IN THE COURT OF APPEAL BETWEEN CENTRAL BROADCASTING SERVICES LIMITED AND SANATAN DHARMA MAHA SABHA OF TRINIDAD AND TOBAGO AND

Transcription

1 TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Civil Appeal No: 216 of 2009 BETWEEN CENTRAL BROADCASTING SERVICES LIMITED AND SANATAN DHARMA MAHA SABHA OF TRINIDAD AND TOBAGO Appellants AND ATTORNEY GENERAL OF TRINIDAD AND TOBAGO Respondent *************** PANEL: R. NARINE J.A. G. SMITH J.A. M. RAJNAUTH-LEE J.A. Appearances: Mr. V. Nelson Q.C., Mr. G. Ramdeen and Mr. K. Samlal Instructed by Mr. A. Mohammed for the Appellants. Mr. R. Martineau, S.C., Ms. M. Smith and Mr. S. Alsaran instructed by Ms. S. Sharma for the Respondent. Date Delivered: 29 th July, 2013 Page 1 of 21

2 I have read the judgment of Narine J.A. and agree with it. I too, agree. G. Smith Justice of Appeal. M. Rajnauth-Lee Justice of Appeal. JUDGMENT Delivered by R. Narine J.A. 1. This is an appeal against the assessment of damages in favour of the Appellants for breach of their constitutional rights to equality of treatment from a public authority, and freedom of expression contrary to section 4(d) and 4(i) of the constitution. The material facts, as found by the Judicial Committee of the Privy Council are as follows. In December 1999 the Second Appellant (S.D.M.S) applied for a radio broadcasting licence. In August 2000, SDMS incorporated the First Appellant (C.B.S.L.) On 1 st September 2000, CBSL submitted an application for a radio licence. On 10 th October 2000 the Director of the Telecommunications Division wrote to the Permanent Secretary of the Ministry of Communications and Information Technology stating that CBSL s application had met all necessary criteria and that the Division had no objection to the grant of a broadcasting licence. 2. However, no decision was made regarding the grant of a licence. The Appellants wrote to the ministry requesting information. By letter of 5 th March 2001 the Permanent Secretary responded that he would investigate and get back to them shortly. By memorandum dated 15 th March 2001, the Director of Communications reminded the Page 2 of 21

3 Permanent Secretary of his earlier communication and advised that the SDMS s application was sent under the name of CBSL with his recommendation. 3. The Appellants received no further communication with respect to their application. In August 2002, they became aware that a radio broadcasting licence had been granted to Citadel Limited (Citadel) whose directors were Mr. Louis Lee Sing and Mr. Antony Lee Aping. 4. In December 2001, there was a change of government. The new Minister of Science Technology and Tertiary Education (under whose portfolio the grant of broadcast licences fell) was Mr. Hedwidge Bereaux. In a media conference on 1 st August, 2002, Mr. Bereaux stated that Citadel had applied for its licence on 13 th March, Citadel was in fact incorporated on 28 th August The Appellants brought a constitutional motion on 16 th August 2002 claiming, inter alia, declarations that their rights to equality of treatment, freedom of conscience and/or religious belief and/or freedom of thought and expression had been denied, and sought an order directing the grant of radio licences to the Appellants. 6. At first instance on 4 th February, 2004 Best J held that there had been unequal treatment contrary to section 4(b) and (d) of the constitution, but found it unnecessary to consider whether there were breaches of the rights to freedom of conscience and religious belief and freedom of thought and expression contrary to section 4(h) and (i). The judge declined to make an order directing the Cabinet to grant a licence on the basis that such an order would amount to a usurpation of Cabinet s power to make the decision. 7. By letter dated 11 th February 2004, SDMS wrote to the Prime Minister enclosing a copy of the judgment and asking that a licence be granted by 20 th February, The Minister of Public Administration and Information replied on 25 th February 2004, stating that the matter was receiving attention, and further correspondence would follow, There was no further correspondence. 8. The Appellants appealed to the Court of Appeal, which heard the matter in October 2004 and delivered judgment in January The Court of Appeal upheld Best J s finding of discrimination and agreed with him that it was unnecessary to consider the further breaches of sections 4(h) and (i) of Page 3 of 21

