Emmanual Johnson Chijioke (First Applicant) v The Commissioner of Police of Saint Vincent and the Grenadines (First Respondent) The Superintendent of HM Prisons (Second Respondent) The Honourable Attorney General of Saint Vincent and the Grenadines (Fourth Respondent)
| Jurisdiction | St Vincent and the Grenadines |
| Judge | JOSEPH, MONICA J |
| Judgment Date | 21 October 2010 |
| Judgment citation (vLex) | [2010] ECSC J1021-2 |
| Docket Number | CLAIM NO. 232 of 2010 |
| Court | High Court (Saint Vincent) |
| Date | 21 October 2010 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
HIGH COURT CIVIL
HIGH COURT CIVIL
CLAIM NO. 232 of 2010
CLAIM NO. 233 of 2010
Mr. J. Thomas for the Applicants
Hon. Judith Jones-Morgan, Attorney General for the Respondents
This is the hearing on two Writs of Habeas Corpus ad subjiciendum filed on 2nd July 2010, upon application by first applicant Emmanual Johnson-Chijioke and second applicant Benjamin Fiifi Danquah. The applicants claim that they have been unlawfully detained in prison: the first applicant for four years six months (from 18th February 2006) and the second applicant for four years and eight months (from December 2005).
(1) a declaration that their incarceration was an illegal act of false imprisonment (2) an order that the applicants be immediately released from custody (3) an award of: (i) punitive and exemplary damages; (ii) damages and costs; (4) any further remedy that the court may deem necessary, proper and just.
At the hearing of the motions the third respondent, the Director of Public Prosecutions, was struck out from the proceedings. It was agreed that the applicants be released from the prison into the care of the Red Cross from 1st September 2010, and that counsel would file submissions.
Affidavits were filed by the applicants. For the respondents, affidavits were filed by Chief Immigration Officer Stanford Hamilton, Commissioner of Police Keith Miller and Superintendent of Prisons McLauren Rodriguez, who were cross examined; Director ofFamily Affairs Division, Camie Matthews; Senior Immigration Officer Kurt Noel, Chief Prison Officer Brenton Charles.
Issues stated by the Attorney General:
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A. Whether the applicants' detention at Her Majesty's Prison was unlawful.
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B. The impact, if any, which a prohibited immigrant's marriage may have on his status as a prohibited immigrant;
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C. Whether the right of the First and Second applicant to be free from torture, or inhuman or degrading punishment or other treatment was violated;
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D. Whether the first and second applicants are entitled to damages; and
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E. How should costs be allocated.
The first applicant Emmanual Johnson-Chijioke arrived in St. Vincent in 2001 landing in Bequia by boat—not at a port of entry and without the assent of an immigration officer.
He lived in Bequia for sometime until he was taken in to custody by members of the Royal Saint Vincent and the Grenadines Police Force (the police). He was released into the care of a citizen of the Saint Vincent and the Grenadires. Kenneth Joff, a Nigerian by birth who stood as surety. Information reached the police authorities that Mr. Joff was involved in drug trafficking in the State. Information also reacted the police that the first applicant had become involved in an illegal drug trafficking ring operating out of Bequia, through the Southern Grenadines and Grenada. The police tried to pursue him but he eluded them and travelled to Grenada by speedboat.
In Grenada he married a Vincentian Latoya Williams. He returned to St. Vincent and on 20th April 2004 registered in North Windward Constituency and was issued a Vincentian National Identification Card No. 009604. The first applicant travelled to Saint Lucia by boat where he remained for two years.
About 14th May, 2006, the Saint Lucian Immigration authorities arrested the first applicant. He was deported from Saint Lucia to Saint Vincent and the Grenadines.
On his return to the State he had no valid travel documents. He had a partially burnt Vincentian identification card. The first applicant was charged with a breach of Section 7 of the Immigration (Restriction) Act (Cap 78) of the Revised Laws of Saint Vincent and the Grenadines (The Immigration Act). On 9th June 2006, the applicant answered the charge in the Kingstown Magistrate's Court. On 16th June, 2006, the Senior Magistrate made a deportation order and ordered that the first applicant be remanded in custody pending deportation.
