Pan Trinbago Inc. v Simpson et Al

• Jurisdiction: Trinidad & Tobago
• Court: Court of Appeal (Trinidad and Tobago)
• Judge: Jamadar, J.A.,Bereaux, J.A.,Mohammed, J.A.
• Judgment Date: 23 February 2015
• Neutral Citation: TT 2015 CA 5
• Docket Number: Civ. App. No. S-027 of 2013
• Date: 23 February 2015

Court of Appeal

Jamadar, J.A.; Bereaux, J.A.; Mohammed, J.A.

Civ. App. No. S-027 of 2013

Pan Trinbago Inc

and

Simpson et al

Appearances:

Mr. K. Garcia instructed by Ms. V. Jaisingh for the appellant Mr. R. L. Maharaj S.C. and Ms. N. Badal instructed by Ms. V. Maharaj for the respondents

Contract Law - Contract between association and its members — Whether eligibility by delegation was an issue which was open to the judge to consider having regard to the pleadings in the case — Whether the judge's finding that the steel band to which the second respondent belonged to was in good financial standing was one that was reasonably open to him, having regard to the evidence presented at the trial.

Civil practice and procedure - Whether the judge was right to grant declaratory relief to the first respondent on the sole basis that the appellant conceded the case – Grant of declaratory relief upon admissions is not barred in all circumstances – Whether it was open to the judge to award nominal damages to the first and second respondents without hearing submissions on the issue – Whether the sum awarded as nominal damages was excessive – Whether the order for costs were plainly wrong.

I have read in draft the judgment of Mohammed J.A. I agree with it and do not wish to add anything.

P. Jamadar

Justice of Appeal

I too agree.

N. Bereaux

Justice of Appeal

MOHAMMED J.A.

INTRODUCTION

1 The steel pan is the national instrument of Trinidad and Tobago. The appellant (Pan Trinbago Inc.) is a non-profit body incorporated in Trinidad and Tobago by virtue of the Pan Trinbago Act [No. 5 of 1986] and is dedicated to the promotion and development of the steel pan and the steel band movement throughout the world. [ibid at section 3 - Purpose of Pantrinbago; Article 4 of the Constitution of Pantrinbago 1986] The appellant's objectives include the preservation of the steel pan as an indigenous musical art form and the national musical instrument of the Republic of Trinidad and Tobago. [see Article 4 (5) of the Constitution of Pan Trinbago 1986] It is referred to as the world governing body for steel pan and steel band music. [ibid at Article 4 (1)]

2 The Convention is the supreme legislative and judicial authority of the association and is convened once in every three calendar years (the triennial elections) during the period September 1 to October 31, to determine the general policy of the association and to elect members to the Central Executive Committee (CEC). [ibid at Article 7 A(I)(a)] The affairs of the appellant are managed by the CEC whose powers are prescribed by the Constitution of Pan Trinbago Inc. 1986 (the Constitution). [see section 8 of Act No. 5 of 1986] The CEC may exercise all of the powers of the Convention in the management of the association during the intervals between the Conventions and general meetings of the General Body. [see Article 7 B(3) of the Constitution]

3 This case primarily concerns the interpretation of the Constitution to determine the criteria for eligibility to hold office in the CEC. The respondents brought an action for breach of contract when the appellant rejected their individual nominations for election to the CEC. At the trial, the appellant conceded the case against the first respondent. After considering the relevant provisions of the Constitution, the judge declared that the first and second respondents were eligible to hold office in the CEC and awarded them nominal damages. The appellant was ordered to pay prescribed costs in relation to the claims of the first and second respondents. The claims of the third and fourth respondents were dismissed and they were ordered to pay the prescribed costs of the appellant.

4 This is an appeal against the declarations made in favour of the first and second respondents, the award of nominal damages and the orders for costs. The grounds of appeal filed by the appellant raise the following five (5) issues:

• i. What are the criteria for eligibility for election to the CEC and whether eligibility by delegation was an issue which was open to the judge to consider having regard to the pleadings in the case?

• ii. Whether the judge's finding that the steel band to which the second respondent belonged was in good financial standing was one that was reasonably open to him, having regard to the evidence presented at the trial?

