republic of trinidad and tobago in the high court of...
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REPUBLIC OF TRINIDAD AND TOBAGO
IN THE HIGH COURT OF JUSTICE
CV2013-00397
BETWEEN
SHAM JAGDEO
Claimant
AND
THE HONOURABLE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
Defendant
Before the Honourable Mr. Justice A. des Vignes
Appearances:
Mr. Kevin Ratiram for the Claimant
Ms. Coreen Findley and Ms. Trisha Ramlogan instructed by Ms. Amrita Ramsook for the
Defendant
JUDGMENT
1. On the 13th May, 2009, the claimant was charged with the offence of possession of
marijuana for the purpose of trafficking contrary section 5(4) of the Dangerous Drugs Act
Chapter 11:25. On the 1st October, 2009, the claimant was released on bail which was
granted by the High Court and he was subsequently discharged on the 23rd May, 2011.
By Claim Form and Statement of Case dated 31st January, 2013 the claimant alleges that
the charge was laid against him maliciously and without reasonable and probable cause.
The claimant now claims he is entitled to damages for malicious prosecution together
with aggravated and/or exemplary damages.
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The Claim
2. By his Claim Form and Statement of Case the claimant sought the following items of
relief:
“i. Damages for malicious prosecution.
ii. Damages for false imprisonment.
iii. Aggravated and/or exemplary damages.
iv. Interest at the rate of 12% per annum pursuant to the Supreme Court of
Judicature Act.
v. Costs.
vi. Such further and/or other order as the nature of the case requires.
3. On Tuesday 12th
May, 2009 around 5:30 a.m. the claimant was sitting on an excavator
guarding for PR Contracting some of their equipment at Churuma Road, Tabaquite.
While sitting there, he noticed a group of people coming towards him from 800 ft away.
As it was still dusk dark, he could not identify who the people were. He thought the
people could be bandits and as he was there alone, he walked up a track on the right side
where there was a camp about 20 feet from the road and sat there. From the camp, he was
still able observe the people coming in his direction.
4. While in that camp four persons came up to the front the camp, they pulled the sponge of
the bed while the claimant was still sitting on the bed and cause him to fall to the ground
and made him lie flat on his belly. They informed him they were police officers and
enquired about the whereabouts of another man. The claimant informed them that he
alone was working at that jobsite.
5. The claimant says the men rubbed him down, searched his pocket and relieved him of his
wallet which contained his salary in the amount of $2,618.00 which he had been paid on
the previous Saturday. The claimant contended that he was staying on the jobsite because
his house was damaged.
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6. The officers then proceeded to search the camp and took away his torchlight and some
spray cans and after nothing was found they left him there with three policemen and one
policewoman.
7. After the other officers left walking towards the road, two police jeeps and a car came
down the hill and were driving towards the officers who were walking. Two of the four
officers who were left with the claimant joined one of the jeeps. The remaining two
officers informed the claimant that he had to go with them. The claimant contends that he
informed the officers that he could not leave because he was responsible for all the
equipment namely an excavator, a loader, a D6 tractor, a welding plant with a generator
plus material for a bridge building being built on the same site. However, he was forced
to leave with the officers out of an abundance of caution on the part of the officers he
believed that he would tell persons coming in the area that the police were in there.
8. The claimant contends that he was placed in a police car and taken to another camp
which was about half mile from his job site.
9. The claimant remained in the backseat of the car for about half an hour when he noticed
that the two jeeps came and parked behind the car he was in and about ten minutes later
he observed the police had another man in handcuffs who was placed in one of the jeeps.
10. The claimant contends that he also observed about eight officers coming through an open
savannah with a bundle of marijuana trees which was placed in one of the open trays in
the jeep and then he was taken back to his job site.
11. When the claimant was being dropped off he informed the officers he needed his wallet
which had all his credentials. Upon receiving his wallet he observed that his money was
missing so he enquired about his money whereupon one of the officers ‘planasse’ him
with a cutlass, told him “like you trying to set up the fucking police or what,” took back
his wallet and pay slip, arrested and handcuffed him and took him to the jeep with the co-
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accused, Seeberan Roodal. Both accused persons were taken to the San Fernando Task
Force Office.
12. The marijuana recovered was chopped up and weighed. The accused persons were then
jointly charged for possession of marijuana for the purpose of trafficking.
13. The accused persons were then taken to the Ste. Madeline Police Station where they were
held for the night.
14. The claimant contends that at no time while he was detained and arrested was he told of
his constitutional rights and he was remanded to prison for four and a half months with
hardened criminals before obtaining bail. The prison cell was over-crowded, filthy,
engulfed with offensive odors and was forced to sleep on the floor.
15. The claimant spent 138 days in jail.
16. The claimant further contends that his reputation has been harmed, he has suffered mental
anguish and prevented from attending to his business and has incurred legal costs in
defending himself against the charge.
Defendant’s case
17. In or around May 2009 PC Roger Nanan received information from an informant to the
effect that one Seebaran Roodal and another individual were planting marijuana which
was kept at a camp in the vicinity of Charuma Road, Tabaquite.
18. On the 12 May, 2009 around 3:00a.m. a party of officers left the Southern Division Task
Force to investigate the said report.
19. The officers arrived at the location around 5:00am. Upon arrival they observed a
dilapidated bridge and a tractor and other equipment alongside the road.
