Andre Errol Baptiste v Boxu Potts
| Jurisdiction | Trinidad & Tobago |
| Judge | M. Dean- Armorer, J.A. |
| Judgment Date | 18 December 2023 |
| Neutral Citation | TT 2023 CA 87 |
| Docket Number | CIVIL APPEAL NO. P 342 OF 2018 |
| Court | Court of Appeal (Trinidad and Tobago) |
A. Yorke-Soo Hon JA
M. Dean-Armorer JA
M. Holdip JA
CIVIL APPEAL NO. P 342 OF 2018
CLAIM NO. CV 2017 OF 00778
IN THE COURT OF APPEAL
Mr. I. Benjamin SC led Ms. D. Springer instructed by Ms. S. Seenath on behalf of Andre Errol Baptiste and Limited Mr. A. Ramlogan SC (absent) led Mr. J. Jagroo instructed by Mr. R. Abdool-Mitchell
Delivered by M. Dean- Armorer, J.A.
This appeal challenges the decision of Mme. Justice M. Mohammed (the Judge) to award damages to the Claimant/Respondent, Mr. Buxo Potts in respect of statements which were alleged to have defamed him during live radio broadcasts on three (3) occasions over the period 2012 to 2015.
There was no allegation that the alleged statements had been made by either appellant in this appeal. Rather, the Second Appellant, GEM Radio Five Ltd was sued as the employer of the First Appellant, Mr. Andre Baptiste. Mr. Baptiste for his part, was being sued as the publisher of the programme.
The issues which arose were whether the statements were defamatory of the Claimant/Respondent, whether Mr. Baptiste acted as a responsible journalist in permitting the airing of the defamatory material, so as to be entitled to the protection of Reynolds privilege and whether the statements in question were fair comments.
The Judge dismissed the claim in respect of the first broadcast, on the ground that it was statute-barred. However, she entered judgment for the Claimant in respect of most of the impugned remarks, which were made during the second and third broadcasts.
The Judge held that the statements bore meanings which were defamatory of the Claimant. She also rejected the defence of Reynolds privilege and held that the remarks were not protected as fair comment. The Judge awarded general, aggravated and exemplary damages to the Claimant.
In the course of this judgment, we considered whether the Judge was plainly wrong. We held the view that she was correct in her assessment of the meanings of the statement, in her rejection of the two defences and in her assessment of damages.
Accordingly, we now dismiss the appeal and uphold the findings of the Judge.
The First Appellant, Mr. Andre Baptiste regularly hosts radio programmes on Radio I 95.5 FM, under the title “ I Sport”. He presents himself on these programmes as The Fearless One and discusses different genres of sport, including boxing. 1
The Appellant, Mr. Buxo Potts was a well-known promoter of the sport of boxing and a special adviser to the Boxing Board of Control. 2 Mr. Potts also held office as Chairman of the World Boxing Council for Central America and the Caribbean.
Between September 6, 2012 and February 15, 2015, Mr. Baptiste hosted three (3) radio programmes on the subject of boxing in Trinidad and Tobago. On each of these programmes, there was a live panel discussion with invited guests, all of whom were involved in the sport of boxing in Trinidad and Tobago. After discussions with his guests, Mr. Baptiste would invite contributions from callers.
The first broadcast was aired on September 6, 2012, when Mr. Baptiste hosted Mr. Tariq Abdul-Haqq, who was an accomplished sportsman, and a Commonwealth Games silver medallist in 2010.
Because of Mr. Abdul-Haqq's victory in 2010, there was a public expectation that he would have represented Trinidad and Tobago (TT) at the imminent Olympic Games. During the first broadcast, Mr. Abdul-Haqq explained why he was not competing at the Olympic Games. He made strong remarks against Mr. Potts, including reference to Mr. Potts as “ a cancer” and “ a hustler” in a suit. The full text of the first broadcast is set out in the Further Supplemental Record of Appeal and the remarks which were challenged as defamatory are set out in the Amended Statement of Case. They are also set out in Appendix II below.
The second broadcast was aired six (6) months later, on March 2, 2013. On this occasion, Mr. Baptiste hosted 3 persons: Mr. Franchot Moore, Mr. Tansley Thompson and Mr. Matthew Noel. They were all deeply involved in the sport of boxing. Mr. Franchot Moore was a former official of the Boxing Board. Mr. Tansley Thompson was a boxing promoter
The second broadcast was held on the eve of a meeting of persons affiliated to a group called the Friends of Boxing. The meeting was due to take place two days after the second broadcast and the stated purpose of the broadcast was to raise awareness as to the plight of boxing in Trinidad and Tobago. At the end of the broadcast, Mr. Matthew Noel called on persons, who wanted to see the sport move forward positively, to attend the meeting.
