By Yankuba Jallow
In the last edition we published the first part of the submission of Lawyer Christopher E. Mene, the lead defence lawyer in the ongoing Gam Petroleum Economic Crime Case, on Monday, 29th June that the accused persons have no case to answer and thus asking the court to free them.
Lawyer Mene said the prosecution have failed woefully to establish a case against his two clients to warrant them to open their defence. The Accused Persons are Saihou Drammeh (former general manager) and Lamin Gassama (former operations manager) of Gam Petroleum (GP). They are jointly charged on 8 criminal charges including charges of economic crime for their alleged involvement in causing the Gambia Government economic losses. They pleaded not guilty and the prosecution called twelve witnesses and tendered several documents.
We have dealt with counts 6, 7 and 8 and now continue with the rest of the submission:
“Conspiracy to Commit Economic Crime” is Sham
Lawyer Christopher E. Mene on Thursday continued with his “no case to answer “submissions in the Gam Petroleum Economic Crime Case saying “Conspiracy to Commit Economic Crime” does not exist in the Criminal Code of the Gambia.
He made this submission before Justice Haddy Cecilia Roche in his bit seeking acquittal and discharge of the two accused persons standing trial on 8 counts.
In the last publication, we published his arguments with respect to the charges relating to economic crime. He gave his reasons and analpgybas to why the court should acquit and discharge the two Accused Persons on those charges. On Thursday, last week, he proceeded with his submissions on the remainder of the charges.
Count 1: “Conspiracy to Commit Economic Crime”
Lawyer Mene read the count to the court and its particulars. Count 1 alleged that Drammeh and Gassama conspired to commit economic crimes, contrary to section 368 of the Criminal Code.
He submitted that it is trite law that you cannot convict an Accused Person on an offence that does not exist. He pointed out that economic crimes are created by Decree Number 16 of 1994 and amended by Decree Number 18 in 1994. He submitted that the military decrees were enacted before the coming into force of the 1997 Constitution.
He remarked that uplifting products on negative balance by the local Oil Marketing Companies (OMCs) was a standard operational procedure at Gam Petroleum from its inception in 2009 to the 31st of October 2021. He said the testimonies of the prosecution witnesses, most especially the testimonies of Momodou Hydara (PW9) and Lamin Touray (PW2) showed that there is no OMC that has never taken products on a negative balance.
Negative balance means taking fuel at the Gam Petroleum depot even without having stock but the OMC is obliged to replenish when they have stock.
Lawyer Mene said even the Gambia Government’s own OMC, which is GNPC, were on negative balance as of 31st October 2021.
“My Lady, that cannot be an economic crime,” Lawyer Mene said.
He submitted that a practice that is declared normal and has been in existence since the inception of Gam Petroleum, cannot be an economic crime. He went on to say the evidence before the court through the prosecution witnesses is that the OMCs that tool on negative balances have replenished what they took either by cash or kind (by replenishing the fuel they took). He added that some of the OMCs were taken to court by Gam Petroleum to recover what they took without paying or replenishing.
He urged the court to uphold the “No Case to Answer Submission” with respect to Count 1. He asked the court to acquit and discharge the two Accused Persons.
‘Who Owns $235,032 in Gam Petroleum Economic Crime Case’
Lawyer Christopher E. Mene in continuing his “No Case to Answer Submission” is asking who owns the $235,032, being the amount former General Manager of Gam Petroleum Saihou Drammeh is accused of stealing
Lawyer Mene said the prosecution did not prove who owns the money.
Below is his submissions with respect to the count on stealing.
Mene said the essential elements in a charge of stealing are: there must be an owner, the things stolen are capable of being stolen and the thing allegedly stolen was fraudulently taken or fraudulently converted.
For the offence of stealing to be sustain, the particulars of the offence must show the name of the owner of the property and the property stolen from the owner.
“If my Lady looks at the count, my Lady will see that the property allegedly stolen was said to belong to Gam Petroleum which was paid by GACH Global for the purchase of products. It was monies paid by GACH.
Mene said: “This particular is confusing. It does not say clearly who the money belongs to. It creates a confusing situation to suggest that the 235,032 dollars belongs to three persons – Gam Petroleum, GACH Global or the international traders. We are not sure which is which. The court cannot speculate or rely on conjecture. It is trite law that a charge cannot be vague.”
In this case, Lawyer Mene said the evidence that was led did not prove the 235,032 dollars allegedly stolen by the 1st Accused Person.
He said the evidence that is mostly relevant in respect of this, even though it did not help much, is the evidence of PW7 Abubacar Jawara. Mene said Abubacar Jawara did not clear the confusion.
Mene pointed out that PW7 Abubacar Jawara in his evidence mentioned an amount of 221,000 dollars in his evidence.
“This is different from what is alleged in the particulars of offence,”Mene said.
He said what Jawara said in his testimony cannot be the basis of the charge of stealing against the 1st Accused Person. He submitted that anything said that is contrary to the particulars of the offence will go as no issue. He said Abubacar Jawara’s testimony is at variance with the particulars of claim.
What Lawyer Mene meant here is that the particulars of offence says the alleged stolen 235,032 dollars belongs to Gam Petroleum while on the other hand Abubacar is talking about 221,000 dollars belonging to him being stolen. He said the prosecution failed to prove the charge because no prosecution witness talked about the 235,032 dollars as contained in the particulars of the offence.
