Section 164: Right of accused to know precisely offence charged with—Appellant

164. Right of accused to know precisely offence charged with—Appellant had been found guilty of carrying on a betting activity without licence in breach of the Gaming Act. On appeal, one of the grounds was that the information did not disclose an offence known in law. It was contended that section 61 of the Act did not include any reference to an activity as “bookmaker operating outside the stand” and that the information was also defective in law since it failed to aver a betting activity “other than in relation to a sweepstake or lottery”. HELD an averment framed in the negative form may constitute an essential element of the offence. In deciding if it is, one must look at the substance and not at the form of the enactment. Importance must be attached to the constitutional safeguards for a fair hearing embodied in section 10 (2) of the Constitution, i.e., the presumption of innocence and the right to be informed in detail of the nature of the offence. The words “other than in relation to a sweepstake or lottery” formed a constitutive component of the offence and had to be expressly set out in the information in order to create a complete criminal offence known to law and also in order to enable the appellant to know with precision the offence with which he stood charged. Failure to aver this essential element was fatal to the case. Lobogun v State (2006).