MAINTAINING THE THIN LINE BETWEEN FRAUDULENT BREACH OF TRUST ANDBREACH OF CONTRACTS: A COMPARATIVE ANALYSIS

It is trite learning that every criminal offence is a creature of statute with its punishment clearly defined. No matter how reprehensible a wrong is in a society it does not qualify to be a criminal offence unless same has been defined by a statute with its associated punishment prescribed. It is also a basic knowledge that every criminal offence has its elements or ingredients that must be proven always to secure conviction. All the elements of a criminal offence must always be proven by the prosecution and anything short of that will fail. For example, to secure conviction in a murder trial the prosecution must prove all the elements of murder. If one of the elements is not proven by the prosecution conviction of murder will fail.

In Ghana, the Criminal Code or principal statute that governs criminal offences is the Criminal Offences Act, 1960 (Act 29). The Code (Act 29) has created a section for the offence of FRAUDULENT BREACH OF TRUST at section 129. For the purposes of convenience, I will reproduce section 129 of the Criminal Offences Act, 1960 (Act 29) and it reads as follows;
“A person commits a fraudulent breach of trust if that person dishonestly appropriates a thing the ownership of which is invested in that person as a trustee for or on behalf of any other person”.1
Section 130 Act 29 provides that;
“Where a person, who is the owner of a thing in that person‟s own right and benefit, undertakes to hold or apply the thing as a trustee for another person, the first named person does not become a trustee within the meaning of the provisions of this Act relating to fraudulent breach of trust, unless the owner has constituted the owner as a trustee by an instrument in writing executed by the owner and specifying the nature of the trust and the person to be benefited by the trust”.

Importantly, a careful reading of the sections together shows some key words or phrases expressly or by necessary implication which needs to be emphasized and they are namely; “trustee”, “instrument in writing”, “beneficiary”, “nature of the trust” and “entrustment”.
First and foremost, trust arises where a trustee holds property in trust for beneficiaries or recognized purposes. One person holds the legal title in the property for the benefit of another person. The holder of the legal title is the trustee and the one who benefits is the beneficiary although a trustee may himself be a beneficiary”. According to B. J.
1 Criminal and Other Offences Act, 1960 (Act 29), section 129
2 Criminal Offences Act, 1960 (Act 29), section 130
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da Rocha and C. H. K. Lodoh, in their book „Ghana Land Law and Conveyancing, trust is a concept in equity whereby one person (called “the trustee”) holds the nominal or legal title in property which has been made available to him by another person (called “the settlor”) for the benefit of some other person (called “the beneficiary”)3. Trust can be express private or implied trust. An Express private trust is created by a trust instrument or by a will where the settlor creates the trust by appointing a Trustee who holds the property for the benefit of the beneficiary. However, there are two implied trust which are resulting trusts and constructive trusts4. In the case of Saaka v. Dahali, the learned Taylor JSC explained constructive trust as follows: “A constructive trust arises when, although there is no express trust affecting specific property, equity considers that the legal owner should be treated as a trustee for another.

This happens, for instance, when one who is already a trustee takes advantage of his position to obtain a new legal interest in the property, as where a trustee of leaseholds takes a new lease in his own name. The rule applies where a person, although not an express trustee, is in a fiduciary position…A person receiving property subject to a trust ….becomes a constructive trustee if … although he received it without notice of the trust, he was not a bona fide purchaser for value without notice of the trust, and yet, after he had subsequently acquired notice of the trust, he dealt with the property in a manner inconsistent with the trust”5. Also, da Rocha and Lodoh, in Ghana Land Law and Conveyancing (supra) explains constructive trust as follows: “A constructive trust is a trust which arises independently of the intention of the parties but it is imposed by equity because the circumstances demand that the person holding the title to the property should be considered as a trustee. This trust usually arises by operation of equity where a fiduciary relation exists. A
3 Ghana Land Law and Conveyancing‟ (2nd Edition) at pages 105-106
4 Ghana School of Law Study Manual, “Conveyancing And Drafting” (2021), p.70-71
5 [1984-86] 2 GLR 774, at page 784
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trustee or a person in a fiduciary relationship is not permitted to profit from his position….‟‟6.
According to Black’s Law Dictionary, trust is an equitable or beneficial right or title to land or other property, held for the beneficiary by another person, in whom resides the legal title or ownership, recognized and enforced by courts of chancery. An obligation arising out of a confidence reposed in the trustees or representative, who has the legal title to property conveyed to him, that he will faithfully apply the property conveyed to him, that he will faithfully apply the property according to the confidence reposed, or, in other words, according to the wishes of the grantor of the trust.7

