The offences of Criminal Breach of Trust (CBT) and Cheating respectively captured under Sections 311 and 321 of the Penal Code1 are offences that have often suffered misapplication due to the numerous efforts by prosecutors to paint civil cases as criminal cases in an attempt to have civil actions fit as criminal cases for investigation and trial. Oftentimes, this results in persons being charged for these offences based on the same factual situation in respect of one transaction in the same proceedings and unfortunately, may lead to an error in the evaluation of evidence. This is what the Supreme Court addressed when it went out of its character to set aside the decisions of three lower Courts in the case of COP V. Kure.2 It is pertinent to note that while the crux of this decision is not the distinction between CBT and Cheating; the apex Court set a laudable precedent in drawing a fine line between these offences which are most times merged either in error or in a bid to pervert the course of justice.

What transpired in COP v. Kure?

In the instant case, the Appellant had been arraigned before the Chief Magistrate Court, Kaduna for the offences of CBT and Cheating contrary to Sections 312 and 322 of the Penal Code. The trial Chief Magistrate found the Appellant guilty as charged and sentenced him to a fine of N8,000 or 2 years imprisonment for the offence of CBT and a fine of N5,000 or 1 year imprisonment for the offence of Cheating. In addition, the Appellant was ordered to pay the sum of N2,505,000 to Mrs. Sokari Davies, a Director of Tourism, Ministry of Culture and Tourism in Rivers State (nominal complainant) as she had already retrieved the sum of N995,000 from the Appellant's bank account. Interestingly, the basis of the said allegations was that the Appellant had been contracted by Mrs. Davies to supply a calf giraffe at the cost of N3.5 Million after representing that he had Giraffes, Zebras and other animals for sale. The Appellant received payment and sent a receipt for the payment to Mrs. Davies via email but failed to deliver the calf giraffe. Mrs. Davies having discovered that the Appellant had withdrawn a substantial part of the money before the delivery of the said animal, briefed a lawyer who obtained an order of lien on the Appellant's account – into which the money was paid. At this time, the Appellant had withdrawn N2,505,000 leaving a balance of N995,000. She also wrote a letter of complaint to the Commissioner of Police, Kaduna State, who then arrested the Appellant and arraigned him for the offence of CBT and Cheating. The High Court affirmed the decision of the Chief Magistrate Court and hence, the Appellant proceeded to the Court of Appeal which dismissed the same for lack of merit.

At the Supreme Court, the Appellant's Counsel argued inter alia that the Court of Appeal ought not to have upheld the conviction of the Appellant by the lower Courts for both CBT and Cheating based on the same factual situation in respect of one transaction in the same proceedings, and that the Court of Appeal should not have relied on the judgment of the trial court to uphold the conviction and sentence of the Appellant for CBT and cheating having regard to the evidence. He submitted while citing R v. Sindair3 and Uzoagba v. Cop4 that the two offences relate to different scenarios with different ingredients and cannot co-exist in the same factual situation borne out of a single transaction. The Respondent on the other hand not only argued vice versa but went ahead to argue that the Appellant did not request for separate trials for both offences even though he could have persuaded the trial Chief Magistrate Court for a separate trial pursuant to the Criminal Procedure Code. The Court of Appeal was indeed swayed by the Respondent's argument from the main issue before it for it concluded that -

"Cheating and criminal breach of trust under Sections 312 and 320 are distinct offences with different ingredients, albeit similar. It is their similarity that permits their joinder in the same trial. The duty on the trial Court is to satisfy itself that the different ingredients constituting the offence have been proved. As pointed out by the Respondent's counsel, had the Appellant felt prejudiced by the Joinder of charges, the same should have been stated at the inception of trial, with a request for separate trials. This not having been done, renders this complaint too late in the day."

