Ousman Bojang v The Hon. Carl Bethel

• Jurisdiction: Bahamas
• Judge: Charles Snr. J
• Judgment Date: 23 November 2020
• Year: 2022
• Court: Supreme Court (Bahamas)
• Docket Number: 2017/CLE/gen/01166

Between

Ousman Bojang

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

Before:

The Honourable Madam Senior Justice Indra H. Charles

2017/CLE/gen/01166

IN THE SUPREME COURT

Common Law and Equity Division

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 — Party and party basis

Immigration — Overstaying by Plaintiff — Whether Plaintiff's imprisonment was unlawful because he was not taken before court for same — Whether the imprisonment was unlawful because of no deportation order — Assessment of damages — Whether the Plaintiff can claim exemplary damages and damages for breach of constitutional rights

Constitutional relief — Article 28 Proviso — Whether there is an adequate alternative remedy

The Plaintiff, a national of the Republic of The Gambia, came to The Bahamas seeking political asylum. Upon entry, he was granted a visa to stay for fourteen (14) days as a lawful visitor. He was arrested when he visited the Department of Immigration to seek an extension on his visitor's status after overstaying. He was detained at the Carmichael Road Detention Centre. The Defendants attempted to repatriate the Plaintiff to The Gambia on a flight via Cuba, but the attempt was unsuccessful because the Cuban authorities refused to allow the Plaintiff entry for the passage to The Gambia.

The Plaintiff commenced this action against the Defendants, asserting that his detention was unlawful because he was never taken before any court and charged with an offence and because he was not the subject of any deportation order. He contends that his Article 19 right not to arbitrarily arrested and detained was infringed. He further alleges breaches of his constitutional rights under Articles 15, 17 and 25 of the Constitution and detinue of his personal belongings. The Plaintiff claims compensatory damages, exemplary damages, damages for breach of the various articles of the Constitution and aggravated damages. He also claims costs on an indemnity basis.

The Defendants deny that the Plaintiff was unlawfully imprisoned. With respect to the Constitutional breaches, they allege that, in any event, the action was an abuse of process because the Plaintiff has alternative means of redress. They also deny that he was treated in a cruel and inhumane manner at the Detention Centre and that his belongings were not returned to him.

HELD: finding that the Plaintiff was unlawfully imprisoned and therefore his constitutional rights under Article 17(1) and Article 19 were breached but not his Article 26 right since he was not assaulted or battered; the Plaintiff is entitled to compensatory damages of $125,000, exemplary damages of $40,000, damages of $1,100 for detinue and costs on a party and party basis to be taxed if not agreed.

• 1. Where, as in the present case, the Plaintiff alleged that he was unlawfully imprisoned for about 18 months without being charged or the subject of a deportation order, the case falls squarely within the class of cases referred to as having the additional feature, thereby rendering alternative remedies inadequate: Article 28(1) of the Constitution of The Bahamas; The Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15; Takitota v Attorney General & Ors [2009] UKPC 11; Coalition to Protect Clifton Bay and another v The Hon. Frederick Mitchell (Minister of Foreign Affairs and Immigration) and another [2016] 2 BHS J No. 94 applied.

• 2. The failure to have brought the Plaintiff before a court to determine whether he had committed an offence under the Immigration Act rendered it unlawful. Only the court can determine whether a person's presence in The Bahamas is contrary to the Immigration Act: Takitota applied.

• 3. The execution of a deportation order is mandatory. The point is that strict compliance with the law is required where persons' liberty is at stake. The authority to detain persons is only to the extent that it is “pending deportation”: Takitota; Jean and others v Minister of Labour and Home Affairs and others (1981) 31 WIR 1 and Bruno Ruffa v Minister of Immigration SCCivApp No 131 of 2016 applied.

• 4. With respect to the conditions at the Detention Centre and the Bahamas Department of Corrections, I was not convinced by the Plaintiff's evidence that the circumstances rose to the standard of depriving him of his Article 17(1) right.

• 5. On a balance of probabilities, I accept the Plaintiff's evidence that, upon his release, he did not receive the items which was taken away from him. His claim in detinue succeeds.

• 6. The award of both exemplary damages and damages for breach of constitutional rights is duplicitous: Takitota applied.

