Posted by By; Fabakary B. Ceesay
On Tuesday 30th June defence lawyer Christopher e. Mene ended his powerful marathon “no case to answer submission” in the eight count criminal charges against Saihou Drammeh and Lamin Gassama, both former Managers of Gam petroleum company. The prosecution charged the two men for theft and causing economic losses to the government of the Gambia and has called twelve witnesses to prove their case. Defence lawyer, Christopher. E. Mene on behalf of lawyers Badou S. M. Conteh and P. Bakurin ended his no case to answer submission before Justice Haddy C. Roche of the Banjul High Court and urged the Court to uphold his submission and set the accused persons free without calling them to enter their defence.
Lawyer Mene submitted that the particulars of offence in counts 3, 4 and 5 are that Saihou Drammeh and Lamin Gassama fraudulently appropriated various quantities of petroleum products mentioned in each of the counts. He said to recollect from the evidence, the aggregate of the same stocks are established to be part of the stocks that were uplifted by Oil Marketing Companies (OMCs) on negative or part of the missing or unaccounted stocks. He indicated that the missing stocks are being accounted for by the OMCs and they are recovered. Mene added that those stocks given to the OMCs on a negative note are normal as by the prosecution’s witnesses who stated before the Court that the trend had been in existence at Gam Petroleum long before the tenure of Saihou Drammeh and Lamin Gassama.
Barrister Mene argued that some of the OMCs that had not fulfilled their promise to pay GP are being dragged to Court by GP to recover their money. He stated that indications suggest that all the outstanding balances will be recovered in full as according to prosecution witness Police officer Abdou Bah that all OMCs are ready to pay back to GP. He indicated that the other parts of the aggregate of missing products are unaccounted. The evidence of Police officer Bah and the report from the panel, according to Mene are very crucial and the evidence of Lamin Touray which indicates that there were issues of discrepancies between physical and book stocks before Lamin Gassama assumed work at GP.
Lawyer pointed out that State witness four confirmed before the Court under cross-examination that there was a vessel called Majock that used to uplift fuel at GP around 2014 and no records of the uplift from Majock was made available to the Court. He added that the witness said he did not see any records of uplift by vessel Majock.
Mene said, “On this missing stock, what did the Police report reveal, they said they did not investigate it but concentrate on negative stocks. They said the missing stocks were inherited according to the accused persons and the Police recommended a forensic audit from the inception of GP to 31st October 2021 to determine who is responsible for the missing stock and what is the quantity of the missing stock. The evidence before this Court is that this was not done before the accused persons were charged.”
Mene reminded the court of the evidence of the sixth State witness Mr. Ceesay who was very clear in his testimony that it is vitally important to carry out a forensic audit in order to verify the claims of the three international traders. He indicated that the misrepresentation is that the products were in the custody of the accused persons when they were in fact in the possession of Gam Petroleum. He asserted that the charge is talking about the property of the company in custody of an individual. He added that except it is in one’s possession personally then it is not constructive possession.
Barrister Mene highlighted that the only evidence before the Court simply demonstrates that Saihou Drammeh and Lamin Gassama were the General Manager and Operations Manager of GP have different departments. He said none of the witnesses from one to twelve testified at any time that Saihou and Lamin received or took possession personally of any property belonging to GP. Lawyer Mene argues that there is also no evidence that Saihou and Lamin act with intent to defraud or omitted to make full entry thereof in any books or accounts of GP or ever directed any entry to be made in any such book or account of GP.
Mene pointed out that the property mentioned in count three and the particulars of offence did not belong to GP but instead belongs to Addax Energy. Mene said, “there is no evidence that either of the accused persons received or possessed by himself the said products mentioned in the counts. The provision is very clear as it has to be property in possession taken by himself. Since the counts itself states that the product belongs to Addax, it is our submission that there is absolutely no evidence that either of the accused persons were directors or officers of Addax. There is clearly a disconnection between the offence and the particulars in the charge.”
Read below the rest of the defence ‘no case’ submission in verbatim.
Lawyer C.E Mene continues “My lady, it is my submission that, the particulars do not indicate the offence created and clearly in this case, no evidence has been led in particulars to counts 3, 4, & 5, in fact, these counts do not even make sense in light of the evidence laid before this Court. I dare say it is inconsistent with the evidence and I urge my lady to uphold the no case submission in counts 3, 4 & 5. As my lady sees that they are talking about Addax. It is not the property of GP, the same applies to PSTV. The accused persons never worked for these companies and the products were never in their custody. What the prosecution wants this Court to do is to do the forensic audit which they disregarded and failed to do. They want this Court to impose liability for the missing products which witness Abdou Bah said they are still investigating and that they will need a forensic audit to be able to conclude. So, they want the Court to impose the liability of these missing products on the accused persons. I therefore, urge my lady to uphold the no case submission in respect to those three counts”.