4 the constitution. The court, however, dismissed the Appellents appeal seeking an order for the grant of a licence, and ordered that the matter be placed before the Cabinet for its consideration within 28 days. 10. There was a further hearing before the Court of Appeal in which the Respondent asked the court to review its decision in light of the Telecommunications Act 2001, which came into force on 30 th June It was submitted that the regime for the grant of licences under the Wireless Telegraphy Ordinance no longer applied. The suggestion was that the Appellants would now have to submit a new application to the Telecommunications Authority. 11. The Court of Appeal rejected the submission, holding that the transitional provisions of the 2001 Act preserved the power of the President to grant licences on the advice of Cabinet in respect of pending applications. The court noted that it understood from counsel that Cabinet had already considered the application in compliance with the order of the court and directed that the cabinet should advise the President within 28 days if it had approved the application. If it had refused the application, it should so advise the CBSL within 28 days, giving reasons for the refusal. 12. On 12 th May 2005, the Appellants obtained final leave to apply to the Judicial Committee of the Privy Council. On 17 th May 2005, the Permanent Secretary in the Ministry of Public Administration and Information wrote to the CBSL disclosing for the first time that Cabinet had considered its application on 19 th February 2004 and 11 th March 2004 and had decided to refuse the application on 24 th June, The Judicial Committee of the Privy Council found the contents of the letter of 17 th May 2005 to be remarkable, inter alia, for the following reasons: (i) Until the letter of 17 th May 2005, no steps were taken to notify the Appellants of the refusal of the licence. (ii) The Court of Appeal had been allowed to proceed under a serious misapprehension through the course of two substantial hearings that is, that Cabinet had never considered the application. In fact, according to the letter, cabinet had twice considered the application and had refused it since June 2004, well before the first hearing in October 2004, and almost a year before the second hearing. Page 4 of 21

5 (iii) There was no consideration or re-consideration of the matter by Cabinet in compliance with the Court of Appeal s first judgment as was conveyed to the court during the second hearing. On the contrary, the refusal in June 2004 is inconsistent with any reconsideration or compliance with the Court of Appeal s first order. 14. Before the Board, counsel for the Respondent conceded that the position was unusual and unsatisfactory. The Board described the concession as an understatement. Their Lordships further found that the State s handling of CBSL s licence application was arbitrary or capricious. It found that it was highly regrettable that the Court of Appeal was allowed to proceed on false premises. In the light of the exceptional circumstances not revealed to the Court of Appeal, the Board allowed the appeal, and issued a mandatory order that the Respondent should do all that is necessary to procure and ensure the issue of a radio broadcasting licence forthwith to CBSL. In spite of the strong language used by the Board the licence was not granted until 22 nd September 2006, more than two months after the order was made. 15. The Board further found that there was a breach of CBSL s right to freedom of expression contrary to s. 4(i) of the Constitution. In doing so, the Board found that there was a conspicuous failure to deal with the application over the years, and unexplained and unjustified discrimination in favour of Citadel. In addition the Board upheld the lower court s finding that there was a breach of the right to equality of treatment from a public authority in the exercise of its functions contrary to s. 4(d) of the constitution. 16. Pursuant to the order of the Court of Appeal, Boodoosingh J assessed damages for breach of the Appellant s rights. He awarded the sum of $952, as compensatory damages, and $ for vindicatory damages, and ordered the Respondent to pay the Appellants costs certified for one advocate and one instructing Attorney. 17. The Appellants appealed the quantum of compensatory damages awarded, contending that the judge should have used a higher figure as the base figure for his calculation. The appellants also appealed the order for costs, claiming that the judge should have certified costs for two counsel having regard to the novelty, complexity and Page 5 of 21

6 importance of the matter. The Respondent filed a cross-appeal on the basis that the award of both vindicatory and compensatory damages was too high. 18. The issues that arise for decision are broadly: (i) Whether the judge s assessment of compensatory damages was inordinately low or high. (ii) Whether the award of vindicatory damages was inordinately high. COMPENSATORY DAMAGES: 19. The Appellants are entitled to compensation for loss of earnings incurred during the period in which they were wrongfully denied the broadcasting licence. (See: Maharaj v. Attorney General No. 2 (1978) 2 All ER 670). 20. It is well settled that an appellate court will not substitute its own award for that of a lower court merely because it considers that the award is too high or too low. The appellate court will only interfere with the award if it is persuaded that the judge has misdirected himself on the law or on the facts. The gap between what the Court of Appeal considers to be within the range of a proper award, and the award actually made by the judge must be so great as to render the latter a wholly erroneous estimate of the loss suffered: per de la Bastide CJ in Bernard v. Quashie Civ. App. No. 159 of 1999 at page In this case the trial judge received the evidence of Mr. Satnarayan Maharaj, the Secretary General of the SDMS, and Mr. Devant Maharaj the Chief Executive Officer of CBSL. Both witnesses filed affidavits and were cross-examined by counsel for the Respondent. It emerged from the cross-examination of Mr. S. Maharaj that CBSL has been able to attract significant corporate advertisers. The trial judge found both witnesses to be credible and was impressed by their efforts to assist the court with information when requested to so. He found both witnesses to be truthful. 22. Mr. D. Maharaj has a degree in Commerce with a double major in Marketing and Management of Human Resources. CBSL began broadcasting in January It was the first Hindu radio station in Trinidad and Tobago catering for religious programming, and had a unique share of the advertising market. Page 6 of 21

