Paul Wanyoto Mugoya, a renowned city lawyers has rushed to the High Court seeking to block his trial by the Anti- Corruption Court.
Wanyoto through his legal officers Ms Web Advocates and Solicitors filed a legal suit against the Attorney General (AG) William Byaruhanga and Director of Public Prosecution (DPP) Mike Chibita.
In his application Wanyoto expresses dismay at the conduct and actions of Uganda Police through CID Commander of Kampala Metropolitan who has for long subjected him to persecution by compelling him to consent to charges of embezzlement in a case of Uganda Vs ACP Haj. Bakaleke Siraji & 8 others.
However, Mr. Wanyoto who is also an advocate of the High Court wonders why police has been harassing him when there is neither a formal complaint nor sufficient evidence to support the charges.
He told Court the persecution contravenes his independence as enshrined under Article 120 (3) a), (5) and (6) of the Constitution which threatens his fundamental right to fair trial.
The suit states that police unlawfully issued criminal proceedings whilst there is no formal complaint or a company resolution to support the charges.
Literally police has no complainant and witness in this case leaving queries what could be the motive.
Police early this year began investigations into an alleged gold scam involving Wanyoto, top police boss Siraje Bakaleke and three other Korean Investors who were reportedly deported.
Police through the DPP allege that Wanyoto, who is among four directors of a gold company Ms McKinley Resource Company Ltd, fleeced funds belonging to his partners.
The three Korean directors include JANG SEUNGKWON, PARK SEUNGHOON and HA DONGSUB.
Earlier this year, media reports began circulating how Wanyoto in connivance with Regional Police Commander (RPC) Kampala South Siraje Bakaleka waylaid these Koreans and forcefully obtained shs $400000 and later deported them while they had jetted into the country to meet their business associate Wanyoto.
The case resulted into sacking of Bakeleke whose accomplices are to date languishing in jail.
Police tried to involve Wanyoto in the mix having described him as the investors’ counsel but later it emerged he was co-director.
Below we produce Wanyoto’s unedited affidavit
I, PAUL WANYOTO MUGOYA of C/o MessrsWEB Advocates& Solicitors, Plot 1,Accaccia Avenue, Nkwanzi Courts, P.O Box 3155,Kampala, do solemnly make oath and state as follows:
THAT, I am a male adult Ugandan of sound mind, the Applicant herein and swear this affidavit in that capacity;
THAT,I am an Advocate of the High Court and all subordinate courts in Uganda, as well as a local and international businessman;
THAT, the 1st Respondent is the principal legal adviser to the Government of Uganda andthe 2nd Respondent is the office established under Article 120 of the Constitution with the exclusive mandate to institute and undertake criminal proceedings against any person before any court of law;
THAT, I am,together with JANG SEUNGKWON, PARK SEUNGHOON and HA DONGSUB directors/shareholders in Ms McKinley Resource Company Ltd, a Company duly registered and incorporated in Uganda with a registered office at Plot 1 Acacia Avenue P.O Box 3155 Kampala; (Copies of the Certificate of Incorporation, Article and Memorandum of Association, Notice of situation of registered office and postal address, and the Notification of Appointment of Directors & Secretary are attached hereto and marked as Annextures “A”, “B”, “C” and “D” respectively)
THAT, following the registration and incorporation of Ms McKinley Resource Company ltd, by board resolution of the 25th January 2018, the Company opened and operated (and still operates) a Uganda Shillings and United States Dollar accounts in Diamond Trust Bank Ltd, with JANG SEUNGKWON andmyself, as the signatories with the mandate for either to independently transact on the said accounts; (A copy of the board Resolution is hereto attached and marked as Annexture “E”)
THAT, it was further agreed between myself and my Co-Shareholders/Directors in Ms McKinley Resource Company Ltd that monies be secured from their (Koreans) counterparts in particular Mr. Wang Yu, who was and still isour collective principle and be remitted onto the Company Account held in Diamond Trust Bank Ltd for purposes of complying with all the other regulatory and legal frameworks regarding a foreign Company before commencing business, and indeed a sum of USD$ 480,000 (United States Dollars Four Hundred Eighty Thousand) was remitted to the Company account as had been agreed;
THAT, unknown to me, disagreement ensured between my Korean Business counterparts, and before the same could be amicably settled, my Co-Directors/Shareholders in Ms McKinley Resource Company Ltd were arrested and detained at Katwe Police Station on allegation of terrorism and money laundering;
THAT, whilst in detention at Police Mr. PARK SEUNGHOON called and informed me of the arrests, whereupon I rushed to Katwe Police to ascertain the status and cause of the arrest;
THAT, whilst at Katwe Police Station, and given the nature of the charges that had been slapped on my counterparts, it was agreed and resolved that I withdraw a sum of USD $ 415,000 (United States Dollars Four Hundred Fifteen Thousand Only) from the Company Account at Diamond Trust Bank and secures it;
