Ramanoop v Attorney General

JurisdictionTrinidad & Tobago
CourtCourt of Appeal
JudgeSharma, C.J.,Kangaloo, J.A.
Judgment Date21 March 2003
Neutral CitationTT 2003 CA 19
Date21 March 2003
Docket NumberCivil Appeal No. 52 of 2001

Court of Appeal

Sharma, C.J.; Warner, J.A.; Kangaloo, J.A.

Civil Appeal No. 52 of 2001

Ramanoop
and
Attorney General
Appearances:

Dr. F. Ramsahoye, S.C., Mr. A. Ramlogan, Mr. K. Neebar appeared on behalf of the appellant.

Mr. B. Busby, Ms. J. Baptiste appeared on behalf of the respondent.

Damages - Whether the Court can grant exemplary damages under the Constitution — In an appropriate case for a breach of a constitutional right, the Court can order exemplary damages.

Practice and Procedure - Costs — Circumstances in which a Court can make an award fit for Senior and Junior Counsel — Matters of settled law do not require a Senior Council — The appellant was justified in retaining both Snr. And Jr. Council on the basis that the State was going to vigorously resist the facts — Costs fit for Snr. And Jr. Council awarded.

Sharma, C.J.
1

There are two questions raised on this appeal. The first is one of great constitutional importance and it is whether the Court in an appropriate case can grant an aggrieved applicant exemplary damages under the Constitution of Trinidad and Tobago (the Constitution). The answer to this has not been authoritatively settled in this jurisdiction and indeed some doubt is now cast upon its relevance and usefulness in the common law jurisdictions. There are seriously conflicting views, as this appeal has demonstrated.

2

The second question, no less important is one which impacts on the cost of litigation and which in recent times has reached a stage where it is now perceived as being positively prohibitive. The question is in what circumstances should a Court make an award for costs fit for senior and junior counsel at the conclusion of a trial.

The Undisputed Facts

Siewchand Ramanoop (the appellant) swore that “on the night of 10th November, 2000 he had an altercation with “a thin, tall, dark man of East Indian descent” outside a pub which he had patronised.

Later that night around 10.45 p.m. a car stopped at his home and he heard someone calling out his name. Upon opening his door he was confronted by two men, one of them a uniformed police officer whom he identified as P.C. Rahim, the other was the same man with whom he had the altercation.

The appellant stated that “before he could say anything” P.C. Rahim slapped him across his face and neck. P.C. Rahim then handcuffed him and slapped and cuffed him for “about 5-10 minutes” shouting that: “You want tuh (expletive deleted) interfere with police. Take dat. I will manners yuh. Doh ever interfere with police.”

At this time he was standing outside his home clothed only in his underwear. He was shoved back inside his house where P.C. Rahim continued to beat him for a further 2-3 minutes. P.C. Rahim instructed him to “take a shirt and pants” because “he was going to lock me up”. He was put into the back seat of a motor vehicle, still handcuffed and wearing only underwear, P.C. Rahim having refused to allow him to get properly dressed. Rahim sat next to him while the “Indian man” drove to the Gasparillo Police Station. During the journey he was constantly slapped and cuffed by Rahim who stated that he would teach him a “lesson for interfering with police.”

On arrival at the station, his head was rammed against a wall of the police station by P.C. Rahim resulting in a gushing wound. Rahim then poured rum over his head causing his wound to burn.

The appellant was later allowed to put his clothes on and was handcuffed by Rahim to an iron bar attached to a wall of the police station. He was interviewed by Rahim who asked him to initial a written document. The appellant refused and was slapped about the head by Rahim who told him: “If you doh sign dis yuh cyah (expletive deleted)leave this station here tonight.”

The appellant said he signed the document because he was losing blood, felt weak and dizzy and was frightened of what Rahim might do to him if he did not. P.C. Rahim later apologised, saying that his wife was pregnant and he was “under some pressure”. The appellant was then taken home by the “Indian man”. The appellant deposed that at no time during his detention was he informed of his right to retain or instruct an attorney or to hold communication with him.

He filed a constitutional motion seeking certain relief against the State. The facts were not contested by the State. On the day of hearing, the State conceded that the appellant's rights had been breached and the following declarations were granted:

  • (1) A declaration that the appellant's arrest and imprisonment from midnight on 10th November 2002 to 2.00 a.m. on 11th November 2000 were unconstitutional and a breach of the appellant's rights under section 4(a).