20. To the eastern side of the bridge the officers observed a camp in the form of a wooden
shed and proceeded to approach and open the door.
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21. PC Nanan and PC Agostini and PC Forde all entered the structure and observed two men
inside along with a quantity of plant like material resembling marijuana.
22. The officers identified themselves and asked the men their names and addresses, to which
they responded Seebaran Roodal of Dumore Trace, Brothers Road, Rio Claro and Sham
Jagdeo of Tabaquite Road, Jeffers Crossings, Rio Claro. The men were asked why they
were there and they responded that they were planters.
23. PC Nanan informed the claimant and the co accused that he was of the opinion that the
plant like material was marijuana and that they were in possession of same for the
purpose of trafficking. The men were cautioned, both remained silent and subsequently
arrested and told of their constitutional rights and privileges. They made no requests,
were handcuffed and placed in the back of one of the police vehicle under police guard.
The plant like material was placed in the tray of one of the police vehicle.
24. PC Nanan along with some of the officers then proceeded into the forest on further
enquiries and discovered a portion of land cultivated with what appeared to be marijuana
plants and another camp with seedlings. The officers destroyed the camp.
25. The claimant and the co-accused were then transported to the Southern Division Task
Force, San Fernando. Upon arrival around 12:00p.m. the men were searched. On
searching the Claimant a black wallet containing a TT driver’s permit and a black Nokia
cell phone was discovered on his person.
26. The plant-like material resembling marijuana was then placed into three black bags and
weighed in the presence of the Claimant and the co-accused. The bag weighed 97 Kg.
and PC Nanan then placed his markings RN 12/5/09 on three pieces of masking tape and
affixed it on each of the bags again in the presence of the Claimant, the co-accused and
PC Forde.
27. The claimant and the co-accused were then finger- printed by PC David while PC Nanan
further cautioned both the claimant and the co-accused and again informed them of their
rights.
28. The Claimant requested a phone call around 1:45pm to telephone number 787-3119
which lasted for about two minutes. They were then charged with possession of
marijuana for the purpose of trafficking and served with the Notices to Prisoner.
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29. The Claimant and the co-accused were then taken to the San Fernando Police Station
where they spent the night.
30. On the 13 May 2009 at or around 9:00am the Claimant and the co-accused appeared
before a magistrate at the Rio Claro Magistrates Court where they were both denied bail
and remanded to custody.
31. The Defendant denies that the Claimant was guarding any tractor when the officers
arrived at the camp. The Defendant contends that the Claimant was found inside the
camp along with the co-accused Seebaran Roodal. He was not placed into a police
vehicle and taken to any other camp where the drugs were found.
32. The Defendant denies that any of the officers stole $2600 from the Claimant’s wallet.
33. The Defendant further contends that PC Nanan at all material times had reasonable and
probable cause to charge the claimant with the offence of possession of a dangerous drug
for the purpose of trafficking.
The Issues
34. The following issues arise for determination in this matter:
i. Whether or not P.C. Nanan had reasonable and probable cause to charge
the Claimant for possession of marijuana for the purpose of trafficking and
to continue with the prosecution of same?
ii. Whether or not in laying the charge against the Claimant P.C. Nanan was
actuated by malice?
iii. Did the Claimant suffer damage?
iv. Whether or not in all the circumstances of the case aggravated and/or
exemplary damages ought to be awarded to the Claimant?
The Witnesses
35. The Claimant and his mother, Kowsilla Jagroop, gave evidence in support of the
Claimant's claim while Police Constable Roger Nanan, Regimental No. 14476 and Police
Inspector Michael Pierre, Regimental num. 12171 gave evidence for the Defendant.
Examination of Issues
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I. Whether or not P.C. Nanan had reasonable and probable cause to
charge the Claimant for possession of marijuana for the purpose of
trafficking and to continue with the prosecution of same?
II. Whether or not in laying the charge against the Claimant P.C. Nanan
was actuated by malice?
The Law
36. In Cecil Kennedy v. Donna Morris & The Attorney General of Trinidad and
Tobago, Civ. App. No. 87 of 2004, Sharma C.J. succinctly summarized the law with
respect to the tort of malicious prosecution:
“[11] To succeed in action for damages for malicious prosecution a plaintiff must
prove:
(i) the prosecution by the defendant of a criminal charge against the
plaintiff before a tribunal into whose proceedings the criminal
courts are competent to inquire;
(ii) that the proceedings complained of terminated in the plaintiff’s
favour;
(iii) that the defendant instituted or carried on the proceedings
maliciously;
(iv) that there was an absence of reasonable and probable cause for
the proceedings; and
(v) that the plaintiff has suffered damage.”
37. It is not in dispute between the parties that the burden of proof of these elements lies
upon the Claimant. It is also undisputed that the Claimant was charged with possession of
marijunana for the purpose of trafficking by P.C. Nanan and that the Claimant was
discharged by Her Worship, M. B-E. Caddle, the Senior Magistrate presiding in Rio
Claro on the 23rd May 2011. The substantive issues in this matter are therefore whether
the Claimant has proved that (a) there was an absence of reasonable and probable cause
for the proceedings; (b) P.C. Nanan instituted and carried on the proceedings maliciously;
and (c) the Claimant has suffered damage.