THAT, at that moment, JANG SEUNGKWON, PARK SEUNGHOON and HA DONGSUBfurther instructed me, in my capacity as an Advocate to help and secure their release and or freedom from Police Custody, to which instructions a sum of USD $ 30,000 (United States Dollars Thirty Thousand was disbursed to me as instructions/legal fees;
THAT, indeed, the following day, I managed to secure the release of the said JANG SEUNGKWON, PARK SEUNGHOON and HA DONGSUB on Police Bond;
THAT, upon their release on Police Bond and to perhaps shed off the nasty unfortunate experience in Police Custody, my business counterparts, agreed and resolved to in the meantime temporarily leave Uganda for Dubai and return later to continue with our investment plans;
THAT, further on or about that time, in consultations with Mr. Wang Yu, our collective principle, and all our business counterparts in McKinley Resource Company Ltd, it was agreed and resolved that the USD $ 415,000 (United States Dollars Four Hundred Fifteen Thousand Only) I had withdrawn from the Company Account at Diamond Trust Bank be given and or handed over to Mr. HA DONGSUB, and I duly complied and handed over the monies to HA DONGSUB in the presence of the other Co-Directors JANG SEUNGKWON and PARK SEUNGHOON;
THAT, further, following the arrest incident, to efficiently coordinate and or monitor Ms McKinley Resource Company Ltd business ventures/plans and have effective legal representation in Uganda, by board resolution of the 15th February 2018, it was resolved and agreed that the Company appoints and or give irrevocable Powers of Attorney to M-Smith Advocates; (A Copy of the Resolution and Power of Attorney to Mr. Aim M. Smith are attached hereto and marked as Annextures “F” and “G” respectively)
THAT, upon handing over the monies to HA DONGSUB, I parted ways with my business counterparts as they left for Entebbe Airport to Dubai;
THAT, a few days following the departure of my business counterparts to Dubai, I started receiving calls from people calling and asking me to report to police and later learnt through print and social media platforms (including Newspapers, WhatsApp, Twitter and Facebook) that there were investigations going on against me relating to the Kidnap of Koreans, embezzlement of company funds, conspiracy and obtaining money by false pretenses among others and I was wanted by Police;
THAT, the highly sensationalized reports claimed that I was criminally culpable of various offences in concert with several Police officers;
THAT, instructively I duly responded to the calls, reported to Police and recorded a statement relating to my business dealings in McKinley Resource Company Ltd, giving rise to the current pending criminal charges;
THAT, as a matter of fact I deny and have since denied the charges against me and contend that I have neither embezzled any funds since Ms McKinley Resource Company Ltd has never lost any money, nor obtained any monies by false pretenses from my business associates, or committed or conspired to commit any of the crimes allegedly committed;
THAT, that none of my business counterparts and Co-Directors/Shareholders in Ms McKinley Resource Company Ltd has either personally or through their Lawful Attorney or by way of Company resolution formally or otherwise lodged a complaint against me with the Police or even recorded any statement to that effect;
THAT, despite the available numerous formal communications from my Co-directors/shareholders directly and through the company’s lawful attorney asserting that there is no complaint or any issues against me, the overzealous CID Commander Kampala Metropolitan Police and the DPP have for reasons unknown to me insisted on charging and prosecuting me on flimsy and trumped up charges;
THAT, on or about the May 2018, Ms Aim Smith, the Koreans’ lawful attorney wrote to the Director CID informing the police that neither Ms McKinley Resource Company Ltd nor the Koreans personally had any issue with me, and that as a company we had amicably decided to resolveour small differences, but the Police and the DPP are still desirous of pursuing criminal charges and prosecuting me; (A copy of the letter from Ms A-Smith Advocates to the Director CID is attached hereto and marked “H”)
THAT, further on or about the 10th May 2018, Mr. Ha Dongsub who actually received the USD $ 415,000 from me, by email to the then investigating officer, a one Mugerwa Charles and copied to myself and Mr. Smith, reiterated their attorney’s earlier communication but still the Police and DPP have persisted in their witch-hunt against me and went ahead to change the Investigating officer Mr. Mugerwa from the case; (A copy of the email from Ha Dongsub to Mugerwa Charles and copied to the Applicant and Mr. Smith is attached hereto and marked “I”)
THAT, on or about the 16th May 2018, in reply to the email from Mr. Mugerwa Charles, the then investigating officer seeking clarification as to whether the money was handed over or not by the Applicant Mr. Ha Dongsub confirmed further in the affirmative; (A copy of the email exchange are attached hereto and marked as Annexture “J”)
THAT, I further state and as a matter of fact, that I have no issues whatsoever with my business associates and vice versa;
