Ousman Bojang v Attorney General of the Bahamas
| Jurisdiction | Bahamas |
| Judge | Sir Michael Barnett, P |
| Judgment Date | 13 February 2024 |
| Neutral Citation | BS 2024 CA 9 |
| Docket Number | SCCivApp No. 139 of 2022 |
| Court | Court of Appeal (Bahamas) |
The Honourable Sir Michael Barnett, President, Kt
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Crane-Scott, JA
SCCivApp No. 139 of 2022
IN THE COURT OF APPEAL
Civil Appeal — Appeal Against Award of Damages — The Immigration Act section 40 — Civil Procedure (Award of Interest) Act section 3 — Exemplary Damages — Damages for Breach of Constitutional Rights — Claim for Damages for Assault and Battery — Whether awards of both exemplary damages and damages for breach of constitutional rights would be duplicitous — whether the judge erred by failing to award aggravated damages — Costs on indemnity basis
Mr. Bojang entered The Bahamas as a visitor and was permitted a 14 day stay. He went to the Department of Immigration seeking an extension which had expired a day earlier. Mr. Bojang was arrested and detained at the Carmichael Road Detention after the authorities realized he had overstayed his visit. He was detained for some 531 days without being brought before a court. He sought damages for his unlawful detention. After a trial, he was awarded i. Compensatory damages for false imprisonment $125,000.00 ii. Exemplary damages $ 40,000.00 iii. Cost of his personal belongings $ 1,100.00 for a Total Award of Damages of $166,100.00.
Mr. Bojang has appealed the decision of the judge on numerous grounds inter alia, “The learned Judge erred in preferring the hearsay evidence of the Respondents' witness, Supt. Joseph, over the Appellant's own detailed evidence on the question of his treatment and the conditions of his detention in breach of Article 17(1) of The Constitution. The learned Judge erred in finding that the Appellant had not made out his claim in relation to assault and battery. The learned Judge erred in failing to award aggravated damages. The learned Judge failed to award constitutional damages so as to reflect public outrage, the gravity of the breaches over an extended period, and requirement for such an award to have a deterrent effect. The learned Judge erred in law regarding the grounds on which costs should be ordered on the indemnity basis, and accordingly wrongly failed to award such indemnity costs.”
He seeks that “1. Judgment (insofar as it relates to the quantum of damages and interest) be set aside; 2. Appellant's award of damages be increased as to be determined by the Court on appeal plus the interest on such sum from the date of the Tort and breaches of Constitutional rights specifically the 30 December, 2015 until payment in full; 3. Appellant's costs of and occasioned by the Supreme Court Action be paid by the Respondents on an indemnity basis; and 4. Costs of and occasioned by this Appeal be paid by the Respondents to the Appellant.” The court heard the parties and reserved its judgement.
Held : this appeal is dismissed; the appellant shall pay the respondent's costs to be taxed if not agreed.
There is no basis for this court to set aside the judge's rejection of Mr. Bojang's evidence as to the conditions that he endured at the Detention Center and her finding that the appellant did not prove that there was a breach of his Article 17 rights under the Constitution for protection from cruel and inhumane punishment.
Mr. Bojang cannot pursue a claim for both exemplary damages and breach of constitutional rights.
The sum of $40,000.00 awarded by the trial judge was sufficient to vindicate him for the breach of the right given to him under Article 19 and to serve as a deterrent to future breaches of the rights of aliens found in the Bahamas. There is no reason to believe that given the recent decisions of this Court in Ngumi, Lop and this present case, the Immigration authorities will continue to detain persons without first obtaining a deportation order.
The judged awarded interest at the rate of 6.25 per cent from the date of the Writ. The awarding of interest is a matter of discretion. There is no statutory obligation on the part of the trial judge to award interest from the date of the cause of action. It is purely discretionary.