While detained in Her Majesty's Prison (the prison) the first applicant, by a letter dated 1st November 2007, from Attorney at Law A. Williams to the Secretary to the Cabinet applied, unsuccessfully, to the Government of the State for residency and citizenship. The ground of his application was that, because of the civil war in Liberia, he could not return to that country.
That letter stated that he was born in the Republic of Liberia on 16th January, 1969. Attached was a copy of birth certificate—original of which is in the possession of the Immigration Department.
The second applicant Benjamin Fiifi Danquah arrived in the State from Trinidad and Tobago on Caribbean Star Airlines on 5th August, 2005. He indicated to an immigration officer that he was Simon Patuka. He presented a South African passport in that name, containing his photograph which bore the number 4153298407, issued on 30th July 2001.
He also presented a valid return ticket to South Africa through Trinidad and Tobago and London. The immigration officer permitted him to enter on a two weeks visitor's visa as authorized by Section 18 of the Immigration Act. He visited the Ministry of Foreign Affairs where he unsuccessfully applied for refugee status.
On 9th August 2005 the second applicant, utilizing the South African passport, left the State for the British Virgin Islands via Antigua. He was denied entry into the British Virgin Islands and was deported, returning to the State without any travel documents. The immigration authorities charged him, in the name of Simon Patuka, with a breach of Section 7 of the Immigration Act, which was heard at the Kingstown Magistrate's Court on 19th August, 2005. On a finding of guilty it was ordered that he be deported to South Africa and that he be detained at the prison pending deportation.
The Immigration Department prepared an emergency travel document for Simon Patuka, and, on 13th October 2005, deported him. The second applicant returned to the State on the same day having been denied entry by the immigration authorities in Barbados. He was detained in custody.
The second applicant (as Simon Patuka) was charged with a breach of Section 7 of the Immigration Act, which charge was heard at the Kingstown Magistrate's Court on 14th December 2005. Following a finding of guilty the second applicant was ordered to be deported from the State and to be detained at the prison pending deportation.
Where the State mounts a response to a writ of habeas corpus which, on its face, demonstrates that the detention of the individual is lawful, an applicant for a writ of habeas corpus bears the burden of proving that his detention in the State is unlawful. The Attorney General citedRe Wajid Hassan (1976) 2 AER 123.
Further, the Attorney General submitted, the legality of an individual's detention should be evaluated with respect to these reference points: the initial arrest of the individual and the procedure observed: the period for which the individual is detained and the necessity and reasonableness of that period.
An individual who enters the state is entitled to the protection of the laws of the State and is subject to its requirements and penalties, thus supporting the legal truism that one cannot have the benefits without the burdens. The Constitution of the State makes provision for the protection of one's liberty but there are exceptions, one such exception is the deprivation of liberty for the purpose of effecting an individual's expulsion, extradition or lawful removal from the jurisdiction.
The Attorney General submitted that the law that provides for the detention of an individual prior to his lawful removal from the State is the Immigration Act which law gives a definition of prohibited immigrant.
That definition includes an individual who did not enter the State at a port of entry, or without the consent of an immigration officer, in the case of the first applicant, or without a passport, in the case of the second applicant. The later presented a South African passport in the name of Simon Patuka that had not been issued by the South African authorities. Presenting a passport that is not genuine, submitted the Attorney General, is equivalent to being without a passport.
The State authorities have a legal right to detain someone ordered deported by the court but legal authorities make the following points:
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(a) The power to detain exists only when removal is pending.
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(b) Removal cannot be said to be pending unless it is possible to effect it within a reasonable time.
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(c) If removal cannot be effected in a reasonable time then the deportee has to be released
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(d) Where removal was not pending detention is unlawful and the detainee must be released and compensated.
The State did little or nothing to effect the removal and repatriation of the applicants but warehoused the applicants for more than four years and six months, in the case of the first applicant, and four years and eight months in the case of...
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