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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE COURT OF APPEAL
Civ. App. No. 154 of 2006
IN THE MATTER OF THE CONSTITUTION IN THE REPUBLIC OF TRINIDAD AND TOBAGO, CHAPTER 1:01 OF THE REVISED
LAWS OF TRINIDAD AND TOBAGO
AND
IN THE MATTER OF THE GUARANTEES OF FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS PART 1 OF THE SAID
CONSTITUTION
AND
IN THE MATTER OF AN APPLICATION BY ROMAULD JAMES FOR REDRESS PURSUANT TO SECTION 14 OF THE
CONSTITUTION AND IN PARTICULAR SECTION 4(B) AND (d) IN RELATION TO THE APPLICANT, WHOSE RIGHTS TO EQUALITY
BEFORE THE LAW AND THE PROTECTION OF THE LAW AND EQUALITY OF TREATMENT FROM A PUBLIC AUTHORITY IN
THE EXERCISE OF ITS FUNCTIONS HAVE BEEN AND CONTINUE TO BE INFRINGED AND VIOLATGED BY THE STATE IN THE FORM OF TRINIDAD AND TOBAGO POLICE SERVICE, THE
COMMISSIONER OF POLICE AND THE PUBLIC SERVICE COMMISSION
AND
IN THE MATTER OF THE ENFORCEMENT OF FUNDAMENTAL
HUMAN RIGHTS AND FREEDOMS PURSUANT TO SECTION 14 OF THE CONSTITUTION AND ORDER 55 OF THE RULES OF THE
SUPREME COURT
BETWEEN
ROMAULD JAMES
Applicant/Applicant
AND
THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Respondent/Respondent
PANEL: R. Hamel-Smith, J.A. W.N. Kangaloo, J.A. P. Jamadar, J.A. APPEARANCES:
Mr. A. Ramlogan, Ms. C. Bhagwandeen and Ms. M. Ramsoondar for
the Appellants.
Mr. S. R. Martineau, S.C., Ms. A. Humphrey and Ms. R. Hosein for the Respondent.
DATE OF DELIVERY: 27th February 2009. I have read the judgment of Kangaloo, J.A. and agree with it.
R. Hamel Smith Justice of Appeal
I, too, have read the judgment of Kangaloo, J.A. and agree with it.
P. Jamadar Justice of Appeal
Page 2 of 23
Judgment
Delivered by W.N. Kangaloo, JA.
1. The sole issue in this appeal is whether the learned judge below
wrongly exercised his discretion not to award damages to the appellant for the
breach of his constitutional right to equality before the law and protection of
the law under s.4(b) of the constitution and also for the breach of his right to
equality of treatment from a public authority under s.4(d) of the constitution.
The learned judge granted declarations to this effect.
2. I state at the outset that the purpose of all relief in constitutional
matters is to vindicate or uphold the rights of individuals.1 This vindication
can take the form of a declaration by itself or together with an award of
monetary compensation. An additional award to serve the purposes set out in
Ramanoop discussed later in paragraph 38, may also be granted. But whether
a declaration alone is granted or a declaration and monetary compensation or a
declaration with monetary compensation and the additional award is granted,
they each serve to vindicate the rights of the individual.
3. If I find that the judge did err, a subsidiary issue arises as to whether
the damages to be awarded should be limited to compensatory damages or
whether an additional award should also be made to serve the purposes set out
in Ramanoop.
4. The decision in this appeal has been made unduly difficult by the lack
of sufficient reasons from the judge for the manner in which he exercised his
discretion, only to grant the declarations which he did. The learned judge
said: “The Court is satisfied that this relief is sufficient and will not make any
further award to damages.”2
1 See Ramanoop v Attorney General (2005) 66 WIR 334, 341 at para. 18 2 See para. 88 of judgment at pg. 243 of the Record of Appeal (ROA)
Page 3 of 23
It may be that the judge found that on the evidence there was no loss incurred
as a result of the breaches of the appellant’s rights. It may be that the manner
in which the case was fought before him, suggested that the appellant would
have been satisfied only with the declarations granted. If either or both of
these were his reasons, he was obliged to say so, to inform the parties of his
reasons and to allow the Court of Appeal to review his discretion in the event
of an appeal. The judge’s lack of reasons for why he was of the view that the
grant of the declarations was sufficient is regrettable.
