Deopersad Ramdath v The Attorney General of Trinidad and Tobago

• Jurisdiction: Trinidad & Tobago
• Judge: Mr. Justice Westmin R.A. James
• Judgment Date: 26 April 2024
• Neutral Citation: TT 2024 HC 114
• Docket Number: Claim No: CV 2021-00005
• Court: High Court (Trinidad and Tobago)

Between

Deopersad Ramdath

Claimant

and

The Attorney General of Trinidad and Tobago

Defendant

Before:

The Hon. Mr. Justice Westmin R.A. James

Claim No: CV 2021-00005

IN THE HIGH COURT OF JUSTICE

SAN FERNANDO

Appearances:

Mr. Edwin Roopnarine, Attorney-at-Law for the Claimant

Ms. Ronnell Hinds instructed by Ms. Kendra Mark-Gordon, Attorney-at-Law for the Defendant

Background

1 This is a claim for malicious prosecution and constitutional relief for wrongful deprivation of liberty, arbitrary detention and/or cruel and unusual treatment or punishment.

2 The Claimant is a retiree and gardener who cultivates more or less ten acres of agricultural land at Dades Trace, Rio Claro with the permission of his son who had a lease agreement with the owner of the said lands which was expired. The Claimant has also erected a farmer's hut or camp on the land in which he lives, and to reach the said lands and his camp he uses a track from the roadway that passes along the boundaries of the lands of one Kumar Ramsingh, the adjacent owner.

3 The Claimant's claim is that on 6 ^th October 2016, while relaxing in his hammock at his farmer's hut on the said lands, he was approached by three armed police officers who accused him of stealing bodi from the neighbour's garden, that is Kumar Ramsingh. He was ordered to get dressed, told he was under arrest, handcuffed, placed in a police jeep and taken to the Rio Claro Police Station where he was kept in police custody from approximately 9:00a.m. to 9:00p.m when he was given bail with surety. He was eventually charged for being on lands of Kumar Ramsingh on which bodi was cultivated contrary to section 41(1) of the Summary Offences Act, Chapter 11:02. He appeared before a Magistrate on or about 7 ^th October 2019, and the matter was adjourned to 18 ^th November 2016, then 9 ^th January 2017, then 23 ^rd January 2017 when the charge was dismissed.

4 By Claim Form and Statement of Case filed 4 ^th January 2021, the Claimant claims against the Defendant for:

• 1. A Declaration that on the 6 ^th day of October, 2016 the Claimant was wrongfully deprived of his liberty;

• 2. A Declaration that on the 6 ^th day of October, 2016 the Claimant suffered arbitrary detention, imprisonment and/or cruel and unusual treatment or punishment by continued imprisonment and the delay in admitting the Claimant to bail contrary to Chapter 1, Section 5(2)(b) of The Constitution;

• 3. Damages including aggravated and/or exemplary and/or punitive damages;

• 4. Damages for malicious prosecution;

• 5. Interest;

• 6. Costs;

• 7. Such further and other relief as the Court may see fit.

5 The Claimant claimed the following particulars of malice:

• a) Charging [the Claimant] for an offence which was not committed by him as he was never found on lands cultivated by the neighbour;

• b) Arresting [the Claimant] for [an] offence of stealing bodi while charging him for a trespass to property offence;

• c) Failed to investigate properly and/or at all the statement given by [the Claimant] that he was using the track by way of necessity and/or established track way to enter to and from his own leased lands to the road;

• d) Failed to conduct any proper and/or sufficient enquiries which would have led him to conclude that [the Claimant] was not trespassing but was legally using a track way to his garden home;

• e) Failed to investigate a previous report made by [the Claimant], prior to arresting and/or charging him, that he was being harassed by the Virtual Complainant for using the said lands and a (sic) made a report to the police station as shown by a copy of a complaint receipt herewith annexed and marked “E”;

• f) Failing to discontinue the charge against [the Claimant] at any time.

6 The Claimant claimed the following particulars of special damages:

• a) To legal representation for Counsel's advice and opinion and attending court on 4 occasions — $75,000.00;

• b) To loss of earnings as gardener/vendor for five days @ $400.00 per day — $2000.00.

7 By Defence filed 27 ^th September 2021, the Defendant denied the Claimant's claim and particulars of malice. The Defendant averred that the Defendant's agents had reasonable and probable cause to arrest and detain the Claimant as the Claimant was a suspect concerning a report of theft of one bundle of bodi valued at $5.00 made by the said Kumar Ramsingh from his garden. The Defence denied that the Claimant was kept in police custody from 9:00a.m. to 9:00p.m. and averred that the Claimant was taken to the station at 10:00a.m. and released at 6:35p.m.

