity, if as alleged, that the Accused Persons took steps to secure lifes in various other universities, then there must be credible evidence of this endeavour. None was supplied. I also note that the universities repeatedly referred to by 1st and 2nd Accused as institutions were “lifes” were solicited or secured similarly form part of the universities given to the company by the N.H.I.S vide Exhibit P4. The question that then arises is if these universities were already affiliated and enormous sums given by the Government, what then did the Accused Persons really do with these moneys subject of the charge belonging to W.S.H.L?
In addition if as alleged, that the loan was required because the company had no money and lifes were urgently required to sustain the company, the disclosure of payments by N.H.I.S completely discredits this assertion. Similarly if the loan was used to open offices in different geopolitical divisions of the country and to buy equipments, absolutely no evidence was produced by either 1st and 2nd Accused persons to give credibility to

their narrative.
Also, if as alleged that the process of acquiring lifes involves travels and meetings with unions like ASUU in various universities across the nation, the pertinent point is that these schools and unions still exist. Is it that there is nobody or nothing tangible existing that gives some semblance of credibility to the narrative of Accused Persons? I just wonder.
I have alluded to the evidence of PW5 that contractors were contracted in Gombe State to acquire “lifes.” This appears to confirm the fact that the company in addition to the affiliation of universities by Federal Government also took steps to acquire lifes. I really do not see any significant contradiction here. What this simply amounts to is that where the company goes ahead to acquire lifes beyond those affiliated or even acquires lifes from universities affiliated as contended by the Accused Persons, it is for this acquisition to be positively established as the issue of acquisition cannot be left to conjecture or speculation. The Exhibit P4 from the N.H.I.S has made any further acquisition of lifes beyond those universities or even within them a matter of

proof by anybody who makes such allegation. For example, if anybody went to Gombe which is not within the eight universities in Exhibit P4, the there must be some basis for the Court to hold that such activity was indeed carried out in Gombe.
There is here absolutely no record of these travels, meetings and lifes allegedly secured for the company by the Accused Persons. This really is strange. For example, the 1st and 2nd Accused persons testified that Remisco procured 33,217 families from eight universities which is equivalent to 115,000 lifes and that what was due to Remisco from W.S.H.L at the relevant period was N25Million. The question that has agitated my mind really is what is the basis for this assertion. There is no scintilla of evidence in support of this transaction and the alleged indebtedness to Remisco.
Furthermore, the 1st Accused also stated that based on the “lifes” allegedly secured by Remisco, they had to get an advanced payment bond and that H.H.I.S directed them as to where to get the bond. He however did not provide any evidence to support the assertion of securing of any payment bond. One therefore really wonders as

to how the business of such a serious company can be run in such cavalier manner bereft of records.
The Court neither manufactures nor conjures evidence. The trial process despite its inherent imperfections is a search for truth and justice and it is completely evidence driven.
It is true that the prosecuting I.P.O did not extend their investigations to these universities where lifes were said to have been procured. That may have been fatal without Exhibit P4 which shows clearly the eight universities affiliated to W.S.H.L and moneys paid by the Federal Government obviously for payment to health care providers, in addition to evidence of PW1, PW3 and PW5 which is unequivocal to the effect that beyond the affiliations by the Government, no further lifes were secured as alleged. The burden of proof as I have stated elsewhere in this judgment is not one beyond the shadow of any doubt. Absolute certainty in human affairs including administration of justice is impossible. With the tendering of Exhibit P4 from the office of the secretary N.H.I.S and the unchallenged evidence of PW1, PW3, and PW5 that lifes were not secured by anybody beyond that allocated

by the Government, the burden shifted to 1st and 2nd Accused to establish or show what universities they covered and the “lifes” allegedly secured. If any payments are still due to Remisco, there must be a basis for same. As already alluded to, some of the universities said to have been acquired by 2nd Accused and Remisco clearly form part of those covered by Exhibit P4. In the absence of any credible counter evidence, it will be difficult to hold that “lifes” were acquired further to a brokerage relationship.
It may be appropriate at this point to refer to the extra judicial statements of 2nd Accused Person. In Exhibit P12b dated 12th June, 2008 he stated thus:
“…I went out of my way using prominent members of the political class and indeed employed the services of one of the employee of Remisco group. We finally succeeded in securing eight universities viz universities of Lagos, Ife, Ilorin, Jos, Ahmadu Bello, Kano, Calabar and Benin. In getting these lifes considerable cost was involved. Consequently, I requested for a loan which was refused by the M.D. To enable me recover my cost, Remisco Group took a

brokerage service with Wise Health Services Ltd and the MD paid for services rendered partially claiming that Remisco had to do more. The payment for brokerage services is specified in clause 3 of the Terms of Reference. Although the payment of N5Million Naira was based in consideration of the procurement of lifes. What the Managing Director focused on soon after the procurement of lifes in respect of staff of the universities was students which is a daunting task. He requested Remisco Group to extend our dragnet to states and private organisations. Remisco since went for students of the eight universities listed above and some states i.e. Benue, Lagos, Ekiti and others. Ekiti would have been secured by now but for the political situation and the fact that the board mandated that we should stop. Before this mandate, I had request for a payment of 50% i.e about N7Million for the work done. A cheque for N7Million was issued at first and was returned due to lack of fund. Another cheque for N6Million was issued to Remisco International Agencies to cover part of the expenses incurred. The loan applied for was refused by the Managing Director but in its place he

decided to pay part of the brokerage in securing along with other people eight universities. Since he refused giving me a loan he returned the cheque of N5Million which would have been the collateral if I was granted a loan.”
In Exhibit P12c, he added as follows:
“…I requested Wise Health Services Ltd for a mandate to further secure lifes from the company in the letter dated 18th October, 2007 for Lagos, Benue and students of eight universities in which we have earlier secured lifes of their staff. In the letter I put our professional fee at N15 Million and requested for about N7 Milion as mobilization. The request also fell within the period when staffs of some of the universities did not grasp the concept of the new NHIS programme which indeed was novel. The need to go to these universities became imperative apart from the need for the procurement of students to be part of the programme. The MD gave approval for mobilization of N7 Million Naira. A cheque was issued at first but returned to me by the bank. I then went to the Managing Director and requested for cash and cheque to cover the N7 Million. A cheque for the sum of N6