5. I am of the view that where no reasons or no sufficient reasons are
given by a judge exercising a discretion, upon appeal, the Court of Appeal is
entitled to look at the matter afresh and come to its own conclusion as to how
the discretion ought to have been exercised. As is well known, this is not the
usual way in which the Court of Appeal reviews the exercise of a discretion of
first instance judge. The test as applied by our Court of Appeal in so many
matters is whether it can be said that the exercise of the discretion was
“plainly wrong”. In Fishermen and Friends of the Sea v. The
Environmental Authority & Or.,3 Nelson J.A. said: “38. Against this background of these multi-tiered discretions I bear in mind the
words of Lord Diplock in Hadmour Productions v. Hamilton [1982] 2 WLR 322, at
325 “[An appellate court] must defer to the Judge’s exercise of his discretion and
must not interfere with it merely upon the ground that the members of the appellate
court would have exercised the discretion differently. The function of the appellate
court is initially one of review only.”
39. “It is only where the decision exceeds the generous ambit within which
reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate
body is entitled to interfere”: per Lord Fraser of Tullybelton in G. v. G. [1985] 1
WLR 647, at p. 651.”
Page 4 of 23
3 Civ. App. No. 106 of 2002 at para. 38-39
6. I am however fortified in my approach by dicta of their Lordships of
the Judicial Committee of the Privy Council in Inniss v. The Attorney
General of St. Christopher and Nevis.4 In that case which dealt with an
appeal form an award of damages for a constitutional breach, their Lordships
said: “Judges who award damages at first instance should bear in mind that their awards
are open to appeal and that an appeal court will be at a disadvantage in reviewing
the award if the basis for it is not explained…. As the assistance that ought to have
been given is lacking in this case their Lordships must make their own assessment of
the sums due to the appellant for each element of her claim.”5
By parity of reasoning, where the basis of the exercise of a discretion by a
judge is not stated, I am of the view that the Court of Appeal is entitled to look
at the matter afresh.
7. Before I leave this aspect of the matter, I wish to emphasise the
importance of the provision of reasons by judicial officers to the maintenance
of judicial transparency and the creation of public confidence in the
administration of justice. I need do no more than quote from the judgment of
Henry LJ in Flannery v. Halifax Estate Agencies Ltd.6
“(1) The duty is a function of due process, and therefore of justice. Its rationale has
two principal aspects. The first is that fairness surely requires that the parties
especially the losing party should be left in no doubt why they have won or lost. This
is especially so since without reasons the losing party will not know (as was said in
Ex parte Dave) whether the court has misdirected itself, and thus whether he may
have an available appeal on the substance of the case. The second is that a
requirement to give reasons concentrates the mind; if it is fulfilled, the resulting
decision is much more likely to be soundly based on the evidence than if it is not.
(2) The first of these aspects implies that want of reasons may be a good self-
standing ground of appeal. Where no reasons are given it is impossible to tell
4 (2008) UK PC 42 5 See para. 16 of judgment 6 (2000) 1 WLR 377 @ pg. 381G to 382C
Page 5 of 23
whether the judge has gone wrong on the law or the facts, the losing party would be
altogether deprived of his chance of an appeal unless the court entertains an appeal
based on the lack of reasons itself.
(3) The extent of the duty, or rather the reach of what is required to fulfill it, depends
on the subject matter….
(4)…the judge must explain why he has reached his decision. The question is
always, what is required of the judge to do so; and that will differ from case to case.
Transparency should be the watchword.”
8. In order to determine whether the appellant should be granted an
award of damages for breaches of his constitutional rights, it is necessary to
recite some of the factual background against which the declarations referred
to were granted. The facts were largely not in dispute. There was cross
examination of the appellant and Corporal Harper, one of the deponents on
behalf of the respondent on the issue of whether Cpl. Harper told the appellant
he was exempted as the appellant contended. The judge found for the
appellant on this issue but this finding was not material to the grant of the
declarations. The Court of Appeal is therefore in as good a position as the
trial judge to determine whether or not damages should be awarded to the
appellant in addition to the grant of the declarations, once regard is had to the
findings of the judge below, from which there has been no cross appeal.
9. The facts are well set out in the judgment of the court below and I
reproduce these in full: “4.1 The facts in this case are relatively simple. On 19th January 1981 the Appellant
joined the Police Service as a Police Constable. At all material times he was an
officer in the Second Division of the Police Service.
4.2 In order for an officer to be considered for promotion within the ranks of the
Second Division he/she must pass the required qualifying examinations. An officer
who is successful in the qualifying promotional examinations may be considered for
promotion in accordance with the Police Service Commission Regulations. The
promotion examinations to the rank of Police Sergeant consists of 4 subject areas
namely English, Police Duties, Law I and Law II.
Page 6 of 23
4.3 In June 1997 by a Departmental Order dated 1st May 1997, the members of the
“Constables and Corporals who possess a GCE O Level pass in English Language
should be exempted from sitting a test in English Language in the qualifying
examination in respect of promotion to the rank of Corporal and Sergeant
respectively”. Such an O Level Pass is equivalent to Grades A, B or C. The
Respondent contends that such a pass prior to 1998 was equivalent to a Grade I or II
of the Caribbean Examination Council Certificate, which examination was
introduced in or about 1979.
