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Trinidad and Tobago High Court |
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IN THE HIGH COURT OF JUSTICE
IN THE MATTER OF THE CONSTITUTION OF TRINIDAD AND TOBAGO
AND
IN THE MATTER OF AN APPLICATION BY CHRISTOPHER LEZAMA, DAVID MARRYSHAW, AND SIMON LEZAMA FOR REDRESS IN PURSUANCE OF SECTION 14 OF THE SAID A CONSTITUTION OF THE REPUBLIC OF TRINIDAD AND TOBAGO FOR A CONTRAVENTION OF SECTIONS 4 AND 5 OF THE SAID CONSTITUTION IN RELATION TO THE APPLICANTS.
CHRISTOPHER LEZAMA
SIMON LEZAMA
APPLICANTS
And
RESPONDENTS
Appearances :
Mr. K. Ramkissoon and Mr.O. Lalla for the Applicants
Ms. Karlene Seenath for the Respondents
By Notice of Motion filed 20 th June 2002 the Applicants seek a series of reliefs against the Respondents, allegedly arising from a breach or breaches of their rights under the Constitution. They do so following the Court of Appeal having declared their appeals against sentence to be nullities (or so I am told), their Notices of Appeal having been filed after the expiration of the statutory period for doing so.
In essence, the Applicants found their Motion on the failure of the Prison Service to deliver to the Clerk of the Peace, Chaguanas Magistrates' Court, their respective Notices of Appeal within the statutory period of seven days imposed by Section 130 (2) of the Summary Courts Act Chap. 4:20. The Applicants also found their Motion on the failure of the Prison Service to deliver written notices of their reasons for appeal to the Clerk of the Peace, Chaguanas’ Magistrates Court, either at the time of delivering the Notices of Appeal or at any time within ten (10) days of the conviction and/or the sentence, as required by Section 131 of the Summary Courts Act.
The Applicants originally sought ten declarations against the First Respondent. They can be summarised as follows:
1. That the failure/neglect/omission of the Prison Service to file their Notices of Appeal within the statutory period is:
a. unconstitutional and illegal;
b. a contravention of their right to the protection of the law guaranteed under Section 4 (b) of the Constitution;
c. a contravention of their right to liberty guaranteed under Section 4 (a) of the Constitution;
d. a contravention of their right not to be deprived of their right to such procedural provisions as are necessary for the purpose of giving effect and protection to these rights and freedoms, as guaranteed under Section 5 (2) (h) of the Constitution;
e. a contravention of their right not to be deprived of a fair hearing in accordance with the principles of fundamental justice for the determination of their rights and obligations as guaranteed by Section 5 (2) (e) of the Constitution;
2. An additional five declarations in identical terms as a consequence of the failure/neglect/omission of the Prison Service to serve written notices of the reasons for their appeals within the statutory period.
The Applicants also seek orders for the payment of monetary compensation, to include aggravated and/or exemplary damages, as well as such further and/or other reliefs as the Court may deem appropriate.
The Motions are supported by the affidavits of the three Applicants, all filed on 20 th June 2002, and all in identical terms. On behalf of the Respondents, there is the affidavit of John Rougier, Acting Deputy Commissioner of Prisons, filed 24 th July 2002. There was no cross-examination.
The submissions on behalf of the parties were all in writing. Those on behalf of the Applicants were originally in skeleton form filed 26 th July 2002, but then adopted as their full submissions. The written submissions on behalf of the Respondents were filed on 6 th September 2002, and there were then submissions in reply thereto on behalf of the Applicants filed 23 rd September 2002.
Thereafter, further submissions on the issue of damages were filed on behalf of the Applicants on 25 th October 2002 and 21 st November 2002. Written submissions on this issue were filed on behalf of the Respondents on 15 th November 2002.
There were no oral submissions.
When the matter came on for hearing on 31 st October 2002, it was indicated that the parties might be seeking a resolution. A draft consent order was subsequently lodged for my approval on 6 th November 2002. This obviously came about after discussions had taken place between the parties and their Attorneys. The draft order is in the following terms:
"1. That the Commissioner of Prisons be struck out as a Respondent herein.