Express Trust is also created or declared in express terms, and usually in writing, as distinguished from one inferred by the law from the conduct or dealings of the parties. Express trusts are those which are created in express terms in the deed, writing, or will, while implied trusts are those which, without being expressed, are deducible from the nature of the transaction, as matters of intent, or which are superinduced upon the transaction by operation of law, as matters of equity, independently of the particular intention of the parties8.
Trustee is the person appointed, or required by law, to execute a trust; one in whom an estate, interest, or power is vested, under an express or implied agreement to administer or exercise it for the benefit or to the use of another called the cestui que trust. In a strict sense, a “trustee” is one who holds the legal title to property for the benefit of another, while, in a broad sense, the term is sometimes applied to anyone standing in a fiduciary or confidential relation to another, such as agent, attorney, bailee, etc- State ex rel. Lee v Sartorius, 344 Mo. 912, 130 S.W. 2d 547, 549, 550.9

Entrust mean to give over to another something after a relation of confidence has been established. To deliver to another something in trust or to commit something to another regarding his care, use or disposal of it. Humphries v Going, D.C.N.C., 59 F.R.D. 583, 587, Henry campbell black, M.A. 199010. The word entrust is not a term of art. The term „entrusted‟ is wide enough to include in its ambit all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to terms on which possession has been handed over. Entrustment need not be 6 Ghana Land Law and Conveyancing‟ (2nd Edition) at pages 105-106
7 Black’s Law Dictionary (2nd Edition)
8 Black’s Law Dictionary (2nd Edition)
9 Black’s Law Dictionary (2nd Edition)
10 Black’s Law Dictionary (2nd Edition)
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expressed; it can be implied11. In SHIVNATRAYAN V STATE OF MAHARASHTRA, it has been held that a director of a company was in the position of a trustee and being a trustee of the assets, which has come into his hand, he had dominion and control over the same12.

INDIAN POSITION
In other jurisdiction like India, the offence of fraudulent breach of trust is created by the Indian Penal Code, section 405 named as Criminal Breach of Trust. Criminal breach of trust is defined under section 405 of the Indian Penal Code, 1860. This section describes it as „dishonest misappropriation‟ or „conversion to own use‟ another person‟s property. In criminal breach of trust the accused is entrusted with property or with dominion or control over the property13.

Dishonest misappropriation is the essence of this section. Dishonesty is as defined in section 24 Indian Penal Code (IPC), causing wrongful gain or wrongful loss to a person. The meaning of wrongful gain and wrongful loss is defined in section 23, IPC. In order to constitute an offence, it is not enough to establish that the money has not been accounted for or mismanaged. It has to be established that the accused has dishonestly put the property to his own use or to some unauthorized use. Dishonest intention to misappropriate is a crucial fact to be proved to bring home the charge of criminal breach of trust14.

Importantly, the term fiduciary is derived from the Roman law, and means (as a noun) a person holding the character of a trustee, or a character analogous to that of a trustee, in respect to the trust and confidence involved in it and the scrupulous good faith and candor which it requires. (Stoll v King, 8 How. Prac., N.Y., 299. A person having duty, created by his undertaking, to act primarily for another‟s benefit in matters connected with such undertaking. Haluka v Baker, 66 Ohio App. 308, 34 N.E. 2D 68, 7015.

11 https://www.legalserviceindia.com/legal/article-9854-criminal-breach-of-trust-sec-405-ipc.html
12 (1979), 10th October
13 https://www.legalserviceindia.com/legal/article-9854-criminal-breach-of-trust-sec-405-ipc.html
14 https://www.legalserviceindia.com/legal/article-9854-criminal-breach-of-trust-sec-405-ipc.html
15 Black’s Law Dictionary (2nd Edition)

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GHANAIAN POSITION
It is therefore evident from the readings of section 129 and 130 of the Criminal Code that for the offence of fraudulent breach of trust to suffice there must be the establishment of
(a) an owner of a property who has entrusted same in another person;
(b) a person whom the property is entrusted into as a trustee;
(c) the property vested in the trustee who exercises dominion over the property; and
(d) the property held in trust for and on behalf of some other persons called beneficiaries and
(e) the trustee dishonestly appropriated the trust property contrary to law.
The learned author, Daniel Korang in his book, Criminal Law in Ghana has argued that the prosecution must prove three (3) essential ingredients to succeed on a charge of fraudulent breach of trust namely;
(a) That the ownership of the thing is vested in the Accused as a trustee for on behalf of some other person;
(b) That the Accused as a trustee appropriated the thing while it was so vested in him; and
(c) That the appropriation was dishonest 16.

