State files objection against 6bn/- suit by fishing vessel owner

The Director of Public Prosecutions (DPP) has advanced four grounds of objections, seeking dismissal of the application by owner of the fishing vessel linked in the trial, commonly known as ‘Samaki wa Magufuli case’, who is demanding 6bn/- compensation.

The owner of the ship, Tawariq- 1, which was tendered in court as exhibit during the trial of two Chinese, Hsu Chin Tai and Zhao Hanquing and others, is Mr Said Ali Mohamed al Araimi, who is Managing Director of Sea Tawariq LLC, a company registered in the Sultanate of Oman operating from Muscat.

In his application, Mr Araimi requests the court to order restoration of the exhibits to him, including the motor fishing vessel (Tawariq 1) or its value paged at 2.3 million US dollars and 2,074,249,000/-, being the value of fish, after discontinuation of the trial by the DPP entering nolle prosequi to the accused persons.

Mr Mohamed al Araimi stated that on March 8, 2009, in the morning, while on their way to Mombasa exercising freedom of navigation with 296.3 tonnes of Tuna fish on board, at a place which was about 180 nautical miles from the coast of Tanzania, the seafarers were arrested by “people holding guns’’.

After arrival in Dar es Salaam, the Director of Public Prosecutions instituted several court cases against 37 persons. On March 20, 2009, they appointed Captain Bendera from the said law chambers to represent the accused persons in the matter. Other accused persons were acquitted.

Hsu Chin Tai and Zhao Hanquing were charged with unlawful carrying out of fishing activities in the EEZ in addition to causing water pollution and degradation of marine environment. Hanquing was charged with an alternative count of accessories after the fact.

After full trial, on February 23, last year, the High Court convicted the two of unlawful carrying out fishing activities in EEZ and sentenced to pay a fine of 1bn/- each or go in jail for ten years in default of paying the fine.

Tai was convicted of another separate offence of water pollution and degradation of marine environment. He was sentenced to pay a fine of 20bn/- or imprisoned for 10 years upon failure to pay the fine in question. Both appellants defaulted paying the fine.

Having been aggrieved by the judgment, the two took the matter to the Court of Appeal. In its decision, the Court of Appeal reversed the High Court verdict and discharged the two Chinese. Immediately thereafter, the two were rearrested and charged with same charges at Kisutu Resident Magistrate’s Court.

But on August 14, last year, the Director of Public Prosecutions withdrew the charges by entering a nolle prosequi certificate, showing he was no longer interested to pursue the case.

However, in his objections filed before the High Court, Principal State Attorney Timony Vitalis, for the DPP, states that an order for restoration of the exhibits under section 33 (3) of the Criminal Procedure Act could not be based on fresh evidence, which is not on the trial record.

He states that since none of the exhibits sought is still under the custody of the court, the law organ was not provided with jurisdiction to order restoration of the exhibits that are lawfully in possession of the Republic to the accused persons.

According to the DPP, some relief was sought and granted by the court of the Resident Magistrate of Dar es Salaam at Kisutu on August 22, 2014, as had been indicated rejoinder affidavit by the applicant.

He stated that since the Court of Appeal quashed the proceedings and judgment of trial court, the High Court being a former trial court could not order the restoration of the exhibits tendered before it during the trial to a person other than the Republic and the accused pending on who tendered what exhibit.

The case is being heard by Judge Ama Munisi. The ship’s owner is being represented in the matter by a Dar es Salaam advocate, Captain Ibrahim Bendera, from M & B Law Chambers, which is headed by former Principal Judge Hamisi Msumi.

In his affidavit to support the application, Mr Mohamed al Araimi, stated that on December 15, 2008, they employed Captain Hsu Chin Tai from China to be the master fisherman of the ship. On December 31, 2008, they afforded ticket to him for Mombasa in Kenya to replace Captain Hong Zheng Liang.

At the time, he stated, the vessel was conducting fishing activities in the high seas. Records of their office, he stated, showed that on January 3, 2009, Captain Tai arrived on board the vessel at a position in the Indian Ocean; some 400 nautical miles from the Kenyan coast.

After boarding the vessel, Tai underwent a ship familiarisation tour conducted by Liang after which the vessel was handed over to him on January 9, 2009. The vessel completed fishing in the high seas on March 5, 2009 and hauled all fishing gears on board before getting to another ship to collect the three Kenyans.

Mr Mohamed al Araimi stated that on March 8, 2009, in the morning, while on their way to Mombasa exercising freedom of navigation with 296.3 tonnes of Tuna fish on board, at a place which was about 180 nautical miles from the coast of Tanzania, the seafarers were arrested by “people holding guns’’.

After arrival in Dar es Salaam, the Director of Public Prosecutions instituted several court cases against 37 persons. On March 20, 2009, they appointed Captain Bendera from the said law chambers to represent the accused persons in the matter.

Other accused persons were acquitted. Hsu Chin Tai and Zhao Hanquing were charged with unlawful carrying out of fishing activities in the EEZ in addition to causing water pollution and degradation of marine environment.

Hanquing was charged with an alternative count of accessories after the fact. After full trial, on February 23, last year, the High Court convicted the two of unlawful carrying out fishing activities in EEZ and sentenced to pay a fine of 1bn/- each or go in jail for ten years in default of paying the fine.

Tai was convicted of another separate offence of water pollution and degradation of marine environment. He was sentenced to pay a fine of 20bn/- or imprisoned for 10 years upon failure to pay the fine in question. Both appellants defaulted paying the fine.

Having been aggrieved by the judgment, the two took the matter to the Court of Appeal. In its decision, the Court of Appeal reversed the High Court verdict and discharged the two Chinese.

Immediately thereafter, the two were rearrested and charged with same charges at Kisutu Resident Magistrate’s Court. But on August 14, last year, the Director of Public Prosecutions withdrew the charges by entering a nolle prosequi certificate, showing he was no longer interested to pursue the case.