Million was issued while a cash of N1 Million was given to me in the Account Department of Wise Health… A formal agreement was established between Remisco Group and Wise Health Services Ltd by signing a brokerage. The brokerage still subsists. At the time the universities were approved for Wise Health Services Ltd, Remisco Group was still out canvassing so no formal report would have been written. The evidence of our job is the affiliation of the eight universities. The request of 18th October, 2007 was signed on behalf of the company by Mr. G.A. Ayodele a staff of the company. The N5 Million requested on 1st December, 2006 was expended on various contacts made between the accreditation of Wise Health and the affiliation. The N7Million request of 18th October was given as mobilization for securing the affiliation of the students of eight universities mentioned before and possibly some states such as Lagos, Benue, Ekiti etc…”
The above statements also clearly speak out for themselves. The oral testimony that he moneys were given out as a loan to secure lifes clearly would have no validity. The argument that they were secured by the deposit

of post-dated cheques appear also to lack credibility.
The whole story of the disbursements been loans or brokerage payments clearly is riddled with glaring inconsistencies and lack of clarity. Indeed even going by Exhibit D1, the brokerage agreement and I have already alluded to it, it presupposes that the broker is expected to first secure lifes or affiliations before payment. The idea that mobilization fees have to be paid is no where contained in the said agreement. Indeed by the evidence of both 1st and 2nd Accused Persons, there is a value attached to a life and the aggregate values of lifes secured will entitle the broker to a certain percentage of fees. Without lifes secured, there cannot be payments on brokerage. The condition precedent to the validity of any brokerage transaction is the securing of lifes and no more.
Now in addition to the absence of any precise identifiable basis to support the securing of lifes as alleged by the 1st and 2nd Accused Persons, there is similarly no evidence to show what really happened to these moneys. By the unchallenged evidence of the accountant, PW4, none of these moneys was at any time paid back.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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On the whole, the dishonest intent with respect to counts 2 and 3, lie in the disposition of funds of the company in a manner not countenanced by the laws or regulations governing the operations of the company and also violates the implied relationship of trust that exist between Accused Persons as directors of WSHL or the company. On the evidence, there is no verifiable template to support the granting of loans to anybody. On the evidence to the Federal Government had vide Exhibit P4 affiliated 8 universities to the company and enormous payments made to the company. The allegation that at the material time that the company lacked money is therefore in the circumstances idle talk. If lifes were indeed secured by 2nd Accused or indeed any company, no such evidence was supplied to Court.
Furthermore, the dishonest intent can also be deduced from the fact that at no time did the 1st Accused who was aware of the interest of 2nd Accused in Remisco either inform the company of this clear conflict of interest or indeed inform the company of this transaction. The 2nd Accused himself aware of his position did not declare his interest in Remisco to the board or

inform the board of this loan or brokerage transaction. It is clear here that the Accused persons were not honest in their dealings with the company. The company has suffered loss while the 2nd Accused has undoubtedly benefited.
Both 1st and 2nd Accused Persons are prominent members of the company and clearly are intelligent and discerning enough to know better how to deal with company funds. The duty to secure the funds of shareholders is not one to be trifled with. Both 1st and 2nd Accused Persons were sitting Directors on the board of Wisehealth Services Limited and the duty to act responsibly is my considered view paramount. Yes the 1st and 2nd Accused Persons may have found the company nut is no licence to use the funds of the company whimsically without recourse to either the Board or the internal rules or mechanisms put in place to ensure the smooth running of the company.”

It is noteworthy that there is no ground of this appeal against the above findings of the trial Court that there is nothing in exhibit P8 (1-3), the minutes of the Board of Wisehealth Services Ltd, showing that the issue of granting loans to secure lifes (health care

recipients) was discussed, that there is no Board authorization to grant such loans in those minutes, that the brokerage agreement between Wisehealth Services Ltd and Remisco International Ltd in exhibit D1 was in existence since 10-12-2006 before the sums of 5 million and 7 million were paid to the appellant and Remisco respectively, that there is nothing in exhibit D1 that support or authorise payment of the above sums of money to the appellant and Remisco, that there is no evidence of the particulars of the lifes claimed to have been secured or registered by the appellant or Remisco, that exhibit P4 from National Health Insurance Scheme (NHIS) show that 8 Universities were assigned and affiliated to Wisehealth Services Limited by National Health Insurance Scheme (NHIS), that from June, 2006 to June 2009, Wisehealth Services Ltd received the sum of One Billion, Six Hundred and Twenty Three Million, Nine Hundred and Twenty Four Thousand, Three Hundred and Seventy Six Naira, Twenty Seven Kobo under the Public Sector Social Health Programme and another N38,868,784.00 for January 2009 to August 2009 for NHIS/MDG/MCH project in Gombe State, that the Universities

the appellant claimed were the institutions he and Remisco solicited for health care recipients (“lifes”) form part of the universities already given to Wisehealth Services Ltd by National Health Insurance Scheme (NHIS) in exhibit P4, that therefore there is nothing to show what the appellant did with the monies he and Remisco received, that the appellant did not produce any evidence to show that the monies or any part thereof were used to open offices in different geopolitical divisions in the country and to buy equipments or to travel country wide marketing for health care recipients, that there is no evidence that Remisco procured 33,217 from 8 universities, which is equivalent to 115,000 of lifes and that what was due to Remisco for that service was 25 million naira, that there is no evidence that Wisehealth Services secured a payment bond as directed by National Health Insurance Scheme (NHIS), that the appellant failed to discharge the evidential burden that shifted to it to rebut the evidence of the prosecution that no lifes or health care recipients were enlisted or registered by Wisehealth Services Ltd, that the appellant and Remisco did

not pay back the above mentioned sums of money to Wisehealth Services Ltd.
By not appealing against these findings of facts, the appellant accepted them as correct, conclusive and binding upon it and therefore cannot competently and validly argue contrary to those findings of facts. See Dabup v. Kolo (1993) 12 SCNJ 1.

