#6685 - Attorney General V. Takitoka - Commercial Remedies BCL

Attorney General v. Takitoka

Facts

The appellant Atain Takitota was detained in custody in The Bahamas for a period of over eight years. The Court of Appeal held that the whole period of his incarceration constituted unlawful detention. He was awarded a total of $500,000 damages, being $400,000 compensatory damages and $100,000 exemplary damages. The appellant has appealed to the Privy Council against the amount of the award, the only issue on the appeal before the Board.

The appellant appears to have arrived in The Bahamas in the early part of August 1992, though the exact date cannot be established with any certainty. He made the case in this action that he arrived as a lawful entrant, but that within a short time of his arrival he lost all his belongings, including his passport and money. The report headed “Foreign Persons Arrested” (Record, p 15), which is dated 14 August 1992, stated that the appellant was arrested by police officers on 12 August 1992 for an offence of vagrancy and detained at Central Police Station. It refers to his date of arrival in The Bahamas as 3 August 1992. On 18 August 1992 the Minister of Employment and Immigration signed an order for the detention and deportation of the appellant. He was kept in custody until 10 October 2000, when he was released on a bail bond. He was never charged with any offence or brought before a court in the whole of that period.

The appellant commenced proceedings in October 2000 for damages (including aggravated and exemplary damages) for wrongful imprisonment and breach of his fundamental rights under the Constitution of The Bahamas.

Holding

Aggravated Damages and Punitive Damages

In their reference to aggravated damages in para 94 of their judgment the Court of Appeal appear to have equated them with exemplary damages, whereas they form a quite distinct head of damage based on altogether different principles. In awarding compensatory damages the court may take account of an element of aggravation. For example, in a case of unlawful detention it may increase the award to a higher figure than it would have given simply for the deprivation of liberty, to reflect such matters as indignity and humiliation arising from the circumstances of arrest or the conditions in which the claimant was held. The rationale for the inclusion of such an element is that the claimant would not receive sufficient compensation for the wrong sustained if the damages were restricted to a basic award. The latter factor, the conditions of imprisonment, is directly material in the present case, and it would be not merely appropriate but desirable that the award of compensatory damages should reflect it.

Damages to Vindicate Infringement of Constitutional Rights

The award of damages for breach of constitutional rights has much the same object as the common law award of exemplary damages. The relevant provisions of the Bahamian Constitution are Article 17 (inhuman or degrading treatment) and Article 19 (deprivation of personal liberty). The basis of the jurisdiction to award such damages was set out in Attorney General of Trinidad and Tobago v Ramanoop [2005] UKPC 15, [2006] 1 AC 328. Lord Nicholls of Birkenhead, giving the judgment of the Board, said at paras 17-20:

18. When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened.

19. An award of compensation will go some distance towards vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches. All these elements have a place in this additional award. ‘Redress’ in section 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances. Although such an award, where called for, is...