The exemption
4.4 In order for an officer to be exempted from writing the English Language
component in the qualifying examinations, the officer must make an application
through his/her Divisional Head to the Commission to be exempted. This
application should be accompanied with a copy of the certificate from the
Examination board showing the relevant grade obtained in English Language.
4.5 Once the exemption is granted, a “Departmental Order” is published setting out
the police officers to whom exemptions for this component is granted. It is
acknowledged by the Applicant in his letter dated 14th August 2003, and there is no
dispute, that the Police Service is governed by “the Police Service Regulations,
Police Service Commission Regulations, Police Service Act, Divisional and Branch
Orders, Departmental Orders and Standing Orders.”
4.6 In the month of April 1997, the Police Service Commission conducted the
promotional examinations for the rank of Sergeant. The Applicant sat the said
examinations and was referred in the English Language component. Notice to that
effect was given to the Applicant in Departmental Order No. 81 of 1998.
4.7 Subsequent to this referral, the Applicant obtained a grade III in the CXC
promotional examinations, the Applicant applied for an exemption from the English
Language component of the promotional examination, having subsequently achieved
a Grade III in the CXC examination. There is no dispute and it is accepted by the
Respondent that this application was in conformity with the practice observed in the
Police Service.
4.8 The Respondent contends that such an exemption from the English Language
component can only apply to future promotional examinations and is not retroactive.
It is noted at the outset however that the Applicants case, as revealed from the relief
sought and in the arguments advanced before this Court, is for an exemption for
future promotional examinations, and not to be applied retroactively to the
examination, which he sat in 1997.
Page 7 of 23
4.9 However on 2nd June 1998, the Applicant’s application for an exemption was
forwarded to the Human Resource Branch for “processing”. Attorney for the
Respondent confessed at the hearing that this application simply “fell through the
cracks” and never came up for consideration: “I will agree that if the application
had gone in 1998 this applicant will have gotten an exemption. The application
having slipped through the cracks, it is unfortunate that he did not get it…I have
sympathy for him. But the service has now discovered that they were acting
wrongly.”
4.10 The application was simply placed on his personal file and no formal
consideration was made, no approval given or granted with respect to that
application. There were no publications of the Applicant’s exemption in any
Departmental Order.
4.11 The Applicant however contended that one Corporal Harper, who was
considered to be equivalent to a Permanent Secretary, did tell the Applicant that he
was in fact exempted. The Court heard the testimony of both men and accepts the
evidence of the Applicant. Though Corporal Harper under cross-examination
prevaricated on this issue, he indeed acknowledged that his status in the service
enabled the officers to look toward him for guidance on their employment records. It
was more than likely that Corporal Harper would have intimated that the Applicant
was exempted as indeed so were many other officers at that time with similar grades.
4.12 The matter stood like this until February 2003, when the Applicant searched his
file and realized that there was no record of him being exempted. Oddly in this state
of affairs, in March 2003 the Applicant was promoted to the rank of Corporal with
effect from 13th March 2003. To compound matters (by Departmental Order No. 212
of 2003, dated 6th August 2003) the Applicant was appointed to act as a Police
Sergeant. To attain such a rank, the Applicant would have had to either possess a
pass in the English Language component or have obtained an exemption for the said
component. There is no evidence before this Court to explain how the Applicant was
in fact promoted to the post of Police Corporal or whether this was based on the
1997 promotional examinations.
4.13 By letter dated 3rd April 2003 he wrote to the police administration highlighting
the anomaly that he had not been notified of his grant of exemption with regard to
the English Language component and sought to have the matter rectified. One
would have thought that this was an oversight on the part of the Commissioner.
However he was confronted with the explanation given to him subsequently that: “A
CXC grade III obtained in 1997 cannot exempt him from writing English Language
Page 8 of 23
for promotion in the police service. However it can be placed on his file.” Further
on 2nd September 2003 the following endorsement was placed on the Applicant’s file:
“Corporal James possesses a Grade III pass in English Language obtained at the
June 1997 CXC examinations. As such this grade does not constitute a pass which
makes him ineligible to act in the higher rank. Corporal James must now qualify
himself prior to being appointed to act in the higher rank.”
4.14 Indeed such a position taken by the authorities is inconsistent with (a)
appointing him to act as Sergeant (b) promoting several other police officers by
granting them an exemption from the English Language compound who possessed
similarly a Grade III in CXC in English Language.
4.15 It is not in dispute that there are no adverse reports on the record against this
Applicant either in his Staff Reports or otherwise.”
