Ramon Lop v The Attorney-General of the Commonwealth of the Bahamas the Minister of Immigration Director of Immigration
| Jurisdiction | Bahamas |
| Judge | Hon. Madam Justice Crane-Scott, JA |
| Judgment Date | 13 February 2024 |
| Neutral Citation | BS 2024 CA 10 |
| Docket Number | SCCivApp. No. 118 of 2022 |
| Court | Court of Appeal (Bahamas) |
The Honourable Sir Michael Barnett, P
The Honourable Mr. Justice Isaacs, JA
The Honourable Madam Justice Crane-Scott, JA
SCCivApp. No. 118 of 2022
IN THE COURT OF APPEAL
Civil Appeal — Appeal Against Award of Damages — Claim for damages for False Imprisonment — Claim for compensation for multiple breaches of appellant's Constitutional rights — Parallel claims for tortious wrongs and constitutional redress — False imprisonment — Whether judge erred in finding that appellant's claim for constitutional redress was time-barred — Whether the Limitation Act applies to create a time-bar for constitutional claims — Constitution as supreme law — Whether Judge erred in holding that Constitutional claims are subject to Limitation Act — Whether judge erred in finding that appellant's Article 17(1) rights had not been breached — Inhumane and Degrading treatment — Award of compensatory damages for loss of liberty — Aggravated and Exemplary damages — Whether judge failed to award aggravated damages — Fundamental rights redress clause proviso — Pre-judgment interest — Post-Judgment interest — When interest runs — Section 12 Limitation Act — Articles 2, 17(1), 19, 25, 26, 28 of The Bahamas Constitution — Sections 2 & 3 Civil Procedure (Award of Interest) Act.
Sometime in early May 2009, the appellant (a Cuban-born adult male) was apprehended by the Immigration authorities in Grand Bahama on suspicion that he had been attempting to take part in human smuggling. He was arrested, kept overnight and transported the next day to New Providence and detained at the Carmichael Road Detention Centre where (as the Judge found) he was unlawfully detained for 8 months.
The appellant was never charged nor taken before a magistrate as required by the Immigration Act. However, during his detention, unsuccessful efforts were made through the Ministry of Foreign Affairs and Immigration to secure his return to the USA or to Cuba. He remained at the Detention Centre until December 2009 when he was eventually released into the wider Bahamian community after some 8 months.
Following his release in December 2009, the appellant was subsequently charged and convicted in 2010 of shop-breaking and stealing and served time at Her Majesty's Prison for both these offences. He later served a one-month sentence in 2014 for vagrancy. Upon his release from prison on 14 November 2014, he was handed over to the Immigration authorities and detained once again at the Detention Centre on Carmichael Road.
He languished at the Detention Centre for a period of two (2) years nine (9) months or until 4 August 2017 when he was released after making a successful habeas corpus application in the Supreme Court.
Shortly after his release from the Detention Centre in 2017, the appellant commenced an action in the Supreme Court against the Respondents making parallel claims for the torts of assault, battery, arbitrary and unlawful detention, false imprisonment respectively, as well as breaches of his fundamental rights under Articles 15, 17(1), 19, 25 and 26 of the Constitution. He claimed remedies in the form of damages; aggravated damages; exemplary damages; vindicatory damages; compensation under Article 19(4); as well as damages for breach of his various constitutional rights. He further claimed interest (both pre-judgment and post-judgment) and costs on full indemnity and solicitor and own client basis certified for 3 counsel.
The Respondents filed a Defence denying the appellant's various claims. They further asserted that his claim in relation to the first period of detention in 2009 was statute-barred by virtue of the Limitation Act.
Following a trial, the Judge found the Respondents liable in tort for falsely/unlawfully imprisoning the appellant and for breach of his Constitutional right not to be arbitrarily detained on both occasions. The Judge, however, found that the appellant's constitutional claim in respect of the first period of detention was statute-barred and awarded him no compensation or redress for that period.
The Judge instead awarded him compensatory damages of $298,200 for the second period of detention but reduced that figure by $100,000 because he would receive a lump sum payment.
She ultimately awarded the appellant the global sum of $248,200 (being compensatory damages of $198,200 for false imprisonment and exemplary damages of $50,000). The Judge also awarded post-judgment interest on the award at the rate of 6.25% from the date of judgment until payment, together with costs of the action on the party and party basis to be taxed, if not agreed.
The appellant appealed the award, raising numerous grounds of appeal. After hearing arguments, the Court reserved its decision.
