Burglary and house breaking are crimes in Nigeria with the same elements. The only distinguishing factor between the two is the time when it is committed.
According to Wikipedia Burglary (also called breaking and entering and sometimes housebreaking) is an unlawful entry into a building or other location for the purposes of committing an offence. Usually that offence is theft, but most jurisdictions include others within the ambit of burglary.
If the offence is committed during the day it is housebreaking and if committed at night is it burglary. Under section 347 of the Penal Code, for the offence to be burglary it must be committed between sunset and sunrise.
Both offences ipso facto are the same but punishment to be meted out on commission of such offence is distinguished by time in Nigerian Law. The two offences have the same ingredients except that one is committed in the day time and the other is committed in the night. Night means between 6:30 pm and 6:30am. In cases of breaking, in order to enter both the breaking and entry must be at night. If the breaking is in the day and the entry is at night or vice versa, the offence is not burglary. But the breaking and entry need not necessarily occur on the same night.
Section 410 of Criminal Code Act provides that ” A person who breaks any part, whether external or internal, of a building, or opens by unlocking, pulling, pushing, lifting, or any other means whatever, any door, window, shutter, cellar flap, or other thing, intended to close or cover an opening in a building, or an opening giving passage from one part of a building to another, is said to break the building. A person is said to enter a building as soon as any part of his body or any part of any instrument used by him is within the building. A person who obtains entrance into a building by means of any threat or artifice used for that purpose, or by collusion with any person in the building, or who enters any chimney or other aperture of the building permanently left open for any necessary purpose, but not intended to be ordinarily used as a means of entrance, is deemed to have broken and entered the building.”
Section 411 further 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 the dwelling-house of another with intent to commit a felony therein, or having committed a felony in the dwelling-house of another, breaks out of the dwelling-house; is guilty of a felony, and is liable to imprisonment for fourteen years. if the offence is committed in the night, the offender is liable to imprisonment for life. “.
ELEMENTS OF HOUSE BREAKING
According to the criminal code Act the elements of housebreaking are to wit;
4. Intention to commit a felony.
The act of breaking in can be committed by the actual breaking of any external or internal part of a building or by unlocking, pulling, pushing, lifting of a door, window shutter which are ordinarily used for closing or opening a building or used as giving passage to the building or from one part of the building to another. (See section 410 Criminal Code Act.). Breaking is an essential ingredient of both burglary and house breaking. if a man leaves the door of his dwelling house open and a thief enters through the same open door, their is neither the offence of stealing and house breaking because the element of breaking in is lacking. There is breaking in when a person opens the door with a key. There need not be damage to the door or complete breakdown of the door or window.
To constitute entering, the whole body of the accused person needs not to have entered the building. It is sufficient if any part of the accused’s body is within the building. See Collins  2 All ER1105. Perhaps the same ought to apply to any instrument used by him. There is a distinction drawn at common law in respect of projection of instrument into the building, it is left to the Nigerian courts whether to follow this distinction or not. Many have also argued that there is no reason why Nigerian Courts should adopt the distinction and nothing in section 410 suggest that such distinction should be drawn. (Okonkwo and Naish, Criminal law in Nigeria, second edition pg 307.)
Intent is a fundamental ingredients of the offence. The accused must have possessed intention to commit a felony. It need not necessarily be the intent to steal anything from the building but the intent to commit a crime.
A dwelling house is defined to include any building or structure or part of a building or structure, which is for the time being kept by the owner or occupier for the residence therein of himself, his family, servants, or any of them; it is immaterial that it is from time to time uninhabited. The fact that there was nobody living in the building at the time the offence was committed or that the building is not occupied from time to time is irrelevant. (section 1 of the Criminal Code on interpretation of dwelling house).
In my Opinon and from the foregoing it is pertinent to note that the thin line between both offences is the night factor. They are both treated as distinct offence though with the same ingredients because of the time factor and the punishment prescribed. the punishment vary and one cannot be charged for burglary when it occurred in the day time. The time factor separating both offences can cause hardship and since they are both the same ingredients, it would have been proper for the punishment to be the same. There are differing views as to the rationale behind making the offence of house breaking 14 years imprisonment and burglary life imprisonment.
Let’s consider this scenario; MR A went to break into MR B’s dwelling house with an intention to commit a felony when he noticed MR B leaving his house. MR A proceeded to break into the dwelling house with his tools and instruments at 6:10pm which is still within the time of housebreaking. MR. B returned to find his house open and observed that MR A is still in the building, proceeded to lock MR A with another lock from the outside therefore trapping MR A inside till 6:50pm. At about 6:50pm police arrived and arrested MR A.
Which offence will MR A be charged with? Burglary or house breaking? What is material, the time of entering the dwelling-house house or the time of arrest/discovery? This is the thin line between both offences and even where the time of entry is the deciding factor, it will be difficult for the accused to establish the time which he entered the building which is within the time of house breaking. if the owner of the building is abreast with the law and punishment of both offences, he can also argue and state that the accused entered at the hour of burglary if no one else saw the accused at the point of entry.
The offence of robbery/stealing and armed robbery can be likend to offence of burglary and house breaking in some way. While there is an obvious rationale for differing the punishment of the former, there is no obvious rationale for the later and since they are same elements and ingredients ought to be the same punishment because being armed isn’t one of the ingredients, just the time factor. It shouldn’t matter whether it was committed at night or day time.
If the breaking is done in the day and entering in the night, then the offence is not burglary. For the offence to be completed, breaking and entering must be done at the same time. So what happens where the breaking and entering was done in the day and the accused didn’t leave until night, when he was eventually caught? The offence now has elements of both house breaking and burglary which can raise issue of charges when the accused is finally charged to court.
In conclusion burglary and house breaking are treated as two distinct offences with the same elements with a distinguishing time factor. The big question therefore is whether the time factor is sufficient enough to increase the punishment from 14 years to life imprisonment? Let me know your thoughts on comment section.
Okonkwo and Naish criminal law, second edition.
Criminal Code Act.
National open university Criminal law 2.