Learned Counsel for the appellant argued that the appellant in Counts 2 and 3 was charged with receiving the sums of 5 million naira and 7 million naira as mobilization fees and brokerage fees for services not rendered, that the evidence of the prosecution witnesses were consistent that the appellant applied for and was paid 5 million naira as a soft loan, that the DW1 and appellant testified that the two payments were for brokerage services rendered by the appellant and his company, Remisco International Ltd, that the evidence of the appellant is that the payments were authorized by the Board of Wisehealth Services Ltd, that the 7 million naira was paid to Remisco International Agency Ltd and not to the appellant himself, that if the payments made to the appellants were taken to be loan but latter converted to payment for services

contracted to Remisco International Agency under the memorandum of understanding for brokerage services made between the company and Wisehealth Services Limited; then it is improper to arraign the appellant for receiving payments for services not rendered and if in the extreme situation the appellant were to be so arraigned, the company who was taken to have now received the money must first be asked to either return the money received or render the services for which it was paid, that the appellant was misled by the allegations levied against him in the counts, that to prove the allegation made against the Appellant under Section 312 of the Penal Code, it is necessary to prove “dishonest intent” as a key ingredient of the offence because all breach of trust is not necessarily a criminal offence as an act may be done intentionally without being dishonest, that in the instant case, dishonest intent cannot be imputed to the appellant concerning the allegation contained in count 2 which has to do with payment of N7,000,000 because he was not the one who made the application to the company, that dishonest intent must be shown to have predated the

constituting the offence, that in the instant case, the prosecution has a duty to show that application for N5,000,000 loan made by the appellant to the company and the N7,000,000.00 not made by him were both done with dishonest intent, and that of the N7,000,000.00 if the application was not made by the appellant, one wonders how dishonest intent could be imputed to him, that for that of N5,000,000, even if it was shown that the payment was made to him and not eventually converted to payment for services contracted to Remisco International Agency limited by Wisehealth Services Limited as the evidence on record and findings of the trial Court reveals, dishonest intent was not proved by the prosecution, because going by the application made by the applicant and the evidence of prosecution witnesses the application was strictly for personal for loan, that the application letter is at page 12 of the record and it provides as follows ”The requested assistance is to enable me resolve some immediate personal problems vis a vis my present ongoing project in Ekiti State-, that it is clear that the appellant was not charged with any offence that has to do with his

application for loan, the receiving of it and repayment, that if those were the charges; perhaps the comments made by the trial Judge on the propriety of the appellant applying for and collecting loan from the company in which he was a director as well as the manner of payment i.e he being a director loan applicant co-signing the cheque with another director could be relevant and of a serious moment, that the trial Judge misdirected himself having regards to the allegations brought against the appellant and the evidence before him to hold that the appellant had dishonest intent to collect payments for services not rendered and this misdirection obviously occasioned miscarriage of justice.

Learned Counsel for the respondent argued that the evidence of the prosecution witnesses clearly demonstrated that the Appellant, one Dr. Godwin Adeogba and PW1, (P.Y. Okala) were all signatories of the account of the company, Wise Health Services Limited and by that singular act entrusted with the money of the company, that from the evidence led by the prosecution witnesses, it is clear that the Appellant with one Dr. Godwin Adeogba agreed and withdrew the sums of

N5,000,000 (five million naira) and N7,000,000 (seven million naira) in favour of the Appellant using his Company Remisco International Agency Ltd as loan wherein the Appellant issued two personal cheques as securities for the amount withdrawn, that Wisehealth Services Ltd is not a bank, that its funds were meant to pay health care providers under the National Health Insurance Scheme and not to give loans, that the payments of the said sums of 5 million naira and 7 million naira were authorized by only the appellant and Dr Godwin Adeogba with whom the appellant co-funded Wisehealth Services Ltd to the exclusion of other directors, that the monies were paid to and received by the appellant in breach of the trust owed by them to Wisehealth Services Ltd, that the eight universities having been assigned to Wisehealth Services Ltd by National Health Insurance Scheme (NHIS), there was no basis spending money as brokerage fees to secure lifes or health care recipients from those universities, that the appellant with his co-founder of Wisehealth Services Ltd, 1st accused, procured the payment of the monies to the appellant and Remisco International Agency Ltd with a

dishonest intention, that Wisehealth Services Ltd cheque for 5 million naira addressed to the appellant was signed by him as a co-signatory of the account of Wisehealth Services Limited, that appellant also signed the cheque for 6 million made payable to Remisco and received the cash of 1million naira, that the appellant was a Director and Shareholder in Wisehealth Services Ltd and in Remisco, that no lifes were secured by the appellant and Remisco.

Let me now determine the merits of the above arguments of both sides.
The evidence before the trial Court support the particulars of the offence in counts 2 and 3, to wit, that the appellant was paid 5 million naira as mobilization for services he did not render, that he was paid 7 million naira as brokerage fees for services not rendered.

The extrajudicial statement of the appellant in exhibits P12b and P12c and the testimonies of PW3 and PW4 establish that by a letter dated 1-12-2006, the appellant applied for a short term loan of 5 Million naira from Wisehealth Services and issued a post dated cheque of equivalent sum as a guarantee that he will repay the loan. The appellant as DW1 testified in

examination in chief that “At the time, we put up WSHL only 2 of us were there. We were asked to open up offices in 6 geopolitical zones and I had to buy computers and send there. So because there was no money that was why I asked for a loan to enable us get lives so that the company will survive long after we are gone.”