It is very instructive to note that where the accused is not established to be a trustee the offence of fraudulent breach of trust will fail. The prosecution must always establish that the property was advanced to the accused in a capacity as a trustee of the property and not in any other capacity. In REX V JOSEPH EMMANUEL ODOI, this is what the court had to say:
“In order to sustain a conviction upon this count the prosecution must show two things namely:
First, that ownership of the sum of £50 lent by Sarah Blankson became vested in the appellant as Manager and Receiver of the estate of J.E Mettle (deceased) for the benefit of the beneficiaries, and secondly, that the appellant dishonestly appropriated that sum whilst the ownership of it was so vested. We are of the opinion that the prosecution failed to prove the first of these two essential ingredients of the offence, in that the evidence shows clearly that at the very moment at which he received the money the appellant had the animus furandi, that is to say, he actually received it for himself with criminal dishonesty, and did not first receive it as Manager and Receiver of the estate
16 (2021); p. 448-449.

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and later criminally misappropriated it…”17. The appellant received the money with intent to keep it for himself personally and not as Manager and Receiver of the Estate. The accused must be proved to have received the money in his capacity as a trustee. In the instant case the appellant received the money in his individual capacity and not as a trustee.

It is very clear from the provisions of the statute and case law that all the elements of the offence of fraudulent breach of trust must be established before conviction can be secured. Anything short of the elements created by the statute will cause failure of conviction. What needs to be asked always is that does the facts of the case elicit the elements that constitute the offence of fraudulent breach of trust? If the answer is not in the affirmative then conviction cannot be secured. The nature and character of the facts must possess the elements of the offence created by statute. In REX V JOSEPH EMMANUEL ODOI (supra), it shows clearly that the appellant received the money for himself and not as a trustee in whom the money vested even though the same evidence showed the appellant received the money with criminal dishonesty. The totality of the evidence shows the prosecution has failed to establish that the appellant received the money as a trustee18.

In respect of criminal breach of trust, the accused is entrusted with property or with dominion or control over the property. As the title of the offence itself suggests, entrustment of property is an essential requirement before any offence under this section suffices19.

INDIAN POSITION
Criminal breach of trust is defined under section 405 of the Indian Penal Code (IPC), 1860. This section describes it as „dishonest misappropriation‟ or „conversion to own use‟ another person‟s property. In criminal breach of trust the accused is entrusted with property or with dominion or control over the property20.
Section 405 of Indian Penal Code states:
17 (1942) JELR 81140 WACA; 1942 8 WACA 156-160.
18 1942) JELR 81140 WACA; 1942 8 WACA 156-160.
19 https://www.legalserviceindia.com/legal/article-9854-criminal-breach-of-trust-sec-405-ipc.html
20 https://www.legalserviceindia.com/legal/article-9854-criminal-breach-of-trust-sec-405-ipc.html
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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 suffering any other person so to do, commits “criminal breach of trust”21.
The ingredients for the offence of Criminal Breach of Trust are:

1. The accused must be entrusted with the property or with dominion over it,
2. The person so entrusted must use that property, or;
3. The accused must dishonestly use or dispose of that property or willfully suffer any other person to do so in violation,
   (a) of any direction of law prescribing the mode in which such trust is to be discharged, or;
   (b) of any legal contract made touching the discharge of such trust.
   A reading of the section suggests that the gist of the offence of Criminal Breach of Trust is „dishonest misappropriation‟ or „conversion to own use‟ another‟s property, which is nothing but the offence of criminal misappropriation defined under this section. The only difference between the two is that in respect of Criminal Breach of Trust, the accused is entrusted with property or with dominion or control over the property. As the title itself suggests, entrustment of property is an essential requirement before any offence under this section takes place.22
   
