Douglas Ngumi v The Attorney General of The Bahamas and Others
| Jurisdiction | UK Non-devolved |
| Judge | Dame Ingrid Simler |
| Judgment Date | 05 April 2023 |
| Neutral Citation | [2023] UKPC 12 |
| Docket Number | Privy Council Appeal No 0036 of 2022 |
| Court | Privy Council |
[2023] UKPC 12
Lord Briggs
Lord Kitchin
Lord Sales
Lord Richards
Dame Ingrid Simler DBE
Privy Council Appeal No 0036 of 2022
Privy Council
Hilary Term
From the Court of Appeal of the Commonwealth of The Bahamas
Appellant
Frederick Smith KC
Ruth Jordan
Thomas Elias
Roderick Dawson Malone
Kandice Maycock
Raven Rolle
(Instructed by Sheridans (London))
Respondents
Robert Strang
Kenria Smith
(Instructed by Charles Russell Speechlys LLP (London))
Heard on 7 February 2023
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 [2009] UKPC 11, [2009] 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 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.
On 20 January 2011, the appellant was sentenced by the Magistrate on the first count. No penalty was imposed but the court docket recorded the following:
“20/01/2011 – DENFENDANT [sic] ORDERED DEPORTED TO HIS HOME-LAND, KENYA, AFRICA.”
The appellant continued to be held in the detention centre and no steps whatever were taken by the respondents to effect his deportation. The evidence the appellant gave about the conditions in which he was held was summarised by Charles J. In summary his evidence included that he suffered pain in consequence of oppressive conduct by officers at the detention centre. On one occasion he was taken from the dormitory into the kitchen by officials. There he was stripped naked, tied, handcuffed under the table and then beaten with a PVC pipe by the officers. He suffered wounds to his back that became infected. There was severe overcrowding in the dormitory resulting in illness and diseases. The dormitory was never cleaned; the toilet could not flush; and the water was bad. There were raids in which tear gas was used.
The Judge accepted his evidence. She also found that the appellant was badly beaten on several occasions by officers at the detention centre and subjected to cruel, inhumane and degrading treatment.
On about 20 July 2017 the appellant retained the services of Callenders & Co, attorneys in The Bahamas. On 26 July 2017 an application for habeas corpus was filed on his behalf. He was released on 4 August 2017. His detention lasted from 12 January 2011 to 4 August 2017, a total of 2,397 days. The appellant commenced these proceedings on 27 September 2017, filing a writ and Statement of Claim on that date. A Defence contesting liability was filed on 31 October 2017. The trial took place over three days between 11 February and 17 April 2019. The appellant gave evidence and was cross-examined. The respondents filed no witness statements. There was an agreed bundle of documents before the court.
In relation to the issues of relevance to this appeal, Charles J made the following findings in summary:
(i) Immigration officers had reasonable suspicion to arrest the appellant without a warrant on 12 January 2011, in view of his immigration history and in light of his subsequent guilty plea to overstaying. His arrest was therefore lawful.
(ii) However, the appellant was not charged and brought before a Magistrate within the statutory period of 48 hours of his arrest as required by the Criminal Procedure Code: he was only arraigned in the Magistrates' Court on 18 January 2011. He was therefore unlawfully detained for four days in that period. Additionally, following his arraignment and subsequent sentence on 20 January 2011, the appellant ought to have been deported as soon as was reasonably practicable as recommended by the Magistrate. This was not done.
(iii) Charles J held that there was some evidence from the respondents that his passport was “lost” and it was impossible to repatriate him to Kenya. She rejected the assertion in the Defence that there was a failure to deport the appellant because he refused to cooperate with immigration officials to facilitate his return to Kenya, and that because of national security concerns, he could not be released in the community. There was no evidence at trial to support these assertions and she accepted the appellant's unchallenged evidence that he “was...
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