By Stanley Maduabuchi Ofoegbu Esq

The Economic and Financial Crime Commission Act establishes the EFCC with powers and functions to prosecute financial and economic crimes even though, it does appear that the commission is only interested in securing conviction over financial crimes with little or no attention to economic crimes, the commission is however clothed with wide prosecutorial powers however, subject to the provisions of the Constitution as it concerns the powers of the Attorney general of the federation in section 174 of the 1999 Constitution of Nigeria as amended.

The police on the other hand, is another creation of the law with wider powers as Constitutionally provided in fact, as far lives and properties are concerned, it is the duties of the Nigeria police to protect.

While this paper is not discussing the Constitutional powers of the Nigeria police and the Economic and financial crime commission, this paper is looking particularly at the offence of criminal breach of trust and cheating by impersonation which the Nigeria police and the efcc usually prosecute in our courts.

While appreciating the enormous works of both agencies, it will still not be appropriate not to comment on their short comings.

Section 321 of the Penal Code provides as follows:

A person is said to cheat by personation if he cheats by pretending to be some other person or by knowingly submitting one person for another or representing that he any other person is a person other than he or such other person really is.

Similarly, section 322 of the same Penal Code provides as follows:

Whoever cheats shall be punished with imprisonment for a term which may extend to three years or with fine or with both.

The above cited section among others are mostly sections relied upon by the EFCC in prosecuting internet fraudsters commonly known as yahoo.

Findings has shown that while EFCC in most cases, succeed in securing conviction of suspect charged for the above offences during summary trial, most times, the said EFCC do not even know the true owners and identities of the items recovered from the suspects who eventually get convicted of cheating and impersonation.  The question then becomes, how do you remit the money recovered from these convicts to the real owners?

Most times, upon conviction, the court usually order that the money recovered from the convicts be remitted to the federal government or the owners.

The question still begging for an answer is, who are the real owners? Is federal government a receiver of stolen funds? How do you recover money that was stolen from abroad through cheating and impersonation only to transfer same to the federal government of Nigeria? Where is the justice in the prosecution? No doubt, justice we all know is tripartite. That is, for the accused person, the victim and the society at large.

While the above question is lingering, some one will also ask, how does EFCC even secure conviction over cheating and impersonation even when they cannot establish the person whose money it is?

The dangers in the misapplication of summary trial cannot be over emphasized. EFCC should desist from seeking for conviction at all cost. The court should also not be quick to convict on charges of the above nature without satisfying itself that all the ingredient for the offence has been established. It is not enough that the defendant pleaded guilty to the offence against him. The court should ensure that the prosecution has provided sufficient evidence showing that the ingredient of the offence has been established. It is preposterous to convict a man on the offence of cheating only to end up not knowing whom the man cheated against. You cannot put something upon nothing and expect it to stand.

If a man is arrested for defrauding another of a particular sum, the person who actually own the amount must be capable of being identified for the offence to be completed for some one cannot sin against vacuum.  Consequently, yahoo boys or by whatever designation they are called, should apply caution. They should desist from the said act and if for any reason, they are arrested and charged, they should allow the prosecution and the person who arrest them to prove the allegation by providing the identity of the person they claimed they had defrauded. They should not allow themselves to do the work of the prosecution simply because they want to gain their freedom early. Legal principles and justice should not be slaughtered as a sacrificial lamb in the altar of justice all in the name of summary trial and conviction at all cost. If EFCC cannot establish the identities of the persons who were defrauded, then they should rest and the charge should be struck out. Forfeiting money or properties to federal government when the real owners cannot be identified is repugnant to equity and common sense. Peter should not be rubbed to pay Paul.

Now to the police. Section 311 and 312 of the Penal Code provides for the offence of Criminal breach of trust. Similar provisions are provided for in the criminal code Act.

From personal experience, most of the charges under criminal breach of trust filed by the Nigeria police are usually on allegation of breach of contract or on allegation of funds misappropriation by a servant working for his master.

For the offence of criminal breach of trust to be established, there must be evidence of a trust validly created for the benefit of a third party.