So it is not in dispute that the appellant applied for a loan from Wisehealth Services. PW4, an accountant with Wisehealth Services Limited testified that he and the Assistant General Manager Accounts received the cheques issued by the appellant as guarantee that the loans would be repaid. He further testified that the appellant’s application for loan was granted and was converted to payment for brokerage services by the Managing Director of Wisehealth Services Ltd (1st Accused). The appellant in his extrajudicial statement exhibit P12c stated that “N5 Million requested on 1st December, 2006 was expended on various contacts made between the accreditation of Wise Health and the affiliation. The N7 Million request of 18th October was given as mobilization for securing the affiliation of the students of eight

universities mentioned before and possibly some states such as Lagos, Benue, Ekiti etc…”

In his extrajudicial statement in exhibit 12b he stated thusly-
“I went out of my way using prominent members of the political class and indeed employed the services of one of the employee of Remisco group. We finally succeeded in securing eight universities viz universities of Lagos, Ife, Ilorin, Jos, Ahmadu Bello, Kano, Calabar and Benin. In getting these lifes considerable cost was involved. Consequently, I requested for a loan which was refused by the M.D. To enable me recover my cost, Remisco Group took a brokerage service with Wise Health Services Ltd and the MD paid for services rendered partially claiming that Remisco had to do more. The payment for brokerage services is specified in clause 3 of the Terms of Reference. Although the payment of N5Million Naira was based in consideration of the procurement of lifes.“

It is glaring from the foregoing that the loan applied for by the appellant were converted by the then Managing Director of Wisehealth Services Ltd as payment for the brokerage services by Remisco to enable appellant

recover the costs he had incurred in securing eight universities for Wisehealth Services Limited. So the appellant was validly charged with being paid 5 Million naira as mobilization for brokerage services and 7 million naira as brokerage fees.

In the face of the above statement of the appellant in exhibits 12b and 12c that the sums of 5 Million naira and 7 million naira were paid by Wisehealth Services Ltd to the appellant on the false pretence that the payments were in consideration of care recipients (lifes) procured by him and Remisco, to enable him recover the costs he incurred in procuring such lifes, the argument of Learned Counsel for the appellant that it was wrong to charge and try the appellant and not Remisco with the commission of the offences in counts 2 and 3 is invalid. The appellant was the final recipient and beneficiary of the payments which were admittedly made to enable him recover the costs he said he incurred in procuring health care recipients for Wisehealth Services Limited. The payments were made to him using Remisco as a conduit pipe under the false pretence that Remisco was being paid for brokerage services it had rendered. If,

as argued by Learned Counsel for the appellant, the payments were made in good faith with the approval of the board in furtherance of the core objectives of the company, why were they not made direct to him as reimbursement for costs he personally incurred with the knowledge and authorization of the Board of the company, instead of the appellant and the then Managing Director with whom he co-founded Wisehealth Services Limited entering into the shady arrangement of enabling him recover the costs he personally incurred in promoting the health care business of Wisehealth Services Limited through false payments to appellant’s company, Remisco International Limited under the false pretence that it was payment for a brokerage service it had rendered to Wisehealth Services Limited. It is glaring from exhibits P12b and P12c that Remisco did not render any brokerage service for which the above sums were paid to it. The then Managing Director, Dr Godwin Adeogba and the appellant pretended that Remisco had rendered the said service to enable the monies be paid to it on record, which monies were actually received by the appellant.

In addition to this clear

admission by the appellant in his extrajudicial statements, exhibits P12b and P12c that the said payments were made to the appellant’s company, Remisco under the false pretence that Remisco rendered brokerage services to Wisehealth Services Limited when it did not, there is no ground of this appeal complaining against or challenging the finding of the trial Court that there is nothing in exhibit D1 that authorize or provide for the said payments to Remisco as contrived by the then Managing Director of Wisehealth Services Limited and the appellant, that there is no evidence of the particulars of the lifes the appellant claimed to have incurred costs to secure or register, that exhibit P4 from National Health Insurance Scheme (NHIS) show that 8 universities were assigned to and affiliated to Wisehealth Services Limited by National Health Insurance Scheme (NHIS), that for these universities, National Health Insurance Scheme (NHIS) paid Wisehealth Services Limited the sum of One Billion Six Hundred and Twenty Three Million, Nine Hundred and Twenty Four Thousand, Three Hundred and Seventy Six Naira, Twenty Seven Kobo under the Public Sector Social Health

Programme for the period of June 2006 to June 2009 and another N38,868,784.00 for January 2009 to August 2009 for NHIS/MDG/MCH project in Gombe State, that the same 8 universities the appellant claimed to have incurred costs procuring for Wisehealth Services Limited were already assigned to Wisehealth Services Limited by National Health Insurance Scheme (NHIS) and paid for by National Health Insurance Scheme (NHIS) as exhibit P4 shows, that therefore there is nothing to show what the appellant did with the monies he received through Remisco, that the appellant did not produce any evidence to show that his monies were used to open offices in different geopolitical divisions in the country and to buy equipments or to travel country wide marketing for healthcare recipients, that there is no evidence that Remisco procured 33,217 from 8 universities which is equivalent to 115,000 lifes, that there is no evidence that Remisco was entitled to be paid 25 Million naira for brokerage services, that the appellant and Remisco did not pay back the said sums of 5 Million naira and 7 million naira to Wisehealth Services Limited.

