Can a Person Be Convicted for Cheating and Criminal Breach of Trust Based on Same Factual Situation in a Transaction?

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By Damilola Obanijesu Oyawole

Exordium

There have been arguments in several quarters as to whether a defendant charged with cheating and criminal breach of trust can be convicted on the same factual situation in a transaction. Proponents of the first school of thought have argued that a defendant could be convicted for both criminal breach of trust and cheating based on the same factual situation. On the other hand, proponents  of  the  second  school  of  thought  have  argued  that a defendant may be convicted for one of the two offences with which he was charged, depending on which one of them is properly established, he cannot properly be convicted for both offences especially if the entire evidence led, be it oral or documentary, by the prosecution counsel is hinged on one and the same factual situation. This article clears the dust and pontificates the position of the law in its exactitude.

The Concept of ‘Trial’ and ‘Conviction’

Before delving into the crux of this article, it is imperative to descry the concept of ‘trial’ and ‘conviction’. As defined by the Black’s Law Dictionary 8th Edition, ‘trial’ is “a formal judicial examination of evidence and determination of legal claims in an adversary proceeding.” On the other hand, Black’s Law Dictionary defines ‘conviction’ as “the act or process of judicially finding someone guilty of a crime; the state of having been proven guilty.”

Joinder of Offences

Generally, where a defendant is accused of two or more offences, two or more charges shall be preferred against him and all of them tried separately.[1] However, there are circumstances when two or more offences can be tried in a single charge.[2] Amongst these circumstances is where a number of offences are committed by the defendant in the course of the same transaction.

Apropos the foregoing, the law, which is ensconced like the rock of Gibraltar, is that a defendant can only be charged and tried for an offence, however, where another offence is committed within the course of the same transaction, both offences can be charged and tried together.

Now, as initially stated, trial and conviction are not coterminous, they are dissimilar. Whilst a ‘trial’ refers to a formal judicial reception and examination of evidence in the process of determination of legal claims, or in criminal matters, whether the prosecution has proved its case in an adversary proceeding, ‘conviction’ refers to the final decision in which a person is found guilty of a criminal offence upon a criminal trial by the Court. It is the end product of the evidence received in the course of trial.

It is, therefore, diaphanous and beyond peradventure that a defendant can be charged and tried for committing more than an offence in the same transaction, to wit: cheating and criminal breach of trust. However, the matter is quite different when it comes to conviction. Before a defendant can be convicted of the offences of cheating and criminal breach of trust, the prosecution must prove both offences beyond reasonable doubt.[3] In other words, evidence must be led to properly establish the ingredients of both offences. Both offences have their own unique application and must not co-exist in the same set of facts. Where the evidence led by the prosecution is hinged on one factual situation (either cheating or criminal breach of trust), willy-nilly, the other offence must perforce fail.

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It is ineluctable to further put out and contradistinguish the ingredients of both offences.

Ingredients of the Offence of Cheating

Cheating is defined under Section 320 of the Penal Code as under :-

“Whoever by  deceiving a  person –

  • 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
  • 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 basic ingredients to constitute an offence of cheating are:

  • That the accused acted fraudulently or dishonestly while inducing that person.
  • That the person deceived delivered to someone or consented that some person shall retain some property.
  • That the person deceived was induced by the accused to part with property.
  • That the person deceived acted upon the inducement of the accused.[4]

The most essential ingredient here is that there must be a fraudulent or dishonest inducement to the victim.

Ingredients of the Offence of Criminal Breach of Trust

The offence is defined under Section 311 of the Penal Code as under:-

“Whoever, being in any manner entrusted with property or with a  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.”

The basic ingredients to constitute an offence of criminal breach of trust are:-

  • That the accused person was entrusted with property or dominion over it.
  • That he misappropriated it, converted it to his own use or disposed of the said property.
  • That the accused did so in violation of any direction of law, prescribing the mode in which such trust was to be discharged or any legal contract expressed or implied which he had made concerning the trust or that he intentionally allowed some other persons to misappropriate, convert, or dispose of the property in violation of the mode of execution of the trust.
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The most essential ingredient, however, is that the accused person shall be voluntarily entrusted with some property by the victim.