2. That the failure and/or neglect and/or omission of the Respondent, his servants and/or agents to transmit for filing to the Clerk of the Peace, Chaguanas Magistrates Court, the Applicants' Notices of Appeal on or before the expiration of the seventh day after the Order for their sentence and conviction was made on the 16 th July, 1999 by Her Worship Magistrate Ayers-Ceasar at the Chaguanas Magistrates Court constitutes a contravention of the Applicants' right to the protection of the law granted under Section 4 (b) of the Constitution".
I have no hesitation in approving the first of these. It is well settled that the respondent to a constitutional motion is to be the Attorney-General of Trinidad and Tobago (see Section 19 of the State Liability and Proceedings Act Chap . 8:02; CvA 19 of 1989 Attorney General of Trinidad & Tobago v. Newton James ) save in those circumstances where a party applies to be joined in an action because of a real interest in the outcome of the proceedings ( see HCA Cv 195 of 1993 Persad v. Attorney General of Trinidad and Tobago; HCA Cv 906 of 2000 & HCA Cv 1276 of 2000 Petersen v. Attorney General of Trinidad and Tobago )
There will therefore be an order, by consent, that the Commissioner of Prisons be struck out as a respondent herein.
As to the draft declaration, it is now regarded as well accepted that a Court should not "rubber stamp" consent orders as to declarations, and should view them with perhaps a critical eye, exercising due caution before approving the order. See the analysis of John J. (as he then was) in Petersen; CvA 43 of 1997 Elson Ragbir & Ors. v. The Attorney General of Trinidad & Tobago per Warner JA at page 6.
I will return to this aspect of the matter presently. For the moment I say only that the discussions to which I have referred clearly must have served to focus the minds of the Applicants and their Attorneys at Law on what remedies were appropriate to seek in the circumstances. The affidavits supporting the Motion do not, for example, go to the issue of written reasons for the appeals not being filed or served by the Prison Service on the Clerk of the Peace, Chaguanas Magistrates' Court.
The Facts
The Applicants appeared in the First Magistrates Court, Chaguanas on 16 th July 1997 jointly charged with assaulting Rajbar Seegolam on the previous day thereby occasioning him actual bodily harm, contrary to Section 30 of the Offences Against the Person Act Chap. 11:08. They were unrepresented. The prosecution having recommended summary trial, to which the Applicants consented, they all pleaded guilty. No plea was put forward in mitigation on behalf of any of them, and they were each sentenced to serve twelve months imprisonment with hard labour.
They were taken to Golden Grove Prison at Arouca later that day. On arrival they were asked if they intended to appeal, to which they responded in the affirmative. They were given forms of Notice of Appeal which were filled in and which they signed. Given the readily apparent differences between the handwritten information on those Notices and the signatures of the Applicants, the former was obviously inserted by someone other than the Applicants. I think it appropriate to infer that it was therefore a Prison Officer, if not the same one who gave them the forms. It is common ground that their appeals were against the severity of the sentence only.
The Notices were signed on 16 th July 1997 and given to, or left with, the Prison Officer, presumably on that day. They were not, however, received at the Chaguanas Magistrates Court until 27 th July, after the time for filing them had expired.
Each of the Applicants was subsequently admitted to bail. Although there might be some doubt as to when this took place, given the varying dates at paragraphs 12 and 13 of their affidavits, I accept that this was on or about 11 th August 1997. Similarly, there appears to be some uncertainty as to the date on which they were actually released from prison. From the affidavits it would appear that they were there for some 26 or 27 days, but I do not find this to be material.
Their appeals came on for hearing on 29 th May 2002. I am told that the Court of Appeal held that their appeals were filed out of time, that they were nullities.. There was apparently no dismissal of the appeals because the Notices had been filed out of time and were thus improperly before the Court. This would be consistent with the position taken by the Court of Appeal in Mag App 293 of 2001 Ricky Bernard v. Brian Kennedy , where it held that it had no jurisdiction to entertain appeals in almost identical circumstances. The Court of Appeal ordered that the Applicants be returned to prison to serve their sentences, the time already spent in prison to be counted as time served on the original sentence
It is perhaps helpful at this stage to set out in some detail the practice adopted by the Prison Service relative to Notices of Appeal and the manner in which they are dealt with. Mr. Rougier's affidavit at paragraphs 5 to 9 is helpful in this respect.
