By Landing Ceesay
The Judge in the Gam Petroleum Corruption Scandal Trial Justice Haddy Roche said that the Prosecution had established no evidence against the accused person on count 1 of the charges.
On the 29th of June 2022, Lawyer Christopher E. Mene, the lead counsel of the accused persons in the trial at the High Court of the Gambia involving two staff of Gam Petroleum filed “No Case To Answer” submission before Justice Haddy Roche.
The 2 staff namely Saihou Drammeh (1st accused), former Managing Director and Lamin Gassama (2nd accused), former Operations Manager of the institution were charged with 8 counts (3 counts of economic crime and 5 other counts) in the alleged corruption scandal.
Count 1 of the charges against alleged that the 1st and 2nd accused conspired to commit economic crimes, contrary to section 368 of the Criminal Code. Cap 10:01 vol. iii Laws of The Gambia 2009.
In his submission on count 1, Lawyer Mene submitted that Section 368 of the Criminal Code does not create the offence of ‘conspiracy to commit economic crimes’, but said law merely speaks of ‘conspiracy to commit felony’.
He submitted that there is no evidence that the accused persons acted together with common purpose because the 2nd accused was outside the jurisdiction most of the time during the relevant period.
Defence Counsel Mene said there is no evidence that the accused committed economic crimes so that they could not have conspired to do what never happened.
Counsel Mene reiterated that the prosecution’s own evidence is that lifting products from Gam Petroleum on a negative balance was a standard operating procedure at GP since its inception up to the relevant period, and that there is no Oil Marketing Company (OMC) that has never lifted products from GP on a negative balance, and that even a government owned OMC (GNPC) had been on a negative balance.
He stressed that there could not have been economic loss when the prosecution did not provide evidence of what had been admittedly recovered from the OMCs so far, and the outstanding balance therefrom, and in the absence of the verification of the missing stock.
In response to the defence counsel’s submission, Prosecution Counsel M.B. Mballow submitted that conspiracy can be proved by direct evidence of communication between the parties or by evidence of avert acts done to carry out the criminal objective.
He said the evidence required for a prima facie case of conspiracy is that there were at least two or more persons, that there was an agreement to act together and that sole purpose for the agreement to act together was for a criminal enterprise.
Counsel Mballow further submitted that in this case, there is evidence of direct communication between the 1st accused and the International traders, and that Abubacarr Jawara’s (PW7) “unsuspicious” evidence against the 1st accused provided all the evidence needed to establish the offence of conspiracy against the accused persons.
Delivering her judgement on the matter, Justice Haddy Roche said for a charge of conspiracy to succeed, it must be proven that the parties agreed to commit an offence.
She said although the offence of conspiracy is hardly proven by direct evidence, there must still be evidence of circumstances from which it can be reasonably inferred that the parties agreed to commit an offence.
Justice Roche cited Benson Obiakor Vs the State (2002) 10 Nigerian Law Report (pt.776), 612 at 628-629, of the Supreme Court of Nigeria, which said conspiracy is rarely proved by direct evidence but by circumstantial evidence and interference from certain facts.
Justice Roche cited the Supreme Court of Ghana in Commissioner of Police Vs Afari  1 Ghana Law Report 486, S. C. at 530 also cited in the case of Kwasi Vs Republic  GHACA 4, described the circumstantial evidence required in such cases.
Justice Roche said in the Kenyan case of Musili Vs Ere Republic 2014 eKLR, it was held that: the circumstances from which interference of guilt is sought must be cogently and firmly established, those circumstances should be of a definite tendency, unerringly pushing towards guilt of accused and the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the act was committed by the accused and none else.
“In this case, the evidence is that the 1st accused was at all material times the General Manager of Gam Petroleum and the 2nd accused was the Operations Manager working under him, but there is no evidence of proved facts or unbroken chain of events pointing to any agreement by the accused persons to commit economic crime, or any crime.
“Instead, the evidence discloses normal established activities authorised and approved by Gam Petroleum, which were confirmed as such by the persons who actually conducted them Lamin Touray (PW2) and Ousman M. Bah (PW4), who were never charged in this matter, and who faced no allegations of impropriety. The evidence also discloses allegations of missing stock which were never verified, so that there was simply no evidence to support the substantive charge, which were not shown by the evidence to have been agreed upon in any event,” she said.