Lawyer Mene said Abubacar Jawara handed the money to his agent, one Kaddijatou Kebbeh and not the 1st Accused Person on the 16th September 2021. He pointed out that on the same day the particulars of the offence is saying was the day the 1st Accused Person stole the money. He said Abubacar Jawara told the court that he (Jawara) handed the money to his agent.
“How can you hand money to your agent and say it was stolen? We cannot speculate or rely on conjecture to say 221,000 dollars is the same as the 235,000 dollars mentioned in count 2. The court cannot do that.”
He added: “There is no evidence before the court that the 1st Accused Person stole 235,032 dollars from anybody.”
He saidExhibit P77 which was tendered by the prosecution never said the payment was done on the 1st Accused Person. He stressed that the document never says that. He said payment was done on another person – Corringo.
“There is no evidence to prove any fact or establish a fact that this 221,000 was paid by the recipient to the 1st Accused Person. In any event, my Lady, that is not the charge before the court. The charge before the court is the Accused Person stealing 235,032 dollars,” Lawyer Mene said.
The senior lawyer said Abubacar Jawara described himself as an international businessman.
“If you give money to your agent, you must demand for receipt of who or where the money is paid to. What we have is dead allegation of PW7 (Abubacar Jawara) that the money was given to the 1st Accused Person. It is not enough to give dead allegation, you have to prove it. No evidence was tendered to substantiate the allegation that the money was received by the 1st Accused Person,” he said.
Lawyer Mene said Abubacar Jawara also made some wild allegation about 58,000,000 dalasis that he gave to his same agent, Kaddijatou Kebbeh.
“My Lady, it is evident before the court that the 1st Accused Person did not receive the money. There is absolutely no proof that the 58,000,000 was received by the 1st Accused Person,” he said.
Mene submitted that in a charge of stealing of a specified amount, in this case 235,032 dollars, you must prove that the Accused Person received such amount.
“In this case, there is no proof,” he said.
He said Momodou Jaagana from Corringo, who was the person the agent paid the money to, was not called to testify in this case.
“The failure to call Kaddijatou Kebbeh is inexcusable,” Mene said.
Mene said Prosecution Witness 12, the police officer who investigated the matter said Kaddijatou Kebbeh, Abubacar Jawara’s agent denied the allegation that she paid the money to the 1st Accused Person.
“Kaddijatou Kebbeh was not called because her evidence could be unfavourable to the prosecution,” Mene said.
Mene said the evidence of PW7 Abubacar Jawara is contradicted by documentary evidence tendered by the prosecution in this case. PW7 said he was asked to pay in cash for the first 30,000 metric tons. Lawyer Mene referred the court to the documentary evidence encapsulated in Exhibit P96. In that document, Jawara was quoted saying the payment for the 30,000 metric tons was made to the supplier. Lawyer Mene said the 1st Accused Person was not the supplier. He said PW7 Abubacar Jawara testified that he entered into agreements with suppliers and he signed supply agreements with them but the agreement could not materialise because he (PW7) failed to honour it.
“The evidence is that the supplier is a Senegalese. How can he in turn say he does not know the supplier? There is no evidence that the 1st Accused Person is a Senegalese,” Mene said.
Lawyer Mene informed the court that PW7 Abubacar Jawara initially denied signing any contract with the suppliers but when he was confronted with exhibit D20 and the agreement that forms part of this Exhibit, he then turned around admitting it.
Lawyer Mene said Abubacar Jawara knew who the Senegalese was, but of course, he told the court he does not know him.
“PW7 is not even sure who has his money. He is claiming the money from Kaddijatou Kebbeh and Saihou Drammeh. He sued Kaddijatou Kebbeh claiming for the same money. That case is going. If he is not sure, is it for the court to speculate?” Mene quizzed.
Mene said the agent of PW7 have filed her defence and accompanying documents adding the statement of defence is exhibited before this court.
Mene said: “These documents also explained why Kaddijatou Kebbeh was not called in this case. Kaddijatou Kebbeh is saying she neither gave the 221,000 dollars nor the 58,000,000 dalasis to the 1st Accused Person. In her sworn statement, the agent, Kaddijatou Kebbeh stated that she never gave the 1st Accused Person any money. We cannot place criminal liability on mere conjecture or imagination. It has to be proved. There is no iota of truth in the allegation that the 1st Accused Person took 235,032 dollars on the 16th September 2021 from anybody. The prosecution have absolutely failed to establish a prima facie case of the offence of stealing and they woefully failed to prove the charge of stealing.”
He said if the court asks the 1st Accused Person to enter the witness box, it will tantamount to asking the 1st Accused Person to prove his innocence.
Mene said apart from the fact that there is no proof of who owns the 235,032 dollars, PW7 Abubacar Jawara has told this court that first 300 metric tons is included in the claim of Gam Petroleum against him and he tendered exhibit P80 as proof of the claim.
“If Gam Petroleum is claiming for 300 metric tons as balance owed to GP by GACH Global, so who owns the money? If you claim the money belongs to GACH, why are you including it in the claim?” Mene quizzed.
He urged the court to sustain the no case submission in respect to count 2.
TO BE CONTINUED