7 23. Mr. D. Maharaj prepared estimates for CBSL for the years , with the guidance of its accountants. These estimates included: - Estimated Income Statements for Estimated Cash Flow for Personnel Plan for Fixed Assets Estimates for Estimated Balance Sheets for Estimated Income Statement for February-June The trial judge considered these documents, and found that they assisted him in determining the reasonableness of the expenses and revenue. There was thorough cross-examination on the documents which revealed that there was some underestimating of the expenses which would have been incurred in earning the revenue. Generally however, the trial judge found the estimates to be fairly reasonable. 25. Mr. D. Maharaj testified that CBSL declared a net profit of $412, for its first year of operation in A copy of a Corporation Tax Return for 2007 was exhibited to his affidavit. In the absence of contradictory evidence the trial judge accepted on a balance of probabilities, that the tax return represented the net profit of CBSL for the year The trial judge considered the return to be a statement against interest since the higher the profit declared, the higher would be CBSL s tax liability. 26. Mr. D. Maharaj was subjected to a detailed cross-examination on the estimated expenses which revealed that some items of expenditure were understated or omitted, including travelling expenses, copyright fees, broadcast licence fees, commissions, certain stationery expenses, and national insurance payments. The trial judge did not find that there were gross omissions. He estimated the omissions would have reduced net profits by approximately 10%. In arriving at his conclusion the trial judge noted that he considered the cross-examination a whole. He was persuaded by Mr. D. Maharaj s evidence that the operating expenses were fairly stated and noted that the witnesses were cooperative in facilitating the Respondent s requests for further information during the assessment. Page 7 of 21

8 27. The trial judge went on to consider the estimates of profit provided by CBSL for the years 2001 to For 2001, the projected profit was $245, The profit for the year 2002 was projected to grow by 160% to $639, followed by growth rates of 21%, 17%, 15% and 13% for the year 2006, for which the estimated profit was $1,177, Having found that the operating expenses were understated by approximately 10%, the judge discounted the figure of $245, by 10% arriving at a profit of $225, for the first year of operation. He decided that compensation should be assessed from August 2002, which was the time at which the broadcast licence was granted to Citadel. 29. In assessing the profit for the second year of operation, the trial judge rejected the projected growth rate of 160% as estimated by the Appellants. In the absence of a detailed explanation for such a large increase, and taking into account the inherently speculative nature of the exercise, the trial judge was prepared to use a more conservative growth rate of 20% followed by 10% for successive years. From the base profitability figures so calculated, the trial judge then adjusted the figures using the approximate rates of corporation tax for the years By this method he arrived at a figure of $892, as loss of profit for the years The trial judge awarded a further $60, as compensatory damages, for the delay of two months between the making of the mandatory order of the Privy Council made on 4 th July 2006 and the actual granting of the licence on 22 nd September This was based on a pro rata calculation of $30, a month having regard to the declared profit of $412, for the first year of operation. 31. The Appellants contend that the judge should have used the sum of $412, for the base year figure for This was the net profit that CBSL achieved in their first year of operation in 2007, in a more competitive market than obtained in In the Appellants submission, it is not unreasonable to conclude that CBSL would have achieved at least the sum of $412, if it had started The Appellants further submitted that the judge erred in law in rejecting the projected growth rates for profits for the years , and substituting the more Page 8 of 21