PW4 testified under cross examination

that National Health Insurance Scheme (NHIS) gives lives to Health Maintenance Organisations (HMO), including Wisehealth Services Limited to manage on their behalf and pay for this service, that the lives are not secured by the efforts of the HMO as they are given to the Health Maintenance Organisations (HMO) by National Health Insurance Scheme (NHIS), that National Health Insurance Scheme (NHIS) were given 8 universities to manage their staff, that the lifes were allocated to Wisehealth Services Limited since 2005. PW5, the Managing Director of Wisehealth Services Limited on 1-5-2008, testified that-
“I became the managing director of Wise Health on 1st May, 2008. I took over from the accused who was the former managing director. I was appointed by the board.
When I took over, the first thing I observed was that the company was in dire financial straits salaries of all workers had not been paid for three months, capitation payments for members of health institution we render services were not paid and these capitation payments were to be made monthly.
To facilitates this, the NHIS pays us for onward payment to health care providers, these

payments were delinquent to the tune of N50 to N60Million at the time I took over. I cannot remember the precise figures.
We were also indebted to banks for a large sum of money. I cannot remember the figure.
There was absolutely no money to run the company. These were the conditions I met when I took over. I reported by tending to the board of directors at a meeting held on 6th June, 2008.
The directors advised me to ensure that the accounts of the company which had not been prepared and presented for three years, they advised me to ensure that the auditors came to present the report if ready.
Fortunately the auditors had worked on the account and were prepared to present them at the next board meeting.
A lot of this erosion had been financed by 3rd party credit after this meeting, the chairman of the company gave us some documents relating to insider loans among others and they asked me to investigate.
I followed the paper trial and I find out that large sums of money had been given out purportedly as brokerage fees to the 4th accused in the dock ostensibly these moneys were paid without the approval of the board. They were paid

to the 4th accused persons to secure “lives” for the company. There was no evidence available to me that these tasks were accomplished.
Furthermore, there was evidence which I extracted that payments were made and collected by the accused persons 2, 3 and 4. There was also no evidence that these sums of money were refunded in view of non performance.
I submitted my findings to the chairman and or the basis of this issued a query to the former managing director. The reply of the managing director was found to be unsatisfactory by the chairman and aggrieved members of the board.
Thereafter, he caused a petition to be written to the EFCC to complain at the conduct of the accused persons.
What health maintenance organisation like Wise Health is to register people and in case of wise health these people are employees of Federal Government postulating to harness these lives to health care providers with hospitals and clinics.
The role of HMO is to pay these health care providers for looking after the lives of those registered. This is done whether the lives receive care or not. The providers are paid every month whether they

provide services or not.
Initially the lives we had were given to us by NHIS. We are one of several HMO that received lives transferred to us by NHIS but of course, this lives initially were for Federal Government employees. But where they are completely covered, the onus is on the HMO to look for lives. Throughout my tenure as managing director, no lives were brought in by anybody neither do I recollect from an examination of the documents at my disposal that any lives were brought in before any tenure beyond the initial ones given by NHIS.
While I was there we managed to secure the M.D.G/MCH state health insurance programme and several lives came in through Gombe State to Wise health.
At that time, we had two contract workers who were familiar with the terrain in Gombe and they assisted us in Gombe. There were 8 Federal Universities 1. OAU 2. Unilag 3. Unilorin 4. Uniben 5. ABU 6. Bayero University 7. University of Calabar 8. UniJos. The lives of the workers in all of these federal universities that were given to us by NHIS directly and which we are responsible for.
My most important function is to ensure that health care facilities are

properly and effectively given to those under our care. Secondly, my duty is to ensure that capitation payments as and when due. There are also the normal administrative duty.
Granting of loan is never part of the duty of the managing director.“

The then Managing Director that made the payments to the appellant testified in examination in chief that –
“In year 2005, when NHIS was launched by President Obasnajo, HMO’s were classified into two types. The first handled the core Federal Miniseries. As the Managing Director of Wisehealth, I was not interested in that, so I did not apply for that. Because of my involvement of NHIS as it was been formed, I became interested in Universities because at that time, it was felt that they were the most difficult to handle and therefore Wisehealth became the only HMO at that time to be accredited for private health insurance by the NHIS. Wisehealth started the HMO of the second group which is the PHI (Private Health Insurance) and that meant we had to source for client based on capture market affiliated to us.
First, we had to visit the universities, understand the environment

of the universities, the relationship particularly between the principal, officers, the unions especially ASUU. We also had to liaise with NUC by making sure we communicate both in letters and personal visits and arranging seminars to convince the lecturers who were our targets. And all directors of the company were therefore encouraged to be part of these in sourcing for Life’s and as an incentive, we had to initiate a standard brokerage agreement which set the frame work for remunerating such efforts. Infact, we spent 3 board meetings to conclude these arrangement in 2005. At that time because our clients were essentially Federal Civil Servants, President Obasanjo’s administration arranged that the Accountant General’s office should pay the HMO’s through the NHIS and that payment was split into capitation fees (to cover the primary risk at the lowest tier of care which is the primary care).There is fee for service (this is for secondary care), then there is administrative fee (which is the inflow of money for the HMO). We therefore agree that the brokerage fee can only be a percentage of the administrative fee, to be specific usually

the administrative fee is 10% of the overall payment from NHIS while the brokerage fee we agreed will then be 10% of that administrative fee. That makes it approximately 10% of the total payment from NHIS.
To answer this question, I need to explain the difference between allocation and affiliation. The first group of HMO’s were allocated the care for ministries. Therefore their payment was for covering whoever is in their personnel received in the Federal Civil service and therefore NHIS officials actually set up an office in each ministry to confirm the payments that should be paid to each of these HMO’s without having to register them. However on our own care, since we were only affiliated to universities, we had to do the registration of the entire staff ourselves and we were paid based on the achieved level of registration. We had a liable of registration which was filled every week for example A.B.U had almost 7,000 members of staff and it took us almost 2 years to even reach 65%. If it has been the 1st group of care ministries, whatever the volume of personnel that was the money they were paid but not us.
The allegation is sickening

