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Robert Strang Instructed by Charles Russell Speechlys LLP (London) for the Respondents.
Dame Ingrid Simler:
This appeal raises questions about the proper construction of provisions relating to detention for the purposes of effecting deportation in the Immigration Act 1967, and the proper approach to the assessment of damages for a lengthy period of unlawful detention.
On 12 January 2011, the appellant, Douglas Ngumi, a Kenyan citizen, was arrested by Bahamian immigration officials. He was held in an immigration detention centre from then until his release more than six years later, on 4 August 2017. During his time in detention he was assaulted and subjected to appalling and degrading treatment. His constitutional rights were disregarded. He brought proceedings against the respondents (in their representative capacities) for damages (compensatory, aggravated and exemplary) for false imprisonment, assault and battery, and damages for breach of his constitutional rights.
Following a contested trial, the Honourable Madam Justice Indra H Charles held that the appellant was initially lawfully detained as an overstayer with no right to reside in The Bahamas, and that his detention during the initial three months was for the purpose of making arrangements to deport him and so, for the most part, lawful. However, thereafter and for the balance of the period of six years, four months and four days, he was unlawfully detained. The Judge made findings about the adverse conditions in which he was held and treated, and assessed general damages (including aggravated, exemplary and vindicatory damages) in the total sum of $641,000, with agreed special damages of $950. She awarded the appellant interest from the date of judgment and costs on the standard basis. Her judgment dated 27 November 2020, is reported at 2017/CLE/gen/01167.
The appellant appealed to the Court of Appeal challenging the overall assessment of general damages as inordinately low and asserting that the global award should have been in excess of $11,000,000. He challenged the Judge’s approach to a number of specific heads of claim, as well as her award of interest and costs. The Court of Appeal increased the award of general damages for unlawful detention, resulting in an increased global award of $750,950, and extended the period for which interest was awarded so that it ran from the date of the writ, 17 September 2017. Otherwise, the Court of Appeal declined to interfere with the Judge’s order. The Court of Appeal’s judgment dated 18 August 2021 is reported at SCCivApp No. 6 of 2021.
The appellant appeals to the Privy Council. In addition to the challenge to the assessment of damages in his case, he contends that the courts below were wrong to find that he was lawfully detained at any time during a reasonable period (assessed as three months) during which the respondents were making arrangements for his deportation. In particular, he contends that there was no lawful power to detain him because the Magistrates’ Court had no power to order deportation and there was no recommendation for deportation in place.
As for damages, the appellant’s case in summary is that the Judge and the Court of Appeal made errors of principle in calculating the proper award of general damages, interest and costs: first, no award was made for assault and battery; secondly the approach to and reasons given for the award of compensatory damages were wrong in principle, not least because of the reliance wrongly placed on the settlement reached by the parties in Takitota v Attorney General  UKPC 11,  26 BHRC 578 “Takitota”), and the resulting award was manifestly too low; thirdly, the assessment of constitutional damages failed to have regard to the gravity of the breaches and sense of public outrage engendered; fourthly, interest should have been ordered to run from the date when the cause of action first arose on 14 January 2011; fifthly, the appellant was entitled to costs on the indemnity basis at first instance, and should have been awarded the costs of the appeal in the Court of Appeal.
The background facts and proceedings below
The appellant was born in Nairobi, Kenya, on 7 September 1971. On 14 August 1997, he arrived in The Bahamas for the first time to visit a family friend. Immigration officials at the airport granted him a visa to stay in The Bahamas for 21 days. The visa was subsequently extended for a further two months. Sometime in 1999 during a visit to New Providence, the appellant met Gricilda Vanessa Pratt, a Bahamian citizen. They were married on 14 April 2000, but became estranged not long afterwards, and are now separated, though not legally divorced. The appellant remained in The Bahamas following their separation.
On 8 August 2005, the appellant obtained a work permit which expired on 17 June 2006. His employer’s subsequent request for an extension was refused by letter dated 12 September 2006. The letter made clear that the appellant should wind up his affairs and leave The Bahamas within 21 days. Notwithstanding that instruction, the appellant did not leave permanently. Instead, he maintains that, to avoid any violation of the immigration laws of The Bahamas, he travelled back and forth to The Bahamas through Cuba and the Turks and Caicos Islands.
On 12 January 2011, immigration officers arrested the appellant at his home and took him to the Carmichael Road Detention Centre.
On 18 January 2011, he was arraigned before the Magistrates’ Court on charges of overstaying contrary to section 28(1) and (3) of the Immigration Act 1967, and engaging in gainful occupation contrary to section 29(1) and (2) of the Immigration Act 1967. According to the Magistrates’ Court note on the court docket, the appellant pleaded guilty to the first count and not guilty to the second count. Sentencing on the first count was deferred to 20 January 2011. The prosecution withdrew the second count.
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