9 conservative rates. In their submission the substituted growth rates are not supported by the evidence. 33. Based on a base year figure of $412, and applying the Appellants projected growth rates, the Appellants submit that the trial judge should have award the sum of $2,818, Alternatively, using the estimated profit of $245, (as submitted in the Appellants estimates of profit) and applying the Appellants projected growth rates, the Appellants estimate that they lost $1, in profit for the years 2002 to This figure, in the Appellants view, is the minimum figure that should have been awarded for loss of profits. 34. The Appellants changed their position somewhat in their oral submissions. Before us, Mr. Nelson put forward three possible approaches that the court could adopt, all based on the use of the profit figure of $412, which was actually achieved in the first year of operation in In Mr. Nelson s submission the use of the figure which was actually achieved in 2007, is a more reliable guide and is less speculative than the use of projected estimates. In Mr. Nelson s words the year 2007 is your marker because you are not projecting into a vacuum, you are projecting into a certainty at the very least for The three possible approaches put forward by Mr. Nelson were: (i) Take the sum of $412, for 2007 and work backwards to the year (ii) Alternatively, use the figure of $412, as the starting point in 2002 and work forward to the year 2006, using the growth rates applied by the trial judge. (iii) Use a reduced figure of $350, for the year 2002 and work forward to Using the first approach, if one applies the projected growth rates going backwards one would arrive at an extremely low starting figure for This is because of the higher projected growth rates suggested by the Appellants. If one applies the growth rates suggested by the trial judge the starting figure for 2002 would be marginally higher than the one used by the trial judge. In fact in their written submissions the Appellants acknowledged that the growth rate used by the trial judge Page 9 of 21

10 would have yielded a net profit of $395, in This figure is remarkably close to the actual profit of $412, realized for that year. 37. Using the second approach suggested by the Appellants, and applying the growth rates used by the trial judge, the projected net profit for 2007 would be more than double the actual profit realized in Using the figure of $783, as the net profit after taxation for 2005 (as set out in the Appellants written submissions) and applying increases of 10% for the years 2006 and 2007, gives a net profit of $862, for the year 2006 and $948, for the year Clearly this approach would yield a grossly inflated net profit for Using the figure of $350, as net profit for the year 2002, which is put forward as a compromise figure is also problematic. In the first place, there is no evidential basis to support the use of this figure. In addition, whichever growth rates are used, the result will be an inflated figure well above the net profit actually achieved in Using the growth rate applied by the judge the starting figure of $350, yields a net profit of $420, for 2003, $462, for 2004, $508, for 2005, $559, for 2006 and $614, for If the projected growth rates suggested by the Appellants are used, the distortion will be even greater. 39. The mathematical exercise carried out above illustrates that the second and third methods by Mr. Nelson would yield results which are disproportionate and inconsistent with the net profit actually achieved for Mr. Nelson s first method of using the net profit figure of $412, for 2007 and working backwards, produces an appreciably smaller starting figure for 2002, if the Appellants suggested growth rates are used. If the growth rates applied by the judge are used however, the starting figure will be closer to the figure of $225, which the trial judge used as a starting figure in As the Appellants conceded, the judge s method of calculation produces a net profit of $395, for The difference is approximately $17, Spread over a period of 5 years, and considering the application of a growth rate of 20% for the first year followed by 10% in successive figure, the difference in the starting figure used by the judge, and the starting figure which would yield the sum of $412, in 2007 must be miniscule. Accordingly, the method used by the trial judge is remarkably Page 10 of 21

11 consistent with the first approach suggested by Mr. Nelson, of using the figure actually realized for net profit in the first year as a marker and working backwards. 40. It must be borne in mind that in assessing the loss of profit suffered by the Appellants for the years , the judge used as his starting figure an estimate put forward in evidence by the Appellants. The judge discounted this figure by 10% to take into account operating expenses which were underestimated or omitted. In using the estimates provided by the Appellants the trial judge cannot be faulted. Even so, as it turns out the trial judge s assessment yields a figure for net profit which is marginally less than that actually realized for the year As noted earlier, an appellate court does not lightly interfere with a judge s assessment of damages. The court will only interfere if it finds that the award was a wholly erroneous estimate of the damage suffered. Having regard to the marginal difference in the result using the judge s approach, there can hardly be any justification for interfering with the judge s assessment. 41. The Respondent submitted that the award of compensatory damages was against the weight of the evidence. Specifically, the Respondent contended that: (i) There was no proper evidence of what the profits would have been over the period August 2002 to September, The estimates of income for the period were purely speculative, unsupported by documentary evidence and failed to provide details of the sources of income. (ii) The income tax return for the year 2007 was incomplete and unreliable and was not supported by any documentation showing how the revenue figure stated therein, was arrived at. Further, the alleged profits for 2007 could not provide a guide for the years 2002 to (iii) The trial judge awarded compensatory damages up to September 2006, when the licence was actually granted. There was no basis for an award of damages for a further two months. There was no causal connection between the breach of the Appellants constitutional rights and the loss of profits caused by the late arrival of equipment to start up operations. 42. In assessing loss of profits for the years the trial judge considered estimates of income and expenditure prepared by Mr. Devant Maharaj with the Page 11 of 21

