By RASHAD ROLLE

Tribune Staff Reporter

rrolle@tribunemedia.net

THE government’s continued “defence of the indefensible” in the case of Douglas Ngumi, a Kenyan man allegedly detained unlawfully in the Carmichael Road Detention Centre for six and half years, could increase the damages the state will have to pay. 

Fred Smith, QC, sought leave during trial yesterday to amend the writ of summons to seek aggravated damages –– special damages imposed on a defendant when the court determines its conduct increased injury to the plaintiff.

He did this after Kenria Smith, a lawyer from the Office of the Attorney General, opposed his attempt to persuade Supreme Court Justice Indra Charles to deliver judgment yesterday after the opposing parties finished cross-examining Mr Ngumi.

Mr Ngumi testified on Monday he was beaten, teargassed and contracted tuberculosis during his detention.

The Office of the Attorney General failed to submit witness statements and evidence in the case in accordance with Justice Charles’ directives. The judge made it clear that at this point the defendants could realistically only reduce the amount of damages paid to Mr Ngumi.

Accordingly, Mr Smith asked the judge to render a judgment in favour of his client and let the two parties argue about the cost of damages during their submissions next month. Ms Smith resisted this, however, saying the Crown will not concede the case and wants to “tie up the evidence” by “showing particular documents that have already been filed before this court that would assist with the defence.”

Mr Smith replied: “They should have received instructions to concede this and in the face of no evidence by the Crown and the nature of the claim, it is incomprehensible that they would not concede and apologise.”

He continued: “I will amend my pleadings to add a further aggravation of damages. Let me remind my friend that in the Tamar Merson case and the Harvey Tynes case with Judge (Joan) Sawyer it was noted that it is a peculiarly aggravating feature of damages in cases like this when the Crown persists in defending the indefensible. In both of those cases, her ladyship commented, in the first one that up to the very end of trial there was no apology in the defence of the indefeasible. In the second one, the governor general (at the time) himself sent a letter of apology and your ladyship said she may very well have awarded damages of up to $1m had it not been for the apology and other factors which I’ll take the court to.”

Nevertheless, Ms Smith said she wants to show the court that a process initiated for deporting Mr Ngumi encountered problems.

When Justice Charles asked her if she concedes Mr Ngumi spent six and a half years in detention, she said ‘yes’.

The judge asked: “Well why did you keep him (in the detention centre) for seven years or whatever time period? Even if he had no documents, because I know, I looked at the documents and there were problems in how he was to be sent back to Kenya, you kept him there for seven years? That would be the question to be asked and you have no evidence to contradict anything that he said.

“To me it would be difficult for this court to accept anything in submissions unless you can say he was not there for seven years. I think there is no dispute as to that. Why was he kept there for so long? If you were trying to get documents for him, the least you could do is let him go on the streets until you find his documents but keeping him there for seven years…?”

Earlier, Ms Smith requested leave to file a witness statement on behalf of the Crown. Her request was denied. During case management proceedings, the judge directed that witness statements and all pieces of evidence be submitted to the court by November 23, 2018, a deadline the Crown missed. 

“I don’t know what your submissions could be in the absence of evidence,” Justice Charles said. “We have his evidence and, of course; it would have to stand. There isn’t anything you could materially do.”

In the court documents they did submit, Crown representatives cited the passing of the statute of limitations as a ground on which they would challenge Mr Smith’s case. The Crown could not explain this point yesterday, however, with Ms Smith saying it will be dealt with during her submissions.

The Crown’s cross-examination of Mr Ngumi produced few new details, though Ms Smith pressed him about the fact that he pleaded guilty to overstaying in 2001 and was deported to Cuba.