By Landing Ceesay
The Prosecution in the Gam Petroleum corruption scandal trial at the High Court of the Gambia responded to the Defence ‘No Case To Answer’ submission.
After the testimony of the twelve prosecution witnesses, the defence filed a ‘No Case To Answer’ and In his submission, Lawyer Mene said the accused persons have no case to answer and should therefore not be called upon to defend themselves.
However, the prosecution on 12th July 2022, responded to the defence ‘No Case To Answer’ submission.
In giving his submission, senior state counsel Mballow said the gist of the prosecution’s case is that the two accused persons on counts 1,3,4,5,6,7 and 8 respectively as General Manager and Operations Manager jointly agreed with a common purpose to fraudulently appropriate petroleum products stored at Gam Petroleum storage facility of International Traders namely ADDAX and PSTV or kept fraudulent accounts of such disposal of products as if authorised, whereas not.
Counsel Mballow said it is their case that, in disregard to the storage agreement between Gam Petroleum and the International traders, the accused persons released products to OMCs knowing fully well that they did either buy or have an existing LC with the traders and without stock balance in their accounts at Gam Petroleum.
Mballow said it their case that having released such products, the Gambia government through the Ministry of Finance as shareholders and Gam Petroleum, reacting to the crisis at the material time, and the condition placed by the International traders being the only petroleum suppliers to the Gambia through GP’s depot entered into a settlement agreement with the traders.
He said in settling, Gam Petroleum had to go the extra mile in recalling all interest from various banks and settling the International traders, an act which caused economic loss to Gam Petroleum as a public body and the government of the Gambia.
“It submitted that the only legally binding relationship between Gam Petroleum and the International traders is the storage agreement, which clearly states among others that Gam Petroleum does not own any product but is only to store such products and issues an outturn and holding certificate upon receipt of products. The storage agreement also categorically states that for any product to be released by Gam Petroleum, the International traders must have issued a release order called transfer memorandum to Gam Petroleum in favour of an OMC at least 24 hours before such release,” Mballow argued.
Counsel Mballow said it is further submitted that another legally binding agreement between Gam Petroleum and the Local Oil Marketing Companies are the various ‘throughput agreements.’
He said it is submitted that, it is trite basic contractual law principle that the contract between Gam Petroleum and the local OMCs excludes third parties such as the International traders.
Senior State Counsel Mballow, in the throughput agreement, Gam Petroleum can only dispose of the product in the account of an OMC upon a release order or a loading ticket issued by the owner of the product.
Mballow said it is submitted that the clause, which authorises Gam Petroleum to allow any OMCs to uplift in excess of their accounts, is only binding on Gam Petroleum and the particular OMC lifting in excess and excludes the others.
“It is our position that even if such a clause is operational and binding, it does not give Gam Petroleum or the accused persons any right to appropriate the stock held in the account of international traders without their express authority as in their agreement (i.e storage agreement),” he said.
Mballow, said the prosecution contends that the act of releasing petroleum products to third parties without consent of the parties to the agreement fits in the elements of the offences charged that is fraudulent appropriation and also economic crimes.
Senior State Counsel Mballow’s Submission on Count Two
Mballow said the prosecution’s gist on count two is that the act of the 1st accused confirms their long-time ‘fraudulent acts’ as General Manager and Operations Manager who he (Mballow) said were ‘abusing’ their offices by selling petroleum products of international traders which he said clearly falls outside of the 1st accused employment terms and mandate to GACH Global.
“This act was further reinforced by the 1st accused act of now creating a new employment term on his own, by selling petroleum products to GACH Global for the first release in the sum of USD221,000.00 and subsequently the second release or supply to GACH Global of GMD 58, 000,000.00. It is the thread of the defence that such payments were not done physically or handed over directly to the 1st accused. It is submitted that such an act or defence is weak and this court being a reasonable court would conclude from the evidence of PW8 and infer criminal intent of the 1st accused,” Mballow argued.
Mballow said the appropriation of the first payment amounts to theft even with making attempts to return petroleum products. He said the prosecution contends that the denial of the accused is immaterial as the 1st accused conduct in paying for petroleum products to Jah Oil to replace the products already paid for by Abubacarr Jawara to Gam Petroleum established the 1st accused guilt.
Mballow said each of the accused denied the charges and that the common thread in their defence is that they did not personally sign most of the release order and loading tickets and also the practice of allowing OMCs to uplift in negative balance was normal.
“That the stocks of Gam Petroleum were not accounted for when the accused assumed responsibilities and cast the doubt that in fact the stock in issue could have been already missing stocks before the accused assumed office. Also, as part of their defence, Gam Petroleum settled the traders without proper auditing and as such overpaid them,” Mballow said.
Mballow said the accused relied on a price structure for petroleum products by the government which caused OMCs not to import products.
Counsel Mballow said the accused also relied on a photocopy letter and also a draft report which he (Mballow) said was allegedly issued by the Presidential task force as part of their defence that the accused were wrongly charged.
He said the accused also relied on what they called favourable testimony of PW12 that in his report, he advised that before the accused are held responsible for the stock, a forensic audit should be conducted and that PW12 did warn PW5 not to settle without forensic audit.
“it is submitted that the evidence before the court speaks volume that such a statement is an afterthought and falsehood as there is nothing before the court suggesting that PW12 was under pressure to submit a signed report with their thorough analysis recommending charges on recommendation 1, 2, and 3 for the stocks of the International traders whereas for the unaccounted stocks they recommended for a forensic audit. We invite this court to read the report, particularly the report’s analysis of the International traders stocks and also recommendations 1, 2, and 3 clearly distinguishable from recommendation 4,” Mballow said.
Lawyer M.D. Mballow and Abdul Aziz Saho represented the State, while the lawyers Christopher E. Mene, B. S. Conteh, and S. Akimbo, Pauline Bakurin, and Sasum Sillah represented the 1st accused (Saihou Drammeh), and 2nd accused (Lamin Gassama) in the hearing.
Lawyer Mene is the lead counsel of the accused persons in the trial at the High Court of the Gambia involving two staff of Gam Petroleum.
The 2 staff namely Saihou Drammeh (1st accused), former Managing Director and Lamin Gassama (2nd accused), former Operations Manager of the institution are charged with 8 counts (3 counts of economic crimes and 5 other counts) in the alleged corruption scandal.
The eight counts are levelled against the two in their maiden court appearance at the High Court in Banjul on 4th April 2022 presided over by Justice Haddy Roche.
Their appearance in court 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.
The other parts of the prosecution’s submission would be published in our subsequent publications.