Douglas Ngumi v The Hon. Carl Bethel

• Jurisdiction: Bahamas
• Judge: Charles J
• Judgment Date: 17 April 2019
• Court: Supreme Court (Bahamas)
• Docket Number: 2017/CLE/gen/01167
• Date: 17 April 2019

IN THE SUPREME COURT

COMMON LAW AND EQUITY DIVISION

Before:

The Honourable Madam Justice Indra H. Charles

2017/CLE/gen/01167

Between:

Douglas Ngumi

Plaintiff

and

The Hon. Carl Bethel

(in his capacity as Attorney General of The Bahamas)

1 ^st Defendant

and

The Hon. Brent Symonnette

(in his capacity as Minister of Immigration)

2 ^nd Defendant

and

William Pratt

(in his capacity as Director of Immigration)

3 ^rd Defendant

and

Peter Joseph

(in his capacity as Officer in Charge of Carmichael Detention Centre)

4 ^th Defendant

Appearances:

Mr. Frederick R.M. Smith QC with him Mr. Crispin Hall and Ms. Kandice Maycock for the Plaintiff

Ms. Kenria Smith and Mr. Kenny Thompson for the Defendants

Torts — Arrest and Detention — False Imprisonment — Assault and Battery — Detinue — Breach of Constitutional Rights — Article 28(2) of the Constitution of The Bahamas — Damages — Special Damages — Aggravated Damages — Exemplary Damages — Vindicatory Damages — Award at discretion of trial judge — Costs — Full Indemnity — No egregious or contumacious conduct by Defendants — Costs on party to party basis

The Plaintiff, a Kenyan citizen, alleged that he was unlawfully arrested and falsely imprisoned by the Defendants from 11 January 2011 until 4 August 2017 at the Carmichael Road Detention Centre (“the Detention Centre”). During his time at the Detention Centre, the Plaintiff alleged that he suffered cruel, inhumane and degrading treatment and, on numerous occasions, was beaten and assaulted by Immigration and Defence Force Officers. The Plaintiff further alleged that the Defendants breached his fundamental rights under Articles 15, 17(1), 19, 25(1) and 26 of the Constitution of the Commonwealth of The Bahamas (“the Constitution”).

As a result of the foregoing allegations, the Plaintiff claims aggravated, punitive, exemplary and vindicatory damages for what he alleged was his wrongful arrest and subsequent false imprisonment occasioned by the oppressive, arbitrary and unconstitutional conduct of the Defendants and its agents.

The Defendants appeared and were represented by the Office of Attorney General who did not call any witnesses or lead evidence but defended the action on the ground that the Plaintiff was lawfully arrested for overstaying and engaging in gainful occupation contrary to the provisions of the Immigration Act and accordingly detained at the Detention Centre prior to and after his conviction and sentence by the Learned Magistrate.

The Defendants also maintained that they encountered difficulties in deporting the Plaintiff as Mr. Ngumi refused to cooperate with Immigration officials to facilitate his return to Kenya and that because of National Security concerns the Plaintiff could not be released into the community.

Furthermore, the Defendants contended that the claims for constitutional redress for alleged breaches of the Constitution are an abuse of the process of the Court and in violation of the proviso to Article 28(2) of the Constitution.

HELD: The failure of the Defendants to charge and arraign the Plaintiff within the statutory period and to deport him within a reasonable time rendered his nearly 7 year detention unlawful, despite the fact that the arrest of the Plaintiff was lawful. The Defendants are therefore liable for false imprisonment, assault and battery of the Plaintiff and also for breaches of the Plaintiff's fundamental rights under the Constitution.

The Plaintiff is awarded damages in the global sum of $641,950.00 as compensation for aggravated, exemplary and vindicatory damages with interest and costs based on the following considerations:

• 1. The evidence and testimony of the Plaintiff was credible and for the most part unchallenged by the Defendants.

• 2. The Defendants failed and/ or refused to call any witnesses or lead evidence at the trial.

• 3. Immigration officers (like Police Officers) have statutory and common law powers to arrest without warrant on reasonable cause (section 9 of the Immigration Act) See: Christie v. Leachinsky [1947] A.C. 573. However, persons arrested by Immigration officers must be charged and arraigned before the Magistrate Court no later than forty-eight (48) hours after arrest in accordance with section 18 Criminal Procedure Code. A failure to arraign a person suspected of committing an offence under the Immigration laws within forty-eight (48) hours after arrest renders any subsequent detention of the person unlawful.

• 4. In finding that the Plaintiff was beaten on several occasions by officers and or agents of the Defendants while at the Detention Centre the Defendants are therefore liable for the tort of assault and battery.

• 5. The Court also finds that several of the Plaintiff's Constitutional rights had been breached and damages awarded accordingly.

