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Go face trial over fraud, court tells Bitature, wife
Businessman Patrick Bitature. PHOTO/FILE
What you need to know:
- The businessman sought interim orders staying the execution of a ruling and orders of the High Court that directed lower magistrates at Buganda Road to sanction private prosecution charges against him and his wife.
The Court of Appeal has ordered businessman Patrick Bitature and his wife Carol Nzaro Bitature to face fraud trial in connection with a loan from South African firm Vantage Mezzanine Fund.
While striking out the application by the businessman on February 2, Justice Hellen Obura who sat as a single judge, held that the application by the businessman was incompetent before her.
Justice Obura reasoned that the Bitature’s application was already overtaken by events, hence nothing to save.
“Before I take leave of this matter, I wish to observe that even if I had not found the application incomplete, I would still dismiss it for two reasons. First of all, this application has been overtaken by events as it is clear from the applicant’s supplementary affidavit in support of the application that the order sought to stay has since been executed by the Chief Magistrate when she sanctioned the charge sheet, and any attendant document within five business days from the date of the decision,” the judge held.
Adding: “In effect, that order has already been executed and there is no any other order of the High Court about this matter that this court can issue an order to stay. I find this application incompetent as both the notice of appeal and the substantive application from which it rises, incompetent.”
The couple faces fraud charges in the criminal private prosecution which has since been taken over by the office of the Director of Public Prosecution (DPP).
Context
On March 31, 2021, lawyer Robert Kirunda, on behalf of the Vantage company, filed a miscellaneous application for commencement of private prosecution proceedings and sanctioning of fraud charges against the Bitatures.
On June 27, 2022, the trial magistrate at Buganda Road Chief Magistrates’ Court dismissed the application because the local chief expressed total ignorance as regards the charges against the Bitatures.
As a result, the magistrate held that the local chief’s ignorance created doubts in her mind as to whether the court had jurisdiction to entertain the criminal charges or not.
Kirunda was dissatisfied by the decision of the Chief Magistrate and he applied for revision in the High Court in Kampala.
The revision was done and the decision of the Chief Magistrate was set aside with the High Court sending back the case file at Buganda Road Court, directing the magistrate to within five working days, sanction a charge sheet against the Bitatures.
The same was sanctioned on January 22, 2024.
Along the way, the DPP applied to Buganda Road Court to take over the case, which was granted.
Background
It is alleged that on or about December 11, 2014 at Diamond Trust Building along Kampala Road, Simba Properties Investment, a company ultimately and beneficially owned Bitature and his wife Carol, borrowed about Shs360billion from Vantage Mezzanine Fund, under a written mezzanine facility agreement.
The Bitatures in turn, offered their shares in several of their companies such as Linda Properties Ltd, Elgon Terrace Ltd, Simba Properties Investment Company Ltd, and Simba Telecom Ltd, collectively referred to as Simba Companies.
The Bitatures were shareholders in the aforementioned companies directly or indirectly.
Further, it was alleged that the Bitatures being directors and ultimate shareholders of Simba Companies then, with full knowledge and intent to defraud the South African company and other creditors, altered the shareholding of Simba Companies.
According to the South African Company, the actions of the businessman and his wife, were in contravention of Section 323 of the Penal Code as they allegedly committed fraud contrary to Section 323, by issuing false annual returns in respect of the companies contrary to Section 309.
“They (Bitatures) did this by executing various legal documents at the law offices of MMAKS Advocates, located in Nakasero, at their company premises located in Kololo, and filing and registering various company documents with the Uganda Registration Services Bureau,” the court documents read in part.
Adding: “The applicant contends that the suspects (the Bitatures) so conducted themselves with malice aforethought and with intent to defraud both the complainants (the South African company), and the public.”
Following the alleged acts of the businessman and his wife, the South African company proceeded to privately prosecute him but the DPP has since taken over the matter as mandated under the Constitution.
