HARARE – The Prosecutor General (PG) has won a case in which he challenged Harare magistrate Gloria Takundwa’s acquittal of a local company, Christian Community Life Assurance and its directors in a case they were accused of fraud and forgery.
The company was jointly charged with its directors, Washington Frera, Vincent Tom Baris and Norman Ngoshi.
In respect of forgery, it was alleged that between May 9 2017 and March 2018 in the Harare Central Business District, the respondents, with intent to defraud one Yan Yu and the late Zhaosheng Wu, forged the signatures of the former on a purported agreement of sale misrepresenting that the later had witnessed the deal.
In terms of that fraudulent agreement, Frera had swapped a gold mining claim in Bindura with Yu and Wu’s 100 % shares in Shomet Industrial Holdings (Private) limited.
In the second count, the four with intent to deceive the Registrar of Companies, also misrepresented that Yu and Wu had resigned as directors of Shomet when in fact, the opposite was true.
They then appointed themselves as directors of Shomet.
This resulted in a prejudice of 25. 1499 hectares of land in Waterfalls suburb, valued at US$4, 2 million.
On another count, the State alleged that in March 2018 the four misrepresented to Fortburry (Private) Limited represented by Cornilius Muzvongi that they were looking for a a partner to develop the said land with the partner expected to pay US$101 000 to them well knowing they were not shareholders in Shomet.
At that time, Yu, Wu, and one Jethro Mazenge, Tarisai Hapanyengwi and Chipo Mupambiri were the directors of that land.
All this happened without the knowledge of Wu and Yu.
During the trial, it was proved that on November 2 2018, Frera representing Shomet applied for a certified copy of Deed of transfer registered under 621/2009.
It was established that in making the application, he lied to the Registrar of Deeds that the original Deed of Transfer was lost.
The successful application invalidated the original Deed of Transfer which Yu, on behalf of Shomet, had placed in the custody of CABS Head Office.
The company and Frera in defence said the agreement of sale was genuine hence everything else that followed was lawful. In short they contended that they did not commit the offence of fraud and forgery.
Baris and Ngoshi said they were not involved in the sale.
They said they only accepted the appointment as directors of Shomet genuinely believing that the acquisition was lawful.
The magistrate had dismissed Yu’s evidence as not being credible.
She said Yu had a change of heart after Wu’s demise and attempted to disown the agreement of sale.
The magistrate said Yu had distanced herself from the documents filed with the Master of the High Court wherein she is the executor of Wu’s estate rendering herself a liar.
The PG said the magistrate omitted some of the evidence and misunderstood expert evidence.
He said a finding that Yu was not a credible witness defied logic or common sense.
“The lower court failed to analyse the evidence in its totality,” he argued.
Judges of appeal, Justices Happias Zhou and Benjamin Chikowero upheld the appeal and found the respondents guilty as charged.
The court ruled the magistrate did not analyse the evidence at all.
“If the sale agreement was not fake, there would have been no reason why Yu was still in possession of the title deed more than a year later…” read the judgement in part.
The ruling further read, “The appeal against the judgement of the Regional Court Harare in CRB R688-91/19 handed down on March 3 2020 acquitting the first, second, third and fourth respondents of one count of forgery as defined in section 137 of the Criminal Law Codification and Reform Act and two counts of fraud as defined in section 136 of the criminal law codification and reform Act be and is allowed.
“The verdict of not guilty and acquitted in all three counts and in respect of all the four respondents be and is set aside and substituted with guilty as charged.
“The matter be and is hereby remitted to the court a quo for mitigation, aggravation and sentencing,” further reads the judgement.