During the second broadcast, the participants discussed the role of boxing in the rehabilitation of youths in Trinidad and Tobago. They lamented its decline. In the course of their discussion, they often referred to the involvement of the Respondent, but they also highlighted the neglect by government officials. It is therefore clear from the Transcript that the Respondent was not the only subject of discussion in the second broadcast. He was however often referred to in a negative light. His challenge to some of these remarks had been set out at paragraphs 7, 8 and 9 of his Amended Statement of Case. They include a repeat of statements made by Mr. Tariq Abdul-Haqq during the first broadcast as well as reference to an article in the Express Newspaper about the Respondent being responsible for a young girl being incarcerated in a foreign jail for transporting cocaine. 3 The full text of the second broadcast is set out in Appendix II below.
The third broadcast was held on the February 15, 2015. On this occasion, Mr. Baptiste hosted four guests, who were all deeply acquainted with the sport of boxing in Trinidad and Tobago. They were Claude Noel, Floyd Trumpet, Mario Robinson and Carlene McCarthy. Claude Noel was an Olympic champion for Trinidad and Tobago. Floyd Trumpet was a former Trinidad and Tobago boxing champion and at the time of the broadcast was involved in the promotion of boxing. Mario Robinson was involved in Amateur Boxing and Ms. McCarthy was involved in boxing through the YANS sporting Academy.
This broadcast was the least sensational of all. It proceeded at a measured pace, with Mr. Baptiste asking questions and the participants speaking of difficulties with obtaining funding for gyms and generally the promotion of the sport. There was one statement, in the almost one hour long programme, which was under challenge. It was the statement of Mr Claude Noel which alleged that the Respondent was a gambler and a drug addict and was involved in doping horses. See the full text at Appendix II below.
The fourth broadcast was part of the programme on February 15, 2015 and it is not immediately apparent why it was treated separately in the claim before the High Court. Nevertheless, the fourth broadcast carried a sensational account by Molly Boxhill, as a call-in contributor, as to her observation with Mr. Potts and young girls. The particulars of these statements were set out in the Amended Statement of Case, they are reproduced in the Further Supplemental Record of Appeal and are also set out in the Appendix II below.
Following the broadcasts, Mr. Potts commenced proceedings seeking damages for libel. He also claimed special aggravated and exemplary damages. His claim was directed to four Defendants: Mr. Baptiste and three radio stations, that is to say Citadel Ltd, GEM Radio Five Limited and One Caribbean Media Ltd. The claim against the fourth Defendant, One Caribbean Media Ltd, was withdrawn on June 22, 2017. There was also no dispute that Citadel Ltd operated the concession until October 2012, after which the concession was taken over by the third Defendant for I 95.5 FM was taken over by GEM Radio Five Limited.
On September 28, 2018, the Judge entered judgment for the Claimant and ordered Mr. Andre Errol Baptiste and Gem Radio Five Limited, as the second and third Defendants, to pay $450,000.00 in general damages, which included an uplift for aggravated damages. The Appellants were also ordered to pay $100,000.00 in exemplary damages and along with costs as prescribed.
At the outset the Judge held that the claim in libel in respect of the first broadcast was instituted after the 4 year limitation period and as such was statute-barred under the Limitation of Certain Actions Act 4. There was no appeal against this finding.
The Judge identified the issues before her as being: whether the first, second and third broadcasts bear any defamatory meaning against the Claimant and if so whether the defendants were protected by the defence of fair comment or whether the publications had been made on the occasion of qualified or Reynolds privilege.
The Judge held that all of the impugned statements were defamatory. The Judge relied on the authorities of Skuse v Grenada Television Ltd 5 Bonnick v Morris 6 and the judgment of the Court of Appeal (Trinidad and Tobago) in Kayam Mohammed and Others v Trinidad Publishing Ltd. 7
She observed that the second broadcast was introduced as concerning the topic of boxing, in respect of which a major event was about to take place. She recounted the manner in which the broadcast proceeded, including questions by the second defendant to guide discussions, telephone calls from listeners and 4 pre-recorded segments, including a recording of the first broadcast, the claim against which was held to have been statute- barred.
At paragraph 52, the Judge expressed the opinion that “ …the context of the Second Broadcast was that due to the existing state of professional and...
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