By Landing Ceesay
The lawyer representing the 1st and 2nd accused persons Christopher E. Mene, in his submission of ‘No Case to Answer’ in the Gam Petroleum corruption scandal trial at the High Court of the Gambia said prosecution failed to prove economic crime allegations against the accused persons.
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.
In his submission, Lawyer Mene said the accused persons have no case to answer and should therefore, not be called upon to defend themselves.
He said the prosecution called twelve witnesses and tendered several documents.
Lawyer Mene said all the prosecution witnesses testimonies and the exhibits tendered through them, everything taken together, they did not show or prove that the acts or omissions of the 1st and 2nd accused person constituted the offences in counts 6, 7 and 8 (all dealing with economic crime).
“The Court is a serious place for serious business. It is not a place for rumour mongering or trivialities,” Lawyer Mene said.
Lawyer argued that most of the prosecution witnesses have testified that the 2nd accused person (Lamin Gassama) was most of the time out of office; and said the Prosecution Witness 4 (Ousman Jallow) said the 1st accused person (Saihou Drammeh) was not at office most of the time.
Lawyer Mene further argued that the philosophy of the entire prosecution case was encapsulated on sentiments carried by the Chairman of the Gam Petroleum Board of Directors Abdoulie Tambadou (PW5) that the mere fact that 1st accused person was the General Manager; while the 2nd accused person was the Operations Manager, so they are responsible.
“That is not (a) proof of the alleged offences. The allegations have to be proved. The prosecution has failed to lead evidence on the claimed missing stock.”
“No evidence has been laid before this honourable Court about any missing stock or any stock under the personal custody of the accused persons. All we have before this honourable court is hearsay upon hearsay,” Lawyer Mene said.
Lawyer Mene cited prosecution exhibit 96 states that the issue of missing stocks is inherited and there was a recommendation for a forensic audit to be carried out at Gam Petroleum from its inception in 2009 to 31st October 2021.
He said the report by the taskforce recommended a forensic audit to be conducted and PURA also recommended the same before the traders were paid.
“That has not been done and people are charged. If that is not done, why are we here? Is the entire case not premature? ” Mene asked.
Lawyer Mene argued that the only evidence of missing stock was mentioned by prosecution witness 1, Amadou Keita who said the Board Chairman (PW5) informed them at a meeting that there was missing stock at the facility.
“In fact, this is hearsay. He [Keita] did not say the 1st and 2nd accused persons are responsible for the missing stock. There is evidence before this court that the missing stock is inherited by the 2nd accused person,” Mene told the court.
He referred the court to the testimony of Lamin Touray (PW2), the depot supervisor, exhibit 96 and the testimony of prosecution witness 12 (Abdou J. Bah) under cross-examination.
Talking about the issue of the missing stock, Lawyer Mene referred the court to the testimony of Ousman M. Bah (PW4) who testified that in 2014, there was a vessel that used to come and uplift at the depot, and that he does not know where the records are and have never seen them.
Lawyer Mene said Momodou Hydara from Jah Oil (PW9) took time to explain to the court the rationale for allowing the local Oil Marketing Companies (OMCs), to uplift fuel on negative balances in which he said was to ensure a level playing ground for all businesses because Gam Petroleum had a limited capacity.
“Why charge them for something all the OMCs and the Board say is normal. The missing stock cannot be attributed to the accused persons. There was no forensic audit. The issue of uplifting in the negative is normal. So what is the case?” Lawyer Mene asked.
Lawyer Mene reads Section 5 of the Economic Crimes (Specified Offences) Act, which provides the basis for the charges.
He cited the case of Mamburay Njie and The State in which the court came up with two conditions for economic crimes, One was the accused person was a public officer and the second was the willful act or omission of the accused person caused monetary loss to the Gambia.
Lawyer Mene said the entire case of the prosecution is based on the negative balances that the OMCs took or the missing stock cannot be attributed to the accused persons.
He said it is the duty of the prosecution to attach the two elements of the economic crimes established in the Mamburay Njie.
“I wish to submit that the prosecution has the responsibility to lead evidence to establish monetary loss to the Government of the Gambia caused by the acts of the accused persons not by venturing in vague concepts of operational responsibility,” he said.
