TRINIDAD AND TOBAGO IN THE COURT OF...
Transcript of TRINIDAD AND TOBAGO IN THE COURT OF...
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TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Civil Appeal No: 216 of 2009
BETWEEN
CENTRAL BROADCASTING SERVICES LIMITED
AND
SANATAN DHARMA MAHA SABHA OF TRINIDAD AND TOBAGO
Appellants
AND
ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
Respondent
*************** PANEL: R. NARINE J.A.
G. SMITH J.A.
M. RAJNAUTH-LEE J.A.
Appearances: Mr. V. Nelson Q.C., Mr. G. Ramdeen and Mr. K. Samlal Instructed
by Mr. A. Mohammed for the Appellants. Mr. R. Martineau, S.C., Ms. M. Smith and Mr. S. Alsaran instructed by Ms. S. Sharma for the Respondent.
Date Delivered: 29th July, 2013
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I have read the judgment of Narine J.A. and agree with it.
G. Smith Justice of Appeal.
I too, agree.
M. Rajnauth-Lee
Justice of Appeal.
JUDGMENT Delivered by R. Narine J.A. 1. This is an appeal against the assessment of damages in favour of the Appellants
for breach of their constitutional rights to equality of treatment from a public authority,
and freedom of expression contrary to section 4(d) and 4(i) of the constitution. The
material facts, as found by the Judicial Committee of the Privy Council are as follows.
In December 1999 the Second Appellant (S.D.M.S) applied for a radio broadcasting
licence. In August 2000, SDMS incorporated the First Appellant (C.B.S.L.) On 1st
September 2000, CBSL submitted an application for a radio licence. On 10th October
2000 the Director of the Telecommunications Division wrote to the Permanent
Secretary of the Ministry of Communications and Information Technology stating that
CBSL’s application had met all necessary criteria and that the Division had no objection
to the grant of a broadcasting licence.
2. However, no decision was made regarding the grant of a licence. The Appellants
wrote to the ministry requesting information. By letter of 5th March 2001 the Permanent
Secretary responded that he would investigate and get back to them shortly. By
memorandum dated 15th March 2001, the Director of Communications reminded the
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Permanent Secretary of his earlier communication and advised that the SDMS’s
application was sent under the name of CBSL with his recommendation.
3. The Appellants received no further communication with respect to their
application. In August 2002, they became aware that a radio broadcasting licence had
been granted to Citadel Limited (Citadel) whose directors were Mr. Louis Lee Sing and
Mr. Antony Lee Aping.
4. In December 2001, there was a change of government. The new Minister of
Science Technology and Tertiary Education (under whose portfolio the grant of
broadcast licences fell) was Mr. Hedwidge Bereaux. In a media conference on 1st
August, 2002, Mr. Bereaux stated that Citadel had applied for its licence on 13th March,
2001. Citadel was in fact incorporated on 28th August 2001.
5. The Appellants brought a constitutional motion on 16th August 2002 claiming,
inter alia, declarations that their rights to equality of treatment, freedom of conscience
and/or religious belief and/or freedom of thought and expression had been denied, and
sought an order directing the grant of radio licences to the Appellants.
6. At first instance on 4th February, 2004 Best J held that there had been unequal
treatment contrary to section 4(b) and (d) of the constitution, but found it unnecessary
to consider whether there were breaches of the rights to freedom of conscience and
religious belief and freedom of thought and expression contrary to section 4(h) and (i).
The judge declined to make an order directing the Cabinet to grant a licence on the
basis that such an order would amount to a usurpation of Cabinet’s power to make the
decision.
7. By letter dated 11th February 2004, SDMS wrote to the Prime Minister enclosing
a copy of the judgment and asking that a licence be granted by 20th February, 2004.
The Minister of Public Administration and Information replied on 25th February 2004,
stating that the matter was receiving attention, and further correspondence would follow,
There was no further correspondence.
8. The Appellants appealed to the Court of Appeal, which heard the matter in
October 2004 and delivered judgment in January 2005.
9. The Court of Appeal upheld Best J’s finding of discrimination and agreed with
him that it was unnecessary to consider the further breaches of sections 4(h) and (i) of
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the constitution. The court, however, dismissed the Appellents’ appeal seeking an order
for the grant of a licence, and ordered that the matter be placed before the Cabinet for
its consideration within 28 days.
10. There was a further hearing before the Court of Appeal in which the Respondent
asked the court to review its decision in light of the Telecommunications Act 2001,
which came into force on 30th June 2004. It was submitted that the regime for the grant
of licences under the Wireless Telegraphy Ordinance no longer applied. The
suggestion was that the Appellants would now have to submit a new application to the
Telecommunications Authority.