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38. In Hicks v. Faulkner (1878) 8 QBD 167 at 171, Hawkins J. defined reasonable and
probable cause as “an honest belief in the guilt of the accused based upon a full
conviction, founded upon reasonable grounds, of the existence of a state of
circumstances, which, assuming them to be true, would reasonably lead any ordinarily
prudent and cautious man, placed in the position of the accuser, to the conclusion that
the person charged was probably guilty of the crime imputed.”
39. This definition was approved by the House of Lords in Herniman v Smith (1938) 1 All
ER 1, per Lord Atkin at p. 8. In Glinski v McIver [1962] 2 WLR 832 per Lord Devlin,
at p. 857, put it this way:
“…what is meant by reasonable and probable cause? It means that there must be
cause…for thinking that the plaintiff was probably guilty of the crime imputed:
Hicks v Faulkner. This does not mean that the prosecutor has to believe in the
probability of conviction: Dawson v Vandasseau. The Prosecutor has not got to
test the full strength of the defence; he is concerned only with the question of
whether there is a case fit to be tried.”
40. The question whether or not there was reasonable and probable cause for a prosecution is
one of fact. It is to be determined objectively and subjectively, that is to say: objectively,
whether a reasonable man having knowledge of facts that the defendant knew at the time
he instituted the prosecution, would have believed that the Claimant was guilty of the
alleged crime and subjectively, whether P.C. Nanan honestly believed that the Claimant
was guilty. What P.C. Nanan believed must be based upon facts known to him, at the
time that he initiated the prosecution.
41. A person is not bound before instituting proceedings to see that he has such evidence as
will be legally sufficient to secure a conviction. There may be reasonable and probable
cause for preferring a criminal charge even though the prosecutor has before him only
prima facie evidence. Viscount Simonds said in Glinski v McIver (ibid):
“…. A question is sometimes raised whether the prosecutor has acted with too
great haste or zeal and failed to ascertain by inquiries that he might have made
facts that would have altered his opinion upon the guilt of the accused. Upon this
matter it is not possible to generalise, but I would accept as a guiding principle
what Lord Atkin said in Herniman v Smith, that it is the duty of a prosecutor to
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find out not whether there is a possible defence but whether there is a reasonable
and probable cause for prosecution. Nor can the risk be ignored that in the case
of more complicated crimes, and particularly perhaps of conspiracies, inquiries
may put one or more of the criminals on alert.”
42. It is sufficient for the person who initiates criminal proceedings to do so on such
information as a prudent and cautious person may reasonably accept in the ordinary
affairs of life. The question will be whether the impression produced on the mind of the
prosecutor by the facts before him was such as would be produced on the mind, not of a
lawyer, but of a discreet and reasonable man: Lister v Perryman (1870) LR 4HL 521
43. Where the prosecutor has nothing before him but mere suspicion then it would not be
justifiable to commence a prosecution and a case for lack of reasonable and probable
cause may be made out. (Baptiste v The Attorney General of Trinidad and Tobago &
Seepersad, HCA 36 of 2001).
Malice
44. A Claimant who alleges malicious prosecution has the burden of proving not only that the
prosecutor lacked reasonable and probable cause but also that he was actuated either by
spite or ill-will against the Claimant or by indirect or improper motive. The absence of
reasonable and probable cause is generally a good indication that the prosecutor has no
proper motive but it is not conclusive evidence of malice in every case. If the prosecutor
does not believe in the merits of the case that he has brought against the accused, that will
be strong evidence of malice.
45. In Browne v. Hawkes (1891) 2 QB 718 at 722, Cave J. stated as follows:
“Now malice, its widest and vaguest sense, has been said to mean any wrong or
indirect motive; and malice can be proved, either by shewing what the motive was
and that it was wrong, or by shewing that the circumstances were such that the
prosecution can only be accounted for by imputing some wrong or indirect motive
to the prosecutor. In this case, I do not think that any particular wrong or indirect
motive was proved. It is said that the defendant was hasty and intemperate…. He
may also have been hasty, both in his conclusion that the plaintiff was guilty and
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in his proceedings; but hastiness in his conclusion as to the plaintiff’s guilt,
although it may account for his coming to a wrong conclusion, does not shew that
presence of an indirect motive…”
46. However, where a Claimant fails to prove a lack of reasonable and probable cause on the
part of the prosecutor, the question of malice does not arise for the consideration of the
Court. In Randolph Burroughs v. AG, HC 4702/1986; HC 2418/1987, Justice Ibrahim
expressly held that since the Plaintiff had failed to discharge the onus of proving that the
prosecution was undertaken against him without reasonable and probable cause, it had
become unnecessary to consider the question of malice. In Cecil Kennedy v. Morris &
AG (ibid), the Court of Appeal endorsed this approach when they found that although the
trial judge had painstakingly examined the requirements and authorities for proving
malice, the question of malice did not arise since there was sufficient evidence that the
appellant had been arrested with reasonable and probable cause.
The Evidence
47. The Claimant has based his case on the following important facts:
(i) When the officers came to the camp, he was alone and there was no
marijuana in the camp. The police searched him and took away his wallet
which contained $2,618;
(ii) The officers took him in a police vehicle to another camp about a half-
mile away. At that location, he saw the police bring out another man in
handcuffs and put him in a jeep. This was the first time he saw this man.