4. NIGERIAN POSITION
5. The offence of fraudulent breach of trust under the Nigerian Criminal Code is fashioned after the offence of fraudulent breach of trust under the Indian Penal Code.
6. 
   Section 311 of the Penal Code of Nigeria 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
   21 IPC 1860
   22 https://www.legalserviceindia.com/legal/article-9854-criminal-breach-of-trust-sec-405-ipc.html
7. 
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   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”23.
8. 
   Under the Nigerian penal code, it is also clear that for the prosecution to secure conviction there must be entrustment of property by the owner of the property in another person who dishonestly misappropriates or coverts to his own use. The defendant should be established as a trustee who dishonestly misappropriates the trust property contrary to the trust. In ENGR. UMAR SAIDU BAMALLI V FEDERAL REPUBLIC OF NIGERIA, the Appellant was arraigned before the High Court of Plateau State on an amended four-count charge, relating to the offences of Criminal Breach of Trust contrary to section 311 of the Penal Code and punishable under section 312 thereto. Their Lordships held that the elements of the offence of Criminal Breach of Trust under section 311 of the Penal Code are:
   (a) That the accused person was entrusted with property or dominion over it,
   (b) That the accused misappropriated, converted or disposed of the said property;
   (c) 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 express or implied which he had made concerning the trust, or that he intentionally allowed some persons to do so; and
   (d) That he acted dishonestly”24.
   The prosecution is under a duty to prove these ingredients beyond reasonable doubt.
   The elements of the offence have been held in a plethora of decided cases. In MICHAEL UZOAGBA & ANOR V COMMISSIONER OF POLICE LLJR-SC it was held thus:
   “…The elements of the offence of Criminal Breach of Trust are:
   (i) That Accused person was entrusted with property or dominion over it.
   (ii) That he misappropriated it, converted it to his own use or disposes of the said property.
   (iii) 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 express or implied which he had made concerning the trust or that he intentionally allowed some other persons to do so and
   (iv) That he acted dishonestly”25.
   23 (1960)
   24 (2018), 1st May
   25 (2012) LLJR-SC
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   Most importantly, at times the offence of fraudulent breach of trust is confused with breach of Contract. It is clearly shown that fraudulent breach of trust is a criminal offence committed by a person fraudulently breaching a trust while breach of contract is breaching the terms of a legally binding contractual agreement.
   This paragraph is devoted to the nature of a breach of contract and its effects. For there to be breach of contract there must be a valid contract in existence. This must be distinguished from fraudulent breach of trust. It is therefore imperative and necessary to delve into the nature of a valid contract and its effects when the terms of the contract are breached.
9. 
   It is the law that, a contract is completely made where there has been an offer, acceptance and consideration paid26. There is always a negotiation between the parties, that is, the offeror and the offeree. Before an offer can be made by the offeror for the offeree to accept there is always negotiations between the parties as to the terms of the contract. Consideration is the exchange of promises between the parties. The promisor must benefit from the promise of the promisee and vice versa. Terms of a contract on the other hand are therefore, statements, promises or propositions, which form part of a contract and which define the respective rights and obligations assumed by the parties under the contract. If a statement forms an integral part of a contract it is said to be a term of the contract such that when it is breached, the innocent party is entitled to sue for damages for breach of a contract. The exchange of promises between the parties are accompanied with rights and obligations of the parties under the contract. Where the terms and obligations under the contract are violated, not performed or followed by a party the contract is said to have been breached.
11. In this circumstance, the remedy available to the innocent party lies in a civil suit against the guilty party for damages. For example, if A enters into a contract with B to supply A with timber logs at a contract fee of GH₵ 100 and after payment of the GH₵100 to B the timber logs are not supplied to A within an agreed period B will be deemed to have breached the contract. In such circumstances A will be entitled to sue B for damages or specific performance depending on the circumstances of each case. This is a private contract between two private individuals so the criminal justice system cannot be invoked to settle civil issues. In FRAFRA v BOAKYE, the Respondent hired the appellant‟s tractor to haul timber logs to be supplied to Mim Timber Co. The Respond paid the appellant per day and the appellant assured the Respondent the number of logs the tractor could haul because it was in good condition. The tractor in the course of working was found to be defective and operated at a rate substantially below its declared capacity, so it could only haul less the number of logs agreed upon per day.
12. 
    26 Ghana Cotton Co. LTD v K. N. INDUSTRIAL COMPLEX INC AND NANA BAFFOUR KYEI A. K. A. (2018) IRL/68/2015
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    The Respondent sued the appellant for damages and the court held that the appellant should have foreseen that the Respondent would suffer loss if his tractor proved defective. Consequently, the award of damages was proper27. In the case of COP V KURE, 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 wrote a letter of complaint to the Commissioner of Police, Kaduna State, who then arrested the appellant and arraigned him for the offence of Criminal Breach of Trust 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 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 (1993) LPELR-43456 AT PAGE 67-68 PARAS, F-B, 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”28.
13. 
    It is evidenced that where two private individuals engage in a contractual relation and a party fails to honour his or obligation under the contract the remedy available to the innocent party lies in recovery of damages for the loss he has suffered, specific performance or injunction which are all equitable remedies, generally granted at the discretion of the court.
    
