NASSAU, BAHAMAS — Attorney Fred Smith, QC, plans to appeal a Supreme Court’s award of just under $642,000 in damages for a Kenyan man unlawfully detained for more than six years, noting the amount is “grossly inadequate” and creates a “terrible perception of social inequality”.
The Supreme Court awarded Douglas Ngumi, a jitney driver, just under $642,000 in damages after the court ruled he was unlawfully detained for more than six years at the Carmichael Road Detention Centre.
The sum, though far short of his $11 million claim, is the largest of its kind.
“We’ll be appealing on the basis that there should not be any distinction between the value of Mr Ngumi’s freedom as a jitney driver, compared to the value of Mr Tynes, QC, as a lawyer. That creates a terrible perception of social inequality. It almost institutionalizes in a judicial fashion a social caste system and I think in the 21st century — I hope — we have elevated ourselves above that.”
In her judgment handed down last Friday, Justice Indra Charles noted Tynes was a renowned attorney-at-law who was falsely imprisoned for less than one day, and his constitutional rights were breached.
Tynes was awarded $115,000 for assault and battery and false imprisonment in 1994, she said.
Ngumi was awarded $386,000 in damages for false imprisonment, assaults and batteries.
Smith said while he was proud the sum will “inch the awards higher” in The Bahamas, he was “saddened and discouraged” that a far greater sum was not ruled against the government.
The attorney said the way the courts calculate damages in The Bahamas appears “perverse”.
He said the longer the state wrongfully takes away an individual’s liberty, the more the state should pay.
“I don’t understand how the judges, from the Privy Council to the Court of Appeal, and now the Supreme Court, see it in the exact opposite way, so that they’re actually giving the government license and incentive to hold people illegally longer because the longer you hold someone illegally, the less damage you have to pay,” he said.
“This seems a very, very perverse approach to calculating damages that people are entitled to.”
In her judgment, Justice Indra Charles said the evidence and testimony of Ngumi were credible and for the most part unchallenged.
The defendants in the matter were Attorney General Carl Bethel, Brent Symonette in his capacity as then immigration minister, William Pratt in his capacity as the then director of immigration and Peter Joseph as the officer in charge of the detention center.
Charles said while immigration authorities had reasonable suspicion to arrest Ngumi on January 12, 2011, he was not charged within the statutory period of 48 hours.
He was arraigned six days after being arrested and subsequently detained at the facility on Gladstone Road until August 2019.
According to court documents, Ngumi contracted scabies and tuberculosis at the detention center.
The judge said it was not Ngumi’s fault his passport was taken from him and subsequently lose during his detention.
When calculating general damages, Charles referred to the Privy Council’s ruling for Atain Takitota, a Japanese man who was unlawfully detained in prison for eight years from 1992 to 2000.
Takitota received $600,000 following his appeal.
During proceedings, Smith also referred to the case of American visitor Tamara Merson to support his client’s damages claim.
Merson received $280,000 in damages for being falsely imprisoned for two days in 1987.
Smith represented her.
During her oral judgment, Charles said the sum of $5 million for exemplary damages was “beyond comprehension” and suggested Smith appeared to be leaning towards Florida and the United States with his calculation for damages.
She awarded Ngumi $100,000 for exemplary damages.
Charles said while there may be “superficial” resemblances between The Bahamas and the state of Florida, their societal and industrial conditions differ as “Florida is a part of the USA, a superpower and one of the economic and industrial giants of the world”.
The judge said it was not included as evidence, but the court noted a bus driver in Kenya typically makes the equivalent of $450 per month.
Yesterday, Smith said: “I am convinced that the only way the government of The Bahamas is going to wake up and do something about this out of control immigration train is if a judge steps up to the plate and awards a truly punitive damage award in the many millions of dollars.
“And then maybe, the minister of finance — whoever that might be at the time — will say hang on a second, we should really try to educate the immigration department instead of allowing them to ride roughshod over people’s rights and exposing you and me, every taxpayer in The Bahamas, to potentially millions of dollars in damages — taxes to pay damages.”
Insisting Ngumi’s case was just the “tip of the iceberg”, Smith said hundreds more matters are expected to go before the courts, and those just represent a fraction of the incidents of unlawful arrests, detentions in inhumane conditions and repatriations.
Smith argued that the state of the economy or government’s finances has no bearing on someone’s freedom.