10. It is noteworthy that on these facts the judge identified:
“The issues to be resolved in this motion (are) as follows:
(a) Whether the motion is an abuse of the process of the Court;
(b) In the event that the motion is not an abuse of process
whether the Applicant was unfairly treated and/or
discriminated against;
(c) Whether the Applicant was entitled to an exemption in the
same way as other officers who received such an
exemption;”7
11. Clearly, the learned judge did not see the issue of the award of
damages as a live one on the motion.
12. The findings of the learned judge are to be found clearly spelt out at
paragraph 8 of his judgment. Again, it is better to set them out in full: “8.1 The Court is of the view that the application presents a genuine case of a
breach of a constitutional right and does not amount to an abuse of process.
Notwithstanding the fact that Judicial Review proceedings may have been
appropriate, this does not debar the Applicant from seeking constitutional redress.
Even if judicial review proceedings were appropriate the Applicant will still have
Page 9 of 23
7 See para. 3 of judgment pg. 187 ROA
been entitled to raise this constitutional remedy in that action. The alleged
procedural error does not detract from the substance of the Applicant’s case, which
is grounded in constitutional law.
8.2 It is evident that there are true comparators in this case, as admitted by the
Respondent. Not only Mr. Frederick, but also several other police officers obtained
an exemption based on a Grade III in English acquired prior to 1998.
8.3 The Commissioner only addressed the issue of the anomaly of the introduction of
CXC examinations and aligning it with the GCE examination by its departmental
order published in August 2003. However, it was perfectly competent for the
Commission to have used the entry requirements for the service as a relevant
qualification to be considered for promotion. There is no cogent evidence to suggest
that it was unlawful having regard to (a) the introduction of the CXC examinations
subsequent to the GCE examinations (b) the absence of any evidence of any clear
direction aligning the CXC examination with the GCE examinations or making any
special concession for CXC examination in English, save for a settled practice of
accepting Grade III as a pass.
8.4 The Applicant had demonstrated a case of unequal treatment. The Respondent
has failed to demonstrate that the treatment was justified, rational or reasonable in
the circumstances. The Commission’s failure to act upon the Applicant’s application
in June 1998 was arbitrary and nonsensical. There was no lawful justification
advanced at that stage not to grant the Applicant an exemption even if the allegation
that the Commission misconceived the nature of the grade was true.
8.5 The Applicant’s application in April 2003 predates the published notification of
the Commission with regard to its treatment of CXC examination dated August 2003.
8.6 This Court therefore finds that the failure to grant an exemption was a breach of
the Applicants fundamental rights. Indeed, to hold otherwise, that the Applicant is
not entitled to an exemption because the Respondent erroneously granted exemptions
to pre 1998 holders of a CXC grade III in English Language, would be disastrous
and cause unnecessary confusion in the Police Service. It will send a sharp dagger
into the hearts of all those police officers who obtained exemptions from the English
Language component allegedly illegally and/or without lawful authority. Such a
decision would certainly pave the way for future declarations against the
Commission to set those promotions aside.
8.7 Accordingly, the Court makes the following orders:
a. A declaration that the Commissioner of Police and/or the Police Service
Commission as servants and/or agents of the State, have treated the
Page 10 of 23
Applicant unequally and/or unfairly and have discriminated against him
in contravention of section 4(b) and/or (d) of the Constitution.
b. A declaration that the Applicant is exempted from having to write any
further qualifying examinations in English Language to qualify for future
acting appointments and/or promotion in the Police Service of Trinidad
and Tobago.
c. That the Respondent do pay the Applicant’s costs of this motion.
8.8 The Court is satisfied that this relief is sufficient and will not make any
further award to damages. Having regard to the prospective nature of the relief
sought it is now open to the Applicant to prove himself fit for promotion having
regard to the several other criteria for selection as provided in the Regulations
but being exempted from having to sit the English Language component.”
13. It is to be noted that the respondent all along advanced the case that the
exemption of other officers with a grade III in CXC English prior to May/June
1998 was an error on the part of the Police Service Commission and when the
‘error’ was discovered in August 2003 it was too late for the appellant to
benefit from it. The judge however clearly rejected this contention as can be
seen from paragraph 7.3 of his judgment.8 “The Court was invited in effect to make one of the two following findings (i) That
there is a lawful reason for the unequal treatment of the Applicant. To do so would
be to “buy into” the argument that a number of police officers have benefited from
the “error” of the Commission. Action can be then taken to set aside the promotions
and appointments of those other officers on the basis of the admitted irregularity
and/or illegality. (2) That there was no “irregularity” or “error”, but that the
Service adopted its own criteria in the past, prior to the publication of its
Departmental Order in 2003, in accepting a Grade III English for the purposes of an
exemption. The second possible finding is the more plausible, in that it does not
hastily dismiss the Commission’s action as an error and is perhaps is the only
explanation for the anomaly. It also rectifies the anomalies in the Applicant’s
employment and explains his appointment as Corporal and acting appointment as
Sergeant.”