and unfair. Sickening because the approval to operate brokerage transaction was given within the 1st, 4th to 5th board meetings where the people making the allegation were not there particularly Kwajafa, Okala, Dr. Fajemise, who was the chairman when I was the managing director. It is unfair because the 2nd Accused and myself, many times risking our lives by roads and by night and travelling to 8 universities securing LIFES for example, we will leave Abuja deliberately by road, travel North and go to Kaduna, Zaria, and then to Kano, then to Jos and because there was no enough time, sometimes it became difficult and we had to sleep on the road because of the terrain. Then we travel down south from Calabar to Part-HarCourt, to Benin and to Lagos (there are all universities we covered). In respect of the N5,000,000 a company, the 2nd Accused was much acquainted with was introduced by 2nd Accused because of their activities in helping to secure lives. We received a letter for a loan to engage in activities to boost their capacity to secure LIFES. As Managing Director, I did two things. I justified the loan. That it should be part and parcel of the remuneration

that should come from brokerage and to be on the safe side since we had not concluded the standardizing of the brokerage agreement at that time, I requested that a post dated cheque be deposited for that amount. Later after the brokerage agreement had been standardize and he started receiving our payments, we netted the two, meaning the amount due for brokerage fee minus the loan. The brokerage fee due to us was more so we returned the post-dated cheque. Regarding the N7,000,000. At that time, the brokerage fee had already become quite a substantial amount that the N7Million was not regarded as a loan but as a payment that was over due to the company Remisco. As I explained earlier 10% was due to them on a monthly basis and what was due to them as at that time was over N25Million.
Remisco used the based of affiliation to procure LIFES.
The 8 universities we talked about, are about 33,217 families. I will explain why I say families and not Lifes. Every Federal Civil Servant was entitled to register self, spouse and 4 biological children which means each principal enrolee is in theory equivalent to 6 lives. However in the universities, some of the

staff are bachelors and some do not have large families so we set up an average of 3.5 persons per each principal enrolee therefore when I say 33,317 families, it meant that figure multiplies by 3.5% lives so it was well over 115,000 lives. That was the lifes procured by Remisco and it was based on those lifes that we had to be taking an advanced payment bond on those lives before we could collect money from NHIS and it was the same NHIS that directed us to where to get the bond.“

The appellant testified as DW2 in examination in chief thusly-
“I know the 1st Accused very well. He was the promoter of W.S.HL and we co-founded the incorporation and we invited our friends who have now brought us to Court.
I am a director of W.S.H.L and I was once elected chairman of the company. We did not misappropriate any money. We worked for the money by procuring lives for W.S.H.L without which there could be no WSHL. By working around 8 universities affiliated to WSHL, it was a capture market and we have to work to get lives. When affiliation was done, there were no lives, so you have to work to get them that is by way of convincing the

universities particularly the universities of Unilag for example, the former Registrar is late now assisted us to get the lives. We worked to secure 33,217 lives from the 8 universities and we equally secured 116,260 lives from the 33,217 families.
There is a group of companies, Remisco Group that we utilized to secure lives.
Question: How many lives did Remisco secure
Answer: 116,2600 lives
Question: How much
Remisco was supposed to be paid 10% of the administrative fee. Each enrolee or each life would pay N836.5k. So if this is multiplied by the number of lives, what was due to Remisco from July, 2005 to end of October, 2007 was supposed to be N25Million, 271,000.784k, however only 12Million was paid.
Question: Was the 12 Million different from N5Million and N7Million allegedly misappropriated.
At the time, we put up WSHL only 2 of us were there. We were asked to open up offices in 6 geopolitical zones and I had to buy computers and send there. So because there was no money that was why I asked for a loan to enable us get lives so that the company will survive long after we are gone.”

Beyond the oral assertions

in open Court that Remisco secured 116,226 lives from the 33,217 families in the 8 universities, there is no documentary evidence of such transactions. Without any documentary evidence of these transactions and their detailed particulars that justify any payments to Remisco, then the appellant failed to discharge the evidential burden that had shifted to it to prove reasonable doubt in the evidence of the prosecution. By the appellant’s own admission in exhibits 12b and 12c, 5 million naira and 7 million naira were paid to him and Remisco to enable him recover the costs he incurred in securing lifes (health care recipients) when Wisehealth Services Ltd started business with DW1 and the appellant (DW2) as the only directors. The appellant in his testimony in examination in chief testified that the 5 million naira and 7 million naira paid to Remisco to enable him recover his costs is part of the N25,271,000.784 he said was due from Wisehealth Services to Remisco for procuring lifes from July 2005 to end of October 2007. The appellant did not state the number of lifes he procured, the costs of the travels he made in procuring the lifes, the cost of opening

offices in 6 geopolitical zones, and the detailed particulars of the cost he incurred so as to justify the payments of 5 million naira and 7 million naira to him through Remisco. As it is, assuming the appellant had appealed against the above highlighted findings of facts by the trial Court, the appeal would be baseless and lack merit.

I agree with the argument of Learned Counsel for the appellant that breach of trust per se would not be criminal. It is clear from the definition of criminal breach of trust that for a breach of trust to be criminal, the person with the property or dominion over it must have dishonestly misappropriated or converted to his own use or the use of another or dishonestly used or disposed of the property. The exact text of Section 311 of the Penal Code Law reads thusly-
“Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied,

which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust.“

It is glaring from the evidence that the appellant dishonestly converted to his own use or dishonestly used the sums of 5 million naira and 7 million naira held by Wisehealth Services limited by collecting the said sums for the costs he claimed he incurred in procuring lifes for Wisehealth Services Limited and promoting its business, which collection he effected by means of dishonesty and contrivance by DW1 and himself to pay the said sums to his company Remisco on the false pretence that Remisco rendered brokerage services to Wishealth Services Ltd, for onward payment to him, when there is nothing to show that he incurred any such costs or rendered any of the services he claimed to have rendered to Wisehealth Services Limited that entitled him to such payments.
In the light of the foregoing, issues Nos. 2 and 3 are resolved in favour of the respondent.

