Kampala — THE Director of Public Prosecutions (DPP) yesterday announced plans to appeal the acquittal of Mufti Ramadhan Mubajje and two executives of fraudulent sale of Muslim property.

In a notice to the High Court, hours after Buganda Road Court cleared the officials, the DPP asked for typed copies of the proceedings and the judgment to help prepare the appeal.

"The DPP intends to appeal against the decision of her worship Margaret Tibulya, the Chief Magistrate of Buganda Road Court, delivered on the November 17, 2008, by which the three respondents were acquitted of fraudulent disposal of trust property," the notice read.

It said the DPP would also appeal the acquittal of the suspects on two counts of forging documents and conspiracy to commit a felony.

The deputy registrar of the High Court, John O.E. Arutu, accordingly, wrote to Tibulya, informing her of the DPP's intention to appeal.

The registrar also asked Tibulya to forward the original case file, including two certified and one uncertified typed copies, of the proceedings.

Mubajje, Basajjabalaba, Kasenene and their supporters yesterday celebrated the ruling.

Full judgment below

The long-awaited judgment in the Muslim property case against Mufti Ramadhan Mubajje and executives Hassan Basajjabalaba and Idris Kasenene was delivered yesterday. Muslims, talking in low tones, jam the courtroom. Suddenly, a clerk ushers Buganda Road Court chief magistrate Margaret Tibulya into the courtroom. She takes her seat at the bench. Dead silence. Then the court orderlies lead the accused to the dock. The judge reads her judgement at 9:20am. Anne Mugisa, Edward Anyoli and Charles Ariko recorded the proceedings:

9:16am: A smiling Tibulya takes her seat. Principal State Attorney Andrew Odiit stands up and says: The accused are represented by Muzamiru Kibeedi, Charles Wamukhota and Jeff Bogere. The case is for judgment. We proceed.

Tibulya:

The accused are jointly charged with two counts of fraudulent disposal of trust property, two counts of making documents without lawful authority and two counts of conspiracy to commit a felony.

The Uganda Muslim Supreme Council under which all Muslims in Uganda fall, was the registered proprietor of the properties.

The council is governed in accordance with a constitution (exhibit D1) which establishes various offices and organs.

For purposes of this case, the important organs of the council are the general assembly, the executive committee and the management committee. Article 1 (i) provides that the general assembly is the supreme legislative body in which all council powers reside. Article10 (8) provides that the executive committee "shall be the principal organ of governing, conducting and administering the affairs of the council and shall have all powers to act on behalf of the assembly between the meetings of that body, but subject to subsequent approval by the assembly.

Article 10.9 (d) provides that the executive committee has the power to administer the property and finances of the council, enter or approve agreement, loans, mortgages, or charges, projects intended to generate funds for the council and to approve the supplementary estimates of the revenue and expenditure of the council.

Article 12 (4) provides that the management committee shall be the principal instrument for running the affairs of the council.

The Mufti and secretary general are members of both the executive committee and management committee. The deputy chairman is only a member of executive committee.

The prosecution adduced evidence of 14 witnesses. The gist is that on January 1, 2005, Basajjabalaba convened an executive committee meeting to discuss the sub-letting of Plot 30, William Street. A resolution was passed that the property be sub-let to Haks Express Ltd (Basajjabalaba's firm) in exchange for the construction of a shopping mall around the council headquarters at Old Kampala.

Hajji Ali Mohammed Adrama, the chairman of the council, was not invited to the meeting. Koire Adnan, the secretary for finance and administration, testified that the shopping mall was constituted as agreed, but as consideration for the sub-lease of both plots.

In addition to the mall, Haks express cleared 50% of the salary arrears of the the council employees amounting to sh31m and has been paying sh11m monthly to UMSC.

When Plot 30 on William Street was sub-let, the UMSC had only three years lease left. It had sub-let it for 30 years to Property Managers.

According to Koire, the executive committee took corrective measures and gave Haks an outright lease to the property.

His further evidence was that the property was transferred to Haks to safeguard it from attachment by creditors. After the transfer, it was sold to Drake Francis Lubega. According to Kirya, the property was transferred to Lubega.

The deed shows that the transfer was on 12/5/2005, and from Haks to Drake Lubega in August 2005.

The title deed to Plot 102 shows that the property was transferred to Haks on 4/5/05. This title bears a lease and a sub-lease to Haks.

The commissioner of land registration, Tibisaasa, said the sub-lease is redundant.

The Muslim community got information that the properties had been sold and transferred to Haks and Lubega.

Kiirya and Mugomba and others approached the Mufti for clarification. He assured them that the property had not been sold and advised them to caveat it, which they did.

They, however, learnt that the caveats had been vacated on the application of Kasenene and Basajjabalaba without their knowledge.

ASP Joselyn Dorothy Amuka, who investigated the case, found that the people listed in the caveat-withdraw document are not the ones who signed the document. Kiirya, Tezikuba Kisambira and Ismail Mugomba testified that the withdrawal of the caveat was done without a resolution. The Mufti kept on denying that the property had been sold, yet he knew that it had indeed been sold. He even addressed the public at Plot 30 assuring them that the plot had never been sold. According to Tezikuba Kisambira, the caveat was signed in the Mufti's presence.