Page 11 of 23
It is further to be noted that there is no cross appeal from this finding, so that I
am bound to assess this matter on the basis, that the appellant was not given
8 Pg. 239 ROA
an exemption (like officer Frederick), not because of any administrative error
but, as the judge pointed out earlier in paragraph 6.26 of his judgment, as a
result of “a deliberate refusal to acknowledge and/or deal with the
Applicant’s application for an exemption.” 9 It is unclear whether the judge is
speaking here of the appellant’s second application for an exemption made in
April 2003, as it appears to have been accepted on all sides that the appellant’s
first application for an exemption in June 1998 was merely placed on his
personal file and never dealt with, this clearly was an omission and could
hardly have been as a result of a deliberate refusal to acknowledge or deal
with it.
14. The learned judge however thought it necessary to find a deliberate
refusal to acknowledge or deal with the appellant’s application for an
exemption because of what he perceived to be the law on discrimination under
the constitution and the need to have mala fides before finding a breach. The
learned judge appears to have accepted as the current position on the need for
mala fides in this jurisdiction, the dicta of Dean Armour J. in Dindyal v.
A.G.10 which he quoted at paragraph 6.27 of his judgment.11 “6.27 Mira Dean Armorer J. in Dindyal v AG, H.C.A. No. 1680 of 2003 at page 58:
sums up the law on mala fides in this jurisdiction as follows:
“Whether the differential treatment experienced by the Applicant justifies a
finding of a contravention of the Applicant’s rights at ss. 4(b) and/or (d)
depends on whether the proof of mala fides is required by law in
applications of this kind..
…this court is bound by the reasoning of the majority of the Justices of
Appeal in Central Broadcasting Services Limited and the Sanatan Dharma
Maha Sabha v. the Attorney General, in which there was no departure
from the law as expounded in K.C. Confectionery and in which two of the
three Justices of Appeal based their findings on the second limb of the
formula of Persaud, J.A. in K.C. Confectionery, that is to say:
9 Pg. 235 ROA 10 Unreported HCA No. 1680 of 2003 11 Pg 237 ROA
Page 12 of 23
“If on the other hand the allegation is that the official merely contravened
the law, all that needs to be proved is the deliberate and intentional
exercise of power not in accordance with law..”
It appears then that the current state of the law in this jurisdiction would be
according to the exposition of Persaud, J.A. in K.C. Confectionery and the
extent to which I could dispense with the need to prove mala fides is
delimited by the boundaries of the second limb of Persaud, J.A.’s formula.
Proof of mala fides continues to be necessary where it has been alleged by
the Applicant. Where mala fides have not been alleged, the Applicant may
succeed by proving “the deliberate and international exercise of power not
in accordance with law…”
15. Again I emphasise that there is no appeal from the judge’s analysis on
the law of mala fides in the discrimination clauses in the constitution and I am
not called upon to decide whether the judge below erred in his analysis of the
law. However it is important for the purpose of damages to ascertain when
the breach took place.
16. The learned judge at paragraph 7.4 of his judgment says: “In the exceptional circumstances of this case the Applicant is entitled to an
exemption from the English Language examination if he sits a future examination for
promotion, his application being made in 1998 and not 2002 (sic).”12
This makes it clear that the application for the exemption which the judge
found to have been dealt with in breach of his constitutional rights was his
1998 exemption application.
17. This application is the one which “fell through the cracks”, but the
judge had this to say at paragraph 6.23 of his judgment.13 “The Applicant was treated differently simply because his application “fell through
the cracks”. This was a poor excuse as to why the Applicant was not afforded the
Page 13 of 23
12 Pg 243 ROA 13 Pg. 231 ROA
same opportunity as his peers. It is an arbitrary action which seethes of evidence of
mala fides. Indeed Warner JA. Made a similar observation in Maha Sabha…”
And he goes on to demonstrate that Warner JA was of the view that excuses to
like effect in the Maha Sabha case always came within the definition of
Persaud JA of mala fides in the K.C. Confectionery case already quoted.14
18. It is to be taken, therefore that the breach of the appellant’s rights as
declared were as a result of the manner in which his 1998 application for
exemption was dealt with by the respondent. Whether or not this breach
should attract an award of damages is a matter entirely within the discretion of
the court.
19. The starting point of whether or not damages should be awarded is
s.14(2) of the constitution which says that court hearing constitutional motions
may “make such orders, issue such writs and give such directions as it may consider
appropriate for the purpose of enforcing, or securing the enforcement of any of the
provisions of this Chapter to the protection of which the person is entitled.”