14. CANADIAN POSITION
15. 
    Breach of Trust is a long-standing criminal offence in Canada and has existed in Canadian criminal law for over two centuries. However, throughout its lengthy history, the offence has continued to protect individuals from trustees who attempt to abuse their position of trust by defrauding the trust they hold for their own unauthorized use. The Criminal Code of Canada provides that:
    “Everyone who, being a trustee of anything for the use or benefit, whether in whole or in part, of another person, or for a public or charitable purpose, converts, with intent to defraud and in contravention of his trust, that thing or any part of it to a use that is not authorized by the trust is guilty or any part of it to a use that is not authorized by the
    27 (1976) 2 GLR 332-338
    28 (2020) LCN/4914 (SC
    
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    trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding 14 years”29.
    Breach of trust occurs when a person who is entrusted with something converts it to another use in contravention of that trust and with intent to defraud. The basic premise of breach of trust is that a person has been entrusted with something by someone else for a specific purpose, and that person has a duty to use it for that purpose only. The offence can be committed whether the trustee is an individual or a company, and whether the thing entrusted is money or property. The offence requires two elements;
    (a) A conversion of thing entrusted and;
    (b) An intention to defraud.
    Conversion means that the trustee has dealt with the thing entrusted in a way that is inconsistent with the trust. The intention to defraud means that the trustee intended to take advantage of the trust for their own benefit of someone else, knowing that this was contrary to the purse of the trust.
17. 
    A trustee can be an individual, a group or an organization that holds assets or properties in trust for the use or benefit of another person, a group or a charitable purpose. The trustee is expected to act in the beneficial interests of the beneficiaries and respect the terms of the trust agreement. The element of “intent to defraud” constitutes an essential requirement for the offence to be proven. This element means that the prosecution must demonstrate that the trustee acted with a dishonest and conscious intention to deprive the beneficiaries of their rights under the trust agreement. The prosecution must establish a correlation between breach of trust and the accused’s intention which may require detailed evidence and testimony30. This commonly entails a trustee using money held in trust for their benefit.
18. 
    DEFENCES TO FRAUDULENT BREACH OF TRUST
    The defences available to a charge of breach of trust are entirely dependent on the facts of the case. However, some common defences to breach of trust include the following;
19. The accused is not a “trustee”.
20. There was no unauthorized use of the thing held in trust;
21. There was no intent to defraud;
22. The intent to defraud was not directed to trust duties; and
    29 SECTION 336
    30 https://www.criminal-code-of-canada-section-336-criminal-breach-of-trust/
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23. A breach of the Charter resulting in the exclusion of evidence the Crown can use to prove the offence31.
    The prosecution in order to secure conviction in respect of fraudulent breach of trust must prove otherwise of the defences available to the Accused person. In the case of R V SOLAR, the Crown must prove the following elements beyond a reasonable doubt:
24. The accused was a trustee of something;
25. That the accused converted the thing to an unauthorized use; and
26. That the accused intended to defraud32.
    The actus reus for a breach of trust offence requires that the Crown must prove beyond a reasonable doubt that:
27. You were a “trustee” of something; and
28. You converted the thing to an unauthorized use.
    The court must first be satisfied that the accused is a trustee of something. A “trustee” is defined in section 2 of the Criminal Code as “a person who is declared by any Act to be a trustee or is, by the law of a province, a trustee, and, without restricting the generality of the forgoing, includes a trustee on an express trust created by deed, will or instrument in writing, or parol”. A common example of a trustee is someone acting as an executor of a will.
29. 
