The Harare High Court on Friday dismissed an appeal against a ruling on Bulawayo businessman, Ismail Moosa Lunat (57), who was acquitted of fraud allegations, in November last year.
Lunat was exonerated from allegations pertaining to a botched property deal worth US$1.4million.
The businessman was accused of defrauding Zachariya Patel of Toppers Uniforms Pvt Ltd, and through his lawyer, Nqobani Sithole of Ncube and Partners, he was set free after the court ruled that there was no evidence linking him to the alleged offence.
He was co-accused with Mohammed Iqbal Lunat and Converging Investments Pvt Ltd represented by (Hosea Mkhwananzi).
Harare High Court Judges Justice Happias Zhou and Justice Chikotore upheld a ruling which was passed in November 2020 in the lower court by Magistrate Morgan Nemandire.
Magistrate Nemandire had noted that there was no evidence linking Lunat to the alleged offence.
Following Lunat’s acquittal at Rotten Row Magistrate’s Court, National Prosecuting Authority (NPA) made an appeal to the High Court challenging the ruling.
The High Court Judges ruled that the lower court had not erred in passing its judgment, arguing it was far-fetched that Patel would have made a transaction worth US$1.4 million based solely on trust without any proper documentation.
State allegations against Lunat and other two accused are that in August 2018, they purported to sell property belonging to Converging Investments Pvt Ltd to Patel for US$1.4million.
The court heard that Patel paid for the property but the accused persons did not meet their end of the bargain.
In the initial ruling, magistrate Nemandire said State witnesses failed to prove to the court beyond a reasonable doubt that indeed he had been defrauded.
“The agreement of sale which was produced as an exhibit before this court bore no names of witnesses to the alleged deal that was signed between the involved parties. It boggles this court that such a businessman like the complainant (Patel), would buy property like he is buying a bag of dagga illegally without proper documentation,” he said.
“Furthermore there is no trace of records that Patel at any point had money amounting to US$1.4million. His testimonies were inconsistent thereby making his story hard to believe. There is no evidence of where he got the money. First he said it was from his savings, then he said he got a loan from FMC financial institution, then further said he collected money from people owing him.”
He added: “There isn’t any proof of receipt of the alleged amount either. At the end of the day we don’t know which explanation is true. This leaves the court with the impression that the defence given by the accused person that the two had a foreign currency deal which went wrong is more believable.”
State representative, Edmore Makoto, narrated to the court that the three acted in common purpose to defraud Toppers Uniforms Pvt Ltd being represented by Mohammed Zachariya Patel of US$1.4million.
“The accused persons acted in common purpose and misrepresented the sale of property belonging to Converging Investments Pvt Ltd, sub-division A. stand 448 in Bulawayo, measuring 972 square meters. As a result, Toppers Uniforms Pvt Ltd paid the stated amount but never got ownership,” Makoto said.
Lunat was previously acquitted by a Bulawayo court on fraud charges against the same complainant (Patel) involving US$2.7million.
