HIGH COURT, CAPE COAST
DATE: 29TH OCTOBER, 1962
BEFORE: CHARLES, J.
NATURE OF PROCEEDINGS
APPEAL against conviction and sentence for gaming in a public place contrary to the Lotteries and Betting Act, 1960 (Act 31), s. 18 (1), entered in the Cape Coast Magistrate’s Court on the 20th August, 1962.
COUNSEL
T. D. Brodie-Mends for the appellant.
Gikunoo for the respondent (the State).
[p.117] of [1962] 2 GLR 116
JUDGMENT OF CHARLES J.
Counsel for the appellant has contended that the charge of which the appellant was convicted is bad in law. It will be convenient for me to set the charge out fully.
“1. Yahaya Hausa, Cornmiller,
2. Yaro Zabrama, Unemployed,
3. Bawa Hausa, Butcher,
4. Gariba Sokoto, Butcher,
5. Mama Fulani, Butcher and
6. Amadu Hausa, Butcher:—
For that you on the 1st day of August, 1962, at Saltpond in the Cape Coast magisterial district and within the jurisdiction of this court, in a public place to wit in a house at Eguabadu-Saltpond, were found gaming with cards and money.”
It is quite clear that from the statement of offence and the particulars thereof that the accused was charged with gaming in a public place. When the case came before the learned magistrate on the 20th August, 1962, the prosecution applied to withdraw the charge on the ground that the accused was not seen in a public place but in a house and that it was only on one accused person that money was found. This application was refused and hearing was fixed for the 30th August, 1962. It is patently obvious that section 18 (1) of the Lotteries and Betting Act, 1960,1(1) does not create the offence with which the accused was charged, namely, gaming in a public place. This offence is created by section 17 of the said Act and I therefore agree with and uphold the submission of counsel for the appellant that the charge is bad in law. The State attorney conceded that section 17 of the Act creates the offence with which the accused was charged and not section 18 (1) but argued that although the charge was bad the accused was not prejudiced. Later he stated that he could not support the conviction of the appellant. Moreover, section 18 (1) reads as follows: “Any person being the owner or occupier, or having the use of, any house, room or place, who opens, keeps or uses it as a gaming house, and any person who, being the owner or occupier of any such house, room or place, knowingly and wilfully permits it to be opened, kept or used by any other person as aforesaid, and any person having the care or management of or in any manner assisting in conducting the business of any house, room or place opened, kept or used as aforesaid, is guilty of a misdemeanour.”
This relates to gaming in a house and there is no evidence that the accused was gaming with the other persons charged. The only evidence led was that nine persons were found in a private house playing cards and that the police searched six of the persons and only found the appellant with twenty-two shillings in his pocket. They were not seen playing for any money nor was there any money found in the room where they were playing with the cards. Moreover, this accused was not sworn before he gave his evidence. The learned magistrate in his judgment stated that he was satisfied that the accused did take part in gambling on the date mentioned in the charge without assigning any reasons for this finding of fact. I can very well appreciate the absence of any reasons to support his finding of fact because there was no evidence adduced on which such a finding could reasonably be made. Even if the accused was found gaming in a house this will not be an offence under section 17 of the Act because this section specifically refers to a public place and there
[p.118] of [1962] 2 GLR 116
was no evidence that the room in which the accused was found playing the cards was a public place.
For these reasons, I allow the appeal and set aside the conviction and sentence. The money is hereby ordered to be returned to the appellant.
DECISION
Appeal allowed.
Conviction and sentence set aside.