11. The Court of Appeal rejected the submission, holding that the transitional
provisions of the 2001 Act preserved the power of the President to grant licences on the
advice of Cabinet in respect of pending applications. The court noted that it understood
from counsel that Cabinet had already considered the application in compliance with the
order of the court and directed that the cabinet should advise the President within 28
days if it had approved the application. If it had refused the application, it should so
advise the CBSL within 28 days, giving reasons for the refusal.
12. On 12th May 2005, the Appellants obtained final leave to apply to the Judicial
Committee of the Privy Council. On 17th May 2005, the Permanent Secretary in the
Ministry of Public Administration and Information wrote to the CBSL disclosing for the
first time that Cabinet had considered its application on 19th February 2004 and 11th
March 2004 and had decided to refuse the application on 24th June, 2004.
13. The Judicial Committee of the Privy Council found the contents of the letter of
17th May 2005 to be remarkable, inter alia, for the following reasons:
(i) Until the letter of 17th May 2005, no steps were taken to notify the Appellants
of the refusal of the licence.
(ii) The Court of Appeal had been allowed to proceed under a “serious
misapprehension” through the course of two substantial hearings that is, that
Cabinet had never considered the application. In fact, according to the letter,
cabinet had twice considered the application and had refused it since June
2004, well before the first hearing in October 2004, and almost a year before
the second hearing.
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(iii) There was no consideration or re-consideration of the matter by Cabinet in
compliance with the Court of Appeal’s first judgment as was conveyed to the
court during the second hearing. On the contrary, the refusal in June 2004 is
inconsistent with any reconsideration or compliance with the Court of
Appeal’s first order.
14. Before the Board, counsel for the Respondent conceded that the position was
“unusual and unsatisfactory”. The Board described the concession as “an
understatement”. Their Lordships further found that the State’s handling of CBSL’s
licence application was “arbitrary or capricious”. It found that it was “highly regrettable”
that the Court of Appeal was allowed to proceed on false premises. In the light of the
“exceptional circumstances” not revealed to the Court of Appeal, the Board allowed the
appeal, and issued a mandatory order that the Respondent should do all that is
necessary to procure and ensure the issue of a radio broadcasting licence forthwith to
CBSL. In spite of the strong language used by the Board the licence was not granted
until 22nd September 2006, more than two months after the order was made.
15. The Board further found that there was a breach of CBSL’s right to freedom of
expression contrary to s. 4(i) of the Constitution. In doing so, the Board found that there
was a “conspicuous failure to deal with the application over the years”, and
“unexplained and unjustified discrimination” in favour of Citadel. In addition the Board
upheld the lower court’s finding that there was a breach of the right to equality of
treatment from a public authority in the exercise of its functions contrary to s. 4(d) of the
constitution.
16. Pursuant to the order of the Court of Appeal, Boodoosingh J assessed damages
for breach of the Appellant’s rights. He awarded the sum of $952,890.00 as
compensatory damages, and $500.000.00 for vindicatory damages, and ordered the
Respondent to pay the Appellants’ costs certified for one advocate and one instructing
Attorney.
17. The Appellants appealed the quantum of compensatory damages awarded,
contending that the judge should have used a higher figure as the base figure for his
calculation. The appellants also appealed the order for costs, claiming that the judge
should have certified costs for two counsel having regard to the novelty, complexity and
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importance of the matter. The Respondent filed a cross-appeal on the basis that the
award of both vindicatory and compensatory damages was too high.
18. The issues that arise for decision are broadly:
(i) Whether the judge’s assessment of compensatory damages was inordinately
low or high.
(ii) Whether the award of vindicatory damages was inordinately high.
COMPENSATORY DAMAGES:
19. The Appellants are entitled to compensation for loss of earnings incurred during
the period in which they were wrongfully denied the broadcasting licence. (See:
Maharaj v. Attorney General No. 2 (1978) 2 All ER 670).
20. It is well settled that an appellate court will not substitute its own award for that of
a lower court merely because it considers that the award is too high or too low. The
appellate court will only interfere with the award if it is persuaded that the judge has
misdirected himself on the law or on the facts. The gap between what the Court of
Appeal considers to be within the range of a proper award, and the award actually made
by the judge must be so great as to render the latter a wholly erroneous estimate of the
loss suffered: per de la Bastide CJ in Bernard v. Quashie Civ. App. No. 159 of 1999 at
page 4.
21. In this case the trial judge received the evidence of Mr. Satnarayan Maharaj, the
Secretary General of the SDMS, and Mr. Devant Maharaj the Chief Executive Officer of
CBSL. Both witnesses filed affidavits and were cross-examined by counsel for the
Respondent. It emerged from the cross-examination of Mr. S. Maharaj that CBSL has
been able to attract significant corporate advertisers. The trial judge found both
witnesses to be credible and was impressed by their efforts to assist the court with
information when requested to so. He found both witnesses to be truthful.