“My Lady I now proceed to deal with count one, there is nothing much that needs to be said with regards to that count (conspiracy to commit economic crime contrary to S.368 of the criminal code). It is my submission that there is no such offence known to law. The law is trite that an accused person cannot be charged for an offence that has been created by law. Economic crime is an offence created by the Economic Crime specified offences Act Decree no.18 of 1994. Section 368 of the Criminal Code does not create the offence of conspiracy to commit Economic Crime. The Offence created by 368 is conspiracy to commit a felony and my lady will see that it does not mention Economic Crime. You have to charge according to the offence created; you cannot create your own offence”.
“Additionally, there is absolutely no evidence to support the particulars of the said offence of conspiracy to commit Economic Crimes to act together in common purpose. There is no evidence to that effect. The evidence before this Court is that the 2nd accused was out of the jurisdiction most part of 2021 and there is no evidence that the accused persons caused Economic loss to the government of the Gambia and therefore, they could not have conspired to do what never happened. Their own evidence is that lifting products on negative balances at GP was a standard operating procedure since its inception in 2009 up to 31st October 2021. The traders cannot claim not to know about a standard procedure that has been going on since 2009. The evidence of Momodou Hydara of Jah Oil, Lamin Touray and others shows that there is no OMC who have never taken fuel on negative balance. Even the government owned GNPC that is now charging the accused persons took fuel on negative balances. That cannot be Economic loss to the government as most of the fuel has been paid in cash or kind by the OMCs. The OMCs are taken to Court to recover the outstanding sum. How can there be economic loss when the State has not shown the amount lost or gained. I urge this Court to uphold the no case submission because asking them to enter their defence will be tantamount to an injustice”.
“My lady, I want to make the point that there is no offence called stealing by the clerk, what the prosecution did was to use the punishment section as the section defining the offence. Section 245 of the Criminal Code is clear from this position that there has to be a taking, but if it is receiving then you can charge the accused with receiving stolen property. Section 258 is the punishment section, assuming without conceding that the offence is known to law. It is my submission that the evidence before this Court doesn’t support the offence of stealing and the particular of the offence is also at variance with the evidence”.
“My lady, for this offence to be sustained, the owner of the property must be known and the property stolen from the owner. If my lady looks at the count, she will see that the property allegedly stolen was said to be the property of GP paid by GACH to GP for the amount of US$235,032. What this count seems to suggest does not clearly state who the money belongs to. It seems to suggest that it belongs to GP, GACH Global or international traders. We are not sure which is which and the Court cannot speculate and it is trite law that a charge cannot be vague. The evidence laid has nothing to do with the amount of US$235,032 allegedly stolen by Saihou Drammeh. The evidence that is remotely relevant even though it doesn’t help much is that of Abubacar Jawara which doesn’t clear the ownership of the money’.
Mene said, “Abubacar Jawara in his testimony mentioned an amount of $221,000 different from what is alleged from the particulars of offence. What he said in his testimony cannot by any stretch be the basis of the charge of stealing. While the count talked about stealing by Saihou Drammeh an amount of US $235,032 but the witness said he gave $221,000 to somebody who is not Saihou Drammeh. Abubacarr Jawara said he gave the US$221,000 to his own agent, Kaddijatou Kebbeh and to show proof of the money he gave to Kaddija, he tendered exhibit 77 dated 16th September 2021. This is significant because in the particulars it states the same date that Saihou is alleged to have stolen the money. The only document which shows receipt of this money is exhibit 77 which was not issued by Saihou Drammeh but instead signed by one Adolf Manu on 16th September 2021 and one K. Kebbeh presumably Khadijatou Kebbeh for onward payment to suppliers signed again by the same persons. That is the only exhibit before this Court concerning the money so we cannot speculate or rely on our imagination that the US$221,000 is the money referred to in count two and the Court cannot do that. What it means is that there is no evidence that Saihou Drammeh stole $235,032 from anybody”.
Mene said, “Abubacarr Jawara never said the payment was made to Saihou Drammeh and there is no evidence to prove any fact that this US$221,000 was paid by the recipient to Saihou. In any event, that is not the charge before this Court. The charge is that the Saihou stole $235,032. It is usual for a person who describes himself as an international businessman to know that when you give money to your agent for payment of suppliers and you received a receipt from your agent, you must demand a receipt to prove to whom the money is paid to and no such evidence has been tendered before this Court. What we have are allegations that the money was given to Saihou Drammeh. In a criminal case, it is not just enough to make bare allegations, you have to prove it and no evidence was laid to substantiate that the money was given to Saihou Drammeh”.
Mene Continue, “Abubacar Jawara also made some wild allegations about the D58 million he gave to his agent and assumed before the Court that Saihou Drammeh received the money. There is absolutely no proof that the D58million was received by Saihou Drammeh. In the charge of stealing for a specified amount in this case $235,032 you must prove that Saihou Drammeh received that amount and there is no such proof whether for the D58million or $235,032. On the issue of the D58 million Jawara explained that he gave the money to his agent and exhibit 78 (1&2) was produced. Exhibit 78(1) is the invoice of the D58 million and I urge my lady to look at it clearly. There is nowhere on that invoice where petroleum supply was mentioned and clearly Saihou Drammeh is not Korringo company and Abubacar Jawara himself said it’s a Bureau de Change owned by Modou Jagana and this Jagana has not been called to testify before this Court to say who he gave this money to”.