He also saw about 8 policemen come through an open savannah, each
holding a bundle of marijuana trees which they placed in an open tray of
the jeep.
(iii) When the police officers returned to his camp to drop him off, he
requested the return of his wallet. The officers returned the wallet but
there was no money in it. He then protested that there was no money in the
wallet and an officer 'planassed' him. He then showed the officers his
payslip to prove that he had money in his wallet. The officers then took
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away his wallet and his pay slip, took him to the same jeep in which the
other man was seated and handcuffed him to that man.
(iv) Both men were then taken to the San Fernando Task Force Office where
the officers in the presence of both men chopped up the marijuana,
weighed it and charged both men jointly for possession of marijuana for
the purpose of trafficking.
(v) He was discharged by the Magistrate on the 23rd May 2011 and he spent
$10,000.00 to his lawyer, Mr. Nanan to defend him in the Magistrates
Court.
48. The Defendant's witnesses, P.C. Nanan and Inspector Pierre recounted a completely
different version of the circumstances in which the Claimant was arrested and charged.
They say that:
(i) On the 12th May 2009, P.C. Nanan, in company with 11 other police
officers, went on an exercise to investigate a report that Seebaran Roodal,
along with another individual, was planting marijuana which was kept in
a camp in the vicinity of Charuma Road. Police Sergeant Pierre was the
officer in charge of the exercise.
(ii) When the officers reached the camp site, P.C. Nanan, P.C. Agostini and
P.C. Forde entered the camp and found the Claimant and another man
asleep on two separate bunk beds. P.C. Nanan also observed a quantity of
plant-like material resembling marijuana in a pile on the ground;
(iii)Sergeant Pierre and the other officers entered the camp after P.C. Nanan,
P.C. Agostini and P.C. Forde.
(iv) P.C. Nanan woke the two men, identified himself and asked the men to
identify themselves. He asked them why they were in the camp and they
replied that they were planters.
(v) P.C. Nanan informed the men of his suspicion that the plant-like material
was marijuana and of the offence they were committing by having it in
their possession.
(vi) The officers conducted a search of the camp in the presence of the two
men. P.C. Nanan then cautioned the men and they both remained silent.
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The men were then arrested, told of their constitutional rights and
privileges, handcuffed and placed in the back of one of the police
vehicles. The plant-like material was then place in the tray of one of the
police vehicles.
(vii) Thereafter, P.C. Nanan and other officers proceeded into the forest where
they discovered a portion of land cultivated with what appeared to be
marijuana plants and they proceeded to destroy same;
(viii) The party of officers then returned to the Southern Division Task Force
office with the Claimant and Seeberan Roodal. At the station, P.C. Nanan
searched the Claimant and found on him a black wallet containing a
driver's permit, a black Nokia cell phone and a gold colored ring. These
items were lodged with the property keeper at the station and recorded in
the Charge Book which the Claimant signed;
(ix) In the presence of the two men, he placed the plant-like material in three
black bags, weighed them and placed his markings on them.
(x) He again cautioned the Claimant and Mr. Roodal and informed them of
their constitutional rights and privileges. The Claimant requested a phone
call and he was allowed to make same;
(xi) P.C. Nanan charged the Claimant and Mr. Roodal with the offence of
possession of marijuana for the purpose of trafficking;
(xii) On the 13th May 2009, the Claimant and Mr. Roodal were taken to the
Rio Claro Magistrates Court where they appeared before the Magistrate
and were denied bail and remanded into custody.
Analysis of the Evidence
49. In my evaluation of the evidence, I am guided by the judgment of the Privy Council in
Horace Reid v. Dowling Charles and Percival Bain, Privy Council Appeal No. 36 of
1987 where it was emphasized that where the Court is confronted with an acute conflict
of evidence, while the impression which the evidence makes upon the trial judge is of the
greatest importance, it is not the only matter to be taken into account:
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" ... In such a situation, where the wrong impression can be gained by the most
experience of judges if he relies solely on the demeanour of the witnesses, it is
important for him to check that impression against contemporary documents,
where they exist, against the pleaded case and against the inherent probability or
improbability of the rival contention, in the light in particular of facts and matters
which are common ground or unchallenged, or disputed only as an afterthought
or otherwise in a very unsatisfactory manner. Unless this approach is adopted,
there is a real risk that the evidence will not be properly evaluated and the trial
judge will in the result have failed to take proper advantage of having seen and
heard the witnesses."
The Claimant's Evidence
50. Under cross-examination, the Claimant remained unshaken in his evidence that he was
alone at the camp when the police arrived and that he was there as a watchman for PR
Contracting at their construction site. He also denied steadfastly that there was marijuana
on the floor of the camp where he was found. He insisted that he had $2,618 in his wallet
when he was searched and his wallet was taken from him at the camp. When confronted
with the fact that he signed the Charge Book which referred only the wallet, the cell
phone and the ring but not to any cash, his response was:
"I am seeing where it says property seized. I see my signature. I see one black
wallet, one Nokia cell phone and one gold color ring. They took out my pay slip
and $2,618 from my wallet. By signing this, I was not saying this was all that was
taken from me. I am sure they took my money and pay slip from my wallet."