Held: The Appeal is allowed on grounds 1, 2, 4(2) and 7. Grounds 3, 5 and 6 are dismissed. The appellant is awarded damages in the global sum of $396,200 on account of both periods of his unlawful detention as summarized at paragraph [298] of this Judgment. In addition, there will be pre-judgment interest on the global award, as well as post-judgment interest as indicated at paragraphs [315] and [316] respectively of the Judgment.
The court will deal with the issue of cost ‘on the papers’ i.e. through written submissions. Accordingly, the parties are invited to file written submissions on costs within 14 days of the pronouncement of this judgment that date being 27 February 2024.
Neither the Constitution, nor section 12 of the Limitation Act expressly limits or curtails in any way the presently unrestricted right conferred by Article 28(1) on an aggrieved person to apply to the Supreme Court for redress. Article 28 contains no limitational hindrance as to the time in which applications for the enforcement of fundamental rights and freedoms can be brought. To the extent that the learned Judge decided otherwise, her decision is plainly wrong. - [ground 1]
Paragraph [84] of the Judgment is adjusted by deleting the Judge's obviously mistaken reference to Article 19 of the Constitution. For the avoidance of doubt, we affirm the learned Judge's findings at paragraphs [78] and [99] respectively, that the appellant was unlawfully/falsely imprisoned when he was detained at the Detention Centre on both occasions. - [ground 2]
Ground 3 fails and is dismissed. The modern authorities are clear: the assessment of credibility of witnesses is quintessentially a matter for the trial judge, with whose assessment an appellate court will not interfere unless something has gone very seriously wrong. The appellant's evidence, even if was credible, fell far short of establishing that his Article 17(1) right to protection against “ inhuman or degrading” treatment had been breached. - [ground 3]
Ground 4(2) is allowed. The Board's decision in Takitota speaks for itself. The reduction by the learned Judge of the compensatory award by $100,000 to $198,200 on the basis that he was receiving a lump sum payment is clearly erroneous in law. The learned judge's reduced award of $198,200.00 for Mr. Lop's false imprisonment during the second period of detention is quashed. We accordingly restore the learned Judge's initial award of $298,200 which she found to be an “adequate” and “reasonable” compensatory award for the false imprisonment which occurred during his second period of detention. [ground 4(2)]
There is no basis on which we can interfere with what is essentially an exercise of judicial discretion by the learned Judge. Having clearly exercised her discretion to make an additional award for exemplary damages, the Judge was under no further legal obligation to make a separate award for aggravated damages in the absence of evidence of particular malice by the Respondents exhibited towards Mr. Lop.
Furthermore, it is now recognized that as the very circumstances which will justify the award of aggravated damages are probably the same as will support an award of exemplary damages, problems of duplication and double counting can arise where awards for both aggravated damages and exemplary damages are made. We agree with counsel for the Respondents that the learned Judge's assessment of exemplary damages discloses no obvious error of law and should not be disturbed. In the result, neither ground 5 nor ground 6 has any merit. They are, accordingly, both dismissed [grounds 5 & 6]
Ground 7 succeeds as the award of interest was clearly not made pursuant to the statutory discretion in section 3(1) of the Civil Procedure (Award of Interest) Act. What is more, not only did the Judge provide no reasons for not awarding pre-judgment interest, but paragraph [100] itself is no more than a re-statement of the legal position (mandated in section 2(1) of the Civil Procedure (Award of Interest) Act) that Mr. Lop's judgment debt would carry interest at the statutorily mandated rate. We are satisfied that the learned Judge failed to consider section 3(1) of the Act or to determine what (if any) pre-judgment interest should be awarded for the period between the date when the cause of action arose and the date of judgment. - [ground 7]
Alseran & Others v. Ministry of Defence [2019] Q.B. 125; considered
Attorney General of Trinidad & Tobago v. Ramanoop [2005] UKPC 15; considered
Bahamasair Holdings Ltd v. Messier Dowty Inc [2018] UKPC 25; considered
Balmoral Development v. Cottis Law [2017] 1 BHS J. No. 73; mentioned
Barr v. Tynes [2001] BHS J. No. 37; considered
Bruno Ruffa v. The Queen and William Pratt (as Director of Immigration), SCCivApp No. 131 of 2016; mentioned
Cartwright and anor v. Merson [2002] BHS J. No.17; considered
Central Bank of Ecuador v. Conticorp SA, [2015] UKPC 11; considered
Commissioner of Police & anor v. Rod Andrew Bethel SCCvivApp. No. 59 of 2021; mentioned DB v Chief Constable of...
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