12 guidance of CBSL s accountants Haddaway and Company. Mr. D. Maharaj was the Chief Executive Officer of CBSL. He had held a senior position at the National Lotteries Control Board. As noted earlier he has a degree in Commerce with a double major in Marketing and Management of Human Resources. The trial judge considered his evidence carefully and found him to be a truthful witness, who was willing to assist the court as best he could, and he was subjected to a rigorous cross-examination, during which he readily conceded when omissions of expenses were put to him. The trial judge in fact found that there was some underestimating of expenses for which he made an adjustment of 10% from the estimated profit for the year Generally speaking, he found the estimates to be fairly reasonable. 43. The trial judge accepted Mr. D. Maharaj s evidence that he signed the corporation tax return for 2007 and gave it to the accountant for filing. On a balance of probabilities the trial judge found as a fact that the copy presented at the assessment was CBSL s tax return for the year However, the judge did not assess loss of profits for the years 2002 to 2006, based on the profit declared in the 2007 return. In assessing loss of profit for those years the judge used the estimated profit for the years 2001 as contained in the estimate income statement for CBSL for the years 2001 to 2006, which he reduced by 10% to reflect underestimating of expenses. He used this figure as the starting figure for the year The difficulty with an assessment of this kind arises from the fact that there can be no documentation providing evidence of income or expenditure actually incurred. Inherent in the exercise is a certain amount of speculation and guesswork guided by undisputed facts and a reasoned approach to assessing the evidence. In this case there was undisputed evidence before the court that CBSL was catering for a particular sector of the Hindu market. The Hindu advertising market was approximately 25-35% of the national market. In its first year of operation CBSL was able to attract significant corporate advertisers. CBSL had the backing of SDMS, a body which exercised influence over a significant section of the Hindu population, and which was able to provide substantial capital support. In 2007, in a more competitive market than that which obtained in 2002, CBSL was able to achieve a substantial profit in its first year of operation. Page 12 of 21

13 45. From these and largely undisputed facts, the trial judge reasoned that in 2002 CBSL would have made a fair profit. He went on to consider the evidence carefully. He was assisted in coming to his findings of fact by a very thorough cross-examination. His approach was reasoned, meticulous and restrained. In principle we can find no reason for disturbing his award of compensatory damages based on his findings of fact and his assessment of the credibility of the witnesses. 46. As indicated earlier on 4 th July 2006 the Privy Council granted a mandatory order that the Respondent should do all that is necessary to procure and ensure the issue forthwith of a radio broadcasting licence to CBSL. On the same day that the order was granted, the Attorney General wrote to the Chairman of the Telecommunication Authority informing him of the order. In spite of the strong wording of the order, and the immediate action of the Attorney General, no licence was issued to CBSL until 22 nd September, The trial judge found that had there been timely compliance with the order, CBSL would have been able to receive their equipment and would have been able to start operating by November, 2006 instead of January Accordingly, the trial judge granted compensation for this two month delay in the sum of $30, per month for two months. We have not been persuaded that the trial judge was wrong to grant reasonable compensation for loss of profit occasioned by the delay, which in our view compounds and exacerbates the breach of CBSL s constitutional rights as found by the Privy Council. VINDICATORY DAMAGES: 47. The conceptual difference between compensatory damages and vindicatory damages for breach of a constitutional right was enunciated by Lord Nicholls in the case of The Attorney General of Trinidad and Tobago v. Siewchand Ramanoop (2005) UKPC 15 at paragraphs 18 and 19: 18. When exercising this constitutional jurisdiction the court is concerned to uphold, or vindicate, the constitutional right which has been contravened. A declaration by the court will articulate the fact of the violation, but in most cases more will be required than words. If the person wronged has suffered damage, the Page 13 of 21