51. However, the Claimant failed to adduce any evidence from his former employer, PR
Contracting to corroborate his evidence that he was a watchman at the construction site
and that he had been paid $2,618 three days before and had been given a pay slip. In his
witness statement, the Claimant said, "I lost my job due to this wrongful arrest and my
previous employers refuse to meet me even to give evidence I need about my employment
to the court." When questioned about how he came to know that he had lost his job, he
stated that "the guys who used to check me told me that I lost my job. I did not hear this
from the boss. After I got out of jail, I never went back to my job." This evidence is
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materially different from his witness statement in the sense that it demonstrates that the
Claimant never attempted to return to his job and did not attempt to get his former
employer to give evidence on his behalf.
52. The Claimant also failed to call his co-accused, Mr. Roodal, to corroborate his evidence
that he was not in company with him at the camp when the police entered the camp and
that there was no marijuana on the floor of that camp. When asked why he did not bring
the co-accused to give evidence on his behalf, the Claimant said, "I never told him I was
bringing case.... I never tried to bring him to court."
53. The Claimant pleaded that by reason of the charge being laid against him, his reputation
had been harmed, he had suffered mental anguish, he was prevented from attending to his
business and had been put to expense in defending himself. He claimed that he spent
$8,000.00 for legal fees in the Magistrates Court and loss of earnings of $1,400.00 per
week for 20 weeks amounting to $28,000.00. These allegations were substantially
repeated in his witness statement, except that the Claimant said that he spent $10,000.00
to have Mr. Nanan defend him and he did not give any evidence with respect to his loss
of earnings of $1,400.00 per week.
The Defendant's evidence
54. In his witness statement, P.C. Nanan gave evidence that after he opened the door to the
camp he entered along with P.C. Agostini and P.C. Forde and that Sgt. Pierre and the
other officers entered the camp after them. According to his witness statement, there were
twelve police officers in the party which set out to investigate the report.
55. In his witness statement, Inspector Pierre also said that P.C. Nanan, P.C. Agostini and
P.C. Forde entered the camp in his presence and "a short while later I then entered the
camp with other officers present."
56. However, in the Defence, the Defendant pleaded that P.C. Nanan, P.C. Agostini and P.C.
Forde entered the structure and there was no allegation that Sgt. Pierre was present in the
camp. Further, in the Station Diary entry for the 12th May 2009, it was recorded that
"P.C. Nanan, P.C. Agostini and P.C. Forde entered the camp whilst the other
aforementioned Police officers covered the perimeter of the camp...".
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57. P.C. Nanan also said that after he entered the camp, he identified himself and the other
officers to the two men. He asked the men their names and why they were in the camp.
The men responded that they were planters. However, the entry in the Station Diary for
that day does not include any reference to P.C. Nanan asking the men about their purpose
for being at the camp and their response that they were planters.
58. Further, although Inspector Pierre places himself in the camp where he heard and saw
P.C. Nanan:
a) introduce himself and the other officers;
b) tell the men that he thought the plant-like material was marijuana and the
offence they were committing;
c) caution the men; and
d) arrest the men;
he does not mention that he heard P.C. Nanan ask the men why they were in the camp or
heard their response that they were planters.
59. In his witness statement, at paragraph 10, P.C. Nanan said "we conducted a search of the
camp in the presence of the two men" but he did not say that the men were searched at the
camp. At paragraph 12, he said he searched the Claimant at the station where he found
the wallet, the cell phone and the ring on his person. However, under cross-examination,
P.C. Nanan said the Claimant was searched twice, once at the camp and then at the Police
Station. When questioned about why he failed to mention that the Claimant was searched
at the camp, he responded that he did not mention it because he did not search him at the
camp. He also said that he did not see the Claimant being searched but he knew he was
searched but he could not say by whom.
60. In his witness statement, Inspector Pierre also said that the camp site was searched but he
did not say that the Claimant was searched at the camp. However, he said that prior to
returning to the San Fernando Police Station, P.C. Nanan showed him some items he
found upon conducting a search of the Claimant which included a black wallet containing
a Trinidad and Tobago driver's permit, a black Nokia cell phone and a gold coloured ring.
Further, he said he was not present when the search of the Claimant was conducted but he
was present when P.C. Nanan made a record in the Charge Book of the items he found on
the Claimant.
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61. In the Defence, the Defendant did not plead that the camp was searched or that the
Claimant was searched at the camp site.1 In fact, the first mention of a search of the
Claimant is at the Southern Division Task Force2 where P.C. Nanan in the presence of
P.C. Forde searched the Claimant and Mr. Roodal and a wallet containing a Trinidad and
Tobago's driver's permit and a black Nokia cell phone were found on the Claimant's
person.
62. Further, the Station diary entry for the 12th May 2009 does not refer to a search of the
camp or the Claimant at the camp.
63. In the Defence, the Defendant denied that any of the officers stole $2,600.00 from the
Claimant. Under cross-examination, P.C. Nanan stated that the police did not find $2,618
in the Claimant's wallet. However, P.C. Nanan said he did not search the Claimant or see
him being searched.
64. The Defendant did not call P.C. Agostini or P.C. Forde, both of whom were present at the
camp, to give evidence to corroborate the evidence of P.C. Nanan as to what transpired
when the officers entered the camp on the morning of 12th May 2009. P.C. Nanan
explained that when he laid the information he only cited P.C. Forde as a witness but he
never made an effort to get a statement from him because sometime after in 2009 P.C.
Forde abandoned his work as a police officer and left the country.
