Log In

Reset Password

Lawyers call for magistrate’s case against police and AG to be struck out

Taking action: magistrate Khamisi Tokunbo is seeking damages for unlawful arrest and detention (File photograph)

Lawyers representing a police officer, the Commissioner of Police, and the Attorney-General — who are being sued by a magistrate for wrongful arrest and detention — have moved to have the case struck out.

Police constable Colin Mill arrested Khamisi Tokunbo after a road traffic accident in January 2019. The magistrate was later charged with failure to provide a breath sample.

But at a subsequent trial, the case was dismissed, with magistrate Valdis Foldats ruling that Mr Tokunbo’s detention after the crash was illegal because Mr Mill did not have “an honest subjective belief” that he had reasonable grounds to make the arrest.

Mr Tokunbo’s lawyer, Victoria Greening, of Resolution Chambers, filed a writ last year claiming that “the vicariously unlawful and unconstitutional arbitrary or oppressive actions or conduct by a servant of the Government have damaged the plaintiff’s reputation and caused the plaintiff pain, suffering and loss of amenity.

But at a hearing yesterday Allan Doughty, representing Mr Mill, said that the writ was an abuse of process.

Mr Doughty argued that Mr Tokunbo was erroneously pursuing a common law action and a constitutional action — and that he could not do both.

He claimed that the writ had been “re-re-re-amended” as the matter dragged through the courts, and that it was still not clear what Mr Tokunbo’s claim was.

He told Judge John Riihiluoma: “There have been so many do-overs granted to the plaintiff, it’s an abuse of process. The wheels are spinning but there’s no traction.

“This is a case that has died a death by a thousand cuts.”

Mr Doughty also accused Mr Tokunbo of trying to “double dip” — by seeking damages under common law and constitutional law.

He said: “The common law claim for wrongful arrest and false imprisonment is very light. The plaintiff is trying to sneak in a claim under the Constitution and that is an abuse of the court’s processes.

Mr Doughty added that the matter should be heard under common law in Magistrates’ Court — where compensation payouts for such offences amount to a few thousand dollars.

“There’s no way a constitutional claim can survive. It’s dead on arrival. You have to consider whether the case against Pc Miller is worth pursuing when it should have been pursued in Magistrates’ Court.”

Brian Myrie, representing the Attorney-General and the Commissioner of Police, also called for a strike-out order, claiming that his clients had no involvement in the arrest or detention of Mr Tokunbo, and therefore no liability.

He said: “The Commissioner of Police should not be a party and neither should the Attorney-General.

“It is the Governor who appoints police officers, who then stand alone.”

Ms Greening hit back, claiming that the writ had been properly drafted, and that it was correct for all three defendants to be named on the writ.

She cited case law in which cases against the police had been thrown out because the Attorney-General had not been listed as a defendant.

She said: “We have included the Attorney-General because the Attorney-General is the authority that oversees the police, although the Commissioner of Police is his employer.

“With the law on vicarious liability, there is a clear benefit in having all defendants named.

Also, she said that it was established practice under Bermuda’s unique Constitution to file separate claims that could eventually be consolidated in one hearing.

Ms Greening also said that the issue of damages was “far more expansive and complicated” than Mr Doughty had made out.

She said: “It is preposterous to suggest that the police can commit tortious actions and there is no redress or accountability for their actions by anyone because of technical procedural arguments.”

Mr Justice Riihiluoma will give his ruling at a later date.

It is The Royal Gazette’s policy not to allow comments on stories regarding court cases.