22. Mr. D. Maharaj has a degree in Commerce with a double major in Marketing and
Management of Human Resources. CBSL began broadcasting in January 2007. It was
the first Hindu radio station in Trinidad and Tobago catering for religious programming,
and had a unique share of the advertising market.
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23. Mr. D. Maharaj prepared estimates for CBSL for the years 2001-2006, with the
guidance of its accountants. These estimates included:
- Estimated Income Statements for 2001-2006
- Estimated Cash Flow for 2001-2006
- Personnel Plan for 2001-2006
- Fixed Assets Estimates for 2001-2006
- Estimated Balance Sheets for 2001-2006
- Estimated Income Statement for February-June 2007
24. The trial judge considered these documents, and found that they assisted him in
determining the reasonableness of the expenses and revenue. There was thorough
cross-examination on the documents which revealed that there was some under-
estimating of the expenses which would have been incurred in earning the revenue.
Generally however, the trial judge found the estimates to be “fairly reasonable”.
25. Mr. D. Maharaj testified that CBSL declared a net profit of $412,461.00 for its first
year of operation in 2007. A copy of a Corporation Tax Return for 2007 was exhibited
to his affidavit. In the absence of contradictory evidence the trial judge accepted on a
balance of probabilities, that the tax return represented the net profit of CBSL for the
year 2007. The trial judge considered the return to be a statement against interest
since the higher the profit declared, the higher would be CBSL’s tax liability.
26. Mr. D. Maharaj was subjected to a detailed cross-examination on the estimated
expenses which revealed that some items of expenditure were understated or omitted,
including travelling expenses, copyright fees, broadcast licence fees, commissions,
certain stationery expenses, and national insurance payments. The trial judge did not
find that there were gross omissions. He estimated the omissions would have reduced
net profits by approximately 10%. In arriving at his conclusion the trial judge noted that
he considered the cross-examination a whole. He was persuaded by Mr. D. Maharaj’s
evidence that the operating expenses were fairly stated and noted that the witnesses
were cooperative in facilitating the Respondent’s requests for further information during
the assessment.
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27. The trial judge went on to consider the estimates of profit provided by CBSL for
the years 2001 to 2006. For 2001, the projected profit was $245,440.00. The profit for
the year 2002 was projected to grow by 160% to $639,793.00 followed by growth rates
of 21%, 17%, 15% and 13% for the year 2006, for which the estimated profit was
$1,177,217.00.
28. Having found that the operating expenses were understated by approximately
10%, the judge discounted the figure of $245,440.00 by 10% arriving at a profit of
$225,000.00 for the first year of operation. He decided that compensation should be
assessed from August 2002, which was the time at which the broadcast licence was
granted to Citadel.
29. In assessing the profit for the second year of operation, the trial judge rejected
the projected growth rate of 160% as estimated by the Appellants. In the absence of a
detailed explanation for such a large increase, and taking into account the inherently
speculative nature of the exercise, the trial judge was prepared to use a more
conservative growth rate of 20% followed by 10% for successive years. From the base
profitability figures so calculated, the trial judge then adjusted the figures using the
approximate rates of corporation tax for the years 2002 -2006. By this method he
arrived at a figure of $892,890.00 as loss of profit for the years 2002-2006.
30. The trial judge awarded a further $60,000.00 as compensatory damages, for the
delay of two months between the making of the mandatory order of the Privy Council
made on 4th July 2006 and the actual granting of the licence on 22nd September 2006.
This was based on a pro rata calculation of $30,000.00 a month having regard to the
declared profit of $412,461.00 for the first year of operation.
31. The Appellants contend that the judge should have used the sum of $412,461.00
for the base year figure for 2002. This was the net profit that CBSL achieved in their
first year of operation in 2007, in a more competitive market than obtained in 2002. In
the Appellants’ submission, it is not unreasonable to conclude that CBSL would have
achieved at least the sum of $412,461.00 if it had started 2002.
32. The Appellants further submitted that the judge erred in law in rejecting the
projected growth rates for profits for the years 2003-2006, and substituting the more
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conservative rates. In their submission the substituted growth rates are not supported
by the evidence.
33. Based on a base year figure of $412,461.00 and applying the Appellants’
projected growth rates, the Appellants submit that the trial judge should have award the
sum of $2,818,787.00. Alternatively, using the estimated profit of $245,440.00 (as
submitted in the Appellants’ estimates of profit) and applying the Appellants’ projected
growth rates, the Appellants’ estimate that they lost $1,677.353.00 in profit for the years
2002 to 2006. This figure, in the Appellants’ view, is the minimum figure that should
have been awarded for loss of profits.
