Attorney General of the Commonwealth of the Bahamas and Gibson v Atlantic Ocean View Ltd and Little Savannah Estates and Farms Ltd
| Jurisdiction | Bahamas |
| Judge | Sawyer, P.,J. A. Sawyer, P.,Osadebay J.A.,Hon. Mr. Justice Osadebay, J.A.,Longley, J.A. |
| Judgment Date | 12 July 2007 |
| Neutral Citation | BS 2007 CA 56 |
| Docket Number | Civil Appeal No. 36 of 2006 |
| Court | Court of Appeal (Bahamas) |
| Date | 12 July 2007 |
Court of Appeal
Sawyer, P.; Osadebay, J.A.; Longley, J.A.
Civil Appeal No. 36 of 2006
Mrs. Jennifer Mangra, Ms. Melissa Wright-Knowles with her for the appellants.
Mr. Damian Gomez for the respondents.
Damages - Wrongful seizure and detention of motor vehicles — Assessment for loss of use — Whether judge's award was excessive — Respondent put forward no evidence of the use of the vehicle — Finding that judge's award went beyond reasonable compensation — Quantum.
I have had the advantage of reading in draft the judgments of Honourable Justices Osadebay and Longley; I agree with their conclusions but thought that I should state my views about this case since we are disagreeing with the learned trial judge.
As far as I am able to discern the factual background to the learned judge's assessment of damages is as follows:
In December 2002, a Mr. Austin Knowles Jr. (“Mr. Knowles”) was arrested at Eleuthera on a warrant of arrest issued under the Extradition Act (Ch. 96) by a stipendiary and circuit magistrate at the request of the Government of the United States of America for trial in that country on drug trafficking charges alleged to have had their effect in that country.
It is not disputed that it was on that occasion that three luxury vehicles — a 2000 Mercedes-Benz 5500 4 door Sedan; a 2000 Lexus LX 470 4 door Jeep and a 2000 Cadillac Escalade Jeep (“the vehicles”) — were seized by the police as they were on Mr. Knowles' premises. The Mercedes-Benz and the Lexus belonged to the first respondent and the Cadillac to the second respondent
Despite requests by counsel for the respondents for the return of the vehicles to their respective owners, the appellants did not return them until shortly after the respondents issued their specially indorsed writs of summons on 17 June, 2003
On 17 June, 2003, two specially indorsed writs of summons were issued out of the Supreme Court Registry on behalf of the respondents against the appellants claiming damages for the unlawful detention of the vehicles belonging to those two companies as well as exemplary and restitutionary damages pursuant to Article 28 of the Constitution. The statements of claim were identical except that the first respondent's claim was in respect of two vehicles while the second respondent's claim was for one vehicle. I shall therefore only set out the material paragraphs of the first respondent's statement of claim.
The first respondent's writ reads –
“1. The plaintiff is a Company duly incorporated under the laws of the Commonwealth of The Bahamas.
2. The first defendant is the Attorney-General of the Commonwealth of The Bahamas.
3. The second defendant is the officer in charge of the Drug Enforcement Unit of the Royal Bahamas Police Force.
4. On or about the month of December A.D., 2002, The Drug Enforcement Unit of the Royal Bahamas Police Force unlawfully seized and detained the following motor vehicles:–
1. A 2000 Mercedes 5500 series 4 door Sedan 5000 cc (black) chairs serial number WDBNG75313R072325
2. A 2000 Lexus LX 470 4 door jeep serial number 31T6HT00W570080168
5. The plaintiff is and was at all material times the owner of the motor vehicles described in paragraph 4 hereof.
6. The plaintiff has demanded the return of the said motor vehicles but the defendant has deliberately failed and/or refused to return the same, whereby the plaintiff has suffered loss and damage.
7. The defendants' conduct more particularly hereinbefore described was intended to injure the plaintiff and is in any event unconstitutional being in violation of Article 27 of the Constitution of The Bahamas, 1973.
8. By virtue of the matters hereinbefore set out the plaintiff claims damages (including exemplary and aggravated damages).
9. The plaintiff claims interest on such sums as may be due it pursuant to the Civil Procedure (Award of Interest) Act, 1992.
AND THE PLAINTIFF claims as against the defendant and each of them:
1) Damages (including exemplary and aggravated damages).
2) Compensation pursuant to Article 28 of the Constitution of the Commonwealth of The Bahamas.
3) Interest pursuant to the Civil Procedure (Award of Interest Act) 1991.
