REPUBLIC OF TRINIDAD AND TOBAGO IN THE COURT OF …

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