The Tribune

By NICO SCAVELLA 

Tribune Staff Reporter

nscavella@tribunemedia.net

KENYAN native Douglas Ngumi is suing the government for $11m with interest for illegally detaining him for six years and seven months at the Carmichael Road Detention Centre, during which time he allegedly endured “numerous” beatings by immigration officials and contracted two diseases.

Of that sum, $5m is for exemplary damages; $3m is for false imprisonment, assault and batteries; $2m is for constitutional damages by way of compensation and vindication; $1m is for aggravated damages; and $950 is for special damages, his attorney, Fred Smith, QC said.

Mr Smith, in making submissions before Justice Indra Charles, asserted that such a figure is appropriate to “send a message” to the government that “civil and constitutional crime” in the form of “ubiquitous, unapologetic, endemic oppression” will “no longer pay”.

Mr Smith requested the payment be made within 28 days. Failure to do so would result in the government being found in contempt of court. Mr Ngumi is also seeking legal costs on a full indemnity solicitor own client basis given the “manner” in which the case was conducted by the government.

But despite the hefty $11m sum his client is seeking, Mr Smith submitted that based on a “completely scientific calculation” of the $280,000 in damages awarded to American visitor Tamara Merson for being falsely imprisoned for two days in 1987, Mr Ngumi is actually entitled to a $387,990,000 in damages.

Mr Smith also said even if one was to calculate the damages awarded to Ms Merson for false imprisonment only, inflation taken into account, the end result when applied to his client’s ordeal would be $76,500 per day for the 2,395 days he was detained totaling $183,217,500.

And if the court by chance were to factor in exemplary and punitive damages, the final amount would be “truly astronomic”, Mr Smith asserted.

Mr Smith noted that such figures may be “fantastical” however, he said if there were civil jury trials in the Bahamas, damages in those amounts “would not be out of the realm of possibility”.

Nonetheless, if successful, Mr Ngumi’s requested payout would still be among the largest in unlawful detention cases, with it being 10 times more than the $1m paid to Atain Takitota, a Japanese man who was unlawfully detained in prison for eight years from 1992 to 2000.

Mr Ngumi, formerly a jitney driver in Kenya, came to the Bahamas in 1997, and was granted a work permit in 1998. In 2000 he married Gricilda Pratt, a Bahamian citizen he had met in Turks and Caicos. However, he never got a spousal permit.

Mr Ngumi was deported to Cuba in 2002. He received a work permit in 2005 but his application for renewal was denied. Between 2006 and 2011, he said he frequently travelled to Cuba, the Dominican Republic and the Bahamas to avoid overstaying his allotted time and running afoul of Bahamian law.

In 2011, however, Mr Ngumi was charged with overstaying and engaging in gainful occupation contrary to the Immigration Act. He pleaded guilty to overstaying — prosecutors withdrew the latter charge. The magistrate subsequently ordered that Mr Ngumi be deported to Kenya, however, his detention continued.

Mr Ngumi was later charged with possession of dangerous drugs in 2013, accused of having four grams of marijuana. After pleading guilty, the judge took into consideration the time he had spent in custody. He was cautioned and the judge recommended that he be deported to Kenya, but his detention persisted for another four years instead.

Mr Smith filed a habeas corpus application on behalf of Mr Ngumi on July 26, 2017 but before a hearing took place the Kenyan was released on August 4, 2017.

According to court documents, Mr Ngumi gave uncontested evidence that on numerous occasions between January 11, 2011 and 4th August 2017, he was beaten by immigration officers. He said he was handcuffed to a table in the kitchen at the CRDC and beaten with a PVC pipe by Royal Bahamas Defence Force officers for hours until he sustained a serious wound to his back that had to be treated for days.

However, Mr Smith noted that not one immigration or RBDF officer was called to give evidence by the government to deny those claims.

According to the evidence, Mr Ngumi also contracted at least two communicable diseases, namely scabies and tuberculosis, during his stay at CRDC. He was treated at Princess Margaret Hospital (PMH) for tuberculosis for seven months after his release.

But despite being released from CRDC, and despite the matter going to trial, Mr Smith said his client is still on an “invisible leash” and mandated to check in at the Department of Immigration.

During proceedings yesterday afternoon, Mr Smith submitted that despite the government releasing his client without a hearing on the habeas corpus application, its submissions “maintain the lawfulness of the imprisonment for the entire six years and seven months and deny any other wrong doing”.

Mr Smith also said the government continues to resist judgment on liability and has failed to address the quantum of damages his client should be paid. In fact, Mr Smith said so “confident” is the government in its defence of Mr Ngumi’s claims that it hasn’t even made any submissions on the issue of damages in the event they are found liable.

Mr Smith said the government has led no evidence in its defence during the trial. However, he said the government appears to be relying on two main points that have been repeated and relied upon in their submissions: that all claims for breaches of Mr Ngumi’s constitutional rights should be dismissed because, in reliance upon the proviso to Article 28 of the Constitution, Mr Ngumi has “adequate means of redress under the common law”.

Secondly, the government asserts that as Mr Ngumi was initially arrested on reasonable suspicion that he committed an offence, his subsequent detention for six years and seven months was lawful.

However, Mr Smith submitted that the “mere assertion and insistence” on the latter submission “raises the terrifying reality, not even the spectre, of how out of control the state is in the Bahamas”.

“Mr. Ngumi says the ‘state’ because, this is not just the Immigration Department that is maintaining this. The Immigration Defendants are represented by the Office of The Attorney General. He is also a Defendant under the Crown Proceedings Act and is also included because of the constitutional claims. What is more, the defendants are represented by experienced Counsel who are acting upon instructions,” said Mr Smith.

“.. Despite repeated judicial pronouncements and educational exposition of what the law is in relation to police and immigration powers of arrest and detention, the Immigration authorities in particular continue to brazenly flout the Fundamental Rights and Freedom in Chapter 3 of the Constitution with impunity and without Executive censure and under the mantle of litigation protection provided by the Office of The Attorney General who will fight, as in this case, the indefensible, to the bitter end.

“... The Immigration Defendants are not a Super Police Power who are outside the control of the Constitution, the Criminal Procedure Code, and the Police Act. Immigration is not a law unto itself.

“... Case after case in the Supreme Court, the Court of Appeal, and the Privy Council have clearly set out the relevant law on the extent of the policing powers of agents of the State such as the police and immigration,” Mr Smith submitted.

“It is common knowledge and the cases reflect the wholesale abuse of many persons on an ongoing, repeated and continuous basis by Immigration. Yet the State has done nothing to stop this. They are content to pay the small damages awards and allow immigration to continue their unrepentant pattern of abuse, illegal, and unconstitutional behaviour.

“The State has shown obstinate and stubborn resistance to respecting the law and the rights of all persons protected by the Constitution.

“The State behaves as if it does not care and/or that the consequences will be so minimal as to be inconsequential.

“ The very rule of law is at stake in The Bahamas.  Mr. Ngumi’s case exemplifies this.”

Mr Smith added: “…Judges have repeatedly encouraged the state to respect rights, but to no avail. The same kinds of abusive cases continue to afflict all manner of persons in the Bahamas. No one is safe in the Bahamas from ubiquitous, unapologetic, endemic oppression by the state.

“The court should use Mr Ngumi’s case to send a message to the State that civil and constitutional crime will no longer pay.”

After yesterday’s submissions the case was adjourned. A ruling on the damages claim is expected within a few months.