Tokunbo v Commissioner of Police and Ors

• Jurisdiction: Bermuda
• Judgment Date: 20 April 2023
• Court: Supreme Court (Bermuda)
• Docket Number: Civil Jurisdiction 2021 No 47 and 2022 No 66

Between:

Khamisi Tokunbo

Plaintiff

and

Commissioner of Police

Attorney General

PC Colin Mill

Defendants

[2023] Bda LR 38

Civil Jurisdiction 2021 No 47 and 2022 No 66

In The Supreme Court of Bermuda

Unlawful arrest — Damages — Application to strike out statement of claim — Vicarious liability — Scope of constitutional claims

The following cases were referred to in the judgment:

Worrell v Director of Public Prosecutions and Ors [2022] Bda LR 103

Akinstall v Commissioner of Police [2004] Bda LR 68

Ms V Greening for the Plaintiff

Mr B Myrie for the 1^st and 2^nd Defendants

Mr A Doughty for the 3^rd Defendant

JUDGMENT of Riihiluoma AJ

1. This matter comes before me on applications brought by the Defendants to strike out two Statements of Claim brought by the Plaintiff claiming damages for unlawful arrest.

Background

2. The Plaintiff is a Magistrate. On 19 January 2018 the Plaintiff was involved in a single vehicle road traffic accident in Paget. The Plaintiff was arrested by the Third Defendant, a police officer on charges of having care and control of a vehicle whilst impaired and failing to provide sample of breath. The claims against First and Defendants are based on vicarious liability.

3. Following a two week trial in Magistrates' Court the Plaintiff was acquitted of all charges on 19 October 2019. The Plaintiff relies heavily on the judgment of Acting Magistrate Foldats to support his claim that his arrest was unlawful.

The statements of claim

4. Both Statements of Claim rely upon the same facts. Action 2021: No 47 is a claim for damages based on the tort of unlawful arrest (“the tort claim”). Action 2022: No. 66 is a claim for damages for unlawful arrest based upon alleged breaches of the Plaintiff's constitutional rights (“the constitutional claim”).

The First and Second Defendants' case

5. Mr Myrie for the First and Second Defendants case is straight forward, under Bermuda law the First and Second Defendants are not vicariously liable for the actions of serving police officers. He relies on the Decision of Hargun CJ in Worrell v The Director of Public Prosecutions and others[2022] Bda LR 103. The Chief Justice approved and followed Kessaram AJ's judgments in Akinstall v Commissioner of Police[2004] Bda LR 68 which makes clear that as a matter of Bermuda law the Commissioner of Police is not vicariously liable for the actions of police officers. The Chief Justice found that same principle applied to the Director of Public Prosecutions.

6. Ms Greening on behalf of the Plaintiff argued...