A nine-member commission of inquiry was put in place to establish the status of the two plots. Dr. Mpeza Muhigo chaired it. They found out that the properties had been sold and that their transfer breached the UMSC constitution. The executive committee did not discuss the transactions. The secretary general did not convene the executive committee or general assembly to approve the transactions.

The sale was conducted without independent valuers and lawyers and it was in disregard of a court order (stopping it). The court order is exhibit P3, the probe report is P12.

The commission considered variation deed which varied the terms of a memorandum of understanding between UMSC and Haks. The variation deed mandated UMSC to totally transfer the property to Haks. The commissioner found that the variation deed had been written by the secretary general who had no such powers.

Ezati, a handwriting analyst, examined the signatures on the transfer documents and opined that they belong to the accused persons. Mugomba's further evidence is that UMSC owns property in trust for all Muslims. The executive committee administers it in trust for Muslims. Article10 (8) of the UMSC constitution establishes the trust.

The accused opted to maintain silence. They offered no evidence in defence. They, however, didn't have to say anything or adduce evidence since the burden of proof was on the prosecution.

There is a difference between a prima facie case and a case proved beyond reasonable doubt. To highlight the difference, I will not do more than quote the finding in KAYEMBA Vs UGANDA 1983 HCB 30.

A prima facie case meant such evidence on which a reasonable tribunal properly directing its mind to the law and the evidence, could convict if no explanation is offered by the accused. At this stage, a court is not required nor even supposed to decide fully which evidence is worth of credit or whether if believed is weighty to prove the case conclusively; that final determination can only properly be made when the case for defence has been heard. A prima facie case does not mean proof beyond reasonable doubt.

The questions for determination are whether:

a) The accused persons were trustees for the property in issue

b) They converted the property to a use not authorised by the trust

c) They had then intention to defraud.

d) The accused were trustees to the property.

The only evidence in this regard was of Mugomba that Article 10 of the UMSC constitution creates trust, and that the executive committee administers the property for Muslims in Uganda.

The defence maintained that a trust must always be upon an express trust created by a deed, will or instruments in writing.

Section 322 (2) outlines four types of trustees:

a) Trustees upon express trusts created by a deed, will or instrument in writing, whether for public or private or charitable purpose

b) Trustees appointed by or under the authority of a written law or any such purpose

c) Persons upon whom the duties of any such trust as aforesaid devolve

d) Executors and administrators.

The UMSC constitution answers well to the above definition of a 'deed' or 'instrument in writing.' The deed argument is therefore without basis.

Article 10 (9) (d), which defines the powers and rules of the executive committee expressly creates a trust, especially when read together with Articles 1 and 10 (8) which show that the properties belong to the entire Muslim community under UMSC, whose affairs are governed, conducted and administered by the executive committee to which all the accused belong. The accused were definitely trustees to the property in issue.

Whether they converted the property to a use not authorised by the Trust

Both the prosecution and the defence attributed to the word 'converts' in Sec. 322 of the Penal Code Act a law of torts definition of 'dealing with goods in a manner inconsistent with the right of the true owner.'

In the clause 'converts the property to any use not authorised by the trust ." The key subject is the use of the property.

That being the case, the word converts should be taken by its ordinary, plain English meaning of 'changes' or 'diverts'.

Had the draftsman wanted the word to have its law of torts definition, there would be no need to add the words 'any use not authorised'.

The question is whether the accused persons 'change' the property to any use not authorised by the trust.

Article 3(g) of the constitution provides that UMSC was established to (g) improve, manage, cultivate, develop, exchange, let on, lease or otherwise mortgage, charge, sell or dispose of items, grant rights over or otherwise deal with all the property, interests and rights of the community.

Article 10(9) (d) of the constitution empowers the executive committee to administer the property, finances of the council and to enter into or approve any agreement.

The evidence against the accused persons was that they sold and transferred the property without following the due process.

Ismail Mugomba testified that the executive committee is not aware of the transfer of the property and yet it is the one with the powers to sell council property.

Adrama and Koire, however, said the executive committee resolved to transfer the property in good faith.

Mugomba's evidence is therefore at variance with that of Adrama and Koire.

The issue of inconsistencies in evidence is dealt with in the case Uganda Vs Dusman Shabuni 1981 HCB 30. Minor inconsistencies will not usually have the effect of rejecting evidence, but major inconsistencies if not explained satisfactorily will usually result in the evidence being rejected.

Learned counsel for prosecution explained that Koire turned hostile because he is under the employment of the accused persons, and wanted to protect his job.

There is a legal procedure for handling the evidence of hostile witnesses, which procedure the prosecution did not consider necessary in handling his evidence.

Going back to the issue whether the accused converted trust property to a use not authorised by the trust; the constitution permits the sale and transfer of UMSC property.

On the evidence that the sale and transfer in this case was not approved by the executive committee, the evidence contradicts that position.