He says that on arrival at prison a convicted person is informed of his conviction and sentence. If that person does not inform the Prison Officer receiving him that he wishes to appeal, the officer informs him of the right to do so. If the convicted person wishes to appeal, he is given the appropriate form to complete and sign. When it has been completed and signed, it is then given to the Prison Officer. There is no contention that this took place in the case of the Applicants.
Thereafter, the Notice of Appeal is dispatched for delivery to the Clerk of the Peace at the appropriate Magistrates' Court.
Prior to 1997 the Police Service assisted the Prison Service by collecting these Notices and delivering them to the appropriate Magistrates' Court. Mr. Rougier's affidavit is not clear, however, as to whether this was so in relation to Magistrates' Courts both within and outside Port of Spain because he refers only to the assistance of the Police being sought in relation to the former. From the rest of his affidavit, however, I think it reasonable and appropriate to infer that the same position obtained in relation to Magistrates' Courts outside of Port of Spain. His reference, twice in paragraph 8 in his affidavit, to the assistance of the Police Service in this regard is clearly indicative that the Prison Service was either primarily responsible, or had assumed the responsibility, for delivery of these Notices to the Clerk of the Peace.
As from 2002, says Mr. Rougier, the Prison Service no longer needs to rely on the assistance of the Police, the Prison Service having since that time delivered all Notices of Appeal.
He does not say specifically what position obtained in July 1997 (prior thereto he says there was Police assistance, and since 2002 there was not) but I do not think that this is material since at paragraph 9 of his affidavit he says that the Applicants' Notices were not dispatched to the Police for delivery until 25 th July 1997. It is plain that the Prison Service at all material times undertook the task of delivering the Applicants' Notices of Appeal. It is also apparent from Mr. Rougier's affidavit that there is, and has been, a practice by which a convicted person's Notice of Appeal is forwarded to the Clerk of the Peace of the appropriate Court by the Prison Service. Given that his affidavit does not speak of any limit in time as to when this practice commenced it might be inferred that this practice existed prior to the coming into force of the Republican Constitution in 1976.
What is also clear to me from this affidavit is that the Prison Service had, at the least, accepted the responsibility of having the Applicants' Notices of Appeal delivered to the Clerk of the Peace. There is no question of anyone else, including the Applicants, making these arrangements. Further, there is no mention of any other convicted person in prison, including one represented by an Attorney-at-Law, being required to make these arrangements, or of it being alternative to arrangements made by the Prison Service itself. As to the role of the Police Service it was merely to assist the Prison Service, and in any event there is no attempt to pass on to the Police Service any responsibility for their delivery. Indeed, to do so would not advance the Respondent's position any, since both the Prison Service and the Police Service are agencies of the State, and it is the State that has been called to account in this Motion.
As will be seen, my conclusion that the Prison Service had at the least accepted responsibility for delivery of the Applicants' Notices of Appeal, is of importance in determining the outcome of this Motion.
The Issues
Given the position at which the parties have now arrived I am therefore to determine only:
1. Whether the declaration on which they have agreed is to be approved;
2. What damages, if any, should be paid to the Applicants.
The other issues raised originally by the Applicants are not being pursued and I do not propose to deal with them.
The Declaration
Section 4 (b) of the Constitution recognises the fundamental "… right of the individual to equality before the law and the protection of the law". The protection of the law is a wide-ranging concept. It includes access to the courts, and this necessarily includes a fair trial and a final disposition of the matter, having gained that initial access. As an example of this access, see Lord Diplock in Attorney General of Trinidad and Tobago v. McLeod (PC) [1984] 1 WLR 522 (at page 531), albeit only in the limited context of that case: "Access to a court of justice…….is itself "the protection of the law" to which all individuals are entitled under Section 4 (b) …" of the Constitution. This was a view also expressed by Sharma JA (as he than was) and referred to by the Privy Council in Boodram v. Attorney General of Trinidad & Tobago (PC) [1996] AC 855 at pages 581-582.