34. The Appellants’ changed their position somewhat in their oral submissions.
Before us, Mr. Nelson put forward three possible approaches that the court could adopt,
all based on the use of the profit figure of $412,461.00 which was actually achieved in
the first year of operation in 2007. In Mr. Nelson’s submission the use of the figure
which was actually achieved in 2007, is a more reliable guide and is less speculative
than the use of projected estimates. In Mr. Nelson’s words the year 2007 “ is your
marker because you are not projecting into a vacuum, you are projecting into a certainty
at the very least for 2007”.
35. The three possible approaches put forward by Mr. Nelson were:
(i) Take the sum of $412,461.00 for 2007 and work backwards to the year 2002.
(ii) Alternatively, use the figure of $412,461.00 as the starting point in 2002 and
work forward to the year 2006, using the growth rates applied by the trial
judge.
(iii) Use a reduced figure of $350,000.00 for the year 2002 and work forward to
2006.
36. Using the first approach, if one applies the projected growth rates going
backwards one would arrive at an extremely low starting figure for 2002. This is
because of the higher projected growth rates suggested by the Appellants. If one
applies the growth rates suggested by the trial judge the starting figure for 2002 would
be marginally higher than the one used by the trial judge. In fact in their written
submissions the Appellants acknowledged that the growth rate used by the trial judge
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would have yielded a net profit of $395,307.00 in 2007. This figure is remarkably close
to the actual profit of $412,461.00 realized for that year.
37. Using the second approach suggested by the Appellants, and applying the
growth rates used by the trial judge, the projected net profit for 2007 would be more
than double the actual profit realized in 2007. Using the figure of $783,764.00 as the
net profit after taxation for 2005 (as set out in the Appellants’ written submissions) and
applying increases of 10% for the years 2006 and 2007, gives a net profit of
$862,140.40 for the year 2006 and $948,354.44 for the year 2007. Clearly this
approach would yield a grossly inflated net profit for 2007.
38. Using the figure of $350,000.00 as net profit for the year 2002, which is put
forward as a compromise figure is also problematic. In the first place, there is no
evidential basis to support the use of this figure. In addition, whichever growth rates are
used, the result will be an inflated figure well above the net profit actually achieved in
2007. Using the growth rate applied by the judge the starting figure of $350,000.00
yields a net profit of $420,000.00 for 2003, $462,000.00 for 2004, $508,200.00 for 2005,
$559,020.00 for 2006 and $614,922.00 for 2007. If the projected growth rates
suggested by the Appellants are used, the distortion will be even greater.
39. The mathematical exercise carried out above illustrates that the second and third
methods by Mr. Nelson would yield results which are disproportionate and inconsistent
with the net profit actually achieved for 2007. Mr. Nelson’s first method of using the net
profit figure of $412,461.00 for 2007 and working backwards, produces an appreciably
smaller starting figure for 2002, if the Appellants’ suggested growth rates are used. If
the growth rates applied by the judge are used however, the starting figure will be closer
to the figure of $225,000.00 which the trial judge used as a starting figure in 2002. As
the Appellants conceded, the judge’s method of calculation produces a net profit of
$395,307.00 for 2007. The difference is approximately $17,000.00. Spread over a
period of 5 years, and considering the application of a growth rate of 20% for the first
year followed by 10% in successive figure, the difference in the starting figure used by
the judge, and the starting figure which would yield the sum of $412,461.00 in 2007
must be miniscule. Accordingly, the method used by the trial judge is remarkably
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consistent with the first approach suggested by Mr. Nelson, of using the figure actually
realized for net profit in the first year as “a marker” and working backwards.
40. It must be borne in mind that in assessing the loss of profit suffered by the
Appellants for the years 2002-2006, the judge used as his starting figure an estimate
put forward in evidence by the Appellants. The judge discounted this figure by 10% to
take into account operating expenses which were underestimated or omitted. In using
the estimates provided by the Appellants the trial judge cannot be faulted. Even so, as
it turns out the trial judge’s assessment yields a figure for net profit which is marginally
less than that actually realized for the year 2007. As noted earlier, an appellate court
does not lightly interfere with a judge’s assessment of damages. The court will only
interfere if it finds that the award was a wholly erroneous estimate of the damage
suffered. Having regard to the marginal difference in the result using the judge’s
approach, there can hardly be any justification for interfering with the judge’s
assessment.
41. The Respondent submitted that the award of compensatory damages was
against the weight of the evidence. Specifically, the Respondent contended that:
(i) There was no proper evidence of what the profits would have been over the
period August 2002 to September, 2006. The estimates of income for the
period were purely speculative, unsupported by documentary evidence and
failed to provide details of the sources of income.