Justice Roche agreed with counsel Mballow that the accused persons need not have met physically or directly communicated for a charge of conspiracy to succeed.
She however said the criminal design must be common to all the accused persons and that there must still be evidence of some acts between the accused persons from which it can be reasonably deduced or inferred that they had a common design and agreed to pursue a criminal act.
Justice Roche said indeed, such deduction or inference may be collected from collateral circumstances and thus a charge of conspiracy would largely depend on circumstantial evidence to be successful.
Justice Roche further said in this case, there is no evidence of any acts by the parties overtly or covertly at any time suggesting a common design or agreement to commit economic crime.
She said the allegation by counsel Mballow that the accused persons deliberately absented themselves to facilitate the commission of offences by their staff is not supported by the evidence.
“The evidence is that the 2nd accused was on leave of absence and outside the jurisdiction, while the 1st accused was in the jurisdiction where he was absent or late most of the time, which was not reported as unusual or strange on his part to show an orchestration or common design. Indeed, Ousman M. Bah (PW4) said it was normal to sign for the accused persons and that they signed on behalf of the accused persons to ensure that the work carried on in their absence, which he said was what obtained during the tenures of the accused person’s predecessors,” she said.
Justice Roche said Sharad Birdhichand Sarda Vs State of Maharashtra (1984) (4) 166, the Supreme Court of India held that a case based on circumstantial evidence should satisfy the following test: the circumstances from which the conclusion of guilt is to be drawn must be fully established, the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis, except that the accused is guilty and that the circumstances should be conclusive and tendency etc.
Justice Roche said such circumstantial evidence is not before the court and that there is no evidence that Ousman M. Bah (PW4) and any other staff who signed or release product in the absence of the accused persons were involved in any authorised or criminal acts in the absence of the accused persons.
“They did not say that they had any agreement with the accused persons to commit any offence, or that the accused persons had an agreement or common purpose to commit any offence. I remind myself that the staff themselves Lamin Touray, (PW2) and Ousman M. Bah, (PW4) confirmed to the court under cross-examination that they discharged their duties as per normal in the absence of the accused persons.
“Also no OMC reported impropriety in their supply/release of product on negative balance, no personal earnings or benefits by the accused from any transaction was reported, and no verified audited accounts pointing to the guilt of the accused persons were produced before the court,” she said.
Justice Roche said what was before the court was merely suspicion and impermissible speculation or inference, for there is no evidence of any statement, or conduct of any of the accused persons expressed or implied suggesting an agreement to commit economic crimes between them as per count 1.
The Judge stressed that the danger of impermissible speculations or inferences in the framing of criminal charges and in the prosecution of criminal cases, is that they could lead to skewed creativity, and hence oppression at the expense of fundamental constitutional rights and the rule of law in general.
She said in Onagoruwa Vs State supra as was ably cited by defence counsel, it was at 32, that the criminal law outlaws suspicion in the guilt determining process, and that the:
“State of being suspected or the imagining of something without evidence, or on slander cannot be a basis for criminal responsibility, even at the stage of establishing a prima facie case.”
Justice Roche said it has already been held that there was no prima facie evidence that the accused persons had intention to commit economic crimes.
She said therefore, naturally, there is no prima facie evidence that they had a common crime even, if they acted together in which there was no evidence that they did due to the absence of the required quality of circumstantial evidence.
“Thus, again, the element of the offence is missing from the evidence. So that there is no prima facie evidence that the accused persons conspired to commit economic crimes. There is no prima facie evidence from which it can be reasonably deduced or inferred that the accused persons conspired to commit economic crimes. Under the circumstances, the accused persons are hereby discharged and acquitted on count 1,” Justice Roche ruled on 28th July 2022.
Count 1 is one of the eight counts levelled against Saihou Drammeh, (1st Accused) and Lamin Gassama (2nd accused) in their maiden court appearance at the High Court in Banjul on 4th April 2022 presided over by Justice Haddy Roche.
Their arraignment followed their arrest regarding their alleged involvement in the alleged corruption, malpractices and the missing of fuel products worth USD 20 million at the depot.