The right to the protection of the law would also seem to include the right to due process. The fundamental concept of due process includes "the right to be allowed to complete a current appellate or other legal process without having it rendered nugatory by executive action before it is completed…" (see Thomas v. Baptiste (PC) [2000] 2 AC 1 per Lord Millett at page 24). It must also include the right to be allowed to initiate that process. The protection of the law therefore includes access to the appellate process, and in the instant case by the Applicants to the Appeal Court.
The question then is whether the Prison Service did, or omitted to do, something that resulted in the breach of the Applicants' right to the protection of the law.
There is nothing before me to indicate that the Prison Service is under any statutory, or other, duty to deliver Notices of Appeal
to the Clerk of the Peace on behalf of a convicted person who is in prison. Nor is there any evidence to satisfy me that there was
a practice of the Prison Service doing so which would meet the requirements of a "settled practice" as set out in
Attorney-General & Anor. v. Whiteman
(1990) 
39 WIR 397. Further, I do not think it safe to conclude that this was otherwise a settled practice merely on the basis of the inference which
might be drawn as to the length of time over which it has apparently existed. The Applicants do not on any event pursue a declaration
under Section 5(2)(h).
It is to noted here that nothing exists in principle to prevent persons such as the Applicants from making their own arrangements to have their Notices of Appeal delivered to the Clerk of the Peace. The Prisons Rules Ch. 11 No. 7 made under the West Indian Prisons Act 1838 (1 & 2 Vict. 67) as amended, allow for visits (see, for example, Rule 264). There is no allegation raised that appellants in prison wishing to appeal, and in particular the Applicants, are not permitted to enjoy these visits or to make their own arrangements if they wish to do so.
Further, notice of an appeal can be given verbally to the Clerk of the Peace, in which case the latter is to reduce it into writing for signature by the appellant or his Attorney at Law (see Section 130 (1) of the Summary Courts Act).
Returning to the question of whether the Prison Service was under an obligation to deliver the Notices of Appeal, it has been submitted on behalf of the Applicants that incarceration by the State imposes a duty upon it to make certain that there are procedures in place so as to permit a convicted person in prison to exercise his or her right of appeal.
In the present case, it would seem that the State sought to do this by way of the procedure which Mr. Rougier set out in his affidavit, and which I have already outlined. If that is so, then it would appear that there was a breach of this self-imposed procedure which might well be regarded as constituting rules, or the equivalent of rules, albeit unwritten. In the event, however, I am not persuaded that incarceration by the State does impose this duty on the Prison Service.
Alternatively, however, the procedures adopted might properly be regarded as a voluntary assumption of the responsibility for delivering Notices of Appeal to the appropriate Clerk of the Peace.
This leads me to the submission on behalf of the Respondents that the Applicants had no constitutional right to have their Notices delivered by the Prison Service, and that the practice of doing so was only one of convenience. Any delay on its part was not an abdication of any legal duty or responsibility that it was to perform. There was only a moral, unenforceable, duty on the Respondents to file or deliver these Notices of Appeal. Further, that there was no legal and enforceable duty on the Prison Service to do so.
It is now well accepted that when a person accepts, even voluntarily, the responsibility of carrying out a particular task or function, that he or she can owe a duty of care to ensure that it is performed properly i.e. not negligently. The common law, both in negligence and in contract, as well as otherwise such as in relation to the fiduciary duty owed by one party to another, has been very considerably expanded over the years by way of widening the class of persons to whom a duty of care is owed.
In Henderson v. Merrett Syndicates Ltd. [1994] UKHL 5; [1994] 3 AllER 506 for example, the House of Lords held that where a person assumed the responsibility to perform professional or quasi-professional services for another who relied on those services, the relationship between the parties was in itself sufficient to give rise to a duty on the part of the person providing the service to exercise reasonable skill and care in doing so. In White v. Jones [1994] 2 WLR 187 a solicitor was held to owe a duty of care to a beneficiary named in a will. In HCA Cv. S576 of 1996 First Citizens Bank Mortgage & Trust Co. Ltd. v. Hamid Baksh I held that a mortgagee owed a duty of care to the mortgagor to ensure that the mortgaged property was properly insured. In each of these three decisions the party found to owe the duty of care was a volunteer.