Let me now consider issue No. 4 which asks “Whether in the absence of the prosecution’s visit to the universities, the holding of the learned

trial Judge that Exhibit P4 was sufficient proof that the Appellant did not secure any life from the universities was not an invitation to him to prove his innocence of the alleged charges“

I have carefully read and considered the arguments of both sides on this issue.

Learned Counsel for the appellant argued that exhibit P4 and the testimonies of other prosecution witnesses were not enough to shift the burden of proof on the appellant without the prosecution giving evidence of investigation carried out in any or all of the 8 universities affiliated by National Health Insurance Scheme (NHIS) to Wisehealth Services Ltd, that while the prosecution contended that the lifes the appellant claimed to have procured were the same lifes National Health Insurance Scheme (NHIS) affiliated to Wisehealth Services Ltd as exhibit P4 shows, the appellant contends that he actually enrolled the staff and family members of the staff of the 8 universities, that the prosecution should have visited the 8 universities to find out if appellant visited them to procure lifes, that the trial Court shifted the burden of appellant to prove his innocence when it held that

the appellant should have called anyone from those universities to testify on his behalf, that the prosecution should have visited the universities at the early stage of the investigation to confirm the appellant’s extrajudicial statement on the issue, that the only evidence of how over 133,217 lifes became captured in the Wisehealth system is the testimony of the appellant, that to effectively shift the burden of proof on the appellant, the prosecution ought to have investigated the visitation to the universities and the activities the appellant claimed to have carried out or call representatives of the universities to testify on the issue, that the trial Court held that the appellant was a Director of Remisco International Agency Ltd on the assumption that he was such a director when there was no evidence in law to justify that assumption, that the trial Court was wrong to have held that the appellant was the one who was paid for the alleged job and yet failed to deliver, that the appellant was not tried under the Companies and Allied Matters Act or the Investment and Security Act which allows every person who was in charge of a company as well as the

company to be tried for an offence committed by the company, that the veil of Remisco cannot be lifted as it is not a party in the case and there is no evidence of its relationship with the appellant and that the case of Oyebanji v The State (2011) LPELR 3765 relied on by the trial Court is not applicable to this case because the veil of incorporation in that case was lifted, but in this case the veil of incorporation of Remisco was not lifted and the appellant was simply arraigned and tried as the person who received the monies for services not rendered.

Learned Counsel for the respondent argued that Learned Counsel for the appellant did not appreciate the fraudulent role played by the appellant in paying Wisehealth Services funds to himself as loan, the post dated cheques that served as collaterals for the repayment of the loan were appellant’s personal cheques issued by him, that where funds of a company is entrusted in the hands of the directors as in the instant case and one of the directors used another company to siphoned the funds, the Court should disregard the corporate veil and pay regard to the particular director that perpetuated the

fraud. For this submission he relied on Oyebanji v The State (supra). He also argued that the appellant personally as director of Wisehealth Services Ltd signed the two cheques from that company for 5 million naira and 7 million naira and the two cheques that were used to guarantee the repayment of the said sums of money, were his personal cheques signed by him.

Let me now determine the merit of the above arguments of both sides.
Exhibits 12b and 12c, the extra judicial statements of the appellant establish that Remisco did not render the services the sums of 5 million naira and 7 million naira were paid for, that the payments were meant to reimburse the appellant for the costs he claimed to have incurred to procure lifes for Wisehealth Services Ltd, to open its offices in 6 geopolitical zones and travel expenses to the various affiliated universities, that the DW1 and appellant, then the only two shareholders and directors of Wisehealth agreed that the said payments be made to appellant’s company, Remisco on the false pretence that it rendered brokerage services to Wisehealth Services Ltd so that he can receive the monies under the name of

Remisco. So the appellant a director of Wisehealth Services Limited used another company, Remisco in which he is a director/Chairman of the Board of directors to siphon Wisehealth Services Ltd funds to himself under the false pretence that it is payment to Remisco for brokerage service it rendered to Wisehealth Services Ltd. The appellant by his actions breached the trust imposed on him by his office as Director of Wisehealth Service Ltd and a signatory of its account and committed the offences of criminal breach of trust. It is not Remisco company that committed those offences. Remisco can be accused of aiding and abetting the commission of the said crimes by the appellant, who is the principal offender. The appellant remains primarily liable to be charged with the commission of the crime and the fact that Remisco is joined or not joined is of no moment.

It is noteworthy that the purpose of the crime is to enable the appellant be paid the said sums and he was the actual recipient and beneficiary of the monies. The corporate persona of Remisco cannot be invoked to block the investigation and prosecution of the appellant, a director and chairman of

Remisco for the crime he conceived and executed for his personal benefit and not the corporate benefit of Remisco. In a situation such as this one, the issue of whether he can be prosecuted for such payments made in the name of another company he used to collect the monies does not arise. Assuming the situation gave rise to such a consideration, the prosecution has chosen to prosecute him and not Remisco. The exercise of that prosecutional discretion is competent and is justified by the facts of the case. All the trial Court did was to determine the question brought before it, to wit, whether the appellant committed the offences in counts 2 and 3 of the charge.

The appellant’s own admission in exhibits P12b and P12c and the testimony of DW1 that the monies were paid to Remisco under the false pretence that it rendered the brokerage services to enable the appellant recover the costs he personally incurred to procure lifes for Wisehealth Services Limited and to carry out other activities in furtherance of Wisehealth’s interest, settles the matter of his personal responsibility for the commission of the offences in counts 2 and 3.

The argument of Learned Counsel for the appellant that there is no admissible evidence of the relationship between Remisco and the appellant is invalid as it disregards the admission of the appellant in his testimony under cross examination that he and other persons own Remisco and that he signed the brokerage agreement between Wisehealth and Remisco in exhibit D1 on behalf of Remisco and that he issued and signed his personal cheques exhibits P5 and P6 that he deposited with Wisehealth Services Ltd as collateral to guarantee the repayment of the monies. In any case, the appellant admitted in exhibits P12b and P12c that he requested that the monies be paid to him through Remisco.