(ii) The income tax return for the year 2007 was incomplete and unreliable and
was not supported by any documentation showing how the revenue figure
stated therein, was arrived at. Further, the alleged profits for 2007 could not
provide a guide for the years 2002 to 2006.
(iii) The trial judge awarded compensatory damages up to September 2006,
when the licence was actually granted. There was no basis for an award of
damages for a further two months. There was no causal connection between
the breach of the Appellants’ constitutional rights and the loss of profits
caused by the late arrival of equipment to start up operations.
42. In assessing loss of profits for the years 2002-2006 the trial judge considered
estimates of income and expenditure prepared by Mr. Devant Maharaj with the
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guidance of CBSL’s accountants Haddaway and Company. Mr. D. Maharaj was the
Chief Executive Officer of CBSL. He had held a senior position at the National
Lotteries Control Board. As noted earlier he has a degree in Commerce with a double
major in Marketing and Management of Human Resources. The trial judge considered
his evidence carefully and found him to be a truthful witness, who was willing to assist
the court as best he could, and he was subjected to a rigorous cross-examination,
during which he readily conceded when omissions of expenses were put to him. The
trial judge in fact found that there was some underestimating of expenses for which he
made an adjustment of 10% from the estimated profit for the year 2002. Generally
speaking, he found the estimates to be fairly reasonable.
43. The trial judge accepted Mr. D. Maharaj’s evidence that he signed the
corporation tax return for 2007 and gave it to the accountant for filing. On a balance of
probabilities the trial judge found as a fact that the copy presented at the assessment
was CBSL’s tax return for the year 2007. However, the judge did not assess loss of
profits for the years 2002 to 2006, based on the profit declared in the 2007 return. In
assessing loss of profit for those years the judge used the estimated profit for the years
2001 as contained in the estimate income statement for CBSL for the years 2001 to
2006, which he reduced by 10% to reflect underestimating of expenses. He used this
figure as the starting figure for the year 2002.
44. The difficulty with an assessment of this kind arises from the fact that there can
be no documentation providing evidence of income or expenditure actually incurred.
Inherent in the exercise is a certain amount of speculation and guesswork guided by
undisputed facts and a reasoned approach to assessing the evidence. In this case
there was undisputed evidence before the court that CBSL was catering for a particular
sector of the Hindu market. The Hindu advertising market was approximately 25-35%
of the national market. In its first year of operation CBSL was able to attract significant
corporate advertisers. CBSL had the backing of SDMS, a body which exercised
influence over a significant section of the Hindu population, and which was able to
provide substantial capital support. In 2007, in a more competitive market than that
which obtained in 2002, CBSL was able to achieve a substantial profit in its first year of
operation.
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45. From these and largely undisputed facts, the trial judge reasoned that in 2002
CBSL would have made “a fair profit”. He went on to consider the evidence carefully.
He was assisted in coming to his findings of fact by a very thorough cross-examination.
His approach was reasoned, meticulous and restrained. In principle we can find no
reason for disturbing his award of compensatory damages based on his findings of fact
and his assessment of the credibility of the witnesses.
46. As indicated earlier on 4th July 2006 the Privy Council granted a mandatory order
that the Respondent should “do all that is necessary to procure and ensure the issue
forthwith” of a radio broadcasting licence to CBSL. On the same day that the order was
granted, the Attorney General wrote to the Chairman of the Telecommunication
Authority informing him of the order. In spite of the strong wording of the order, and the
immediate action of the Attorney General, no licence was issued to CBSL until 22nd
September, 2006. The trial judge found that had there been timely compliance with the
order, CBSL would have been able to receive their equipment and would have been
able to start operating by November, 2006 instead of January 2007. Accordingly, the
trial judge granted compensation for this two month delay in the sum of $30,000.00 per
month for two months. We have not been persuaded that the trial judge was wrong to
grant reasonable compensation for loss of profit occasioned by the delay, which in our
view compounds and exacerbates the breach of CBSL’s constitutional rights as found
by the Privy Council.
VINDICATORY DAMAGES:
47. The conceptual difference between compensatory damages and vindicatory
damages for breach of a constitutional right was enunciated by Lord Nicholls in the case
of The Attorney General of Trinidad and Tobago v. Siewchand Ramanoop (2005)
UKPC 15 at paragraphs 18 and 19:
“18. When exercising this constitutional jurisdiction the court is
concerned to uphold, or vindicate, the constitutional right which
has been contravened. A declaration by the court will articulate
the fact of the violation, but in most cases more will be required
than words. If the person wronged has suffered damage, the
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court may award him compensation. The comparable common-
law measure of damages will often be a useful guide in assessing
the amount of this compensation. But this measure is no more
than a guide, because the award of compensation under s 14 is
discretionary and, moreover, the violation of the constitutional right
will not always be co-terminous with the cause of action at law.