Lawyer Mene further argued that none of the prosecution witnesses has adduced or shown this to the court.
He said the overwhelming evidence before the court is that the OMCs were furious when they were called to the police headquarters about their negative balances because, to them, that was normal.
Mene said the evidence before the court is that all the OMCs that were in the negative balances were ready to pay; and said some of the OMCs were taken to court by Gam Petroleum because they failed to repay the products they have taken.
“How can you say there was loss as a result of what was supplied to the OMCs? To what extent is the loss? They (the prosecution) did not lead evidence to show how much they recovered or not,” Mene said.
Lawyer Mene said PURA and the police both recommended for a forensic audit to be carried out on the facility before any payment is made to the international traders who supply them fuel; and that the 2nd accused person warned the Board Chairman not to pay the traders because they were overpaying them.
“They charged the accused persons for monies they overpaid the traders. If anybody is to take responsibility for the payment to the traders, it is the Board who agreed to pay without a forensic audit against the advice of PURA and the police,” Mene argued.
Lawyer Mene argued that there was no forensic audit and the Board ignored the advice of the 2nd accused person who told them to withhold the payment because the traders were making claims to monies they are not entitled to.
“It is in evidence in this case that the traders were overpaid. They were paid monies, which they were not entitled to. That is the economic crime, if any. It is clear from the evidence,” Lawyer Mene told the court.
Lawyer Mene told the court that Addax Energy overpaid 2,900 metric tons which they were not entitled to, but they included that in their claim; and said the 2,900 formed part of the 5919.60 metric tons settlement paid to Addax.
Lawyer Mene said from the testimonies of PW5, PW6 and PW12 that Addax were not entitled to and that this product was already released to Atlas and Atlas had already paid Addax the sum of money.
Lawyer Mene referred the court to the testimony of Dodou Njie (PW8) from Atlas, one of the Prosecution Witnesses and said “So Addax were overpaid”.
He went on to say Addax were further overpaid 721.90 metric tons of PMS (Premium Motor Spirit, popularly known as Gasoline or Petrol) which they were not entitled to and that Gam Petroleum paid them for it and it is in evidence.
Lawyer Mene said oil prices worldwide are fixed within a range but Addax and Trafigura charge with high rates, while PSTV charges are lower; and argued that the approved payment made to Addax and Trafigura was more than the price structure approved by the Gambia Government.
Mene said there was a difference of USD200 for PMS per metric ton between Addax and Trafigura with PSTV, while USD129 for AGO (Automotive Gas Oil) or diesel for Addax and Trafigura with PSTV.
Lawyer Mene further told the court that the overpayment was between 6 to 9 million United States Dollars and he maintained that, Lamin Touray (PW2) testified that there was 2,000 metric tons of Diesel sludge left in the tank and this was seen when they were cleaning the tanks.
Lawyer Mene said the Board of GP paid the international traders all these without deducting this. Also, he said Lamin Touray said they found 1,000 metric tons of PMS in the tanks when they were cleaning them.
Mene said there is a standard formula used in calculating losses in the fuel industry which is + or – 0.5% on the value should be deducted, but the Gam Petroleum Board did not apply this formula as stated by PW8 and PW11; and then referred the court to Article 8 of exhibit P8 which also captures this formula.
“They [the GP Board] negligently ignored this formula and did not apply it. If you aggregate this together, if you put it together, you are looking at an overpayment of 7 to 9 million US Dollars to the traders. That is an economic crime,” Mene argued.
Lawyer Mene said there was special interest from the Gam Petroleum Board in the settlement of the international traders and that higher figures were used in terms of price and volume.
Lawyer Mene said Trafigura supplied Star Oil subsidiaries in Guinea and Mali and Star Oil, of which Abdourahman Barrow, a Board member of Gam Petroleum is a director, had special interest in the matter because they had a special relationship with Trafigura.
Lawyer Mene said it is in evidence that Abdourahman Barrow and Ebrima Ndiaye, both Gam Petroleum Board members and directors of Star Oil went to GP to negotiate the settlement agreement on behalf of Trafigura.
Lawyer Mene said Trafigura, like other international traders, have their agents at Gam Petroleum, whom they could have used for the negotiation; and said Ndiaye does not attend Board meetings, but when this issue came up, he was in the lead with Abdourahman Barrow to negotiate for settlement.