It is clear to me that the Prison Service offered its services to supply the forms of Notice of Appeal to those who needed them and, with or without the assistance of the Police Service, to deliver those Notices to the Clerk of the Peace on behalf of appellants, and the Applicants in the present case. It undertook the responsibility voluntarily. I can see no good reason to say that the Prison Service should be in a different position to anyone else who undertakes a responsibility, in whatever form, particularly when another party relies on the service being provided. The Prison Service was to take reasonable skill and care, to exercise reasonable competence and diligence, in delivering notices of appeal within the statutory time limit. This was a time limit of which they were well aware.
The Prison Service assumed the responsibility to supply the forms of Notices of Appeal to those who needed them and to deliver them after completion and signature. Assuming (but not necessarily deciding) that there was no settled practice of delivering notices of appeal, and even if only by analogy to the common law duty of care, which might be said to have no place in public law, it was incumbent upon the Prison Service to ensure their timely delivery, and to exercise reasonable skill and care in doing so. The Applicants obviously relied on the Prison Service to provide this delivery service. The Prison Service failed to do so. No reason or explanation is given for this failure. The Applicants suffered as a consequence. Their chance, their opportunity, to appeal against their sentences was lost.
The position would be no different if the Prison Service did not provide this service for all convicted persons in jail. It arises on any occasion when it accepts the responsibility to deliver the notices.
The Applicants have been deprived of the benefit of the protection of the law as a result of the Prison Service's failure/neglect/omission to deliver their Notices of Appeal to the Clerk of the Peace, Chaguanas Magistrates' Court, prior to the expiration of the statutory period for doing so.
I therefore approve the declaration.
Damages.
It has become increasingly accepted that the remedies which a Court can grant on the hearing of a constitutional motion are now greatly more expanded than they were initially, as can be seen by the position adopted by the Privy Council in Gairy v. The Attorney General (PC) [2001] UKPC 30; [2001] 3 WLR 779 particularly when contrasted with the decision in Jaundoo v. The Attorney General of Guyana (PC) (1971) 16 WIR 141; [1971] AC972.
The Applicants' claim in damages is premised upon the loss of chance or opportunity to present their appeals, and the distress and inconvenience they suffered as a consequence of being deprived of the opportunity to do so i.e., the breach of their constitutional right. It will be recalled that their appeals were against sentence only (not conviction) and that they abandoned the reliefs claimed in respect of the alleged breaches of Sections 4 (a), 5 (2) (e) and 5 (2) (h) of the Constitution.
It has been submitted on behalf of the Applicants that an award of exemplary damages should be made or that I should compensate them substantially for a serious dereliction of duty by the Prison Service, even if no award is made in exemplary damages.
The Respondent submits that there should be, at best, an award of nominal damages, if any award is made at all.
Payment of damages was ordered in Russell & Ors. v. Attorney General of St. Vincent & The Grenadines (1996) 50 WIR 127 where there had been a breach of the appellants' constitutional right to be registered to vote, and thereafter to vote, but no pecuniary loss.
In CvA 154A of 1997 Attorney General of Trinidad & Tobago v. Lakhan & Anor , Nelson J.A. said (at page 13): "In my judgment there is precedent for saying that in the area of public law where a breach of constitutional rights is proved the Court in its discretion may make an award of monetary compensation for the infringement of constitutional rights per se without proof of consequential damage".
There is therefore no doubt that damages can be awarded for a breach of an individual's constitutional rights where there is no pecuniary or other consequential loss, assuming the circumstances are appropriate. That is a proper interpretation of the discretion which a Court can exercise under the provisions of Section 14 (2) of the Constitution, which is to be construed in a purposive manner.
The guidelines to be used in assessing damages on motions of this nature are to be found in Maharaj v. Attorney General of Trinidad & Tobago (No. 2) [1978] UKPC 3; [1979] AC 385 and Jorsingh v. Attorney General of Trinidad & Tobago (1997) 52 WIR 501. They are summarised, for example, in CvA 181 of 1997 and CvA 201 of 1997 Crane v. Rees & Ors. and can be stated for the purposes of this case, perhaps simplistically, as comprising pecuniary loss and recompense for distress and inconvenience suffered.
