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Tuesday, July 7, 2009

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Justices reject Privy Council's claim By CANDIA DAMES ~ Guardian News Editor ~ candia@nasguard.com: While strongly rejecting a claim by the Privy Council that they had made an arithmetical mistake in their original calculations of damages for a former prisoner, the justices of the Court of Appeal yesterday increased from $400,000 to $600,000 the compensatory award for the foreign man who was wrongfully incarcerated in The Bahamas for more than eight years. Compensatory damages are paid to compensate for loss, injury or harm suffered by another person's breach of duty. The $600,000 in compensatory damages awarded to Atain Takitota is to be added to exemplary damages of $100,000 which has been upheld by the Privy Council. The Court of Appeal also ordered that interest is to run from February 2006, when it originally ruled in this matter. Takitota's attorney, Damian Gomez, estimated that interest is already in the $60,000 range. Given that Takitota has already been paid $500,000 by the government, Gomez told The Nassau Guardian that the total due to him should be at just under $300,000. The already cash-strapped government — which has cut millions of dollars from the budgets of its departments and ministries for 2009/2010 — will have to come up with the additional money to pay Takitota. Gomez had been seeking damages of $1 million. The matter was back before the Court of Appeal three months after the Privy Council ruled that the appellate court must reassess the compensatory damages. Takitota, who claims to be Japanese, sat quietly in court yesterday as the justices discussed how to arrive at a new figure in line with the judgment from the London-based law lords. Justice Emmanuel Osadebay noted that there are still many questions surrounding this case; Takitota suffers from amnesia and the Japanese can find no birth certificate for him. The Chinese have also said he is not a citizen. Osadebay questioned how Takitota got to be sent to Her Majesty's Prison in the first place when there was no remand warrant or sentence warrant from a magistrate. The justice said things were done that simply should not have been done. Osadebay said the appellate court was finding it difficult to determine compensation for loss given that it does not know what Takitota would have earned in the eight plus years he was incarcerated. "Our system is that you get compensated for what you lost," he said. "...How can you compensate him for what he doesn't remember?" Court of Appeal President Dame Joan Sawyer questioned: "Would he have earned $1 million in eight years? Gomez admitted: "We simply don't know." Following the judgment yesterday, the former prisoner told The Nassau Guardian, "This decision makes me feel better because I finally see that it's justice. I can move on with my life." As noted, the justices expressed disagreement with the Privy Council's determination that they had made an arithmetical error in calculating damages for him. "This business of arithmetical mistake, I don't understand," Dame Joan said. "It has nothing to do with the law." She added, "This kind of thing will not sit well in the future and it does not bode well for the administration of justice. If it were left to me I would give him $800,000 and call it a day." While the justices made it clear that they did not agree with the law lords that they had made an arithmetical mistake, they also pointed out that they were duty bound to follow the ruling and intended to do so. Dame Joan repeated the court's strong disapproval of the manner in which Takitota was treated after his arrest in 1992. "It is ridiculous that in a civilized society we will treat human beings this way," said the court's president as Takitota shook his head lightly in apparent agreement. Takitota had lingered in Her Majesty's Prison for more than eight years without being charged with a crime. He lived in conditions that the Privy Council called "simply appalling". The Court of Appeal in an earlier ruling categorized his treatment as "less than humane" and a "flagrant misuse/abuse of power". The Court of Appeal said in its original ruling that Takitota should be compensated "for the loss of more than eight years of his life and for the misery which he endured by being treated in a less than humane way". Prior to the hearing of the appeal by the Privy Council, Takitota was paid a sum by the government of The Bahamas following a 2006 order of Justice Jeanne Thompson (now retired) appointing a receiver over the assets of the government. Takitota appears to have arrived in The Bahamas in early August 1992. He has claimed that he came to the country legally, but within a short time he lost all his belongings, including his passport and money. On August 12, 1992 police arrested him, allegedly for vagrancy, and he ended up at Her Majesty's Prison — having never been charged in court — after authorities determined that his presence in The Bahamas was "undesirable and not conducive to the public good". His case was initially heard before Supreme Court Justice Hartman Longley (now a Court of Appeal justice) who ruled that his detention was initially unlawful, but ceased to be so after the issuing of a deportation order. After a trial in 2004, Longley quashed the deportation order and ordered that Takitota be awarded legal status in The Bahamas. Takitota and his attorney confirmed to The Nassau Guardian yesterday that he is now a permanent resident of The Bahamas. He said he simply wants travel documents now so he can find his family. The Court of Appeal had originally awarded $730,500 in compensatory damages but reduced that sum to $400,000 in light of the fact that Takitota was to receive a lump sum. But Takitota appealed to the Privy Council. As reported earlier by The Nassau Guardian, the law lords said they were unable "to regard the figure of either $730,500 or $400,000 by way of compensatory damages as being sufficiently securely based on the facts and the law." The Privy Council said that in line with its established practice it was reluctant to revise the amount of the award. The court has repeatedly expressed the view that local courts are very much better placed to say what is appropriate by way of damages having regard to the conditions in the country concerned. In addition to Dame Joan and Justice Osadebay, yesterday's hearing took place before Justice Christopher Blackman. Wednesday, June 10, 2009