THAT, I have since discovered that whereas the 2nd Respondent knew that there was no sufficient evidence, the DPP on the 22nd May 2018 went ahead, on the instigations, insistence, persistence, directions and or requests of the CID Commander Kampala Metropolitan Police and in total disregard to the constitutional duty to act independently, to consent to the charges against me and others; (A copy of the letter dated the 22nd May 2018 from the assistant DPP to the Commander CID KMP and the consented to charge sheet are attached hereto and marked respectively as Annextures “K” and “L”)
THAT, I have through my lawyers on several occasions wrote to the 2nd Respondent seeking the review of the decision to consent to, and charge me in absence of sufficient evidence or reason or complaint, but all the efforts were futile, notwithstanding the 2nd Respondent being furnished with fresh information from the supposed complainants reiterating that they don’t have issues with me whatsoever; (Copies of the letters to the DPP from the Applicant’s lawyers and email correspondences between the Applicant and his associates are hereto attached and marked as Annextures “M” and “N”)
THAT, on or about the 3rd October 2018, I was surprised when I was informed by my colleagues at WEB Advocates & Solicitors, that Court summons requiring me to appear at the Anti – Corruption Court on the 5th October 2018 had been dropped at office; (A copy of the Court summons are attached hereto and marked as Annexture “O”)
THAT, because I was out of jurisdiction and the summons having been on very short notice, on the 5th October 2018, through my Advocates I appeared at the Anti-Corruption Court and the summons were extended to the 19th October 2018;
THAT, it is clearly evident as stated in the 22nd May 2018 letter (Annexture “K” supra) that the Respondents think or assume that I was “merely” made director in McKinley Resource Company Ltd, yet I am shareholder with equal shares as the rest of the shareholders; (See Annexure “B” supra)
THAT, it is also evident that the Respondents think and or assume that I had made myself signatory to the Company accounts and or without my business associates’ knowledge, which allegations not true whatsoever in light of the Board Resolution appointing me signatory; (See Annexture “E”supra)
THAT, further from Annexture “K” supra, it is also discerned that the Respondents are mistaking and or confusing my being disbursed for legal services offered in my capacity as an advocate as obtaining money by false pretense; and all the above point to only one thing that the charges are unfounded, baseless, unwarranted and the charge sheet was drawn in anticipation of a complaint and as such cannot pass the reasonable suspicion test;
THAT, ever since the alleged incidents, we have as a company met and transacted business in Dubai and China; also, as a matter of fact,I am still running the company businesses, assignments and accounts, and it is business as usual at Ms McKinley Resource Company Ltd;
THAT, Respondents by their conduct and actions have contravened, infringed upon and or threatened, and or are likely to contravene or infringe upon, or threaten my fundamental rights and freedoms to, liberty, to fair trial, to practice and or carry on lawful occupation or profession, trade, and do business, to just and fair treatment guaranteed under Articles 23(1), 28, 40(2), 42 and 45 of the Constitution;
THAT, the Respondents have breached my fundamental rights and freedoms to, liberty, to fair trial, to practice and or carry on lawful occupation or profession, trade, and do business, to just and fair treatment guaranteed under Articles 23(1), 28, 40(2), 42 and 45 of the Constitution by:
Carrying out and or proceeding with investigations into, and or preferring flimsy and baseless charges against me, well knowing there is no complaint against me or sufficient evidence;
The 2nd Respondent abdicating and or absconding his constitutional duty to exercise his powers independently and or without any interference or influence;
My summoning to record a statement and or appear in Court to answer charges in relation to the embezzlement, obtaining money by false pretenses, kidnap, conspiracy among others with the intention of prejudicing my legal and fundamental human rights and freedoms in order to bring my character, dignity, profession, business reputation and goodwill into disrepute;
The respondents are abusing the criminal justice system through the purported investigations into the alleged baseless cases of embezzlement, obtaining money by false pretenses, kidnap, conspiracy among others;
The respondent’s actions will and or have stifled my business prospects and are infringing on my right to practice my profession;
THAT, I believe there is a sustained and malicious effort by the Police who are ostensibly acting at the instigation of third parties to arbitrarily threaten me with a view to harm me or unduly use the criminal justice processes to embarrass meon the basis of fabricated charges for an ulterior motive other than vindication of the law;
THAT, I believe that the decision to open and institute criminal charges against me based on such baseless matters is unjustifiable, irrational, unreasonable and absurd and that the Respondents have exercised their discretion without conforming to the principles of independence, impartiality, equality of all citizens before the law and the judicious exercise of power and authority without fear or favour;