Damages therefore are a subset of the discretionary relief of the court in
granting redress. Their Lordships in the Privy Council made the point in
Suratt & Ors. v The Attorney General of Trinidad and Tobago15 that “all
the redress for which section 14 provides is discretionary.”16
20. In Suratt their Lordships had previously declared that the Equal
Opportunities Act was not unconstitutional. The appellants thereafter
approached their Lordships to award damages for infringement of their right
to the protection of the law. Their Lordships were divided on the issue of
whether there was in fact such an infringement but unanimously agreed that
14 See para 13 before 15 PC Appeal No. 84 of 2006 16 See para. 13 of judgment
Page 14 of 23
even if there was such an infringement, any loss suffered as a result would
have been highly speculative and in their discretion refused to award any
damages. It is obvious therefore that before damages are awarded, they must
relate to some loss suffered by the applicant.
21. This was made clear by their Lordships in the already mentioned
celebrated case of A.G. v Siewchand Ramanoop where it was decided for the
first time whether damages can be awarded by a court on a constitutional
matter above and beyond compensatory damages. Their Lordships answered
affirmatively, but in dealing with the compensatory aspect of damages for
infringements of rights under the constitution, their Lordships said.17 “When exercising this constitutional jurisdiction the court is concerned to uphold, or
vindicate, the constitutional right which has been contravened. A declaration 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 court may award him
compensation.” (my emphasis)
22. It is therefore beyond doubt that an applicant must demonstrate that as
a result of the breach of his constitutional rights he has suffered damage,
however it is still a matter of discretion for the court whether or not he is
awarded monetary compensation.
23. When I look at the affidavits filed by the appellant to see whether there
is evidence that he has suffered any damage as a result of the infringement of
his constitutional rights, I come to the conclusion that there is none.
Paragraph 16 of his first affidavit which sets out his financial commitments is
to my mind directed to any delay in the filing of his constitutional motion
which was filed on the 14th June 2004 when the breaches he alleges occurred
in June 1998 and April 2003, the dates of his applications for exemptions.
Paragraph 17 is more instructive,18 it says:
17 Para 18 of the judgment 18 Pg. 13 ROA
Page 15 of 23
“If I am not exempted junior officers will be promoted and appointed to act ahead of
me. I would suffer grave and irreversible prejudice and my career in the police
service will be dealt a most unfair and terrible blow…” (my emphasis).
24. The deponent clearly does not say that because he was not granted the
exemption, junior officers were promoted ahead of him and his career
suffered a most unfair and terrible blow as a result of which there has been
grave and irreversible prejudice. The appellant could not so depose because
as of March 13th 2003, he was promoted to the rank of Corporal presumably
as a result of the same promotional examinations sat in April 1997 and from
the day after, that is, 14th March 2003 he was appointed to act a Sergeant, in
which post he has been acting to date.
25. Clearly therefore the appellant has not suffered any monetary loss as a
result of his not having been exempted since 1998. It has been argued in his
skeleton arguments in the Court of Appeal that the appellant’s damages are to
be assessed on the loss of a chance of being promoted earlier. I reject this
submission because as I pointed out there simply is no evidence in the
affidavits to suggest, this even remotely. The appellant in his affidavits has
not stated, even baldly, that if he had his exemption earlier he would have
been promoted to the rank of Corporal earlier and would have become eligible
to act as Sergeant earlier.
26. The other point I need to make on the submission is that, passing the
promotional examinations (including being exempted) only puts the appellant
into a pool of personnel eligible for promotion. Whether in fact he would
have been promoted earlier depends on an evaluation of the appellant based
on the statutory criteria set out in the Police Service Regulations, in particular
Reg. 20 thereof.19 At this point it is entirely speculative whether the appellant
would have fared better than any of his colleagues who were promoted earlier.
In any event there is no evidence of whether persons were so promoted earlier. 19 Chap. 1:01
Page 16 of 23
27. A look at the appellant’s affidavit to see whether he could even be
awarded damages for the distress and inconvenience caused as a result of the
breach of his rights is equally unproductive. The closest he comes to saying
he suffered distress and inconvenience is in his undated letter (presumably
July/August 2003) to the Deputy Commissioner of Police which is annexed as
RJ5 to his first affidavit.20 In the letter the appellant says inter alia: “Please note that I am yet to be informed in writing or by publication in the
Departmental Order of the alleged cessation of my acting appointment, which is
tenuous, stressful and fraught with uncertainty.”
In my view, if the appellant wanted to say that as a result of his not having
been granted the exemption, he became worried, fraught with anxiety and
suffered stress he should have deposed to this, rather than leave it to be
inferred from his letter where it is vaguely mentioned.