• iii. Whether the judge was right to grant declaratory relief to the first respondent on the sole basis that the appellant conceded the case?

• iv. Whether it was open to the judge to award nominal damages to the first and second respondents without hearing submissions on the issue and if so, whether the sum of $5000.00 awarded was excessive?

• v. Whether the orders for costs were plainly wrong?

SUMMARY OF OPINION

5 The test for eligibility to contest the triennial elections must be gleaned from the Constitution and the Pan Trinbago Inc. T.C. Constitution Bye-Laws (the Bye-laws). The judge held that to be eligible to hold office in the CEC the nominee must have been a delegate, or an out-going CEC member, and the steel band to which they belonged must have been in good financial standing. The judge came to this conclusion after considering the Constitution in its entirety. The judge's interpretation of the Constitution in relation to eligibility for election to the CEC was correct. Further, the issue of eligibility for election to the CEC was expressly raised in the parties' pleadings and it was accordingly open to the judge to consider whether eligibility was confined to delegates.

6 It was a question of fact whether or not it was unfair for the appellant to claim that the steel band, Neal & Massy Trinidad All Stars (Neal & Massy), had not paid its dues in light of the option given to steel bands to authorize the appellant to pay those dues. The test for an appellate court's reversal of primary findings of fact therefore applies. The evidence as a whole supports the judge's finding that Neal & Massy had continuously authorized the deduction of the relevant dues and fees by the appellant. Neal & Massy was considered, less than three (3) months before the deadline for nomination, to be in good financial standing for the annual Panorama steel pan competition. Only members in good financial standing were allowed to register for the Panorama competition. The appellant therefore treated Neal & Massy as being in good financial standing before the waiver form was submitted. It was reasonably open to the judge, on the evidence, to find that it would be unfair for the appellant to claim that the band was not in good financial standing for the purpose of the elections. It cannot be demonstrated that the judge was plainly wrong in his factual conclusion that Neal & Massy was in good financial standing. The second respondent must therefore be considered to have been a member of a steel band in good financial standing at the material time and was eligible to contest the elections of the CEC.

7 Generally, declarations ought not to be made on admissions. However, it would be appropriate for the court to grant a declaration, on an admission, in appropriate cases where there are no factual disputes or where the denial of declaratory relief would lead to injustice to the claimant. The first respondent was not a delegate but, the uncontested evidence is that the first respondent was an out-going CEC member. The judge did not expressly consider whether or not the case of the first respondent was properly made out. However, it is apparent from his analysis that he was aware that the first respondent was not a delegate but was rather an out-going CEC member. The first respondent therefore met the requirement for eligibility for nomination as outlined by the judge. This case is one in which the declaration sought was necessary to afford justice to the claimant. There is no basis to interfere with the judge's declaration in relation to first respondent.

8 Nominal damages are generally awarded to mark the fact that there has been a breach of contract in circumstances where there is no quantifiable loss caused by that breach. The quantum of nominal damages to be awarded is at the discretion of the court, having regard to the particular circumstances of the case. In this case the appellant is the world governing body for steel pan and acts as the sole representative for members in all matters related to the development, promotion and performance of steel pan and steel bands. The first and second respondents were denied their right, pursuant to the Constitution, to contest the election of the appellant's governing body. An award of nominal damages was appropriate. The sum of $5000.00 awarded was not inordinately high or exorbitant. There is no basis upon which to interfere with the judge's discretion.

9 The first and second respondents are successful litigants who are entitled to costs because their claims sought to establish a legal right and not merely to recover nominal damages. The judge had the discretion to take into account various matters when determining who should pay costs and whether the prescribed quantum should be varied. The exercise of that discretion in this case required that the judge hear submissions from the parties. The judge failed to solicit submissions on the issue and was plainly wrong. In addition, the order for costs made by the judge in favour of the first and second respondents was an unusual one in that it departed from the order recommended by the Civil Procedure Rules 1998 (the CPR). The judge has an inherent jurisdiction to make such an unusual order but he was required to give reasons for so doing. The judge did not give any reasons for his departure. The judge was plainly wrong in his failure to give reasons. In consequence, this court is now required to determine the appropriate order for costs.

10 The orders for costs are set aside. For this...