Awards of monetary compensation for breach of a constitutional right appear based upon three principle factors. First, they are compensatory to the individual whose constitutional right has been breached. This is well recognised (see e.g. Maharaj ). Second, they acknowledge the significance and sanctity of that right and the need for its strict preservation (see Russell ). Third, they can, and should where appropriate, be regarded as some form of deterrent to the state against committing, or permitting, recurrences.
This last factor is thought to be one method by which the Courts, other than by, say, a writ of mandamus , can prevent violations of the Constitution. This approach is reflected in Radul Sah v. State of Bihar [1983] INSC 87; [1983] 3 SCR 508 referred to in Crane by Hamel-Smith J.A. who said (at page 17, referring to the judgment of Chandrachud CJ): "I certainly endorse that principle [that the State has a duty to protect its citizens, and where the State itself violates fundamental rights]. The Courts… must be ever vigilant to ensure that …… monetary compensation reflects, by the sufficiency of its amount, a demand for a wholesome respect for the rights under the Constitution and a deterrent, particularly against flagrant abuse".
An award of damages must be commensurate with the right that has been breached, the manner in which it is breached and the consequences that flow from the breach. In some cases, a declaration only will be appropriate to meet the justice of the case, being itself a powerful statement which can go a long way in effecting reparation of the breach, if not doing so altogether. In others, an award of substantial damages may be called for in addition to the declaration. The quantum of an award will reflect the seriousness of the right that has been breached, the manner in which it was breached, and the consequences flowing from the breach, including the elements of distress and inconvenience. The quantum will vary from case to case, and will depend upon an assessment of these factors.
It is inappropriate to award damages for breach of a constitutional right solely by reference to what award might be made in a writ action claiming the equivalent relief, because the latter has no reference to the constitutional right that has been breached. I accept, however, as de la Bastide CJ said in Jorsingh , that in quantifying damages payable on constitutional motions some proportion must be maintained with the levels of damages that have been awarded for wrongful deprivation of liberty, or at common law for personal injuries caused by negligence, or defamation. I also accept what was said in Russell (at page 140 g-h), that the award should not create “… a precedent for abusive or unreasonable exploitation".
I should say here that I do not think it appropriate to refer to awards of "nominal" damages on the hearing of a constitutional motion. To me, that tends to trivialise a breach of the right. I acknowledge, however, that it is an expression of convenience.
What sets this case apart from some others is that, first, the Applicants do not claim to have suffered any pecuniary or other consequential loss resulting from the breach of their right to protection of the law under the provisions of Section 4 of the Constitution.
Further, they came to concede that they was no deprivation of their liberty, because of their plea of guilty, and that "to anticipate the ruling of the Court of Appeal is to go into the realm of conjecture and speculation". This submission is doubtlessly based not only upon the particular facts of this Motion but also on what was said by C. Hamel-Smith J (Ag) in HCA Cv 1785 of 2000 Anneson Stanisclaus v. The Attorney General of Trinidad and Tobago (at page 12) "… to succeed in a claim for compensation on this basis [the lost chance], Mr. Stanisclaus would have had to discharge the burden of proving……… that he had suffered some loss as a result of this breach i.e. that the chance of persuading the Court of Appeal to reduce the sentence ………. was real and not speculative" . He was explaining there why he had previously come to the conclusion (at page 11) that "….I do not regard Mr. Stanisclaus as being entitled to any compensation for such a lost chance". This summarises the position in the present case.
The Applicants have put nothing before me to show that there was real chance of their sentences being reduced by the Court of Appeal. They say only that they were advised by their Attorney-at-Law that they had a reasonable chance of doing so. While this aspect of the matter is dealt with at some length in the submissions on behalf of the Respondents, I do not find it an issue which I am required to determine. I say this, however, without wishing to be seen as casting aside these, or any other, submissions because they were all helpful to me in determining this Motion.
I turn now to the manner in which the quantification of the damages might be approached, and the aspect of distress and inconvenience in particular.