This letter can however, if given a liberal interpretation, amount to some
extremely weak evidence of distress and inconvenience as a result of the
breach and so is one of the factors to be considered.
28. In my view, it does not lie in the mouth of the appellant to say that he
is not obliged to place evidence of damage suffered before the constitutional
court before liability is determined. I say so because it must first be shown
that there has been damage suffered as a result of the breach of the
constitutional right before the court can exercise its discretion to award
damages in the nature of compensatory damages to be assessed. If there is
damage shown, the second stage of the award is not available as a matter of
course. It is only if some damage has been shown that the court can exercise
its discretion whether or not to award compensatory damages. The practice
has developed in constitutional matters in this jurisdiction of having a separate
Page 17 of 23
20 pg 35 ROA
hearing for the assessment of the damages, but it cannot be overemphasized
that this is after there is evidence of the damage. In the instant case there is no
evidence of damage suffered as a result of the breaches for which the
appellant can be compensated.
29. I have mentioned that the practice has grown up here for there to be a
separate assessment of damages in constitutional matters. I need mention only
the most celebrated case of all in this regard which is Crane v. Rees.21 There
are many others. In the case of Ross v. Chattergoon22 de la Bastide C.J.
deplored the practice in running down actions of splitting liability and the
assessment of damages when he said: “I have on many occasions before now, deplored this practice in running down
actions of splitting the case and only dealing with liability. In our system, it takes –
or it has in the past taken – on average about seven years to reach trial and when
you have reached there, it is not in the interest of the client for the matter not to be
completely disposed of.
This is a case in which there was a trial on liability and apparently an appeal on that
issue, which I assume was unsuccessful. The matter then went back to the Master for
assessment and six years after the initial judgment and sixteen years after the writ,
the assessment takes place. This is scandalous.”
30. It must be noted however that there has been no similar excoriation as
far as constitutional matters are concerned, but it is hoped that if damages are
going to be a live issue in a case, this needs to be made explicit at the first
opportunity under the new Civil Procedure Rules (CPR) so that the problems
which arose in this case are not repeated. It is always so tempting to litigants
after liability has been determined, whether in running down matters or
otherwise, to exaggerate and insist on the highest damages. This is extremely
unfair to the State in constitutional matters, especially when its case is tenuous
and its representatives do not wish to use the State’s resources to defend
virtually indefensible positions.
Page 18 of 23
21 (2000) 60 WIR 409 22 Unreported Civ. App. 8 of 1998
31. When I look at the extensive skeleton arguments filed by the appellant
in the court below, it is starkly devoid of any argument on damages. It is no
wonder that when the learned judge was setting out the issues in his judgment
he omitted to deal with the question of damages. The appellant at the end of
his skeleton arguments says: “30. The Court is invited to grant the declarations sought at (a), (b),(d) and (e) of
the Constitutional Motion. It is possible on the hearing of a Constitutional Motion
for the Court to grant relief (b) alone. See Civil Appeal No. (sic) of (sic) Samlal
Bahadur v. The Attorney General.”
The declarations sought at (a) were in respect of the contraventions of the
appellant’s rights under s.4(b) and (d) of the constitution. There was no
declaration sought at (d) which referred to the claim for damages including
aggravated and/or exemplary damages. Similarly there was no declaration
sought at (e) which referred to a claim for costs. The declaration sought at (b)
was the declaration which was granted by the judge to the effect that the
appellant be exempted in the future from writing English Language in the
promotional examinations. This was clearly an option specifically made
available to the learned judge on the skeleton arguments of the appellant, that
is, to grant only the declaration with respect to the exemption in the future.
32. I take this paragraph of the skeleton arguments of the appellant, devoid
as they are of submissions on damages, to indicate to the learned judge that
the appellant would have been satisfied with only a declaration that he be
exempted from writing in the future the English Language component of the
promotional examinations. In other words, the appellant was telegraphing
that a sufficient redress was the declaration dealing with the exemption in the
future.
33. I have therefore come to the view that primarily because no damage
has been shown on the affidavits of the appellant (apart from what I call the
Page 19 of 23
extremely tenuous evidence of distress and inconvenience), that this is not a
case for the award of compensatory damages for breach of his constitutional
rights. My other reason for not so awarding compensatory damages is that it
appears to me upon a reading of the skeleton arguments of the appellant in the
court below, he himself thought that a declaration with respect to the future
exemption was sufficient redress.
34. Damages in constitutional law consist of two heads at present:
(1) compensatory damages; and
(2) an additional award to serve certain purposes as set out in
Ramanoop.
As Lord Nicholls explains in Ramanoop:23 “An award of compensation will go some distance towards 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 the additional award.