14 court may award him compensation. The comparable commonlaw measure of damages will often be a useful guide in assessing the amount of this compensation. But this measure is no more than a guide, because the award of compensation under s 14 is discretionary and, moreover, the violation of the constitutional right will not always be co-terminous with the cause of action at law. 19. An award of compensation will go some distance toward vindicating the infringed constitutional right. How far it goes will depend on the circumstances, but in principle it may well not suffice. The fact that the right violated was a constitutional right adds an extra dimension to the wrong. An additional award, not necessarily of substantial size, may be needed to reflect the sense of public outrage, emphasise the importance of the constitutional right and the gravity of the breach, and deter further breaches. All these elements have a place in this additional award. Redress in s 14 is apt to encompass such an award if the court considers it is required having regard to all the circumstances. Although such an award, where called for, is likely in most cases to cover much the same ground in financial terms as would an award by way of punishment in the strict sense of retribution, punishment in the latter sense is not its object. Accordingly, the expressions punitive damages or exemplary damages are better avoided as descriptions of this type of additional award. (emphasis added) 48. Subsequent pronouncements of the Privy Council have emphasized that the purpose of an award of vindicatory damages is not to punish the executive but to vindicate the right. However, a legitimate purpose of such an award is to deter further breaches by the executive. The size of the award is at the discretion of the trial judge. It will depend on the nature of the particular infringement and the circumstances of the case. See: Tamara Merson v. Drexel Cartwright and The Attorney General of the Bahamas (2005) UKPC 38 at paragraph 18, and Angela Inniss v. Attorney General of Saint Christopher and Nevis (2008) UKPC 42 at paragraph 27. Page 14 of 21

15 49. The discretion of the court to award damages or to fashion an appropriate remedy to suit the particular circumstances of the case is not to be fettered. The importance of this discretion was emphasized by Sharma J.A. (as he then was) in the case of Ramnarine Jorsingh v. Attorney General (1997) 52 W.I.R. 501 at 512, where he was construing the language of section 14(2) of the constitution. The breadth of the language of subsection (2) is clear. The court is mandated to do whatever it thinks appropriate for the purpose of enforcing or securing the enforcement of any of the provisions dealing with the fundamental rights. There is no limitation on what the court can do. Any limitation of its powers can only derive from the Constitution itself. Not only can the court enlarge old remedies; it can invent new ones as well, if that is what it takes or is necessary in an appropriate case to secure and vindicate the rights breached. Anything less would mean that the court itself, instead of being the protector, defender and guarantor of the constitutional rights, would be guilty of the most serious betrayal. 50. In this case the trial judge made an award of $500, for vindicatory damages. Undoubtedly this is the highest such award ever made in this jurisdiction. In considering whether this was an appropriate case for the award of vindicatory damages, and if so, the amount that should be awarded under this head, the trial judge expressed referred to the principles set out in Ramanoop (supra), Merson (supra) and Inniss (supra). He also considered the importance of the right to equal treatment of treatment by a public authority and the right of freedom of expression in the peculiar historical and social context of Trinidad and Tobago. 51. In considering the importance of these rights the trial judge expressly referred to the following facts: (i) SDMS is a religious, educational and cultural organization which caters to a large segment of the Hindu population. (ii) The effect of the breaches of the rights to equality of treatment and freedom of expression would have impacted not only on the Appellants, but also on a Page 15 of 21

16 large segment of the population who would have identified with CBSL s radio station. (iii) Non-Christians have historically felt discrimination in the society. (iv) The radio station would have provided a channel to air religious, cultural and educational material, social perspectives and even political views. In a plural society, it can be used to reach one group and even to influence other groups. (v) In a society in which many citizens depend on the resources of the state, and in which the state s reach is wide, equal treatment form public authorities is of great importance even more so in a plural society where persons of different ethnicity compete for state resources. (vi) The consequences of unequal treatment can be particularly severe in a multiethnic, multi-racial and multi-religious society, where perception of unequal treatment can lead to alienation and social unrest. 52. In addition to the social and historical factors outlined above the trial judge expressly alluded to, inter alia: (i) The unexplained and unjustified discrimination in favour of Citadel Limited. (ii) The unexplained delay in dealing with the application after it was recommended since (iii) The failure to notify the Appellants of Cabinet s decision of 24 th June (iv) The fact that the Court of Appeal was allowed on two occasions to proceed under a serious misapprehension and to give judgment on false premises. (v) The unjustified delay in complying with the mandatory order of the Privy Council made on 4 th July, Having considered all of the above facts, and acknowledging that the award of $500, is significantly higher than previous awards in this jurisdiction, the trial judge asserted that this award was primarily intended to deter public authorities and persons entrusted with public functions from engaging in or persisting in unequal treatment. 54. In support of his cross-appeal the Respondent submitted that the award of vindicatory damages was inordinately high, and must have contained a punitive Page 16 of 21