• 7. Awards for longer periods of time in detention have been reduced to take care of lump sum payment and tapering: Thompson v Commissioner of Police of The Metropolis HSU v Same [1998] QB 498 at 515.

• 8. No award is made for aggravated damages as it was already computed in the award for compensatory award. Any such award will be duplicitous: Takitota and Merson v Cartwright (2005) 67 WIR 17 relied upon.

• 9. The Plaintiff has not satisfied the Court that the conduct of the Defendants rose to the level of being egregious or contumacious for an award of costs on an indemnity basis. Costs shall be costs on a party and party basis.

Appearances:

Mr. Frederick Smith QC with him Mr. Martin Lundy and Ms. Raven Rolle of Callenders & Co. for the Plaintiff

Mr. Audirio Sears and Mr. Shaka Serville for the Defendants

Charles Snr. J

Introduction

1 By Writ of Summons filed on 27 September 2017 and amended on 02 November 2020, the Plaintiff (“Mr. Bojang”), brought an action against the Defendants alleging that he was unlawfully arrested and falsely imprisoned for 531 days from 30 December 2015 to 16 June 2017. He alleged that the imprisonment was unlawful because he was never taken before a court and was never issued a deportation order. Consequently, his constitutional right not to be arbitrarily arrested and detained was breached. He further alleged that he was assaulted, beaten, pushed around and manhandled by Defence Force officers every midnight and his personal belongings totaling $1,100 were taken away from him and never returned. He also alleged that his fundamental rights under Articles 15, 17(1), 19 (1), 19(3), 25 and 27 of the Constitution of the Commonwealth of The Bahamas (“the Constitution”) were breached.

2 Mr. Bojang seeks special damages of $1,100 for confiscation and conversion of his personal property, aggravated and exemplary damages from his wrongful arrest and false imprisonment as well as vindicatory damages for breaches of his fundamental rights under various articles of the Constitution. He also seeks costs on an indemnity basis certified fit for 3 counsel as well as interest.

3 The Defendants denied that Mr. Bojang's imprisonment was unlawful and that his constitutional rights were breached. With respect to the alleged constitutional breaches, they allege that, in any event, the action was an abuse of process because Mr. Bojang has alternative means of redress. They also deny that he was treated in a cruel and inhumane manner at the Detention Centre and that his belongings were not returned to him upon his release.

Some facts

4 The facts as I found them are as follows: Mr. Bojang, a national of The Gambia, came to The Bahamas with the intention of seeking political asylum. He arrived at Sir Lynden Pindling International Airport by plane on 5 December 2015. Mr. Bojang did not tell the immigration officers that he was coming here to seek political asylum. He was granted a temporary visitor's visa for fourteen (14) days. His stay expired on or about 19 December 2015.

5 On 30 December 2015, Mr. Bojang visited the Department of Immigration, seeking an extension to his visitor's status. Upon presenting himself to the Department of Immigration, it was discovered that he had overstayed the lawful time permitted for him to remain in The Bahamas. He was subsequently arrested by two senior immigration officers. At the time of his arrest, he did not indicate to the officers that he was seeking political asylum. He was taken to the Carmichael Road Detention Centre (“the Detention Centre”).

6 Mr. Bojang was not taken before any courts in The Bahamas prior to his release on 16 June 2017 nor was he the subject of any deportation order.

7 On 25 May 2016, the Immigration authorities attempted to deport Mr. Bojang back to his homeland. He was sent on a flight to Cuba en route to The Gambia but was refused passage by Cuban authorities. Mr. Bojang was then returned to The Bahamas. He was taken to the Detention Centre.

8 For a short period of time during his imprisonment, Mr. Bojang was moved from the Detention Centre to The Bahamas Department of Corrections (the “BDOC”) and then returned to the Detention Centre.

9 On 16 June 2017, Mr. Bojang was brought before Stephen Isaacs Snr. J pursuant to a Habeas Corpus application. He was granted a conditional release on the following terms and conditions:

• i. Mr. Bojang is conditionally released and is to report to the Department of Immigration, at its headquarters located at Hawkins Hill, Nassau, New Providence every Monday, before 4.00 p.m;

• ii. Mr. Bojang is given temporary permission to remain in The Bahamas...