AXD v Home Office [2016] EWHC 1617 (QB) considered
Deutsce Bank AG v Sebastian Holdings Inc [2023] EWCA Civ 191 applied
Douglas Ngumi v. The Attorney General of The Bahamas & Others, [2023] UKPC 12 considered Griffiths V TUI (UK) Ltd [2021] EWCA Civ 1442 considered
MBR Acres v Markou [2022] EWHC 2072 QB considered
Minister Responsible for Crown Land v Findeisen SCCivApp No 79 of 2022 applied
Newbold v Commissioner of Police [2014] UKPC 12 considered
Ramon Lop v The Attorney General et al SCCiv App No 118 of 2022 considered
Rowlands v Chief Constable of Merseyside Police [2007] 1 WLR 1065 considered
Takitota v. The Attorney General et al, [2009] UKPC 11 applied
Volpi & anor v. Volpi [2022] EWCA Civ 464 applied
Walter Lily & Co v Clin [2021] EWCA Civ 136 mentioned
Mr. Frederick Smith, KC, with Mr. Roderick Dawson Malone and Ms. Raven Rolle, Counsel for Appellant
Mr. Keith Cargill, Counsel for Respondents
This is an appeal by Ousman Bojang (“Mr. Bojang”), a Gambian national, against the amount of the award of damages made by Charles J (as she then was) with respect to the unlawful detention by the Respondents.
Mr. Bojang entered The Bahamas as a visitor on 5 December, 2015. He was permitted to stay for 14 days. On 30 December, 2015 he went to the Department of Immigration to seek an extension to the 14 days, which by then had expired. Realizing that he had overstayed his time, Mr. Bojang was arrested and taken to the Carmichael Road Detention Center. Mr. Bojang was not taken before the courts nor was he subject to a deportation order. He was simply arrested and detained.
The judge found that at the time he attended the Department of Immigration, he did not indicate that he was seeking asylum.
On 25 May, 2016 an attempt was made to deport Mr. Bojang back to the Gambia, notwithstanding that there was no deportation order against him. That attempt failed and he was brought back to The Bahamas. He was taken back to the Detention Centre. For some reason which is not found in the judgment, he was taken to the prison at Fox Hill for a short period of time. He was returned to the Detention Centre where he remained until he was released on the 16 June, 2017 following a habeas corpus application.
As the result, he was detained for 531 days which is approximately 18 months.
By a writ issued on 27 September, 2017, Mr. Bojang sought damages for his unlawful detention. Because the pleadings will play an important part of this judgment, it is necessary to set out the Statement of Claim in its entirety.
1. The Plaintiff (“Ousman Bojang”) was at all material times a citizen of the Republic of the Gambia, born on January 1 st, 1981 and was a visitor to The Bahamas.
2. The 1 st Defendant was at all material times the Attorney General of the Commonwealth of The Bahamas (“Attorney General”) and the office issued as representing the Government of The Bahamas and its executive branches and employees as particularized below.
3. The 2 nd Defendant was at all material times the Minister of Immigration of the said Commonwealth and was responsible for the conditions under which Ousman Bojang falsely imprisoned, and office is sued in this capacity.
4. The 3rd Defendant, was at all material times the Director of Immigration, being responsible for the conditions under which Ousman Bojang was unlawfully imprisoned in the unlawful facility known as Carmichael Road Detention Centre (“Carmichael Concentration Camp”) in New Providence for a period of 531 days.
5. The 4th Defendant was at all material times the Officer in Charge of the Carmichael Concentration Camp” and was responsible for any unlawful conduct committed by immigration officers under his direction and control in the performance or purported performance of their duties.
6. The general nature of Ousman Bojang's claims, as particularized below, is for damages, assault, battery, arbitrary and unlawful detention, false imprisonment, and for breaches of his fundamental rights under Articles 15, 17(1), 19, and 26 of the Constitution of the Commonwealth of The Bahamas.
7. Ousman Bojang further claims aggravated damages, punitive, exemplary, vindicatory damages as the torts and breaches of his constitutional rights by oppressive, arbitrary and unconstitutional conduct by the Government and/or its agents or servants.
FALSE IMPRISONMENT
8. On the 5th of December, 2015, Ousman Bojang arrived as a lawful visitor in Nassau, New Providence, and was granted visa for twenty-one (21) days.
9. Ousman Bojang made inquiries on where to find the Headquarters of the United Nation High Rights Commission with the intention of seeking refugee status in The Bahamas and he was directed to the Immigration Department.
10. Ousman Bojang had a letter from the United Democratic Party (UDP) in the Kombo South Constituency, explaining that he was a young organizer and that he had fled the country, and asking the Bahamian Government for support in granting political asylum to him.
11. On December 30, 2015, Ousman Bojang visited the Department of Immigration seeking an extension to his visitor's status and request political asylum, when he was immediately arrested by two Immigration Officers and taken the Carmichael Concentration Camp, in breach of his rights under Articles 15 and 20 of the Constitution of the Commonwealth of The Bahamas.
12. In breach of the Criminal Procedure Code Act and the Constitution, Ousman Bojang was never brought before any Court of law. There was no warrant for his arrest. He was not...
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