17 element. In addition, the Respondent contended that the trial judge took into account a number of irrelevant considerations, some of which are set out in paragraph 51 above. 55. In support of his submissions that the award was inordinately high the Respondent referred us to a number of local decisions in which the award for vindicatory damages varied from $30, to $80, A number of these cases involved the deprivation of liberty. In Ramanoop (supra) which involved breaches of the right to liberty and security of the person, an award of $60, was made. In Robert Naidike v. The Attorney General Civ. App. No. 86 of 2007, the Applicant was awarded the sum of $75, in vindicatory damages. In Khimrajh Bissessar v. The Attorney General of Trinidad and Tobago H.C.A. No. S490 of 1998, the Applicant was awarded the sum of $80, in vindicatory damages for breach of his rights to equality of treatment from a public authority, and equality before the law and protection of the law. This matter involved a senior prisons officer who had been repeatedly by-passed for promotion. 56. We have been referred to one decision arising from a regional jurisdiction, in which damages awarded for breach of the Applicant s constitutional rights were appreciably higher than local awards. This was the Bahamian case of Merson v. Cartwright and anor. (2002) 67 W.I.R. 17, in which the Appellant sued Cartwright, a police officer and the Attorney General of the Bahamas for damages for assault and battery, false imprisonment malicious prosecution and contravention of her constitutional rights. These rights included her right not to be subjected to inhuman or degrading treatment, her right to personal liberty, her right to be informed promptly of the reasons for her arrest and detention and her right to retain, instruct and hold private communication with a legal representative of her choice. The trial judge awarded her $8, for special damages, $90, for assault, battery and false imprisonment $90, for malicious prosecution and $100, for breach of her constitutional rights. The Bahamian Court of Appeal set aside the award of $100, as being a duplication of damages awarded for the tortious conduct of the Respondents. The award of $100, for breach of her constitutional rights was restored by the Privy Council. While the Board noted that there was an absence of details as to the elements comprised in each award, and in particular the absence of any indication of how the Page 17 of 21

18 figure of $100, was reached, the Board found that on the extreme facts of the case an award of vindicatory damages of $100,000.00, though high was within the bracket of discretion available to the trial judge. 57. This court recognizes that there should be some element of consistency and proportionality in the award of vindicatory damages. However, the award must vary depending on the circumstances of the particular case, the importance of the constitutional right in question and the nature of the breach. The award is discretionary, and an appellate court must be careful in examining the exercise of the discretion, bearing in mind that in matters of this kind the discretion of the inferior court ought not to be fettered. 58. The first task of the trial judge is to consider the importance of the right in question. The trial judge is first required to make a value judgment. He must by his award vindicate the importance of the constitutional right. He must also consider the gravity of the breach, and the need to deter further breaches of the right. He must consider the particular circumstances of the case, including the conduct of the executive, bearing in mind that the purpose of the award is not to punish the executive by his award, but to deter it from committing similar breaches. 59. In this case the trial judge considered the importance of the right to equality of treatment by a public authority, and the right to freedom of expression in the peculiar social and historical context of Trinidad and Tobago. In my view, this was a relevant consideration, having regard to the nature of the rights that were breached. 60. It is well known that persons of East Indian and African origin comprise the largest demographics in terms of race in this country. The East Indians started arriving in 1845, to provide labour in the sugar estates after the African slaves were emancipated in Since the grant of independence in 1962, there have been two major political parties which dominate the politics of this country. One of those parties has tended to attract the support of the Afro-Trinidadian voters who reside in the urban and semi-urban districts. The other political party has found its base in the rural areas where descendants of the East Indian immigrants reside. It is unfortunate that politicians have historically appealed to racial, tribal and ethnic instincts to attract political support. Since 1986, there has been some positive movement away from Page 18 of 21