4) An injunction ordering the defendant and each of them to return to the plaintiff the following namely:
(i) A 2000 Mercedes 5500 series 4 door Sedan 5000 cc (black) chairs serial number WDBNG75314R072325.
(ii) A 2000 Lexus LX 470 4 door jeep serial number 31T6HT00W570080168.
5) Costs.
6) Further or other relief.”
The difference in the second respondent's statement of claim is that its vehicle was stated to be a “2000 Cadillac Escalade Jeep, 5700cc serial number 1948H13R140176”.
It should be noted that neither statement of claim condescended to state any particulars about where, when or how the vehicles were seized by the police or whether the police claimed to be acting under the authority of any warrant or on reasonable suspicion of the vehicles being used to transport dangerous drugs or any other arrestable offence.
In addition, I noted that neither statement of claim alleged that the seizure of the vehicles caused their respective owners any inconvenience or any specified loss or damage.
I presume that the writs were served on the appellants in due course because it was after the writs were issued that the vehicles were returned to the respondents. However, the appellants did not enter any defence to the respondents' claims and did not request any further and better particulars of those claims.
On 1 October, 2003, an interpleader summons was issued on behalf of the appellants but the reliefs sought in that summons were not pursued.
There the matter apparently rested until 13 July, 2005, when the respondents' summonses for judgment in default of defence were heard by Thompson, J. At the conclusion of that hearing a consent order was made, the material parts of that order read:
“(1) The plaintiff be at liberty to enter judgment against the defendants and each of them with damages and compensation pursuant to Article 28 of the Constitution, 1973, to be assessed.
(2) The defendants and each of them do pay the plaintiff the costs of the action such costs to be taxed if not otherwise agreed.”
Judgment was entered in each case pursuant to the consent order. Since those judgments were entered “by consent” of the parties, the appellants would only have had a right to appeal to this court against that judgment in limited circumstances, none of which were alleged before this court. Nevertheless, counsel for the appellants raised certain matters in making submissions before the learned trial judge and this court, which, on their face may have been matters that could have been, but were not, in fact pleaded by way of defence.
On 14 February, 2006, counsel for the appellants and respondents appeared before Thompson J. for the assessment of damages based on the above consent judgment in each case. The learned judge, after considering the only evidence presented at that hearing as well as the authorities and arguments of counsel concluded at paragraphs 18–23 (inclusive) of her ruling handed down on 24 April, 2006, as follows:
“18. In the context of these two cases and the line of authorities relied upon by the plaintiffs, I am not (?) satisfied that the defendants have not justified their offer of $7,000, even in the light of the insurance cover notes. The claim for the reduction from six months to three months is also untenable as the motor cars were not owned by the person under investigation, and this fact would not take three months to be determined. By agreeing to the judgment being entered the defendants have conceded that the detention of the vehicles was unlawful.
19. I am satisfied, based on the authorities presented that the plaintiffs are entitled to the restitutionary damages as claimed based on the rental values.
20. With reference to the claim under Articles 27 and 28 of the Constitution the question arises if there was any overlapping between this claim and the claim for restitutionary damages. On the face of the claims and the arguments advanced I see no such overlap. However, I am of the opinion that the claim for $80,000 for each motor car is excessive, when compared to the physical injuries and humiliation suffered by Mr. Tynes and Ms. Merson. In all the circumstances I am of the view that $15,000 in respect of each motor car would be adequate in the circumstances.
21. I note that the plaintiffs are also claiming interest on the sums awarded. However, although interest is claimed in the Statement of Claim, it does not appear in the Consent Judgment Consequently any interest will be interest on the judgment only.
22. Consequently, I award Little Savannah Estates and Farms Limited $93,075.00 and $15,000 together with interest on that amount at the rate of 10 per centum per annum from July 13, 2005 to payment and costs to be taxed if not agreed.
23. I award Atlantic Ocean View Limited $45,625.00 plus $54,750.00 plus $15,000 plus interest at the rate of 10 per centum per annum from July 13, 2005 until payment and costs to be taxed if not agreed.”
At that assessment, the appellants did not adduce any evidence in mitigation of damages before the learned judge; however, counsel for the appellants made oral and written submissions to the learned judge about the circumstances in which the vehicles were seized as well as the appropriate legal principles to be applied in assessing the quantum of damages in cases where no actual loss or damage is pleaded or proved by an owner of property which is seized by the police. In addition, counsel suggested or proffered the figure of $7,000.00 per...
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