    The court must then be satisfied that the trustee converted the thing into an unauthorized use. For example, this may include an executor of an estate using property of the estate, such as money, for unauthorized personal use or a manager of a corporation uses investor funds to build their personal residence. The prosecution is required to prove that the accused is a trustee to obtain a conviction for a breach of trust unless otherwise specified…The Crown must prove that the trustee used whatever was held in trust for an improper purpose. If you can show that you used the thing held in trust for some sort of benefit for the trust, then it is possible that the prosecution will not be able to show that there was unauthorized use. The prosecution must prove that a trustee intended to defraud when they converted a thing to some unauthorized use. This standard requires criminal intent. It is not sufficient for the Crown to simply prove negligence or a breach of one‟s duties as a trustee. The Crown must show that the trustee‟s actions were done with the intention of possibly risking economic loss to the victim for their own benefit. The intent to defraud in a breach of trust offence is limited in scope and must be directed to the trust duties. As such, a defense to a breach of
    31 https://www.strategiccriminaldefence.com/faq/breach-of-trust-charges-canada/
    32 (2012) SKQB 113
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    trust charge might be that a trustee‟s fraudulent actions were not directed to their trust duties33. In ROSEN V THE QUEEN, appellant was convicted of converting with fraudulent intent trust funds, held for the benefit of workers and suppliers and for which he was a trustee, to a use not authorized by the trust. It was held that the appellant was not a trustee and the conviction of breach of trust could not be supported on that basis34.
    CALIFORNIA (USA) POSITION
    Breach of trust is South Carolina‟s version of embezzlement. It is a criminal charge that is often abused either because:
    1) Law enforcement doesn‟t understand the elements that must be proven;
    2) The “victim” wants to extort money from a person in what would otherwise be a civil dispute.
    To convict a person of breach of trust, the State will have to prove:
30. That there was a fiduciary, or trust, relationship with the alleged victim;
31. That something was taken from the alleged victim;
32. The property that was taken was being held “in trust” for the benefit of the alleged victim; and
33. That the property was taken with the intent to defraud the alleged victim. If any of these elements are not met, breach of trust is not the appropriate charge. If there is no probable cause for any of these elements, it‟s a wrongful arrest. In cases where the elements of breach of trust are not present, it may be that another criminal charge is appropriate, or, as is often the case, it may be that this is a dispute that belongs in civil court, not criminal…” It is illegal and unethical to use the criminal justice system to obtain an advantage in a civil matter, and some cases simply belong in the civil court35.
    In conclusion, it must be stated that the offence of Fraudulent Breach of Trust and breach of contract are different from each other. The former is a crime and the latter is a civil wrong. In criminal law criminal offence is a creature of statute and every created offence has its elements which always must be proven before the prosecution can secure conviction. One of the elements or ingredients of the offence of fraudulent
    33 https://www.strategiccriminaldefence.com/faq/breach-of-trust-charges-canada/
    34 (1985) 1 SCR 83
    35 https://www.grandstrandlaw.com/amp/breach-of-trust-with-fraudulent-intent.html
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    breach of trust is that the accused must be established to be a trustee. The prosecution must then prove that the accused person was a trustee in whom the property was entrusted. No matter reprehensible the act of the accused is if he is not established to be a trustee who has fraudulently appropriated the trust property conviction will fail. Where two private individuals engage in any private agreement or arrangement with rights and obligation under that agreement and there is failure of a party to perform these obligations under that agreement or contract the innocent party is entitled ex debito justitiae to sue the guilty party for damages, specific performance or injunction. It does not lie within the criminal justice domain to deal with it. Where a contract without any trust element involved fails it cannot in any way turn into fraudulent breach of trust. It is wrong for the police to use the offence of Fraudulent Breach of Trust to settle breach of contract matters with the motive of punishing the accused person. It is trite learning that crime is jurisdiction specific, that notwithstanding the criminal offence of fraudulent breach of trust in other jurisdiction are almost the same in its architecture or language. Under the Nigerian criminal code the elements establishing the criminal offence of fraudulent breach of trust is almost the same as the elements of the offence under Act 29 under the Ghanaian law. Therefore the authorities from other jurisdictions such as Nigeria may be looked at within the context of the offence as a guideline.
    
34. DA-COSTA ASANTE, ESQ.
    ADOM LEGAL CONSULT
    4TH FLOOR, COCOA HOUSE
    SUNYANI – BONO REGION
    0243222202/0208340005
    asante.da-costa@st.gslaw.edu.gh
    kingcosta200@hotmail.com