19 politics based on race. However, in the main, the dominant political parties still find the bulk of their support from persons of a particular race and ethnicity. 61. Since 1991, there have been fairly frequent changes of government. With every change, the race which supports the political party which is out of power complains of being marginalized and starved of state resources. There have been strident complaints that persons of a particular race or political persuasion have been removed without justification and replaced with persons of another race or political persuasion. The group which is out of power at any particular time keeps a close watch on how the resources and services of the state are distributed between the urban and rural areas, and the race and ethnicity of the beneficiaries. 62. It is against this historical and social background, that the importance of the right to equal treatment from a public authority in a multi-racial, multi-ethnic and multireligious society must be assessed. In my view, the trial judge addressed his mind to the relevant considerations in this case, and I have not been persuaded that there is any reasonable basis for interfering with his award, bearing in mind that vindicatory damages are discretionary in nature. In order for this court to set aside this award, it must be shown that the award was plainly wrong, or was vitiated by manifest error, which the Respondent has not been able to establish in this case. 63. The Respondent further submitted that the award was so high that it must have contained a punitive element. This is a matter of pure conjecture. In his judgment the trial judge referred to the authorities of Ramanoop (supra) and Merson (supra) in which the Privy Council explained that the purpose of making an award of vindicatory damages was not to punish the executive for misbehaving. It is clear that the trial judge was guided by the principles set out in these authorities, when he was considering whether an award of vindicatory damages was warranted in this case, and the size of the award that should be made. 64. The Respondent also complained that the trial judge took irrelevant matters into account, in particular the matters outlined in paragraph 51 above. In his submissions, Mr. Martineau contended that the trial judge should have focused principally on the breach of the rights, and not the post-breach conduct of the executive. We agree that the focus of the court should be on the breach, the surrounding circumstances of the Page 19 of 21

20 breach and the consequences of the breach in the context of the society. However, in this case the court was entitled to look at the conduct of the executive, not with a view to punishing it, but for the purpose of deterring public authorities from engaging in such undesirable conduct in the future. In this case the conduct of the executive was found to be arbitrary and capricious. It allowed the Court of Appeal to proceed under a serious misapprehension throughout the course of two substantial hearings and even in the face of a mandatory order of the Privy Council, delayed a further two months before granting the licence. In view of such conduct, the trial judge was clearly justified in taking this matter into account with a view to deterring the executive from engaging in such undesirable conduct in the future. 65. I am mindful that the award of $500, made by the trial judge is several times larger than any previous award given for vindicatory damages in this jurisdiction. However, I am of the view that this case is exceptional in terms of the effects of the breach of the constitutional rights in question. The cases which I reviewed in paragraphs 55 and 56 above dealt generally with breaches of the right of the individual to liberty, and the right not to be deprived thereof except by due process of law. No doubt this right is of fundamental importance in a society which has a proper respect for the rights and freedoms of the individual and the rule of law. However, in all these cases the effect of the breach of the right was felt only by the individual concerned. Even in Khimraj Bissesssar (supra.), the breach of the right to equality of treatment from a public authority affected the particular individual concerned. This case is different from all of the others in that the breach of the rights in question had consequences, not only for the individual whose rights were infringed, but for a substantial segment of the population which would have been deprived of the opportunity to access the religious, cultural, educational and political material disseminated by the Appellants. In my view, having regard to the wide ranging effect of the breach of the rights in this case and the importance of the right concerned in the peculiar social and historical context of this society, the unprecedented award of vindicatory damages, made by the trial judge in this case, ought not to be disturbed. 66. The Respondent further submitted that the trial judge was wrong to order the damages to be paid to the Appellants, rather than to CBSL. In this case it was SDMS Page 20 of 21

21 that first applied for a broadcasting licence in December In August 2000, SDMS incorporated CBSL, which submitted a second application on 1 st September It appears that the first application became subsumed in the second. According to the evidence, there always has existed a close relationship between SDMS and CBSL, although the latter constituted a separate legal personality. Mr. S. Maharaj is in fact the Secretary General of SDMS and the Chairman of CBSL. SDMS in fact invested $1.6 million in setting up the radio station operated by CBSL, which is housed in the compound of one of SDMS s schools for which CBSL pays no rent. While CBSL has a distinct legal personality, as the trial judge found, it has a close and integral connection with SDMS. It follows that while technically the damages should be awarded to CBSL as opposed both to SDMS and CBSL, for practical purposes it appears to make little difference. 67. Finally, the Appellants have appealed the order for costs made by the judge, for costs to be paid by the Respondent certified fit for one advocate and one instructing attorney. The Appellants submit that having regard to the novelty, complexity and importance of the assessment, costs should have been certified fit for two Counsel. It must be noted that the award of costs is discretionary in nature. I have not been persuaded that the trial judge was plainly wrong in the exercise of this discretion, and so I decline to interfere with his award of costs. DISPOSITION: It follows that both the appeal and the cross appeal are dismissed. The Appellants will pay the Respondent s costs of the appeal certified fit for Senior Counsel and the Respondent will pay the Appellants costs of the cross-appeal certified fit for Senior Counsel, to be taxed in default of agreement. Dated the 29 th day of July, Rajendra Narine Justice of Appeal. Page 21 of 21