Differences between the Offences of ‘Cheating’ and ‘Criminal Breach of Trust’

The offences of ‘Cheating’ and ‘Criminal Breach of Trust’ are quite different. Whilst the offence of ‘Cheating’ under Section 320 of the Penal Code involves deceit and/or fraudulent and dishonest inducement of the person so deceived to part or deliver the property in issue to any person, the offence of ‘Criminal Breach of Trust’ under Section 311 of the Penal Code does not involve deceit and/or fraudulent and dishonest inducement of the settlor to deliver the property, for which the trust is created, to the trustee. For a trust to be valid, it must involve specific property, reflect the settlor’s intent and be created for a lawful purpose. Where a property is obtained deceitfully or through fraudulent and dishonest inducement, such transaction cannot amount to a trust. Where there is no trust, breach of trust cannot be found by any Court. Furthermore, in the offence of ‘Cheating,’ the dishonest intention to induce the victim to part with his property must exist from the very inception. The crime is committed not when the victim parts with his property or does or omits to do anything, but when the accused person fraudulently induces the victim with dishonest intention to cheat the victim before he could part with such property or do or omit to do anything. It is pertinent to note that the property so parted with is on a pretext of such deception by the accused and is not made voluntarily and with free consent, whereas in an offence of ‘Criminal Breach of Trust’, the accused person comes into possession and has dominion over the property with complete bonafide. He subsequently develops dishonest intention to convert it into his own use in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made with the victim. In other words, the victim entrusts his property with the accused voluntarily and with free consent, and the offence is committed only after the accused person subsequently develops dishonest intentions to convert such entrusted property to his own use; and not when the property is so entrusted.

By the different ingredients that lead to the commission of both offences, there is no way a defendant can be charged and convicted of ‘Cheating’ and ‘Criminal Breach of Trust’ on the same factual situation.

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One might argue that there could be a situation where the victim has voluntarily entrusted his property with the accused and later realizes that he was dishonestly induced by him to do so. Can both offences co-exist in such a situation?

The answer would definitely be in the negative, because although the victim has entrusted his property voluntarily, the same was not done with free consent, as he has been deceived or dishonestly induced to part with his property. Hence, in such a situation, the offence constituted would be that of cheating and not of criminal breach of trust, as the dishonest intention to cheat existed right at the inception. However, if the intention of the accused was bonafide while he was being entrusted with the property and he thereafter developed a dishonest intention to convert the property into his own use, it would constitute an offence of ‘Breach of Trust’ and not ‘Cheating.’ Thus, it is imperative to establish the intention of the accused, and moreover, the timing of such intention.

 Peroration

The concatenation of the foregoing is that, whilst the offences of ‘Cheating’ and ‘Criminal breach of Trust’ could be charged and tried together, provided that they are both committed within the same transaction, the Courts would never convict a defendant for both offences when the prosecution fails to properly establish ingredients of both offences.[5]

It is, therefore, effulgent that every blade of grass in this distensible issue has been groomed and tendered. It is not the duty of the Court to maraud for evidence that both offences have been committed, the prosecution must successfully prove both, separately, as they are distinct offences with ostensible discrepancies.

Damilola is an undergraduate law student of the University of Ilorin. He has a panache for Legal Research, Litigation, Intellectual Property, Cyber Security, Property Law & Arbitration. He can be reached via obanijesudamil@gmail.com

References

[1] Section 209 of the Administration of Criminal Justice Act, 2015.

[2] Section 209 (a), (b), (c), (d) of the Administration of Criminal Justice Act, 2015.

[3] In the words of Tobi, JSC (of  blessed memory) in ABEKE v THE STATE (2007) LPELR – (31) 1 at 17, ‘reasonable doubt is doubt founded on reason which is rational; devoid of sentiment, speculation or parochialism.’

[4] [5] See MICHAEL UZOAGBO  v. C.O.P (2014) 5 NWLR (Pt. 1401) 441 @ P. 457, paras, A-C; 463-464, per Bdlya, J.C.A. (P. 11, Paras. B-E).

[5] One of the fundamental rights protected by the Constitution is the presumption of innocence provided for in Section 36(5) thereof.

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