Barrister Mene pointed out, “My lady, no explanation has been advanced to this Court as to why Mr. Jagana was not called by virtue of section 155(D) of the Evidence Act. The Court is entitled to presume that the evidence of Mr. Jagana will be in favor of Saihou Drammeh. Abubacar Jawara also said in his evidence that he called Mr. Jagana on the phone and wants to repeat what Jagana said to him, that he gave the money equivalent in Forex to Kaddijatou Kebbeh. Again, clearly that is hearsay he cannot repeat in Court what Jagana said, if prosecution want to know what Jagana knows, he ought to have been called as a witness. In relation to the push and pull between Jawara and Kaddijatou at the bank, he referred to a WhatsApp message sent to him by Saihou Drammeh. Abubacar Jawara told this Court when Kaddijatou saw that message, she told him Jawara that message was not directly from Saihou but was forwarded to him and he confirmed to the Court that Saihou also told him the same thing”.
Going further Mene said, “My lady, the evidence of Abubacarr Jawara was just to create an environment of suspicion even when he knew the message was not from Saihou Drammeh. Since the evidence before this Court is that the $221,000 was given to Kadijatou Kebbeh as well as the D58 million which is not even part of the count but was thrown in there during examination and there is no prove before the Court as to who Kaddijatou Kebbeh gave this money to. That makes her a vital witness for the prosecution since it is alleged that she gave the money to Saihou Drammeh. She is the only one who can establish that fact apart from the assumption of Abubacar Jawara”.
Mene indicated, “the failure to call Kaddijatou Kebbeh as a witness is in expectable and I make this submission bearing in mind the evidence of Police officer Abdou Bah who told the Court that when Jawara lodged a complaint at the Police that his money was given to Saihou Drammeh, Khadijatou Kebbeh denied the allegation. So in the light of the evidence of the prosecution’s own witness Abdou Bah and by virtue of section 155 of the Evidence Act, my lady is entitled to presume that Kaddijatou was not called because her evidence will be in favor of Saihou Drammeh and that is the presumption of law. The evidence of Abubacar Jawara is contradicted by documentary evidence tendered by the prosecution, while Abubacar Jawara told the Court that saihou Drammeh asked him to pay the first 300 metric tons in cash to Saihou or G but what the documentary evidence showed is different”.
Mene posited, “Abubacar Jawara told the Police that the money for the 300 metric tons was to be paid to the suppliers but he has a different version of the same story with regards to the Senegalese supplier. He said he was introduced to the Senegalese supplier called Idrissa Nying and he admitted to entering an agreement with the supplier which failed because Jawara did not agree to the terms. Surely there is no suggestion that Saihou Drammeh is a Senegalese. Jawara himself said because of the disappointments people were expecting from him Saihou introduced him to the supplier. He denied signing any agreement but when he was confronted with defence exhibit D20 he turned around and accepted the agreement in which Idrissa Nying signed as CEO. It was suggested to him under cross-examination that Mr. Idrissa completed the agreement with GP but he did not. His response was that he did not know but that Saihou Drammeh introduced him to Mr. Idrissa which means Saihou knew the Senegalese”.
Mene further argues, “Now that the US$221,000 and the D58million mentioned by Jawara is inter-alia the subject of the claim of Abubacar Jawara which is before the High Court. My lady will realise that Abubacar Jawara is not sure who to claim the D58 million from. What he said is either from Kaddijatou Kebbeh or Saihou Drammeh. The agent of Abubacar Jawara has already filed her defence in the claim Jawara constituted against her at the High Court and her accompanying documents are exhibited before this Court also explains why Kaddijatou Kebbeh has not been called before this Court. In her defence, she denied giving US$221,000 nor the D58million to Saihou Drammeh. She also has a sworn statement under oath to the same effect that Abubacar Jawara knows who he asked her to give the money to and she was very categorical that she never gave any money to Saihou Drammeh. There is no iota of evidence that Saihou Drammeh took the money from anybody”.
Defence Counsel C. E. Mene concluded, “the prosecution has failed to establish a prima facie case to establish the offence of stealing and has failed to prove the ingredients to require Saihou Drammeh to enter a defence. That will tantamount to asking him to prove his own innocence. I wish to draw the Court’s attention to that apart from the fact that we don’t know who the money belongs to. Abubacarr Jawara told the Court that the first 300 metric tons uplifted from GP is included in the claim of GP against him and he tendered a proof of the claim. So, if GP is claiming the 300 metric ton, then who owns the money? If you say the money belongs to GACH, why did you include it in the claim? And if it belongs to GP then why is GP claiming it from GACH? My lady I humbly urge my lady to rule in favor of the accused persons”.
Justice H.C. Roche ordered the prosecution team led by Momodou S. Mballow and Abdul Aziz Saho to file a written address and serve their submission on or before the 8th of July 20022. The matter is adjourned to Tuesday 12th July for adoption of prosecution’s response to the defence “no case to answer”.