Burglary and housebreaking are classified as property offences under Nigerian criminal law. Both involve unlawful entry into a building, typically with the intent to steal or commit another felony. These offences are treated with utmost seriousness, as they infringe on personal security, privacy, and the sanctity of property rights.
Under Nigerian law, both the Criminal Code (applicable in Southern Nigeria) and the Penal Code (applicable in Northern Nigeria) address these crimes, although their terminologies and specific provisions may differ slightly. Sections and 411 of the Criminal Code and Section 346 of the Penal Code are relevant to these offences.
Key Distinction: While burglary and housebreaking share similar elements, they primarily differ in timing (day or night) and punishment.
Although the concepts may seem technical, by the end of this article you will gain a clear understanding of what constitutes burglary and housebreaking under Nigerian law, along with the legal distinctions between them.
📘 Definitions Under the Criminal and Penal Codes
Section 411 of the Criminal Code provides that:
“Any person who (1) breaks and enters the dwelling house of another with intent to commit a felony therein, or (2) having entered with such intent, breaks out of the dwelling-house, is guilty of a felony and is liable to imprisonment for fourteen years. If the offence is committed at night, the offender is liable to imprisonment for life.”
Housebreaking is also addressed under Section 346 of the Penal Code, which contains similar provisions.
🔍 Distinguishing Factors: Housebreaking vs. Burglary
To effectively understand the technical differences, it is necessary to examine the separately elements or ingredients of housebreaking and burglary separately.
ELEMENTS OF HOUSEBREAKING UNDER CRIMINAL LAW
1. Unlawful Breaking
A fundamental element is the concept of breaking. However, “breaking” does not always mean physical destruction. Key Principle:
If someone enters through a door left open there is no breaking, as held in State v. Onwuemulo (1967). The person may be charged with stealing, but not housebreaking or burglary.
Breaking may be:
Actual: Physical force used to open doors, windows, etc.
Constructive: Entry obtained through trickery, threats, or collusion.
Section 410 of the Criminal Code explains that breaking may involve: Unlocking, pulling, pushing, or lifting doors or windows used for passage.Entering by threat, trick, or deception.Gaining access via chimneys or non-conventional openings.
Case Examples:
R v. Boyle
Entering under false identity (sanitary inspector) was deemed constructive breaking
State v. Onwuemulo: Entry through an already open door does not constitute breaking.
r v. chandler (1913): If the occupier sees through a trick but lets the person in to catch them, no breaking occurs.
2. Entry.
Per Section 410 of the Criminal Code,entry is established when any part of the body or an instrument used to break in enters the building.
In Collins v. State: Inserting a leg into the building was sufficient to prove entry.
R v. Apesi (1961) WNLR: Entry includes projecting any part of the body or instrument into the building.
R v. Brown [1985] Crim LR 212: Upper body entry into a shop was sufficient. Full body entry not required; only “effective” entry is needed.
Note: Instruments only constitute entry if used to commit theft—not merely for gaining access.
3. Dwelling House
Section 1 of the Criminal Code defines a dwelling house as:
Any structure used as a place of residence, even if unoccupied from time to time.
Structures like caravans or motel units can qualify as dwelling hou
R v. Rose: Caravan used as a home qualified as a dwelling house.ses if used for habitation.
R v. Halloran (1967) QWN: Motel unit occupied for a week was a dwelling house.
4. Intent to Commit a Felony:
There must be intent to commit a felony (not necessarily stealing) at the time of entry. Felonies include arson, murder, and others.
If the intent to commit a felony arises after the breaking and entry, the offence is not housebreaking.
Example: If someone enters a building to escape a fire but later steals something, no housebreaking occurs because the felonious intent was not pre-existing.
Burglary: Distinct From Housebreaking.
Burglary shares the same elements as housebreaking—unlawful breaking, entry, dwelling house, and felonious intent. The only difference lies in the time of commissi
Time:
Burglary: Committed at night (between 6:30 PM and 6:30 AM).
Housebreaking: Committed during daytime hours.
Case Examples:
Akosa v. Commissioner of Police: Clarified the night-time period for burglary as 6:30 PM to 6:30 AM.
R v. Smith: Breaking one night and entering the following night still constituted burglary.
Punishments Under Nigerian Law Of House Breaking and Burglary under Nigerian law
Housebreaking S. 411 Criminal Code provides 14 years imprisonment
Attempted Housebreaking Section 412 Criminal Code provides for 7 years imprisonment.
Burglary Section 411 Criminal Code provides Life imprisonment.
Attempted Burglary. S. 412 Criminal Code provides 14 years imprisonment
House Trespass (Penal Code) Section 349 Penal Code provides for 1 year or fine.
Night Housebreaking (PC) 355 Penal code provides for 3 years + fine
Conclusion
Understanding the distinction between burglary and housebreaking under Nigerian law is essential for both legal scholars and practitioners. While their elements are virtually identical, the time of commission is the defining line. The law places a higher premium on offences committed at night, hence the harsher penalty for burglary. Mastery of these legal distinctions and relevant authorities will guide legal reasoning, prosecution, and defense in property-related criminal matters.
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