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.