From the above, while it is not in doubt that the Learned Court of Appeal recognized that the different ingredients constituting the offences ought to be proved, it is evident that the Court did not pay attention to the issue before it. Recognizing this error, the Supreme Court pointed out that the contents of the first issue that was submitted by the Appellant at both the lower Court and before it reveal that the Appellant was questioning his conviction and sentence - for the two offences on a single transaction that was based on the same factual situation. The Court noted emphatically that both at the lower Court and even before it, the Appellant never raised the issue of joinder of the offences of criminal breach of trust and cheating at the trial stage. The apex Court went on to distinguish the offences of CBT from Cheating and decided inter alia, and rightly so, that by the different ingredients that lead to the commission of the two offences with which the Appellant was charged and convicted, there is no way that the Appellant could be properly convicted for the two offences, involving the same sets of facts of delivering money to the Appellant by the Rivers State Ministry of Culture and Tourism for the contract of supply of calf giraffe.

Interestingly, the Court, while considering the evidence at the Trial Court indicated that it is very much persuaded to follow the decision of the Court of Appeal in Onagoruwa v. State,5 where Niki Tobi, JCA (as he then was) said:

"There is no law known to me where a breach of agreement between two parties, which has no element of criminality, can result in a criminal charge and subsequent conviction. At best, it can be a breach of a contractual relationship which the criminal law lacks legal capacity or competence to enforce and punish."

Distinction Between CBT and Cheating

To explain further, it is pertinent to reproduce the statutory definition of the offences of CBT and Cheating in order to show their distinctive composition and ingredients.

Section 311 of the Penal Code provides for the offence of CBT as follows:

"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 willfully suffers any other person so to do, commits criminal breach of trust."

In essence, where Mr. A, entrusts Mr. B with his property under a contract in order for him to manage same and use the proceeds therefrom for the upkeep of Mr. C, his son pending his return, a dishonest misappropriation of the property by Mr. B will result to a CBT. Another instance is where, Mr. A, a public servant, entrusted with some money for the empowerment of youths and children, dishonestly misappropriates same for himself. For the offence of CBT to be proven, the prosecution must establish the Defendant's dishonest intent to misappropriate, convert, use or dispose the 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 willfully suffers any other person so to do.

Section 320 of the Penal Code provides for the offence of Cheating as follows:

Whoever by deceiving any person

(a) Fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property; or

(b) intentionally induces the peson so deceived to do or omit to do anything which he will 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 and property"

The offence of Cheating is very popular and plays out on a daily basis. If, for instance, a vendor who polishes an iron to look like gold markets same to another person who buys same believing it to be gold, that vendor would be said to have committed the offence of Cheating. Evidently, the offence of Cheating involves a deceit by fraudulent, dishonest or intentional inducement of the person so deceived to part with or deliver the property in issue to any person or to do or omit to do anything, as a result of the deception, capable of causing damage or harm to that person in body, mind, reputation and property; while the offence of criminal breach of trust does not involve deceit and/or fraudulent and dishonest inducement of the settlor to deliver the property for which the trust is created.


CBT is not the same thing as a Cheating. For the former to occur, there must be evidence of trust and the offender must have misappropriated the property of another person or property of which he was not the beneficial owner.6 Significantly, valid trust must (x) involve specific property, (y) reflect the settlor's intent and (z) be created for a lawful purpose. It is therefore appalling that circumstances such as the one under review are being smuggled to be tried as criminal cases thereby wasting scarce judicial time as well as subjecting persons to needless time and resources on transactions that are based on contractual agreements for which criminal law cannot remedy.


* LL.B (2nd Class Upper Division), B.L (1st Class); Associate, J-K Gadzama LLP

1. Penal Code of Northern Nigeria

2. (2020) LCN/4914 (SC)

3. (1968) 3 ALL E.R 241

4. (2014) 5 NWLR (Pt. 140) 441

5. (1993) LPELR – 43456 (CA) at pages 67- 68 Paras, F- B

6. Section 312(2) of the Notes on the Penal Code Law by S. S Richardson

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.