Prime
Why DPP took over Bitature, wife case
Mr Patrick Bitature. The businessman and his wife Carol Nzaro are battling fraud claims. PHOTO | FILE
What you need to know:
- The DPP intervention in the case means the final decision on the matter is now in Justice Frances Abodo’s hands.
Justice Jane Frances Abodo, the Director of Public Prosecutions (DPP), invoked legal powers to take over the criminal proceedings against businessman Patrick Bitature and his wife Carol Nzaro, who are battling fraud claims in connection with the borrowing of $26.4m (Shs100.1b) from a South African company, Vantage Mezzanine Fund.
Acting on behalf of Justice Abodo, Buganda Road Resident Chief State Attorney Joan Keko, on January 23, wrote to Buganda Road Court, confirming the state’s takeover of the case against the businessman and his wife.
“By virtue of Article 120(3) a), the DPP is mandated to institute criminal proceedings in courts of law. I, therefore, ask the private prosecutor to furnish the DPP with the necessary documents to enable us prosecute the matter,” the DPP’s letter reads in part.
Justice Rosette Comfort Kania had on January 8, set aside the magistrate’s decision in criminal miscellaneous application No. 38 of 2022, and ordered that private criminal prosecution of the businessman and his wife starts with the sanctioning of the charge sheet within a period of five days from the date of her ruling.
Following the High Court decision, on January, 22, Buganda Road Chief Magistrate Ronald Kayizzi, on the request of a private prosecution instituted by lawyers, summoned the Bitatures to appear on February 6.
However, on the same day Justice Kania ruled on the matter, court documents show, Mr Bitature filed an appeal, challenging Justice Kania’s decision to overrule the lower court and hearing of the case ex parte. In the appeal documents, he also questioned the legitimacy of the criminal proceedings against him and his wife, citing abuse of the justice system and disregard of “stare decisis”. He said he was not given opportunity to be heard.
Investopedia, a financial media website, defines “stare decisis”, as a legal doctrine that obligates courts, as well as judicial officers, to follow historical cases when making a ruling on a similar case. The doctrine ensures cases with similar scenarios and facts are approached in the same way. Mr Bitature’s pending appeal in a private criminal prosecution has not been scheduled for hearing.
The businessman also indicated that the same case is in the London Court of International Arbitration (LCIA), Chief Magistrate’s Court at Buganda Road, the Court of Appeal, and civil courts before he maintained that “legally”, the private criminal prosecutors shouldn’t be in the Criminal Division of the High Court on account of identical or similar facts.
But in defence of his decision, Justice Kania said: “On the basis of Section 33 of the Judicature Act, which vests power in this honourable court to grant any remedy on such terms and conditions as it deems just, or to cause a matter to be completely and finally determined, I order the Chief Magistrate of the Chief Magistrate’s Court at Buganda Road to sanction the charge sheet and any attendant document within five business days from the date of this decision.”
The South Africans zeroed down on fraud charges against the businessman and his wife basing on Section 309 of the Penal Code Act that provides that any person who conspires with another or any fraudulent means to affect the market price of anything publicly sold, or to defraud the public, whether a particular person or to extort from any person, commits an offence.
What next?
The DPP intervention in a case involving Bitature and his wife means the final decision on the matter is now in Justice Abodo’s hands. She will study the grounds for the impugned criminal prosecution initiated by lawyers from Kirunda and Company Advocates.
In one of the numerous cases filed by lawyer Male Mabirizi, Justice Micheal Elubu ruled that a private prosecutor can’t file an amended charge sheet in a matter that has been taken over by the DPP. He explained that by the virtue of the mandate stipulated in Article 120 of the Constitution, the DPP has complete control over all prosecutions, except those instituted in the court martial.
Sources at the Office of DPP told Daily Monitor that the decision to take over the Bitatures case was premised on the pending petition in the Court of Appeal. The appeal was filed following Justice Kania’s decision, requiring the lower court to sanction charges against the couple to answer seven counts of conspiring to defraud $26.4m from a South African money lending company; Vantage Mezzanine Fund 11 partnership.
Background
According to the court documents, it is alleged that on or about December 11, 2014, at Diamond Trust Building on Kampala Road, Simba Properties Investment Company, a company ultimately and beneficially owned by Mr Bitature and his wife Carol, borrowed $10m (about Shs380b) from Vantage Mezzanine Fund, pursuant to 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.
It’s 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.