19. An award of compensation will go some distance toward
vindicating the infringed constitutional right. How far it goes will
depend on the circumstances, but in principle it may well not
suffice. The fact that the right violated was a constitutional right
adds an extra dimension to the wrong. An additional award, not
necessarily of substantial size, may be needed to reflect the sense
of public outrage, emphasise the importance of the constitutional
right and the gravity of the breach, and deter further breaches. All
these elements have a place in this additional award. ‘Redress’ in
s 14 is apt to encompass such an award if the court considers it is
required having regard to all the circumstances. Although such an
award, where called for, is likely in most cases to cover much the
same ground in financial terms as would an award by way of
punishment in the strict sense of retribution, punishment in the
latter sense is not its object. Accordingly, the expressions
‘punitive damages’ or ‘exemplary damages’ are better avoided as
descriptions of this type of additional award.” (emphasis added)
48. Subsequent pronouncements of the Privy Council have emphasized that the
purpose of an award of vindicatory damages is not to punish the executive but to
vindicate the right. However, a legitimate purpose of such an award is to deter further
breaches by the executive. The size of the award is at the discretion of the trial judge.
It will depend on the nature of the particular infringement and the circumstances of the
case. See: Tamara Merson v. Drexel Cartwright and The Attorney General of the
Bahamas (2005) UKPC 38 at paragraph 18, and Angela Inniss v. Attorney General
of Saint Christopher and Nevis (2008) UKPC 42 at paragraph 27.
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49. The discretion of the court to award damages or to fashion an appropriate
remedy to suit the particular circumstances of the case is not to be fettered. The
importance of this discretion was emphasized by Sharma J.A. (as he then was) in the
case of Ramnarine Jorsingh v. Attorney General (1997) 52 W.I.R. 501 at 512, where
he was construing the language of section 14(2) of the constitution.
“The breadth of the language of subsection (2) is clear. The court
is mandated to do whatever it thinks appropriate for the purpose of
enforcing or securing the enforcement of any of the provisions
dealing with the fundamental rights. There is no limitation on what
the court can do. Any limitation of its powers can only derive from
the Constitution itself. Not only can the court enlarge old
remedies; it can invent new ones as well, if that is what it takes or
is necessary in an appropriate case to secure and vindicate the
rights breached. Anything less would mean that the court itself,
instead of being the protector, defender and guarantor of the
constitutional rights, would be guilty of the most serious betrayal”.
50. In this case the trial judge made an award of $500,000.00 for vindicatory
damages. Undoubtedly this is the highest such award ever made in this jurisdiction. In
considering whether this was an appropriate case for the award of vindicatory damages,
and if so, the amount that should be awarded under this head, the trial judge expressed
referred to the principles set out in Ramanoop (supra), Merson (supra) and Inniss
(supra). He also considered the importance of the right to equal treatment of treatment
by a public authority and the right of freedom of expression in the peculiar historical and
social context of Trinidad and Tobago.
51. In considering the importance of these rights the trial judge expressly referred to
the following facts:
(i) SDMS is a religious, educational and cultural organization which caters to a
large segment of the Hindu population.
(ii) The effect of the breaches of the rights to equality of treatment and freedom
of expression would have impacted not only on the Appellants, but also on a
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large segment of the population who would have identified with CBSL’s radio
station.
(iii) Non-Christians have historically felt discrimination in the society.
(iv) The radio station would have provided a channel to air religious, cultural and
educational material, social perspectives and even political views. In a plural
society, it can be used to reach one group and even to influence other
groups.
(v) In a society in which many citizens depend on the resources of the state, and
in which the state’s reach is wide, equal treatment form public authorities is of
great importance even more so in a plural society where persons of different
ethnicity compete for state resources.
(vi) The consequences of unequal treatment can be particularly severe in a multi-
ethnic, multi-racial and multi-religious society, where perception of unequal
treatment can lead to alienation and social unrest.
52. In addition to the social and historical factors outlined above the trial judge
expressly alluded to, inter alia:
(i) The unexplained and unjustified discrimination in favour of Citadel Limited.
(ii) The unexplained delay in dealing with the application after it was
recommended since 2000.
(iii) The failure to notify the Appellants of Cabinet’s decision of 24th June 2004.
(iv) The fact that the Court of Appeal was allowed on two occasions to proceed
under “a serious misapprehension” and to give judgment “on false premises”.
(v) The unjustified delay in complying with the mandatory order of the Privy
Council made on 4th July, 2006.
53. Having considered all of the above facts, and acknowledging that the award of
$500,000.00 is significantly higher than previous awards in this jurisdiction, the trial
judge asserted that this award was primarily intended to deter public authorities and
persons entrusted with public functions from engaging in or persisting in unequal
treatment.