65. Under cross-examination, P.C. Nanan said he attempted to interview the Claimant and
Mr. Roodal but they were uncooperative. When asked where he attempted to interview
the men, he said he thought it was at the Task Force Office. However, there was no
mention of any such attempt to interview the Claimant either in the Defence or in the
witness statement of P.C. Nanan and there was no note in the station diary of any such
attempt.
66. Inspector Pierre admitted under cross-examination that, for the purposes of preparing his
witness statement in July 2013, he refreshed his memory from the station diary notes,
although he was not the author of any of those notes.
1 (see paragraph 4 (vii), (viii) and (x) of the Defence)
2 (See paragraph 4 (xi) of the Defence
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Findings
67. Based on this analysis, on the first two issues, I make the following findings:
(i) I believe that only P.C. Nanan, P.C. Forde and P.C. Agostini entered the
camp on the morning of the 12th May 2009 and that the other officers,
including Inspector Pierre, remained outside the camp. If Inspector Pierre
was present in the camp as he said, he would surely have been able to see
the Claimant being searched in the camp and he would also have been able
to say if P.C. Nanan asked the Claimant and Mr. Roodal why they were
there and what was their response.
(ii) I accept the Claimant's evidence that he was searched at the camp and that
his wallet was taken away from him. I do not believe P.C. Nanan when he
says that he did search the Claimant and that he did not see who conducted
the search. He was present with P.C. Agostini and P.C. Forde in the camp
and, if as he says he did not search the Claimant, he must have been in a
position to observe whether P.C. Agostini or P.C. Forde searched the
Claimant.
(iii)I believe that P.C. Nanan was the person who searched the Claimant at the
camp and found the wallet. I come to this conclusion based on the
evidence of Inspector Pierre that "prior to returning to the San Fernando
Police Station, P.C. Nanan showed me some items he found upon
conducting a search of the Claimant which included a black wallet
containing a Trinidad and Tobago driver's permit, a black Nokia cell
phone and a gold coloured ring"
(iv) I accept the evidence of the Claimant that he had $2,618.00 in his wallet
when he was searched and his wallet was taken away, despite his failure to
call his former employers to give evidence on his behalf. Taking a
practical view of the facts, the Claimant had only been working with PR
Contracting for two months prior to his arrest and he remained in custody
for 138 days thereafter. The charges against him remained pending from
May 2009 to May 2011. I consider it quite logical and credible that his
employer would have terminated his employment while he remained in
Page 18 of 25
custody for such a long time with such serious charges laid against him
and that he would not have attempted to approach them to give evidence
on his behalf in this matter which was commenced in January 2013.
(v) I also accept his evidence that when his wallet was returned to him, the
money was missing. In my opinion, P.C. Nanan's failure to mention in the
station diary and in his witness statement that the Claimant was searched
at the camp and his eventual admission that he was searched at the camp,
but not by him, is a thinly veiled attempt to distance himself from the
search of the Claimant at the camp site and the discovery of cash in the
Claimant's wallet. His evidence that he did not mention the search at the
camp because he did not conduct the search but he did not see who
conducted the search is just not credible and is contradicted by the
evidence of Inspector Pierre.
(vi) I accept the evidence of the Claimant that it was only after he protested to
the officers about the missing money from his wallet that he was
'planassed' by an officer, arrested and handcuffed to Mr. Roodal in the rear
of the police vehicle.
(vii) I also do not accept the evidence of P.C. Nanan or Inspector Pierre that the
Claimant was found in the camp with Mr. Roodal with a heap of
marijuana on the floor of the camp. I prefer to accept the evidence of the
Claimant that he was alone in the camp when the officers came there. In
my opinion, the arrest of the Claimant and the laying of the charge of
possession of marijuana for the purposes of trafficking was a fabrication
by P.C. Nanan to cover the fact that he had searched the Claimant, taken
possession of his wallet and relieved him of the cash contained therein. I
also do not believe P.C. Nanan when he said he asked both men why they
were in the camp, they responded that they were planters or that he
attempted to interview them and they were uncooperative.
68. Accordingly, I have come to the conclusion that, on the balance of probabilities, the
Claimant has proved that (a) there was an absence of reasonable and probable cause for
P.C. Nanan to lay the charge against him; and (b) P.C. Nanan acted maliciously in that he
Page 19 of 25
was actuated by an improper motive in instituting and carrying on the proceedings
against him.
III. Did the Claimant suffer damage?
IV. Whether or not in all the circumstances of the case aggravated and/or
exemplary damages ought to be awarded to the Claimant?
69. Having found that the Claimant has proved that P.C. Nanan lacked reasonable and
probable cause to lay the charge against him and that in so doing he acted maliciously, I
now turn to the issue of damages. Damages in cases of malicious prosecution are
awarded under three (3) heads:
(i) Injury to reputation-- to character, standing and fame.
(ii) Injury to feelings-- for indignity, disgrace and humiliation caused and
suffered.
(iii) Deprivation of liberty---by reason of arrest, detention and/or
imprisonment.
Injury to reputation
70. There was no evidence before me at the trial that, prior to being arrested and charged, the
claimant had ever been convicted of a criminal offence. According to the decision of the
Privy Council in the case of Terrence Calix v The Attorney General of Trinidad and
Tobago3, this makes him at that time a man of good character. He was prosecuted for an
extremely serious offence, that is, possession of marijuana for the purpose of trafficking.
