DOUGLAS NGUMI v THE HON. CARL BETHEL v THE HON. BRENT SYMONETTE v WILLIAM PRATT v Peter Joseph

• Jurisdiction: Bahamas
• Judge: Sir Michael Barnett, P,Mr. Justice Isaacs, JA,Mr. Justice Evans, JA
• Judgment Date: 18 August 2021
• Neutral Citation: BS 2021 CA 143
• Docket Number: SCCivApp. No. 6 of 2021
• Court: Court of Appeal (Bahamas)

IN THE COURT OF APPEAL

Before:

The Honorable Sir Michael Barnett, P

The Honorable Mr. Justice Isaacs, JA

The Honorable Mr. Justice Evans, JA

SCCivApp. No. 6 of 2021

Between

Douglas Ngumi

Appellant

and

The Hon. Carl Bethel (in his capacity as Attorney General of The Bahamas)

Respondent

The Hon. Brent Symonette (in his capacity as Minister of Immigration

Respondent

William Pratt (in his capacity as Director of Immigration)

Respondent

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

Respondent

APPEARANCES:

Mr. Frederick Smith, QC, with Mr. Roderick Dawson, Malone and Ms. Kandice Maycock, Counsel for the Appellant

Ms. Kenria Smith, Counsel for the Respondents

AXD v Home Office [2016] EWHC 1617 (QB) considered

Guishard v Attorney General of the Virgin Islands [2021] 1 LRC 510 applied

Lockwood v Department of Immigration [2017] 2 BHS J No 120 mentioned

Merson v Cartwright and another [2005] UKPC 38 considered

Millette v Nicholls (2000) 60 WIR 362 considered

Nance v British Colombia Electric Railway Company Ltd. [1951] A.C. 601 applied

Nathanson v Mteliso and others [2020] 2 LRC 135 considered

R (on the application of Iwona Deptka and another v Secretary of State for the Home Department [2019] EWHC 503 (Admin) considered

Ruddock & Ors. v Taylor [2003] NSWCA 262 considered

Takitota v The Attorney General and others [2009] 4 BHS J. 40 considered

The Queen (on the application of Khalid Belfken) v Secretary of State for the Home Department [2017] EWHC 1834 (Admin) considered

Civil appeal — Award of damages — General damages — Unlawful arrest — False imprisonment — Breach of constitutional rights — Assault and battery — Compensatory damages — Exemplary damages — Aggravated damages — Constitutional damages — Vindicatory damages — Whether damages awarded for false imprisonment unreasonably low — Interest — Costs on an indemnity basis — Costs on a party and party basis — Sections 40 & 41 of the Immigration Act — Section 3 of the Civil Procedure Award of Interest Act — Section 30 of the Supreme Court Act

The appellant, a Kenyan national, was arrested and imprisoned from January 2011 to August 2017. He was detained at the Carmichael Road Detention Centre during this period. Upon his release the appellant brought an action against the respondents. The judge below found the respondents liable for false imprisonment, assault and battery and breaches of the appellant's fundamental rights and awarded the appellant $386,000.00 for compensatory damages (for the torts of false imprisonment and assault and battery); $100,000.00 for exemplary damages; $50,000.00 for aggravated damages; $105,000.00 for breach of his constitutional rights and $950.00 as special damages. The total award was $641,950.00 ($641,000.00 general damages and $950.00 special damages). The appellant was also awarded interest from the date of the judgment until payment and costs on a party and party basis.

The appellant has appealed the award as being unreasonably low and seeks an increase in general damages to $11,000,000.00. He also seeks interest from the date the cause of action arose and costs on an indemnity basis.

Held: appeal allowed; general damages increased from $641,000.00 to $750,000.00. The total award is $750,950.00. Interest to run from the date of the Writ. The Court will hear the parties on the issue of costs of the appeal.

The appellant was detained for a period of 6 years 7 months. However, three months was a reasonable period of time to allow the State to organize the appellant's deportation as recommended by the magistrate following his guilty plea to an offence against the Immigration Act. The three-month period was deducted from the otherwise unlawful detention. Therefore, the period of unlawful detention is 6 years 4 months 6 days.

The failure of the judge to specify what amount of the $386,000.00 was awarded for assault and battery as against the amount awarded for false imprisonment is not sufficient to render the total award unreasonable. However, the award of $386,000.000 as compensatory damages is unreasonably low.