54. In support of his cross-appeal the Respondent submitted that the award of
vindicatory damages was inordinately high, and must have contained a punitive
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element. In addition, the Respondent contended that the trial judge took into account a
number of irrelevant considerations, some of which are set out in paragraph 51 above.
55. In support of his submissions that the award was inordinately high the
Respondent referred us to a number of local decisions in which the award for
vindicatory damages varied from $30,000.00 to $80,000.00. A number of these cases
involved the deprivation of liberty. In Ramanoop (supra) which involved breaches of
the right to liberty and security of the person, an award of $60,000.00 was made. In
Robert Naidike v. The Attorney General Civ. App. No. 86 of 2007, the Applicant was
awarded the sum of $75,000.00 in vindicatory damages. In Khimrajh Bissessar v.
The Attorney General of Trinidad and Tobago H.C.A. No. S490 of 1998, the
Applicant was awarded the sum of $80,000.00 in vindicatory damages for breach of his
rights to equality of treatment from a public authority, and equality before the law and
protection of the law. This matter involved a senior prisons officer who had been
repeatedly by-passed for promotion.
56. We have been referred to one decision arising from a regional jurisdiction, in
which damages awarded for breach of the Applicant’s constitutional rights were
appreciably higher than local awards. This was the Bahamian case of Merson v.
Cartwright and anor. (2002) 67 W.I.R. 17, in which the Appellant sued Cartwright, a
police officer and the Attorney General of the Bahamas for damages for assault and
battery, false imprisonment malicious prosecution and contravention of her
constitutional rights. These rights included her right not to be subjected to inhuman or
degrading treatment, her right to personal liberty, her right to be informed promptly of
the reasons for her arrest and detention and her right to retain, instruct and hold private
communication with a legal representative of her choice. The trial judge awarded her
$8,160.00 for special damages, $90,000.00 for assault, battery and false imprisonment
$90,000.00 for malicious prosecution and $100,000.00 for breach of her constitutional
rights. The Bahamian Court of Appeal set aside the award of $100,000.00 as being a
duplication of damages awarded for the tortious conduct of the Respondents. The
award of $100,000.00 for breach of her constitutional rights was restored by the Privy
Council. While the Board noted that there was an absence of details as to the elements
comprised in each award, and in particular the absence of any indication of how the
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figure of $100,000.00 was reached, the Board found that on the extreme facts of the
case an award of vindicatory damages of $100,000.00, though high was within the
bracket of discretion available to the trial judge.
57. This court recognizes that there should be some element of consistency and
proportionality in the award of vindicatory damages. However, the award must vary
depending on the circumstances of the particular case, the importance of the
constitutional right in question and the nature of the breach. The award is discretionary,
and an appellate court must be careful in examining the exercise of the discretion,
bearing in mind that in matters of this kind the discretion of the inferior court ought not to
be fettered.
58. The first task of the trial judge is to consider the importance of the right in
question. The trial judge is first required to make a value judgment. He must by his
award vindicate the importance of the constitutional right. He must also consider the
gravity of the breach, and the need to deter further breaches of the right. He must
consider the particular circumstances of the case, including the conduct of the
executive, bearing in mind that the purpose of the award is not to punish the executive
by his award, but to deter it from committing similar breaches.
59. In this case the trial judge considered the importance of the right to equality of
treatment by a public authority, and the right to freedom of expression in the peculiar
social and historical context of Trinidad and Tobago. In my view, this was a relevant
consideration, having regard to the nature of the rights that were breached.
60. It is well known that persons of East Indian and African origin comprise the
largest demographics in terms of race in this country. The East Indians started arriving
in 1845, to provide labour in the sugar estates after the African slaves were
emancipated in 1834. Since the grant of independence in 1962, there have been two
major political parties which dominate the politics of this country. One of those parties
has tended to attract the support of the Afro-Trinidadian voters who reside in the urban
and semi-urban districts. The other political party has found its base in the rural areas
where descendants of the East Indian immigrants reside. It is unfortunate that
politicians have historically appealed to racial, tribal and ethnic instincts to attract
political support. Since 1986, there has been some positive movement away from
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politics based on race. However, in the main, the dominant political parties still find the
bulk of their support from persons of a particular race and ethnicity.
61. Since 1991, there have been fairly frequent changes of government. With every
change, the race which supports the political party which is out of power complains of
being marginalized and starved of state resources. There have been strident
complaints that persons of a particular race or political persuasion have been removed
without justification and replaced with persons of another race or political persuasion.
The group which is out of power at any particular time keeps a close watch on how the
resources and services of the state are distributed between the urban and rural areas,
and the race and ethnicity of the beneficiaries.