8 By Reply filed 29 ^th October 2021, the Claimant maintained that he did not commit any arrestable offence and is therefore entitled to maintain his constitutional reliefs for the deprivation of his liberty without due process and without prejudice to the common law action.

Arrest

9 The Claimant alleged he was wrongfully deprived of his liberty and suffered arbitrary detention, imprisonment and/or cruel and unusual treatment or punishment by continued imprisonment and the delay in admitting the Claimant to bail contrary to Chapter 1, section 5(2)(b) of the Constitution.

10 This aspect of the Claimant's claim did not feature in the submissions of the Claimant and likewise I considered the same abandoned. If not, I would have dismissed this aspect of the claim having regard to the fact that I hold it would constitute an abuse of process since the Claimant had the adequate alternative remedy of wrongful arrest and false imprisonment. Moreover, I would hold that there was reasonable and probable cause for the arrest of the Claimant and since the Claimant was arrested charged and released on bail within the day I hold there is no validity to the claim.

Malicious Prosecution The Law

11 The law on malicious prosecution is well-settled and as can be seen in the Privy Council decisions of Attorney General of Trinidad and Tobago v Harridath Maharaj[2024] UKPC 1, Matadai Roopnarine v Attorney General of Trinidad and Tobago[2023] UKPC 30 and Kevin Stuart v Attorney General of Trinidad and Tobago[2022] UKPC 53 at paragraph 1.

12 The above cases reiterate that there are five elements of the tort all of which must be proved on the balance of probabilities by a Claimant. These ingredients are as follows:

(1) the Defendant prosecuted the Claimant (whether by criminal or civil proceedings);

(2) the prosecution ended in the Claimant's favour; (3) the prosecution lacked reasonable and probable cause; (4) the Defendant acted maliciously; and (5) that the Claimant suffered damage. The failure to prove any of these five elements results in the dismissal of a malicious prosecution claim.

13 In Williamson v. The Attorney General of Trinidad and Tobago[2014] UKPC 29, Lord Kerr said at paragraph 11 that the burden of proof is not easily discharged:

“In order to make out a claim for malicious prosecution, it must be shown, among other things, that the prosecutor lacked reasonable and probable cause for the prosecution and that he was actuated by malice. These particular elements constitute significant challenges by way of proof. It has to be shown that there was no reasonable or probable cause for the launch of the proceedings. This requires the proof of a negative proposition, normally among the most difficult of evidential requirements.”

14 In respect of the first two elements of malicious prosecution, it is not in dispute that Police Constable Vijay Ramkissoon (‘PC Ramkissoon’) on 6 ^th October 2016 charged the Claimant with: on Thursday 6 ^th October 2016 at Railway Road Rio Claro in County of Nariva was found on lands of Kumar Ramsingh on which bodi was cultivated contrary to section 4(1) of the Summary Offences Act Chapter 11:02 as amended by Act No 51 of 2000. While it was not specifically pleaded in the Statement of Case but contained in the documents attached thereto, it is also not in dispute that the prosecution ended in the Claimant's favour when on 23 ^rd January 2017 His Worship Mr S Ramsaran, dismissed all matters against the Claimant and noted that the Virtual Complainant provided a statement stating that he did not wish the matter to continue. Further, there is no dispute that there was damage.

15 The real issue for consideration is whether there was reasonable and probable cause for the Defendant's servant, PC Ramkissoon to charge the Claimant and whether he acted with malice in setting the law in motion against the Claimant.

Whether there was reasonable and probable cause to lay before the Court?

16 As explained by the Judicial Committee in Stuart (supra) at paragraph 26 relying on the dicta of Lord Denning in Glinski v McIver[1962] AC 726 at pp 758–759, reasonable and probable cause means an honest belief based on reasonable grounds that there is a proper case to lay before the court. As explained by Lord Denning in Glinski (supra) at pp 758–759 the officer “ has only to be satisfied that there is a proper case to lay before the court.” His Lordship went on to say that the officer is not expected to be able to “ judge whether the witnesses are telling the truth. He cannot know what defences the accused may set up. Guilt or innocence is for the tribunal and not for him … So also with a police officer. He is concerned to bring to trial every man who should be put on trial, but he is not concerned to convict him. No, the truth is that a police officer is only concerned to see that there is a case proper to be laid before the court.”

17 The Privy Council in Harridath Maharaj (supra) at paragraph 10 relying on Willers v Joyce[2016] UKSC 43 at paragraph 54 per Lord Toulson and Stuart (supra) at paragraphs 26–28, per Lord Burrows stated that the third element has both subjective and objective aspects. The subjective aspect is that the prosecutor must believe that there is a proper case to bring. The objective aspect requires that there existed proper...