Unfortunately, what most persons including the police take trust to mean is the mere act of having faith or confidence on someone over a contract or some properties.

The breach of contract between parties cannot give rise to criminal breach of trust as far as the foundation was contract irrespective of the intention of any of the parties. Most times, it is usually argued that a contract can have criminal elements and so, the offence of breach of trust can be sustained. This argument is fallacious. Some time, you hear people say “the attitude or conduct of the man is both criminal and civil in nature and hence, the police can proceed with the criminal aspect” this is wrong. It is either an act falls under the civil realms or the criminal realm of adjudication. An act can’t be both civil and criminal the same time. If a law declares an act as criminal, then it becomes criminal and nothing more.  A guest who lodged in a hotel for days and fail to pay for the accommodation cannot be prosecuted for the offence of criminal breach of trust or stealing simply because he checked out of the hotel secretly or under a false pretense. The foundation of the agreement between the guest and the hotel management is centered upon a contract which the guest had breached and hence, the hotel’s remedy is on contract which is civil in nature and not on a criminal law even though there appear to be an intention on the side of the guest not to pay his debt.

A petition by a master that certain goods or money is or are missing from his office and allegedly stolen by the servant without more, may or may not pass as a criminal breach of trust.

The offence of criminal breach of trust presupposes the existence of the following elements in law that is,

  1. That there exist a validly created trust made in favour or the benefit of a third party
  2. That the accused person was entrusted with property
  3. That the accused person misappropriated it, converted it to his own use or disposed the said property
  4. The accused person did so in violation of a law prescribing the mode in which such trust was to be discharged or any legal contract expressed or implied which was made concerning the trust or that he intentionally allowed some other persons to do so.
  5. That the accused person acted dishonestly. See UZOAGBA &ANOR V COP (2012) LPELR-15525(SC), KURE V COP (2020) LPELR-49378(SC)

Breach of trust is not the same thing as breach of contract neither is it the same thing with the offence of stealing even though they might share some features in common. In all the cases given in the illustration to section 311 of the Penal Code in which a person is said to have committed criminal breach of trust, the property misappropriated is the property of another person or the property of which the offender is not the owner.

For a criminal breach of trust to occur, there must be evidence of trust. A trust arises as a result of manifestation to create it. It is a fiduciary relationship regarding property and charging the person with title to the property with equitable duties to deal with it for another’s benefit. It is a property interest held by one person called the trustee at the request of another person called the settlor for the benefit of a third party called the beneficiary. For the trust to be valid, it must involve specific property, reflect the settlor’s intent and be created for a lawful purpose.

A trust exists when property is to be administered by one person on behalf of another for some purpose other than the trustee’s benefit. Where the property is administered for the benefit of the person holding it. It ceases to bear the meaning of trust and consequently, cannot ground a charge for criminal breach of trust. For instance, Bello as an agent of Jigawa was given 10 million naira to purchase certain kinds of furniture from a store in Enugu state, Bello after purchasing the said furniture decided to make use of the balance of 2 million naira for his own benefit. Bello cannot be sued for the offence of Criminal breach of trust as the money was administered for his own benefits among others.

Sadly, and unfortunately, findings have shown that the Nigeria police had in several cases, converted a pure civil transaction into what they describe as a criminal breach of trust at the magistrate courts. One also wonders how learned magistrates come to the conclusion that a contractual arrangement automatically turns criminal once the charge of a criminal breach of trust is filed.

While magistrates of various divisions are encouraged to do a thorough legal research and case analysis especially when confronted with the charge of criminal breach of trust, the police and their prosecutor should be wary and diligent enough to understand when a complaint is founded on a civil transaction and when it is not. The police must understand that a civil suit such as agency relation remains a civil suit even if it appears that one of the parties appear to have a criminal intent.

In summary, the offence of criminal breach of trust must be distinguished from other offences. It must be exhumed from the realms of breach of contract which is purely civil.

The writer of this paper can be reached via 08068515340, 08037750926. ofoegbustanley72@gmail.com.

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