62. It is against this historical and social background, that the importance of the right
to equal treatment from a public authority in a multi-racial, multi-ethnic and multi-
religious society must be assessed. In my view, the trial judge addressed his mind to
the relevant considerations in this case, and I have not been persuaded that there is
any reasonable basis for interfering with his award, bearing in mind that vindicatory
damages are discretionary in nature. In order for this court to set aside this award, it
must be shown that the award was plainly wrong, or was vitiated by manifest error,
which the Respondent has not been able to establish in this case.
63. The Respondent further submitted that the award was so high that it must have
contained a punitive element. This is a matter of pure conjecture. In his judgment the
trial judge referred to the authorities of Ramanoop (supra) and Merson (supra) in which
the Privy Council explained that the purpose of making an award of vindicatory
damages was not to punish the executive for misbehaving. It is clear that the trial judge
was guided by the principles set out in these authorities, when he was considering
whether an award of vindicatory damages was warranted in this case, and the size of
the award that should be made.
64. The Respondent also complained that the trial judge took irrelevant matters into
account, in particular the matters outlined in paragraph 51 above. In his submissions,
Mr. Martineau contended that the trial judge should have focused principally on the
breach of the rights, and not the post-breach conduct of the executive. We agree that
the focus of the court should be on the breach, the surrounding circumstances of the
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breach and the consequences of the breach in the context of the society. However, in
this case the court was entitled to look at the conduct of the executive, not with a view to
punishing it, but for the purpose of deterring public authorities from engaging in such
undesirable conduct in the future. In this case the conduct of the executive was found
to be arbitrary and capricious. It allowed the Court of Appeal to proceed under “a
serious misapprehension” throughout the course of two substantial hearings and even
in the face of a mandatory order of the Privy Council, delayed a further two months
before granting the licence. In view of such conduct, the trial judge was clearly justified
in taking this matter into account with a view to deterring the executive from engaging in
such undesirable conduct in the future.
65. I am mindful that the award of $500,000.00 made by the trial judge is several
times larger than any previous award given for vindicatory damages in this jurisdiction.
However, I am of the view that this case is exceptional in terms of the effects of the
breach of the constitutional rights in question. The cases which I reviewed in
paragraphs 55 and 56 above dealt generally with breaches of the right of the individual
to liberty, and the right not to be deprived thereof except by due process of law. No
doubt this right is of fundamental importance in a society which has a proper respect for
the rights and freedoms of the individual and the rule of law. However, in all these
cases the effect of the breach of the right was felt only by the individual concerned.
Even in Khimraj Bissesssar (supra.), the breach of the right to equality of treatment
from a public authority affected the particular individual concerned. This case is
different from all of the others in that the breach of the rights in question had
consequences, not only for the individual whose rights were infringed, but for a
substantial segment of the population which would have been deprived of the
opportunity to access the religious, cultural, educational and political material
disseminated by the Appellants. In my view, having regard to the wide ranging effect of
the breach of the rights in this case and the importance of the right concerned in the
peculiar social and historical context of this society, the unprecedented award of
vindicatory damages, made by the trial judge in this case, ought not to be disturbed.
66. The Respondent further submitted that the trial judge was wrong to order the
damages to be paid to the Appellants, rather than to CBSL. In this case it was SDMS
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that first applied for a broadcasting licence in December 1999. In August 2000, SDMS
incorporated CBSL, which submitted a second application on 1st September 2000. It
appears that the first application became subsumed in the second. According to the
evidence, there always has existed a close relationship between SDMS and CBSL,
although the latter constituted a separate legal personality. Mr. S. Maharaj is in fact the
Secretary General of SDMS and the Chairman of CBSL. SDMS in fact invested $1.6
million in setting up the radio station operated by CBSL, which is housed in the
compound of one of SDMS’s schools for which CBSL pays no rent. While CBSL has a
distinct legal personality, as the trial judge found, it “has a close and integral connection”
with SDMS. It follows that while technically the damages should be awarded to CBSL
as opposed both to SDMS and CBSL, for practical purposes it appears to make little
difference.
67. Finally, the Appellants have appealed the order for costs made by the judge, for
costs to be paid by the Respondent certified fit for one advocate and one instructing
attorney. The Appellants submit that having regard to the novelty, complexity and
importance of the assessment, costs should have been certified fit for two Counsel. It
must be noted that the award of costs is discretionary in nature. I have not been
persuaded that the trial judge was plainly wrong in the exercise of this discretion, and so
I decline to interfere with his award of costs.
DISPOSITION:
It follows that both the appeal and the cross appeal are dismissed. The
Appellants will pay the Respondent’s costs of the appeal certified fit for Senior Counsel
and the Respondent will pay the Appellants’ costs of the cross-appeal certified fit for
Senior Counsel, to be taxed in default of agreement.
Dated the 29th day of July, 2013.
Rajendra Narine
Justice of Appeal.