• 6. It is well established that the right to apply to the Supreme Court pursuant to Article 28 of the Constitution should be exercised only in exceptional cases where there is a parallel remedy. See: Thakur Persad Jaroo v. The Attorney General of Trinidad and Tobago [Privy Council No. 54 of 2000]; Harrikissoon v. Attorney General of Trinadad and Tobago [1981] 1 WLR 106 at pp. 111–112 and Hinds v. The Attorney General [2001] UKPC 56. The mere existence of an alternative remedy does not automatically warrant excluding constitutional proceedings under the proviso to Article 28(2). The crux is their adequacy. The power to decline jurisdiction arises only where the alternative means of redress is considered to be adequate. The Court finds that the bringing of the constitutional claims by the Plaintiff is not an abuse of the process as no parallel adequate remedy is available to the Plaintiff: Coalition to Protect Clifton Bay and Zachary Hampton Bacon III v The Attorney General of the Commonwealth of The Bahamas et al 2016/PUB/con/00016 [unreported] Judgment delivered on 2 August 2016, paras 247 to 252 relied upon.

• 7. In assessing damages, it is more appropriate for awards to be made under each head claimed: para 15 in Merson v Cartwright and Another [2005] UKPC 38 relied upon.

• 8. The locus classicus in this jurisdiction for long periods of wrongful detention is the Bahamian case of Atain Takitota v The Attorney General and others [2009] UKPC 11. Cases like Merson v Cartwright and Another [2005] UKPC 38 and Tynes v Barr (1994) 45 WIR 7 are not helpful when the court is dealing with a long period of wrongful detention.

• 9. Damages for false imprisonment, assault and battery are incapable of exact estimation and their assessment must necessarily be a matter of degree, based on the facts of each case: Jamal Cleare v Attorney General and others [2013] 1 BHS No. 64 at paras 47 to 49 considered.

• 10. The Bahamian courts should determine what they consider to be an appropriate figure to reflect compensation for long periods of wrongful detention taking into account any element of aggravation. In assessing the proper figure for compensation, the courts should take into account that any figure they might regard as appropriate for an initial short period, if extrapolated, should ordinarily be tapered. In other words, for subsequent days, the daily rate will be on a progressively reducing scale. Furthermore, the figures are not intended to be applied in a mechanistic manner: Takitota at para. 17 and Alseran and others v Ministry of Defence [2019] Q.B. 1251 at paras 885 to 887.

• 11. The Plaintiff has not provided any authority to convince this court that interest should be awarded from the date that the cause of action arose and not from the date of judgment. The case of Cara Chan v Wendall Parker (1999) No. FP/88 (unreported) is distinguishable since it was a personal injury case.

• 12. In this case, the conduct of the Defendants cannot be regarded as “egregious or contumacious” to justify an order for indemnity costs against them. Costs are awarded to the Plaintiff on a party to party basis: Sumner Point Properties Limited v (1) David E. Cummings (2) Bryan Meyran [2012/CLE/gen/1399] (unreported) applied.

Charles J

Introduction

1 In the introductory paragraph of Gilford Lloyd v Chief Superintendent Cunningham et al, 2016/CLE/gen/0062 [unreported] Judgment delivered on 4 August 2017, this Court stated: “Without liberty – a man is not a man. He has no dignity.” These words have reverberated once again.

2 The present case is also an unfortunate reminder of the case of Atain Takitota v. The Attorney General and others SCCivApp No. 54 of 2004. It is an action grounded in several torts (false imprisonment, assault and battery and detinue) in which Mr. Ngumi alleged that the servants and agents of the Defendants unlawfully arrested and falsely imprisoned him at the Carmichael Road Detention Centre (“the Detention Centre”) for 6 years and 7 months. During his detention, Mr. Ngumi alleged that he was repeatedly beaten, degraded and kept in inhumane conditions resulting in breaches of his fundamental rights that are guaranteed to him and protected by the Constitution of The Bahamas (“the Constitution”). He seeks a miscellany of relief including damages against the Defendants for the torts and for compensation for the alleged breaches of his constitutional rights.

3 Quintessentially, the Defendants maintained that the arrest of Mr. Ngumi on 12 January 2011 (and not 11 January 2011 as alleged) was lawful and therefore his detention was justified. They also insisted that their efforts to deport Mr. Ngumi back to his homeland of Kenya were hindered and stifled by Mr. Ngumi's actions and non-cooperation.

4 Additionally, the Defendants asserted that Mr. Ngumi's claim for constitutional redress is an abuse of the process of the Court and should be dismissed in accordance with the proviso to Article 28 of the Constitution.

5 The Court is therefore asked to determine liability and, if the Defendants are found to be liable, to assess the appropriate quantum of...