NASSAU, BAHAMAS — The Court of Appeal yesterday awarded Kenyan national Douglas Ngumi, who was unlawfully detained at the Carmichael Road Detention Centre for nearly seven years, three-quarters of a million dollars —$109,000 more than the Supreme Court awarded.
In their ruling, Court of Appeal Justices Sir Michael Barnett, Milton Evans and Jon Isaacs increased the general damages after calculated interest accrued on the sum from the date the cause of the action arose and cost on an indemnity basis, as opposed to the date of the writ filed following his release.
Attorney General Carl Bethel, then Minister of Immigration Brent Symonette, then Director of Immigration William Pratt and officer in charge of the Carmichael Road Detention Centre Peter Joseph were named as the respondents.
Last year, the Supreme Court awarded the Kenyan national just over $641,000 in damages after he was unlawfully detained for six years and four months at the detention center between January 2011 and August 2019.
He appealed the court’s decision and award on the basis that it was “unreasonably low” and sought an increase in general damages to $11 million, as well as interest from the date the cause of action arose, and costs on an indemnity basis.
The appellate court ruled: “The failure of the judge to specify what amount of the $386,000 was awarded for assault and battery as against the amount awarded for false imprisonment is not sufficient to render the total award unreasonable.
“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 in general damages is appropriate.”
The appellate court noted that the Civil Procedure Award of Interest Act gives a judge wide power in awarding interest, and can be awarded for any period between the date the cause of action arose and the date of judgment.
It said in Ngumi’s case, interest was awarded 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 of a party and party basis,” the ruling continued.
Ngumi was released by a habeas corpus application.
While in the detention center, Ngumi contracted two diseases — scabies and tuberculosis — and alleged he was beaten numerous times by immigration authorities.
In Supreme Court Justice Indra Charles’ ruling, she advised that three months were subtracted from Ngumi’s detention period to account for a reasonable time that the government could have organized his deportation.
She said she did not accept the defendants’ suggestion that the failure to deport Ngumi was because he refused to cooperate or that his release into the community presented security concerns.
His passport was taken away and subsequently lost.
Ngumi sought $11 million in damages: $3 million for general damages of false imprisonment, assault and battery; $1 million for aggravated damages; $5 million for exemplary damages; $2 million for vindicatory damages; $950 for special damages and interest on each of the foregoing.
When calculating damages, however, Charles referred to the Pricy Council’s ruling for Atain Takitota, a Japanese man who was unlawfully imprisoned for eight years from 1992 to 2000 and who received a sum of $600,000 following an appeal to the Privy Council.
During her oral judgment, the judge said $5 million for exemplary damages was “beyond comprehension” and preposterous.
The judge also noted that Ngumi was formerly a jitney driver in Kenya, noting that under continued gainful employment, a bus driver in Kenya typically makes the equivalent of $450 per month, though the latter consideration was not included as evidence.
She awarded Ngumi $386,000 for compensatory damages; $100,000 for exemplary damages; $50,000 for aggravated damages; $105,000 for breach of his constitutional rights; and $950 as special damages, for a total of $641,950.
The appellate court is expected to hear both sides on the issue of the cost of the appeal.