Undoubtedly, for a man of good character, the laying of such a charge would cause
severe damage to his reputation.
Injury to feelings
71. I am of the view that to be deprived of liberty in circumstances where P.C. Nanan
fabricated the charge laid against the claimant must have caused great suffering and
3 [2013] UKPC 15
Page 20 of 25
emotional hurt to the claimant. From the moment the claimant enquired about his missing
money he was 'planassed' by a police officer with a cutlass. Thereafter, he spent 138 days
in prison which must have been a horrendous experience for the Claimant. With respect
to the prison conditions, the Court of Appeal in Thaddeus Clement v The Attorney
General of Trinidad and Tobago4 noted that “the humiliation and indignity to which
citizens are subjected in the Remand Yard remain a blot on our civility and humanity and
on our democratic ideals. It is deplorable.”
Deprivation of liberty
72. The claimant in this case endured a loss of liberty of 138 days. According to Lord Kerr in
Terrence Calix, the granting of bail on the 1st October, 2009 does not relieve the
prosecutor’s liability and the prosecutor remains liable for the damages caused by his
setting the prosecution in motion.5 In light of the guidance provided by Chief Justice de la
Bastide in the case of Millette v Mc Nicholls6 the length of imprisonment is not the only
factor this court found relevant under this head. Other relevant considerations under this
head are the initial shock factor given that it was the claimant’s first time in prison and
the conditions of detention. In Millette v Mc Nicholls7 Chief Justice de la Bastide
advised that judges approach the assessment of damages in cases like this “in the round”
and that judges need to be careful not to divide the award into compartments for “initial
shock … length of imprisonment and so on”, but rather to ensure that “all the factors be
taken into account and an appropriate figure arrived at.”
73. The Claimant would have spent the night of 12th May, 2009 in prison, which constitutes
his first initial shock. On 13th May 2009, he was taken to the Rio Claro Magistrates
Court where bail was denied and he was remanded in custody. He then spent 138 days in
custody which would have resulted in a second initial shock.8
4 Civil Appeal No. 95 of 2010
5 [2013] UKPC 15 at para 23.
6 Civ. App. No. 14 of 2000.
7ibid
8 Thadeus Clement v The Attorney General of Trinidad and Tobago
Civil Appeal No. 95 of 2010
Page 21 of 25
Aggravating Factors
74. Over this period of incarceration, the claimant was made to languish in a prison cell that
was crowded, filthy, engulfed with offensive odors and he was made to sleep on the floor.
In considering what the Claimant experienced while in prison, I bear in mind that the
claimant’s suffering came about as a result of the fabrication by P.C. Nanan of this
charge against him because he enquired about moneys missing from his wallet after he
was searched at the camp. Accordingly, I am of the opinion that the Claimant should be
entitled to an uplift in the award of damages to take account of these aggravating factors.
Special Damages
75. The claimant has claimed special damages for loss of income for the period of 14 weeks
at $1400.00 per week and for legal fees in the sum of $8000.00. The total amount of
special damages being claimed is $36,000.00.
76. It is well established that the burden of proof regarding special damages is on the
claimant, who is required to prove the special damages that he pleads. Documentary
evidence is usually required for such claims to be allowed. Archie, J.A. (as he then was)
in the case of Anand Rampersad v Willies Ice-Cream Ltd9stated as follows:
“The rule is that the plaintiff must prove his loss. The correct approach is as
stated by Lord Goddard C.J in Bonham Carter v Hyde Park Hotel [1948] 64
Law Times 177:
“Plaintiffs must understand that if they bring actions for damages, it is for them
to prove their damage, it is not enough to write down the particulars, so to speak,
throw them at the head of the court saying ‘this is what I have lost, I ask you to
give me these damages.’ They have to prove it’.”
77. However, the claimant in this case has failed to produce any documentary evidence of his
legal fees and loss of income. In Great Northern Insurance Company Limited v
Johnson Ansola10
, the Court of Appeal concluded that an absence of documentary
evidence to support claimant’s viva voce evidence on special damages is not necessarily
conclusive against him but rather it is one factor to consider, especially in cases where the
9 Civil Appeal 20 of 2002
10 Civ App 169 of 2008 per Mendonca J.A. at .....
Page 22 of 25
relevant evidence is unchallenged and which, but for supporting evidence, the Judge was
prepared to accept. In these circumstances, the Court should be slow to reject the
unchallenged evidence simply and only on the basis of the absence of supporting
evidence. There should be some other cogent reason.
78. In the circumstances, despite the claimant’s failure to produce any documentary proof of
his legal expenses and monthly income, I am satisfied that the claimant incurred legal
expenses. The record of the Magistrates’ Court proceedings expressly stated that the
Claimant was represented by Mr. Nanan, Attorney-at-Law, and this evidence was not
challenged on cross examination. However, there was a discrepancy between the amount
claimed in the Statement of Case and the amount stated in the Claimant's witness
statement. I am of the opinion that the amount of $8,000.00 was a reasonable sum for
legal representation of the Claimant on such a serious charge over the period 2009 to
2011 and I am prepared to award this amount to the Claimant.
79. With respect to the claimant’s claim for loss of income, however, although I accept the
Claimant's evidence that on 12th May 2009 he was a watchman for PR Contracting at
Charuma Road and that he had $2,618.00 in his wallet when he was searched by P.C.
