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.

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