Court summons Bitature, wife

Court on January 22 issued criminal summonses against businessman Patrick Bitature and his wife Carol Bitature, to answer seven counts of conspiring to defraud more than $26.48m (more than Shs100b) from a South African money lending company, Vantage Mezzanine Fund 11 partnership.

The summonses require the couple to appear before Buganda Road Chief Magistrate’s Court on the February 6.

The orders have been signed by Chief Magistrate Ronald Kayizzi on the request of a private prosecution instituted by lawyers from Kirunda and Company Advocates on behalf of the South African company. 

The issuance of the summonses follows an order by Kampala High Court Judge Rosette Kania, who on January 8, ordered for the prosecution of the duo on charges linked to fraud. 

Court documents show that Mr Bitature and his wife are directors of Elgon Terrace Ltd and Simba Telecom. 

Prosecution alleges that between 2019 and 2020, the couple fraudulently altered shares of their companies with intent to defraud Vantage Mezzaine Fund 11 partnership of a total sum of $26, 486, 634.78 (about Shs101 billion). 

The couple is further accused of filing false annual returns in respect of Elgon Terrace Limited at the Uganda Registration Services Bureau in order to cheat Vantage of its value in security interests on charged shares. 

According to court, the 60-year-old businessman and his 56-year-old wife will answer to charges of giving false statements by directors, fraudulent alteration of shares and conspiracy to defraud. 

Last week, the Criminal Division of the High Court in Kampala ordered for the commencement of the private criminal prosecution of Mr Bitature and his wife with fraud charges in connection with the said money.

“In the premises, I set aside the learned trial magistrate’s decision in criminal miscellaneous application no. 38 of 2022. On perusal of this court and of the lower court, I find inordinate delay in concluding this matter. I find it necessary to remind the lower court of the dictate of Article 126(2)(b)… justice shall not be delayed,” ruled Justice Kania.

The South Africans zeroed down on fraud charges against the Bitatures 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 offense.

It’s alleged that in December 2014 at Diamond Trust Building along Kampala Road, Simba Properties Investment Company, a company ultimately and beneficially owned by Mr Bitature and his wife Carol, borrowed $10,000,000 (about Shs38b) 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. 

According to the South African Company that is set to be the private prosecutor in this matter, 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, issued false annual returns in respect of the companies contrary to section 309.

“They (the 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: “It is the applicant’s contention 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.”

The Law
Section 42(1)(c) of the Magistrates Courts Act provides that criminal proceedings may be instituted by any person, other than a public prosecutor or a police officer who has reasonable and probable cause to believe that an offense has been committed by any person may make a complaint of the alleged offense to a magistrate who has jurisdiction to try or inquire into the alleged offense, or within the local limit of whose jurisdiction the accused person resides.

Every such complaint may be made orally or in writing and signed by the complainant, but if made orally, it shall be reduced into writing by the magistrate and when so reduced, shall be signed by the complainant.

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