There is not a great deal of assistance available from previously decided cases and I have been referred to none directly on the same issues, nor based upon facts similar to those, of the instant case. In particular, the concepts of distress and inconvenience are notoriously difficult to define. They are even more difficult to express in terms of monetary compensation. I agree with the views on this expressed by Hamel-Smith JA (at page 8) of Crane and where at page 17 he says: “The extent of the victim's suffering and distress naturally differs from case to case. Accordingly, the Court must, while maintaining a measure of consistency in its awards, determine the grief and agony of the particular victim, [the] suffering and humiliation endured and translate that into dollars and cents” . That is never an easy task.
In H.C.A. Cv. S254 of 1996 Narase Mathura & Ors. v. The Attorney General of Trinidad and Tobago (a judgment ex tempore), I made an award of $5,000.00 to each applicant when assessing the damages to be paid to them on the hearing of an assessment of damages. In that case there had been a breach of the applicants' right to protection of the law under Section 4 (b) of the Constitution resulting from the failure of the State to convene the Oil and Water Board to hear claims for crop losses resulting from oil pollution. They failed to prove any pecuniary loss, but had been forced to wait for 11 years to receive redress. This was because earlier attempts by way of a writ action had failed, the High Court having ruled that it had no jurisdiction to hear and determine the claim. I accepted that there must have been distress and inconvenience, although there was no direct evidence of it. I might add, as an aside, that the declaration there had also been entered by consent.
In HCA Cv S364 of 1992 Ralph Jonathan v. Attorney General of Trinidad & Tobago and HCA Cv S895 of 1992 Rostam Ramesar v. Attorney General of Trinidad & Tobago, Kangaloo J made awards of $23,000.00 and $32,000.00 respectively for distress and inconvenience. In Jonathan , the Applicant had waited 18 years for a judgment to be delivered by the Industrial Court. In Ramesar , the judgment of the Industrial Court was never delivered. In neither of these judgments is any reference made to any direct evidence of distress and inconvenience.
In Crane , however, there was evidence, very substantial at that, of distress and inconvenience. Hamel-Smith JA concluded (at page 18) that the appellant there had been "caused…..untold grief, exposed…..to ridicule and humiliation by making it appear he was guilty of some serious infraction, prohibited………from carrying out his functions as a judge, caused sleepless nights for a prolonged period, disrupted his family life and left …. .[him] with feelings of isolation and a life in shambles" . He increased the award of $75,000.00 made by the trial judge to $125,000.00, with which Warner JA agreed, but Permanand JA did not.
I have no evidence of distress or inconvenience actually suffered by the Applicants as a consequence of the breach of their right under Section 4(b). I accept, however, that the loss of the opportunity to appeal, or pursue their appeals, must have caused the Applicants some distress and inconvenience. That, however, does not of itself persuade me to make a substantial award in the present case.
It is for the Applicants to satisfy me that an award of damages should be made and that it should be substantial. They have not done so. It will be recalled that the Applicants conceded that assessing their chances of success on appeal is a matter of conjecture and speculation. Those appeals were against the severity of the sentences only. Additionally, there is not even a simple averment of distress and inconvenience, and I have no evidence at all to demonstrate the form that they might have taken had such an averment been made. Quite frankly, I am unable to see that they suffered any loss at all, save that of access to the appellate process.
In the event, there has been a breach of the Applicants' right to protection of the law. That is not to be regarded lightly. The significance and sanctity of constitutional rights must be preserved. Further, I accept that there must have been an element of distress and inconvenience as a result of the breach. I therefore propose to make an award of damages in addition to the agreed declaration.
I turn now to the issue of exemplary damages, on which varying views are held.
The Applicants submit that this is an appropriate instance in which exemplary damages should be awarded, since doing so would frown on the conduct of the Prison Service.