“Why the special interest from Star Oil?” Mene asked.
Lawyer Mene said in the report of the taskforce that investigated the matter indicated that the Board was only interested in the settlement of the International Traders and in particular, only three Addax, Trafigura and PSTV.
He argued that the Board Chairman of Gam Petroleum, Abdoulie Tambadou (PW5) said he was only involved in the settlement of Addax and Trafigura; and again asked why that, if not special interest.
“Why was it higher for Addax and Trafigura and less for PSTV on the same products? Oil or fuel prices are fixed within range,” Mene asked.
Lawyer Mene said as a result of the overpayment, the profit that the local OMCs were to make was paid to the international traders.
He said the Board was adamant on paying the international traders despite the advice of PURA and the police for a forensic audit and against the warning of the 2nd accused person that the international traders were making claims which they were not entitled to.
Lawyer Mene placed emphasis on the testimony of the police investigator, Assistant Superintendent Abdou J. Bah who said the level of cooperation from the accused persons was unprecedented; and said that showed they don’t have a criminal intent; adding this is contrary to normal criminal behaviour.
Lawyer Mene said the same police prosecutor testified that the Board was only interested in getting the accused persons prosecuted; adding nothing much was coming from the Board; and explained that the police witness testified that if not for the cooperation of the accused person, they would not have gotten the little they got in the case.
Lawyer Mene said the arrest and prosecution of the two accused persons was designed and orchestrated.
He said Abdourahman Barrow had testified in court that they were interested in the position of the 2nd accused person’s position to take control of the operations at Gam Petroleum.
Mene said the method used in getting the accused persons behind bars could be best described as a “coup”; and explained that they wanted to get the 2nd accused person out of office because he understands operational matters and he won’t allow for overpayments.
“Even at the police, while under custody, he [the 2nd accused person] managed to warn them not to overpay the international traders,” Mene told the court.
Lawyer Mene told the court that Abdoulie Tambadou, (PW5) the Board Chairman of Gam Petroleum and Abdourahman Barrow, (PW11) a Board member of Gam Petroleum and Director of Star Oil Gambia are both “liars” as they came to deceive the court.
He argued that the testimony of the two witnesses was contrary to the evidence before the court; and said the evidence before the court was that the payments to the traders were done fully in monetary terms and receipts were provided.
Lawyer Mene however said Abdoulie Tambadou (PW5) said there was reconstruction in the payment, while Abdourahman Barrow (PW11) said there was deduction.
“There was no reconstruction or deduction anywhere. It seems, obviously, that the two witnesses came to this court to tell lies,” Mene said.
Mene told the court even assuming the monies were rightly paid to the international traders, there is no evidence that there was economic loss to the Government of the Gambia because Gam Petroleum and not the Government of the Gambia made all payments.
Lawyer Mene argued that Gam Petroleum liquidated their investments and took loans from the bank to make the payment.
He asked where the Gambia Government or Ministry of Finance fall within this, and argued that the Ministry of Finance is a shareholder at Gam Petroleum and all it is entitled to, is to receive a dividend.
“Gam Petroleum’s money is Gam Petroleum’s money and it does not belong to the Ministry of Finance. Gam Petroleum is a private company and the company’s money remains the company’s,” Mene told the court.
Lawyer Mene told the court that the problem was created when the Government came up with a price structure in September 2021 for October 2021.
He argued that the OMCs were not satisfied with this and they wrote 2 protest letters to the Government warning them of the potential dangers this has on the fuel supply chain; added that the price structure created a situation where the OMCs were not able to import fuel and therefore, could not replenish their negative balances.
“That is the prosecution’s own evidence. The crisis was triggered by that,” Lawyer Mene said.
Lawyer Mene said the taskforce report blamed everyone including the Ministry of Finance, PURA, Gam Petroleum Board and the OMCs for the problem.
“How can you turn around and say these two people [the accused persons] are responsible?” Lawyer Mene asked.
Lawyer Mene argued that there was no economic loss and if there was any, it cannot be attributed to the accused persons.
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 continued on 30th June 2020 for continuation of the Defence ‘No Case To Answer’ submission.