Nanan, he has not given any evidence whatsoever in his witness statement to support this
claim. Accordingly, based on the lack of evidence to support this claim, I find that the
Claimant is not entitled to recover any amount for loss of earnings.
80. Comparable Awards for general damages
(i) Gerald Rampersad v The Attorney General11
a decision of Madame
Justice Dean-Armorer, delivered on the 21st July 2014. An award of
$160,000.00 in damages was made in circumstances very similar to the
present case. She found that the officers involved fabricated a charge for
possession of marijuana for the purposes of trafficking against the
claimant and also awarded an additional $5,000.00 for exemplary damages
to reflect the court’s disapproval of such conduct by servants of the state.
The period of detention was eight months.
11 HCA No 2009-04698
Page 23 of 25
(ii) Ted Alexis v The Attorney General of Trinidad and Tobago12
a
decision of Justice C. Kangaloo (as he then was) delivered on the 17th
March 2008. The claimant was charged with possession of drugs and
remained imprisoned for 2 ½ months. He was awarded $100,000.00 for
false imprisonment, malicious prosecution and aggravated damages and
$25,000.00 as exemplary damages.
(iii)In Thaddeus Clement v The Attorney General of Trinidad and
Tobago13
, delivered on 31st July 2013, an award of $160,000 was made
by the Court of Appeal for malicious prosecution. The Claimant was
arrested on the 23rd October 2004 who accused him of robbing someone.
He was never informed of his right to retain and instruct without delay a
legal adviser of his choice. No attempt was made to verify his explanation
of his whereabouts at the time of the alleged robbery. He was taken from
the Siparia Police Station to the San Fernando Police Station where he was
forced to sign a document under threat of violence. He was then charged
with robbery and taken before a Magistrate on 25th October 2004. He was
then taken to the Remand Yard where he remained until 29th October
2004. During his period of detention, the conditions were cramped,
unsanitary, overcrowded, smelly, and there was no provision for sleeping
or privacy in relation to personal hygiene and ablutions. He attended court
on 8 occasions over a two and a half year period before he was discharged.
The virtual complainant did not appear on any of the dates of hearing and
the prosecution was not ever ready to proceed.
Award of general damages
81. In light of these decisions and considering the injury to reputation, feelings and as a
consequence of the loss of liberty suffered by the Claimant, together with an additional
uplift for aggravating factors, I consider an award of $90,000.00 as general damages for
malicious prosecution to be appropriate in this case. Following the guidance provided by
12 HCA No 1555 of 2002
13 Civil Appeal No. 95 of 2010
Page 24 of 25
de la Bastide C.J. in Bernard v Quashie14
a single figure is awarded for all heads of
compensatory damage, including aggravated damages.
Exemplary Damages
82. In Rookes v Bernard15
, Lord Devlin stated that exemplary damages may be awarded in
circumstances where the conduct by servants of the government can be viewed as
“oppressive, arbitrary, or unconstitutional." Police officers acting in the course of their
employment are deemed to be servants of the State. Accordingly, having regard to my
earlier findings, I will make an award of exemplary damages of $15,000.00 to reflect the
court’s disapproval of police officers fabricating charges against citizens to disguise their
dishonesty.
Summary
83. In the circumstances, I will make the following awards of damages in favour of the
Claimant:
(i) Special damages of $8,000.00;
(ii) General damages of $90,000.00, inclusive of aggravated damages;
(iii)Exemplary damages of $15,000.00
Interest
84. Section 25 of the Supreme Court of Judicature Act, Chap 4:01 gives the Court a
discretion to include in the sum for which judgment is given interest at such rate as it
thinks fit on the whole or any part of the debt or damages for the whole or any part of the
period between the date when the cause of action arose and the date of judgment.
85. In the exercise of my discretion, I am of the opinion that the appropriate rate of interest
on general damages should not be based on the rate specified in the Remedies of
Creditors Act. Adopting a similar approach to that taken by this court in Sean Wallace v
14Civ. App. No. 159 of 1992
15 [1964] AC 1119 at 1226
Page 25 of 25
The Attorney General of Trinidad and Tobago16
, I consider that the court is entitled to
take into account the prime lending rate that is applicable from time to time. This Court
takes judicial notice that the prime lending rate issued by the Central Bank of Trinidad
and Tobago as at 14th October 2014 is 7.5%. In those circumstances I consider that an
appropriate rate of interest on the general damages should be 9% which I will award from
the 31st January 2013 to the date of judgment. I will also award 6 % on the special
damages from the 23rd May 2011, the date of his discharge, to the date of judgment.
There will be no award of interest on the award of exemplary damages.
Costs
86. In my opinion, the Claimant is entitled to an award of costs determined in accordance
with Rule 67.5 of Civil Proceedings Rules 1998. This Rule provides that the costs
payable should be based on the value of the claim which in the case of a claimant is the
amount agreed or ordered to be paid. Therefore, I will order the Defendant to pay to the
Claimant the costs to be determined in accordance with Appendix B and based on the
amounts awarded, inclusive of interest: Leriche v.Francis Maurice17
.
Dated this 15th
day of October 2014.
………………….
Judge.
16
Claim No.: CV2008-04009 17
Privy Council Appeal No 25 of 2004