The Fisheries Commission (FC) and Kenbonad Company Limited, a private Ghanaian-owned fishing company, are engaged in a legal tussle in two different courts over refusal to grant fishing license, accusation of illegal fish transfer from one boat to the other in Ghanaian waters without authorisation, and unqualified captain operating the vessel.
While Kenbonad has sued Fisheries Commission at the Commercial Division of a High Court in Accra for refusing to issue its vessels licence that it has paid for, the commission has filed a countersuit at Tema High Court accusing the company of illegal fish transfer from one boat to the other in Ghanaian waters without authorisation and using an unqualified captain to operate the vessel.
While the Commercial Division of a High Court in Accra has adjourned the case filed to August 30, 2017, the Tema High Court has set Thursday, August 24, 2017 to hear a countersuit filed by Fisheries Commission.
Facts of the case
The facts of the case are that Kenbonad Company Limited is the operator of a fishing vessel named MV Meng Xin 16, which undertook transshipment (transferring fish from one boat to the other) in Ghanaian waters on May 5, 2016 in violation of the Fisheries Act.
Broken down refrigeration system
The company said the transshipment was necessary to prevent its fish from going bad since the refrigeration system on MV Meng Xin 16 had broken down.
Observer on the vessel
A designated human observer placed on the vessel to perform certain duties that the commission may determine according to Regulation 35 (2) and (3) of the Fisheries Regulation brought the transshipment to the attention of the commission.
The essence of the observer is to ensure that fishing activities are conducted in the context of the fisheries law and best practice.
Out-of-Court Settlement Committee
The commission instituted an Out-of-Court Settlement Committee, which found the fishing vessel guilty of the offence, and imposed a fine of GH?485,500 on Kenbonad Company Limited, owner of the vessel.
Kenbonad refused to pay GH?485,500 fine
Kenbonad did not pay the fine because it holds the view that the committee that imposed the fine has no power to do so since it is not in the fisheries law.
The company also argued that the transshipment was done with the express permission of the observer on board, thus it cannot be illegal.
Refusal to renew Kenbonad’s fishing licence
This year, Kenbonad paid its annual license renewal fee, and the license was renewed for the first and second quarters of 2017.
Fishing Licence is renewed every year, and when it applied for renewal for the third quarter, the commission refused to renew the license on grounds that the company must pay the fine imposed before the license will be renewed.
According to Kenbonad, the commission also refused to renew the license of a second boat which had nothing to do with the transshipment.
Kenbonad sues Fisheries Commission
The company, therefore, filed a suit at the Commercial Division of the High Court in Accra challenging the legal status of the committee that imposed the fine, as there is no provision for such a committee in the Fisheries Law.
Accra Court adjourns case to August 30
When the case was called last Wednesday, the commission, supported by lawyers from the Attorney-General’s Department, pleaded for adjournment, which the judge granted.
Fisheries Commission files countersuit in Tema
Before the close of business that same day, the commission filed a countersuit at the Tema High Court, seeking criminal prosecution.
Right procedure to deal with offences
Under the Fisheries Law, when an offence is committed, the Director of Fisheries is empowered to haul the offender before court.
When the offender accepts wrongdoing and wants to avoid legal battle, it must be communicated to the Director in writing.
The Fisheries Law has fines which range from minimum to maximum for each offence.
The Director has discretion to impose a fine that falls within the minimum and maximum range for the offender to pay.
Offenders who do not accept the charge imposed on them litigate the case in court.
However, the commission says because Kenbonad failed to pay the fine imposed, it has decided on criminal prosecution.
The commission, in its lawsuit, insists that the transshipment was done without authority or the supervision of an authorised officer or any other arrangement or condition approved in advance by the commission.
According to the commission, the captain operating the vessel lacked the required ability to read, write and speak English as a medium of communication, contrary to Regulation 26 of the Fisheries 2010 (L.I. 1968).
In the case of Meng Xin 3, which was the boat that received the fish, the commission said investigations are still ongoing since the captain has left Ghana.
Legal battle over fishing as Fisheries Commission fights private fishing company
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