Learned Counsel for the appellant stated in the appellant’s brief that “the application letter made by the Appellant is at page 12 of the record”. He argued that it was an application for a personal loan and then reproduced the portion of that letter thusly- ”The requested assistance is to enable me resolve some immediate personal problems vis a vis my present ongoing project in Ekiti State”. I have perused the said letter. It is written on the letter

head of Remisco Petroleum & Gas Ltd. it is signed by the appellant as chairman. Learned Counsel for the appellant cannot argue that the relationship between Remisco and appellant was not proved while relying on a letter written on a Remisco Petroleum & Gas Ltd letter headed paper and signed by him as chairman.

I had already dealt with the issue of who has the burden to prove that the appellant procured lifes for Wisehealth and whether the burden was discharged. I do not need to belabour the point.

But let me further say that since exhibits P12b and P12c show that the appellant admitted that he arranged for the said amounts to be paid to the appellant through Remisco to enable him recover the costs he said he incurred in promoting the business of Wisehealth at its inception and procuring lifes for Wisehealth and the prosecution has elicited evidence through PW4, the accountant of Wisehealth that handled the payments and exhibits P4 that National Health Insurance Scheme gave Wisehealth lifes to manage on its behalf and paid Wisehealth for the lifes, that no lifes were procured by the appellant or Remisco, the evidential burden shifted to the

appellant by virtue of Section 133(1) and (2) of the Evidence Act 2011 to prove that he procured the lifes and incurred the costs that entitled him to be paid 5 Million naira and 7 Million naira. Beyond his oral testimony and that of DW1, there is no documentary evidence that he procured such lifes and incurred any costs that justify the said payments to him.

In the light of the foregoing, I resolve issue No. 4 in favour of the respondent.
On the whole this appeal fails as it lacks merit. It is accordingly dismissed.

ABDU ABOKI, J.C.A.: I have read before now, a draft of the lead judgment just delivered by my Learned Brother EMMANUEL AKOMAYE AGIM, JCA. I agree that the appeal is unmeritorious and should be dismissed.

My Learned Brother has dealt exhaustively with all the issues raised in this appeal and I adopt his judgment as mine. However, and just for the purpose of emphasis, I will put in one or two words of mine in answer to the question of whether or not the Trial Court validly exercised jurisdiction to entertain and determine this action.
It is trite that Courts are creatures of statute and it is the statute that created a

particular Court that will also confer jurisdiction on that Court. See JAMES V. INEC (2015) 12 NWLR PART 1474 PAGE 538 AT 597 PARAC.
It is also the law that where it is intended to confer exclusive jurisdiction on a Court, the relevant law must expressly provide for it. See SUN INSURANCE NIGERIA PLC V. UMEZ ENGINEERING CONSTRUCTION COMPANY LIMITED (2015) 11 NWLR PART 1471 PAGE 576 AT 612 PARA D-H.
The jurisdiction of the Federal High Court, is derived from Section 251 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Section 251 (1) provides that:
251. (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;
(b) connected with or pertaining to the taxation of companies

and other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation;
(c) connected with or pertaining to customs and excise duties and export duties, including any claim by or against the Nigeria Customs Service or any member or officer thereof, arising from the performance of any duty imposed under any regulation relating to customs and excise duties and export duties;
(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank and another, any act/on by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures: Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer and the bank;
(e) arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and A filed Matters Act;
(f) any Federal

enactment relating to copyright, patent, designs, trade marks and passing-off; industrial designs and merchandise marks, business names, commercial and industrial monopolies, combines and trusts, standards of goods and commodities and industrial standards;
(g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River Benue and their affluents and on such other in/and waterway as may be designated by any enactment to be an international waterway, all Federal ports, (including the constitution and powers of the ports authorities for Federal ports) and carriage by sea;
(h) diplomatic, consular and trade representation;
(i) citizenship, naturalisation and aliens, deportation of persons who are not citizens of Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas;
(j) bankruptcy and insolvency;
(k) aviation and safety of aircraft.
(l) arms, ammunition and explosives;
(m) drugs and poisons;
(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas);
(a) weights and measures:
(p) the administration or the management

and control of the Federal Government or any of its agencies;
(q) subject to the pro visions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and
(s) such other jurisdiction civil or criminal and whether to the exclusion of any other Court or not as may be conferred upon it by an Act of the National Assembly: Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.
Section 251(3) of the 1999 Constitution provides that:
“The Federal High Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters in respect of which jurisdiction is conferred by subsection (1) of

this section.
It is apparent, that the wordings of Subsection (3) of Section 251, removed the exclusivity in dealing with criminal causes and matters, from the Federal High Court; which means that the High Court of a State by virtue of Section 272(1) of 1999 Constitution also shares the jurisdiction with the Federal High Court. Had the lawmakers wanted the jurisdiction in respect of criminal causes and matters to be exclusive to the Federal High Court, it would have been so stated. In the absence thereof, it is clear that both Courts have concurrent jurisdiction in respect of criminal causes and matters.

It is for this reason and the more detailed reasons given by my Learned Brother EMMANUEL AKOMAYE AGIM, JCA that I also find that this appeal is unmeritorious and ought to be dismissed. It is hereby dismissed by me.
I also abide by the consequential order contained in the lead judgment.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was given the privilege of reading in advance the Judgment just delivered by my learned brother, EMMANUEL AKOMAYE AGIM, JCA and I am in complete agreement with the detailed analysis in resolving the issues distilled for

determination of the Appeal. I have nothing more to add. I therefore adopt the Judgment as mine and abide by the orders made therein.

Appearances:

Adekola Mustapha Esq. – For Appellant(s)

Joshua Saidi Esq. – For Respondent(s)