It was improper for the judge to have made an award for both exemplary damages as well as vindicatory damages for breach of the appellant's constitutional rights.

Having regard to all the circumstances, a global award of $750,000.00 in general damages is appropriate.

Section 3 of the Civil Procedure Award of Interest Act gives a judge wide power in awarding interest. Interest may be awarded for any period between the date the cause of action arose and the date of judgment. In the present case, the Court awards interest from the date of the Writ instead of the date of the judgment.

There is no basis to interfere with the award to the appellant of costs on a party and party basis.

Judgment delivered by the Honourable Sir Michael Barnett, P:

1 . This is an appeal by the appellant against an award of damages made in his favour by Charles, J. on a successful claim for damages for false imprisonment and breach of his constitutional rights. He was awarded damages in the total sum of $641,950.00. He asserts that the amount awarded is unreasonably low and that this Court should increase the award to a sum in excess of $11,000,000.00.

2 . The appellant, a Kenyan citizen, brought an action claiming that he was unlawfully arrested and falsely imprisoned by the respondent for a six-and-a-half-year period from 11 January 2011 until 4 August 2017. He was held at the Carmichael Road Detention Centre, he claimed, and the judge found as a fact that he suffered cruel, inhumane and degrading treatment and, on numerous occasions, was beaten and assaulted by Immigration and Defence Force Officers. The appellant claimed aggravated, punitive, exemplary and vindicatory damages for wrongful arrest and subsequent false imprisonment occasioned by the oppressive, arbitrary, and unconstitutional conduct of the respondents and its agents.

3 . The trial judge held that the failure of the respondents to charge and arraign the appellant within the statutory period and to deport him within a reasonable time rendered his nearly 7-year detention unlawful. The court held that the respondents were liable for false imprisonment, assault and battery of the appellant and also for breaches of the appellant's fundamental rights under the Constitution. The judge awarded the appellant damages in the global sum of $641,950.00 as compensation for aggravated, exemplary and vindicatory damages with interest and costs.

4 . The sum was made up as follows:

“1. Damages for false imprisonment,

assaults and batteries $ 386,000.00

2. Special Damages $950.00

3. Aggravated Damages $50,000.00

4. Exemplary Damages $100,000.00

5. Constitutional damages by way of compensation and vindication $105,000.00

TOTAL DAMAGES AWARDED $641,950.00”

The judge awarded interest on that sum from the date of the judgment. The appellant was also awarded his costs on a party and party basis.

5. This appeal by the appellant is against the amount of the award. The respondents have not challenged the finding on liability, nor have they challenged the award as being too high.

6. The appellant seeks an order setting aside the award and asking that the award be increased to $11,000,000.00 or such other increased sum as the Court determines. The appellant also seeks interest on any amount awarded from the date of the cause of action and that he be awarded costs on an indemnity basis.

7. The grounds of appeal are many. There are 9 grounds, and each ground is divided into a number of sub grounds.

8. I remind myself of the observations made by the Privy Council in Nance v British Colombia Electric Railway Company Ltd. [1951] A.C. 601 when considering an appeal against an award made by the courts of British Colombia, Canada. It said:

“…Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage ( Flint v. Lovell (21), approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries, Ld. (22)). The last named case further shows that when on a proper direction the quantum is ascertained by a jury, the disparity between the figure at which they have arrived and any figure at which they could properly have arrived must, to justify correction by a court of appeal, be even wider than when the figure has been assessed by a judge sitting alone. The figure must be wholly “out of all proportion” (per Lord Wright, Davies v. Powell Duffryn Associated Collieries, Ld. (23)).”

9. More recently in Guishard v Attorney General of the Virgin Islands [2021] 1 LRC 510 the Court of Appeal of the Eastern Caribbean said at paragraph 32:

“[32] …The burden, which rests squarely with an appellant who invites an appellate court to interfere with an award of general damages, is a heavy one. Accordingly, unless the learned Master has committed an error of principle or failed to take into account a correct principle or failed to take cognisance of comparable awards, or where, on the particular facts of this case, the quantum which he awarded under this or any head is so low or high as to make it erroneous or manifestly wrong, this Court cannot interfere with the award. Put simply,the award of general damages must be so...