THAT, as an advocate I know that I have a right to seek this Court’s protection against oppression by the Respondents including a prohibition against prosecution on trumped up charges that are an abuse of court process;
THAT, in these circumstances, it would be just and convenient for this Honourable Court to grant the declarations and orders;
THAT, I swear this affidavit in support of my application for the following redress, declarations and orders:
That the conduct and actions of the Uganda Police through the CID Commander Kampala Metropolitan Police, to direct, influence and or pressurize the 2nd Respondent to consent to, and or sanction the charges against the Applicant, vide; HCT-00-AC-CO-095 of 2018; Uganda Vs ACP Haj. BakalekeSiraji& 8 others well knowing there is neither a formal complaint nor sufficient evidence to support the charges against me, contravenes the provisions of, and or undermines the independence of the 2nd Respondent as enshrined under Article 120 (3) a), (5) and (6) of the Constitution; contravenes, infringes upon and or threatens, and or are likely to contravene or infringe upon, or threaten my fundamental rights and freedoms to, liberty, to fair trial, to practice and or carry on lawful occupation or profession, trade, and do business, to just and fair treatment guaranteed under Articles 23(1), 28, 40(2), 42 and 45 of the Constitution;
That the conduct and actions of the 2nd Respondent to consent to, and or sanction the impugned charges against me on the instigation, directives and or the influence of the CID Commander Kampala Metropolitan Police, and well knowing there is neither a formal complaint, or Company resolution to institute and or commence Criminal proceedings against me, nor sufficient evidence to support the charges, contravenes and undermines the independence of the 2nd Respondent as enshrined under Article 120 (3) a), (5) and (6) of the Constitution; and contravenes, infringes upon and or threatens, and or are likely to contravene or infringe upon, or threaten my fundamental rights and freedoms to, liberty, to fair trial, to practice and or carry on lawful occupation or profession, trade, and do business, to just and fair treatment guaranteed under Articles 23(1), 28, 40(2), 42 and 45 of the Constitution;
That the conduct and actions of the Police and the 2nd Respondent to instigate, institute, sanction and or consent to charges of embezzlement of Company funds, Ms McKinley Resource Company Ltd, where I am a Director and shareholder, when there is no such loss of funds, and or Company resolution to institute such criminal proceedings against me, and or formal complaint against me by my company; and or resolution excluding the me from running and operating the company affairs and accounts to date, are oppressive, unfair, unreasonable, irrational, illegal and an abuse of Administrative power, constitutional mandate and the criminal justice system and process on the part of the Respondents, and contravenes, infringes upon and or threatens, and or are likely to contravene or infringe upon, or threaten my fundamental rights and freedoms to, liberty, to fair trial, to practice and or carry on lawful occupation or profession, trade, and do business, to just and fair treatment guaranteed under Articles 23(1), 28, 40(2), 42 and 45 of the Constitution;
That the acts of the Police and the 2nd Respondent to instigate, institute, sanction and or consent to charges of Obtaining Money by False Pretense against me albeit for offering my legal services as an Advocate/lawyer to my co-directors/co shareholders, when I actually processed police bond is an abuse of process, administrative and constitutional mandate on the part of the 2nd Respondent and an infringement, contravention of, and or a threat to my fundamental human rights and freedoms guaranteed under Articles 23(1), 28, 40(2), 42 and 45 of the Constitution;
That the institution of criminal proceedings, sanctioning and or consent to the Charges, charging and the pending prosecution of myself by the 2nd Respondent when there is no sufficient reason and or no evidence at all, is an abuse of the process, malicious, in bad faith, witch hunt, and an infringement of, and or a threat to my Fundamental human rights and freedoms guaranteed under Articles 23(1), 28, 40(2), 42 and 45 of the Constitution;
That this Honourable Court by way of enforcement of my fundamental human rights and freedoms guaranteed under Articles 23(1), 28, 40(2), 42 and 45 of the Constitution permanently stays and or halts my trial at the Anti-Corruption Court;
That a permanent injunction be issued to restrain the 2nd Respondent and the Police from bringing, instigating, carrying out and or proceeding with any further criminal proceedings or charges or prosecution against me and or further investigations into or in connection with the alleged embezzlement of my company funds and or obtaining money by false pretenses from, and or kidnap with intent to confine my co-directors/co-shareholders in McKinley Resource Company Ltd, and conspiracy to defraud or commit a felony on the same;
Any other relief that this Honorable Court may deem fit and just to grant in the interest of justice.
Costs of the application be provided for;
THAT, all that I have stated herein above is true and correct to the best of my knowledge, save that which is stated to be from information which I verily believe to be true and the sources of which are herein disclosed;
