NASSAU, BAHAMAS — Supreme Court Justice Indra Charles has awarded Kenyan Douglas Ngumi $641,950 in damages after he was unlawfully detained for more than six years at the Carmichael Road Detention Centre (CRDC).
It represents the largest award of its kind for the country, and takes into account Ngumi contracting two diseases, and “numerous” beatings by immigration officials during his detention for six years, four months and six days.
However, the total sum is less than 10 percent of his $11 million claim.
In her judgment delivered last Friday, Charles said the evidence and testimony of Ngumi were credible and for the most part unchallenged by the defendants: Attorney General Carl Bethel, Brent Symonette in his capacity as former minister of immigration, William Pratt in his capacity as former director of immigration and Peter Joseph as officer in charge of the CRDC.
Charles said while immigration officers had reasonable suspicion to arrest Ngumi without a warrant on January 12, 2011, he was not charged within the statutory period of 48 hours or 2 days.
He was instead arraigned before the Magistrate’s Court on January 18, 2011, and following his arraignment and sentencing, was detained at the CRDC until August 4, 2019, when he was released by a habeas corpus application.
Charles advised that she subtracted three months 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 defendant’s suggestion that the failure to deport Ngumi was because he refused to cooperate, or that his release into the community presented security concerns.
During her judgment, she acknowledged Ngumi contracted at least two communicable diseases while at the CRDC: scabies and tuberculosis; and furthered it was not his fault that his passport was taken away from him and subsequently lost during his detention.
Ngumi was seeking $3 million for general damages of false imprisonment, assault and battery; $950 for special damages; $1 million for aggravated damages; $5 million for exemplary damages; $2 million for vindicatory damages; and interest on each of the foregoing.
He was represented by Fred Smith, QC.
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 and who received a sum of $600,000 following an appeal to the Privy Council.
Along with Takitota, Charles 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.
She said: “As the Privy Council…it is usual and proper to reduce the level of damages by tapering them when dealing with an extended period of unlawful imprisonment. I’ve done so, I used the basis of one-third and that’s how I arrived at an assessed damages for false imprisonment, assault and battery to be $386,000.”
Charles said the government did not refute Ngumi’s evidence that clothing, jewelry and cash valued at $950 were taken from him, and as such awarded the sum for special damages.
During her oral judgment, Charles said the sum of $5 million for exemplary damages is “beyond comprehension…it’s preposterous in my opinion; Mr Smith seems to be leaning towards Florida and the United States”.
She added: “Although there may be superficial resemblances between this commonwealth and the state of Florida, I do not think that their societal and industrial conditions can be said to be similar. Florida is a part of the USA, a superpower and one of the economic and industrial giants of the world.”
Charles said she awarded the sum of $100,000 for exemplary damages, similar to the Takitota case.
She said she was “very conscious of the decline of the value of the dollar due to inflation, however, I make such an award even 14 years later because in my considered opinion the treatment meted out to Mr Takitota by the state was more appalling than that endured by Mr Ngumi”.
“Furthermore, Mr Ngumi was detained at the detention center, a more satisfactory facility than Her Majesty’s prison, and for a shorter period than Mr Takitota,” she said.
As for aggravated damages, Charles opined that an award of $50,000 is reasonable.
Charles noted the court was considering an appropriate sum for constitutional and vindicatory damages at a time of a global pandemic.
She noted Ngumi was formerly a jitney driver in Kenya and may have been gainfully employed if he had not been detained.
Charles said it was not included as evidence but the court noted a bus driver in Kenya typically makes the equivalent of $450 per month.
She said the following matters were also taken into consideration: Ngumi’s long struggle to secure his release or to comply with two deportation orders to repatriate him to his homeland of Kenya; his imprisonment in inhumane and degrading conditions; that his health was severely affected while he was falsely imprisoned; and that the defendants did nothing to assist Ngumi upon his release.
She noted he was currently unemployed and resided in a room at Fox Hill during the trial.
Charles pointed out the sum of $100,000 was awarded for vindicatory or constitutional damages in both the Merson and Takitota cases.
She said: “A fair and reasonable award for vindication and compensation for breaches of Mr Ngumi’s constitutional rights is $105,000.00.”
Kenria Smith and Kenny Thompson represented the government.