35. I have refused to make an order with respect to compensatory damages
for the reasons given. The question remains whether an additional sum can be
awarded when there is no award of compensatory damages. Theoretically I
can see no reason why not. The two heads serve two different functions as
outlined. I can see for example the right of an individual to retain and instruct
without delay a legal adviser of his own choice and to hold communication
with him (see 5(2)(a)(ii) of the constitution) being infringed without the
applicant suffering consequential loss except perhaps distress. This is an
exceptionally important right of an individual.
Page 20 of 23
23 At para, 19
Many cases come before our courts alleging the infringement of this right,
creating the impression of rampant abuse of state power. I would think in a
case where this evidence is accepted a court can grant the additional award
without an award of compensatory damages.
36. The question is whether in this case there should be this additional
award. I would think not. I do not think the facts of this case call for public
outrage as did the facts of Ramanoop or Alfie Subiah v A.G.24 The right to
equality of treatment before a public authority is as important a constitutional
right as any of the others. I, for one, certainly deprecate any attempt to list
fundamental rights as if on a totempole. I am of the view they are all
fundamental and are important. On the question of the gravity of the breach,
assuming the judge found the rights were breached both in respect of the 1998
application as well as that in 2003,25 the one in 1998, breach through it was,
had no severe consequences as no issue was taken until 2003, about the
qualifications of the appellant. The infringement in 2003 (if indeed there was)
could have had serious consequences for the appellant which were avoided by
his approaching the court for redress.
37. Although the judge did apparently find mala fides in respect of the
1998 application for exemption, which uncontrovertibly ‘slipped through the
cracks’, to my mind such a finding was thought to be a necessary ingredient of
the breach of the right to equality of treatment. The judge used the words
‘seethes of evidence of mala fides’. It appears to me that this was for the
purpose of finding a breach of the constitutional right as I have explained in
paragraphs 14 to 17 earlier. The context in which the judge used the phrase
shows that he was not thereby making a finding of ill or malicious intent in
the respondent’s dealing with the 1998 exemption. It can hardly be said that
where, through mal-administration, the appellant’s 1998 application for
Page 21 of 23
24 PC Appeal 39 of 2007 25 He did specifically find a breach in respect of the 1998 exemption (see para. 16 before) but there is no specific finding of a breach in 2003.
exemption ‘slipped through the cracks’ there was malice or ‘badmind’ as is
colloquially said here. I therefore take nothing in the language used by the
judge when he speaks of “mala fides” or “arbitrary actions” or “deliberate
refusal to acknowledge or deal with” to indicate that any of the actions taken
by omission were malicious or with mal intent.
38. It should be noted that this additional award referred to in Ramanoop
has been called ‘vindicatory damages’ by Lord Bingham in Subiah,26 and the
elements of it are described by Lord Nicholls. They are to:
(1) reflect the sense of public outrage;
(2) emphasise the importance of the constitutional right and the
gravity of the breach; and
(3) deter further breaches.
With respect to the second element I am of the view that in determining the
gravity of the breach, a court is required to look at the circumstances giving
rise to the breach and the consequences of the breach. From what I have said,
I do not think this was such an egregious breach of the admittedly important
constitutional right of the appellant, to call for vindicatory damages. Similarly
with respect to the third element, although the mal-administration of the
respondent is not to be condoned, at the same time, I am of the view that
because of what I have said of the gravity of the breach, there is no need for
deterrence.
I certainly do not think that the fact of a breach of an important constitutional
right inexorably attracts vindicatory damages as Lord Bingham calls them
because this approach would collide violently with the accepted position that
all constitutional redress, including an award of damages is discretionary.
Page 22 of 23
26 See paras. 13 and 14 of his judgment.
Page 23 of 23
39. Looking at all the factors in the round therefore I am of the view that
this is not a case which calls for a vindicatory addition to compensatory
damages.
40. In the circumstances, I am of the view that this case is one in which the
declarations granted offer sufficient redress for the appellant. I would not
grant any order for damages either compensatory or vindicatory. I am also of
the view that the declarations granted by the judge were sufficient redress to
vindicate the rights of the appellant. I therefore am of the view that the judge
below was correct in the relief granted. I dismiss the appeal.
41. On the issue of costs, as I said at the outset, the difficulty with the
appeal is the lack of reasons from the judge below as to why he thought the
declarations were sufficient redress for the appellant. It may be if the judge
had given reasons which were unlikely to be overturned on appeal, given the
limited nature of review of the judge’s discretion, there would have been no
appeal. It therefore was not unreasonable for the appellant to come to the
Court of Appeal to get the exercise of the judge’s discretion overturned. He
has however not succeeded. I would therefore order each side to bear his own
costs.
Wendell N. Kangaloo Justice of Appeal