By Landing Ceesay
Christopher E. Mene, lawyer representing the 1st and 2nd accused persons in the Gam Petroleum corruption scandal trial in his submission of ‘No Case to Answer’ questioned the credibility of Abubacarr Jawara’s testimony.
Lawyer Mene is the lead counsel of Saihou Drammeh (1st accused), former Managing Director and Lamin Gassama (2nd accused), former Operations Manager of Gam Petroleum.
The two staff are charged with 8 counts (3 counts of economic crimes and 5 other counts) in the ongoing Gam Petroleum corruption scandal trial.
The eight counts are levelled against the accused in their maiden court appearance at the High Court in Banjul on 4th April 2022 presided over by Justice Haddy Roche.
The appearance in court of Drammeh and Gassama followed their arrest on their alleged involvement in the alleged corruption, malpractices and the missing of fuel products worth USD 20 million at the depot.
In his submission on count two of the charges, Lawyer Mene questioned the owner of the $235, 032, the amount former General Manager of Gam Petroleum Saihou Drammeh is accused of stealing; and said the prosecution did not prove anything to ascertain who owns the money.
Lawyer 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.
Lawyer Mene argued that for the offence of stealing to be sustained, the particular 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 money paid by GACH,” Mene said.
Lawyer Mene told the court that the particulars of count two are confusing and does not say clearly who the money belongs to.
He said it creates a confusing situation to suggest that the $235, 032 belongs to three persons – Gam Petroleum, GACH Global or the international traders.
Lawyer Mene said they are not sure which is which and the court cannot speculate or rely on conjecture that “it is trite law that a charge cannot be vague”; and said the evidence that was led did not prove the $235, 032 allegedly stolen by the 1st Accused Person.
Lawyer Mene said the evidence that is mostly relevant in respect of this, even though it did not help much, is the evidence of Abubacarr Jawara (PW7) which he (Mene) said did not clear the confusion of the particulars.
Lawyer Mene told the court that Abubacarr Jawara (PW7) in his evidence mentioned an amount of $221, 000 in his evidence.
“This is different from what is alleged in the particulars of offence,” Mene said.
Lawyer Mene said what Abubacarr Jawara said in his testimony cannot be the basis of the charge of stealing against the 1st accused person.
He argued that anything said that is contrary to the particulars of the offence will go as no issue and said Abubacarr Jawara’s testimony is at “variance with the particulars of the claim”.
What Lawyer Mene meant here is that the particulars of offence stated that the alleged stolen $235,032 belongs to Gam Petroleum while Abubacarr is talking about the $221, 000 belonging to him being stolen.
Lawyer Mene said the prosecution failed to prove the charge because no prosecution witness talked about the $235,032 as contained in the particulars of the offence.
Lawyer Mene said Abubacarr Jawara told the court that he handed the money to his agent, one Kaddijatou Kebbeh and not the 1st accused person on 16th September 2021.
Lawyer Mene said on the same day, (16th September 2021) what the particulars of the offence are saying was the day the 1st accused person stole the money from Gam Petroleum and Abubacarr Jawara told the court that he handed the money to his agent Kaddijatou Kebbeh.
“How can you hand money to your agent and say it was stolen? We cannot speculate or rely on conjecture to say $221, 000 is the same as the $235, 000 mentioned in count 2. The court cannot do that,” he told the court.
Lawyer Mene said there is no evidence before the court that the 1st accused person stole $235,032 from anybody.
He stressed that Exhibit P77 which was tendered by the prosecution never said the payment was done to the 1st accused person; but said the payment was done to another person – Korinbo.
Lawyer Mene said there is also no evidence to prove any fact or establish a fact that the $221, 000 was paid by Abubacarr Jawara (PW7) to the 1st accused person.
He said in any event, that is not the charge before the court and the charge before the court is the accused person alleged of stealing $235,032.
“If you give money to your agent, you must demand receipt of who or where the money is paid to. What we have is the dead allegation of PW7 (Abubacarr Jawara) that the money was given to the 1st accused person. It is not enough to give a “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 Abubacarr Jawara also made some a “wild” allegation about D58 million 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 D58, 000,000 was received by the 1st accused person,” he said.
Lawyer Mene argued that in a charge of stealing of a specified amount, in this case of $235,032, they must prove that the accused person received such amount, saying “in this case, there is no proof”.
Lawyer Mene told the court that the $221,000 was given to Kaddijatou Kebbeh, Abubacarr Jawara’s agent as an onward payment of the supplier and it was signed by the agent and Adulf Manut, Abubacarr Jawara’s accountant.
“The 1st accused (Saihou Drammeh did not sign any document,” he said.
Lawyer Mene said Momodou Jagana from Korinbo, to whom the agent paid the money was not called to testify in this case to explain who the D58 million was given; and said the prosecution made no explanation as to why he is not called to come and testify.
“Section 155 of the evidence Act said if a relevant witness is not called to come and testify. The court can presume that his or her testimony might be unfavourable to the prosecution that is why he or she is not called,” he said.
Lawyer Mene said the failure to call Kaddijatou Kebbeh is ‘inexcusable’; and said Abdou J. Bah (PW12) the police officer who investigated the matter said Kaddijatou Kebbeh, denied the allegation that she paid the money to the 1st accused person.
“Kaddijatou Kebbeh, Abubacarr Jawara’s agent was not called because her evidence could be unfavourable to the prosecution,” Mene said.
Lawyer Mene said the evidence of Abubacarr Jawara (PW7) is contradicted by documentary evidence tendered by the prosecution in this case; and said Abubacarr told the court that 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 which Abubacarr Jawara was quoted as saying that the payment for the 30,000 metric tons was made to the supplier.
Lawyer Mene said the 1st Accused Person was not the supplier and that Abubacarr Jawara testified that he entered into agreements with suppliers and he signed supply agreements with them but the agreement could not materialise because he (Abubacarr Jawara) 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 told the court that Abubacarr Jawara (PW7) 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 and admitted.
He said Abubacarr Jawara knew who the Senegalese was, but of course, told the court that he does not know him.
“Abubacarr Jawara 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 told the court.
Lawyer Mene said the agent of Abubacarr Jawara has filed her defence and accompanying documents, adding that the statement of defence is exhibited before this court, and said the documents also explained why Kaddijatou Kebbeh was not called in this case.
“Kaddijatou Kebbeh is saying she neither gave the $221, 000, nor the D58,000,000 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 on the 16th September 2021 from anybody. The prosecution has absolutely failed to establish a prima facie case of the offence of stealing and they woefully failed to prove the charge of stealing,” Mene said.
Lawyer Mene said if the court asks the 1st accused person to enter the witness box, it will tantamount to asking him to prove his innocence.
He said apart from the fact that there is no proof of who owns the $235,032, Abubacarr Jawara has told the court that the 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 300 metric tons as balance owed to GP by GACH Global, then who owns the money? If you claim the money belongs to GACH, why are you including it in the claim?” Mene told the court.
Lawyer Mene then urged the court to sustain the no case submission in respect to count 2.
Lawyer M.D. Mballow and Abdul Aziz Saho represented the State, while the lawyers Christopher E. Mene, B. S. Conteh, S. Akimbo, Pauline Bakurin, and Sasum Sillah represented the 1st accused (Saihou Drammeh), and 2nd accused (Lamin Gassama) in the hearing.
The case is adjourned to July 12, 2022 for the prosecution’s submission on ‘No Case to Answer.’