As I have said, the provisions of Section 14 (2) of the Constitution undeniably give a Court very wide powers to make orders for the purpose of enforcing rights enshrined in the Constitution, and the forms which relief may take are equally wide. However, in The Attorney General of St. Christopher, Nevis & Anguilla v. Reynolds (PC) [1980] AC 637 the Privy Council (at page 640) accepted the submission that exemplary damages were not recoverable as part of an award of damages for a breach of a constitutional right. In Jorsingh , the Chief Justice said (at page 505A): "If that is to be regarded as part of the ratio decidendi, then I would respectively express the hope that the Privy Council may be persuaded to re-examine this issue when it is raised again before them, as inevitably it will be" . It was a view with which Sharma J.A. agreed (at page 346C). It appears that they considered themselves bound by Reynolds. Reference has been made in the submissions to me of the subsequent award of exemplary damages in CvA 159 of 1992 Thaddeus Bernard v. Nixie Quashie , and to de la Bastide CJ saying there that: "this hopefully will deter others from abusing their position, their authority and their uniform in a similar way". That, however, was a writ action.
Subsequent to Jorsingh , in HCA S47 of 2001 Siewchand Ramanoop v. Attorney General of Trinidad and Tobago, Bereaux J. (at page 8) considered himself bound (not for the first time) by Reynolds and expressed the further view that awards of exemplary damages are inappropriate in actions brought under Section 4 of the Constitution. This decision is currently the subject of an appeal in which judgment has been reserved.
In HCA 1717 of 2001 Jennelyn Guerra v. Attorney General of Trinidad and Tobago , Dean-Armorer J declined to award exemplary damages saying (at page 15) that she considered herself bound by Jorsingh, and that they were not recoverable as part of an award of damages for breach of a constitutional right.
Kangaloo J must have considered himself not to be so bound in Ramesar where he awarded $7,500.00 as exemplary damages. Smith J awarded exemplary damages in HCA 801 of 1997 Abraham v. Attorney General of Trinidad and Tobago based upon Jorsingh , which in his view permitted such awards in appropriate cases.
I also consider myself bound by the decision in Reynolds
Further, however, it is my view that if the action of the State has been such as to be a flagrant abuse of the individuals' right, or wilful, malicious, biased, or otherwise egregious so as to warrant an award larger than might normally be made, then it is perfectly appropriate for a Court to factor this into an increase in the award to be made. I say this while acknowledging that an award increased on this basis might well be regarded as punitive. Indeed, to “mulct” the State, as both Chandrachud CJ and Hamel-Smith expressed it, might well be regarded as being punitive, but both of them refer, not without some emphasis, to this constituting monetary compensation. It does not seem therefore that they intended "mulcting" to move beyond the compensatory and into the punitive. Further, the array of remedies available to a Court in determining a constitutional motion enable it to fashion one to meet the justice of the case without resorting to a separate award of damages, by whatever name, exemplary or otherwise.
In any event, there is nothing in the instant case to persuade me that what actually occurred would entitle the Applicants to a separate award of exemplary damages (which Kangaloo J opined in Jonathan, might have to be pleaded and particularised). There has been no flagrant abuse of their right, and none of the other factors which might persuade me to award exemplary damages are present. Nor is there anything in the manner in which the breach was committed or in the consequences which flowed from it which would persuade me to make such an award. Similarly, there is no good reason to increase any award I might otherwise make.
I therefore decline to include an award of exemplary damages.
Disposition
In all the circumstances, and having already ordered that the Commissioner of Prisons be struck out as a respondent herein:
1. By consent, it is declared that the failure and/or neglect and/or omission of the Respondent, his servants and/or agents to transmit for filing to the Clerk of the Peace, Chaguanas Magistrates Court, the Applicants' Notices of Appeal of or before the expiration of the seventh day after the Order for their sentence and conviction was made on the 16 th July, 1999 by Her Worship Magistrate Ayers-Caesar at the Chaguanas Magistrates Court constitutes a contravention of the Applicants' right to the protection of the law granted under Section 4 (b) of the Constitution;
2. I order that the Respondent pay to each of the Applicants the amount of $5,000.00 as damages for the breach for their constitutional right as set out at 1. above;
3. The Respondent will pay interest on the amounts of $5,000.00 at the rate of 6% from 20 th June 2002 to judgment;
4. The Respondent will pay the Applicants' costs of the Motion. For clarity, they are certified fit for one Advocate only.
13 th February 2003
C.V.H. Stollmeyer
Judge
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