I had the privilege of being a Prosecutor for a few months during my NYSC days at the Ministry of Justice, Bauchi. It is a noble one and not every lawyer has the privilege of doing so. Their role is special as they are focal on giving voices to our criminal laws. Well, this is not about prosecutors but about two laws – Criminal breach of trust and Cheating.
So, what are the offences of criminal breach of trust and cheating? While the two offences sound similar they are different and can be charged differently.
The offence of criminal Breach of Trust.
Section 311 of the Penal Code provides for the offence of Criminal Breach of Trust. It provides thus:
Whoever, being in any manner entrusted with property or with 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 that trust is to be discharged or of a legal contract express or implied, which he has made touching the discharge of the trust, or willfully suffers any other person so to do, commits criminal breach of trust.
Section 312 provides that whoever commits a criminal breach of trust shall be punished with imprisonment for a term which may extend to seven years or with a fine or with both.
To establish this offence in court the prosecutor has to show the following elements¹
- That the person accused of the commission of the offence was entrusted with property or with dominion over it;
- That he: (i) Misappropriated it, or (ii) Converted it to his own use; (iii) Used it; or (iv) Disposed of it;
- That he did so in violation of (i) Any direction of law prescribing the mode in which such trust was to be discharged; or (ii) Any legal contract expressed or implied which he had made concerning the trust; or (iii) That he intentionally allowed some other persons to do as above;
- That he acted as in (b) dishonestly.”
The work of the defence is to cast doubt on any of the elements. It is worth noting that, if it is a mere breach of contractual obligations, charging such a party for a criminal breach of trust would not be warranted.
Now let’s look at the offence of cheating.
The offence of Cheating?
The offence of cheating is provided for in section 320 of the Penal Code, which provides that;
Whoever by deceiving a person-
(a) fraudulently or dishonestly induces the person so deceived to deliver any property to a person or to consent that any person shall retain any property; or
(b) intentionally induces the person so deceived to do or omit to do anything which he would not do or omit to do if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat.
The elements the prosecution must prove to establish this offence are:
The ingredients of the offence of cheating are:
- That the person deceived delivered to someone or consented that some person shall retain some property, and.
- That the person deceived was induced by the accused to part with the property; and
- That the person deceived acted upon the inducement of the accused; and
- That the accused acted fraudulently or dishonestly while inducing that person.
The prosecutor must prove these elements beyond a reasonable doubt to ground a conviction.
On the other hand, the defence’s role is to cast doubts in the mind of the judges that what the prosecution is leading his witness to prove is the truth. Even though it doesn’t appear to be so, the law favours the accused until it is shown otherwise.
1. ONUOHA v. STATE (1988) LPELR-2706(SC); KURE v. COP (2020) LPELR-49378(SC).
2. UZOAGBA & ANOR v. COP (2012) LPELR-15525(SC); HUSSAINI v. C.O.P. GOMBE STATE (2022) LPELR-58217(CA)