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Magistrate’s case against Attorney-General and police commissioner struck out

Magistrate Khamisi Tokunbo (File photograph by Akil Simmons)

A judge has struck out a civil case against the Commissioner of Police and the Attorney-General launched by magistrate Khamisi Tokunbo over his 2019 arrest.

However, Acting Puisne Judge John Riihiluoma ruled that a common-law case against police constable Colin Mill, the arresting officer, should be allowed to continue.

Mr Mill arrested Mr Tokunbo after a road traffic accident in Paget on January 19, 2019, and 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.

During the trial, the court heard evidence that Mr Mill told a witness he did not want to let “someone like this get away with this s**t”.

Mr Tokunbo subsequently launched legal actions against Mr Mills, as well as the Commissioner of Police and the Attorney-General.

He claimed that “the vicariously unlawful and unconstitutional arbitrary or oppressive actions or conduct by a servant of the Government” had damaged his reputation and caused him pain, suffering and loss of amenity.

However, at a hearing this year, counsel for the three respondents called for the case to be thrown out, arguing that Mr Tokunbo was erroneously pursuing a common law action and a constitutional action — and that he could not do both.

Allan Doughty, representing Mr Mill, added that it was unclear what Mr Tokunbo’s common law claim was as his Statement of Claim was not particular enough.

Brian Myrie, representing the Attorney-General and the Commissioner of Police, said that his clients had no involvement in the arrest or detention of Mr Tokunbo, and therefore no liability.

In a written judgment handed down late last month, Mr Justice Riihiluoma found that under Bermuda law, neither the Attorney-General nor the Commissioner of Police were vicariously liable for the actions of Mr Mills and struck out the claims against both.

The judge also struck out Mr Tokunbo’s constitutional claim against Mr Mills, stating that he had an alternative remedy — specifically his common law “tort” claim.

However, Mr Justice Riihiluoma declined to strike out the tort claim against Mr Mills.

“In my opinion, the tort claim Statement of Claim, read as a whole, adequately pleads with particulars the plaintiff’s common-law claim for unlawful arrest,” the judge said.

“The defendant should not have difficulty in pleading a defence, as the plaintiff’s case is reasonably clear on the face of the Statement of Claim.”

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