  • (2) A declaration that the assault of the appellant by police during his arrest and period of imprisonment was a breach of the appellant's right to security of the person under section 4(a).

Two further declarations relative to the failure of the police to inform the appellant of his right to retain and instruct a legal advisor of his choice and to hold communication with him and to the failure of the police to permit him to communicate with a friend or relative by way of a telephone call while under arrest; as being breaches of section 4(b) of the Constitution were granted.

3

The judge in a very insightful judgment refused to make an award for exemplary damages for several reasons.

4

First, he declared himself to be bound by Attorney General of St. Christopher, Nevis and Anguilla v. Reynolds 1980 AC 637, a decision of the Privy Council, which appeared to him to have decided that exemplary damages could not be awarded for constitutional breaches.

5

Secondly, that exemplary damages were inappropriate to actions brought under section 14 of the Constitution.

6

And finally, the decision in Rookes v. Barnard 1964 A.C. 1129 was “founded on precedent, some decided more than two hundred years ago, at a time when there existed no clear remedy against high handed State action. (See the speech of Lord Devlin at pp. 1222-1223)”

7

Turning to the judge's first reason for not awarding exemplary damages in this case, he felt himself bound by Reynolds (supra). In my respectful opinion the learned judge fell into error when he so decided.

8

Section 3(6) of the Constitution of St. Christopher had expressly provided for “compensation” to be payable in respect of “unlawful” detention in the chapter dealing with fundamental rights and freedoms. It reads as follows:

  • “3. (6) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefor from that other person or from any other person or authority on whose behalf that other person was acting.”

9

However, section 14 of the Constitution states:

  • “(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion. (2) The High Court shall have original jurisdiction (a) to hear and determine any application made by any person in pursuance of subsection (I); and (b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (4), and may, subject to subsection (3), 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…” (my emphasis).

10

The judge quite rightly, in my view, used Maharaj v. Attorney General of Trinidad and Tobago No.2 1979 A.C. 385, as his starting point in his effort to resolve the issue. In that case the Privy Council held that damages for deprivation of liberty should include compensation for loss of earnings consequent upon the imprisonment as well as the inconvenience and distress suffered by the individual.

11

The board found it unnecessary to express a view on the applicability of the award of exemplary damages because no such claim was made. The question is therefore still open for determination. The judge however, relied very heavily on the dicta of Lord Diplock, though not extensively quoted, clearly had the following passages in mind:

“What then was the nature of the ‘redress’ to which the appellant was entitled? Not being a term of legal art it must be understood as bearing its ordinary meaning, which in the Shorter Oxford English Dictionary, 3rd ed. 1944 is given as: ‘Reparation of, satisfaction or compensation for, a wrong sustained or the loss resulting from this.’ [398F].

Lord Diplock found that monetary compensation could be awarded for the breach of a constitutional right [page 399A-B]. As to the measure of monetary compensation that could be awarded Lord Diplock stated as follows:

‘Finally, their Lordships would say something about the measure of monetary compensation recoverable under section 6 where the contravention of the claimant's constitutional rights consists of deprivation of liberty otherwise than by due process of law. The claim is not a claim in private law for damages for the tort of false imprisonment, under which the damages recoverable are at large and would include damages for loss of reputation. It is a claim in public law for compensation for deprivation of liberty alone. Such compensation would include any loss of earnings consequent on the imprisonment and recompense for the inconvenience and distress suffered by the appellant during his incarceration. Counsel for the appellant has stated that he does not intend to claim what in a case of tort would be called exemplary or punitive damages. This makes it unnecessary to express any view as to whether money compensation by way...

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2 cases
  • Attorney General of Trinidad and Tobago v Ramanoop
    • United Kingdom
    • Privy Council
    • 23 March 2005
  • Ss v Ayers-caesar et Al
    • Trinidad & Tobago
    • Court of Appeal
    • 28 April 2016
    ...and apply section 14(2) of the Constitution, Chief Justice Sharma commented as follows: [ Siewchand Ramanoop v. Attorney General (2003) 65 W.I.R. 313 at 323-324] “Before dealing with the issues of whether exemplary damages can be awarded under the Constitution, I wish to repeat by way of in......

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