Indeed even Kiirya said his only complaint was that the property was transferred to a third party - meaning Drake Lubega.

The prosecution bears the burden to prove its case and such proof should be beyond reasonable doubt.

Articles 3(g) and 10 (9) (d) of the constitution empowers the executive committee to sell council property.

If the inquiry is widened to include issues of due process, Adrama's and Koire's evidence contradicts Mugomba's, Kiirya's and Kisambira's. The contradiction is explained away in favour of the accused and leaves the first issue not proved to sufficient levels.

Whether the accused had the intention to defraud

One obvious way of proving intention to defraud is to prove that the defendant indeed defrauded.

In the above case, the word "defraud" was defined as follows, "...to defraud is to deprive by deceit, it is by deceit to induce a man to act to his injury by falsehood to induce a state of mind...by deceit to induce a course of action. Koire said the consideration for transfer of the property was paid (construction of the shopping mall) perimeter wall around the UMSC headquarters, payment of 50% salary arrears for UMSC workers, and sh11m monthly.

To be defrauded, a person must either have been deprived of something having some economic value, or he must have been induced to act to his own injury, not necessarily an economic injury.

Carefully considering the evidence of all the 14 witnesses, nowhere do they allude to the fact that they or the UMSC suffered loss by reason of the transactions. There is no evidence that there was no value for money in the transactions.

There is evidence that the Mufti repeatedly lied to the Muslim community that the properties had not been sold. This is a very serious matter for a person of his standing. But it should not blind us to the difference between fraud and deceit, and it should be left to his moral values as a leader of a big religious community.

The charge against the persons is not that they did anything by deceit, but that they fraudulently disposed of trust property. Since there is no evidence of deprivation or injury on the part of the complainant, there is no basis for adverse finding against the accused.

There is evidence that Kasenene and Basajjabalaba, in order to have the caveats lodged by Kirya and others withdrawn, signed caveat-withdrawal documents which listed the correct caveators, yet signed by Kasenene and Basajjabalaba.

On the face of it, this was irregular, but a careful perusal of that document shows that Kasenene and Basajjabalaba did not purport to sign on the document as the caveators. They signed as members of the executive.

Further to this, the deputy chairman was shown by the evidence on record to have interests in Haks. This could have drawn issues of influence peddling had it not been that the UMSC management was before the transactions aware of his interest and had sub-let these same properties to the company. Other evidence was that the sale of the property went against an earlier court order to the effect that no sale could be made without the unanimous decision of the executive committee.

This evidence would be useful in a civil suit in which the sale and transfer process would be impugned.

In this case, the charge was that the accused fraudulently converted the property to a use not authorised by the trust.

2. Making documents without lawful authority

The questions for determination are whether:

a) The accused, without lawful authority or excuse, signed a transfer of council property at Plot 30 to Haks.

b) Whether the accused persons, without lawful authority or excuse, signed or executed a transfer of council property at Plot 102 to Haks.

c) They did so for another person.

d) They had the intent to defraud.

The variation deed and the caveat withdraw document were not the subject of these charges. The accused were not given an opportunity to defend themselves on any allegations relating to their authorship. It is erroneous for the prosecution to seek to include them as subject of the charges without any amendment to the charges.

Articles 10(9) (d) and 10 (8) give the executive committee powers to administer the property of council. The approval may be after the event.

The accused are all members of the executive committee. There is evidence the executive committee resolved to have the properties transferred. In these circumstances, there is no basis for an adverse finding against the accused persons.

The prosecution cited Articles 23 (8) and 23 (4) and (5), arguing that the council property must be registered in the council's name, also that important documents must be sealed after a resolution of the executive committee.

From the evidence on record, nothing contravened Articles 23 (8)- the transferred property had been sold. It could, therefore, not remain registered in council's name.

The argument about the sealing of documents only points to procedural irregularities in the transferred process but not the legality of it. The issue should be whether the accused had powers to act as or on behalf of the executive committee.

This brings in the issue of quorum at the executive committee meetings and the procedure of work of the committee. The constitution is, however, silent on the above issues. There is no basis for faulting the method of work adopted by the accused.

Article 10 (9) empowers the committee to enter into sale agreements. Transfers are documents ordinarily required for the completion of a sale of land transaction. Considering that they are members of the executive committee with powers to enter into sale agreements, they had lawful authority when they signed the documents.

3. Whether they signed the transfer in the UMSC name.

The documents show that the accused signed them for UMSC. This cannot be denied. The only issue is whether they had authority to act the way they did.

4. Whether they had the intent to defraud.

I have already dealt with this issue in relation to the charge of fraudulent disposal of trust property.

Since the terms of the sale were that a shopping mall be constructed which was done, since there is no evidence that there was no value for money, and since the accused had lawful authority when they signed the transfers, there is no basis for finding that they had fraudulent intent.

There is no evidence that they disposed of the properties fraudulently. The charges of conspiracy to commit those offences cannot, therefore, arise.

I, accordingly, acquit each accused on each of the six counts.