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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. 00182-2010

Between

YASIN ABU BAKR

Claimant

And

THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO

First Defendant

THE COMMISSIONER OF POLICE

Second Defendant

Before the Honourable Mr. Justice Frank Seepersad

Appearances:

1. Mr. Wayne Sturge and Mr. Lemuel Murphy instructed by Mr. Nigel Allsop for the

Claimant

2. Mr. Israel B Khan SC and Mr. Larry Lalla instructed by Mr. Smart for the Defendants.

Date of Judgment: 29th

July, 2013.

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Introduction

1. This is an action in which the Claimant is seeking Damages for Malicious Prosecution,

False Imprisonment from 11th

November, 2005 to the 24th

January, 2006, and Assault.

The Claimant was arrested and charged on the 11th

November, 2005 for the following

offences:

(a) Having a firearm in his possession without a license contrary to Section 6(1)

of the Firearms Act Chapter 16:01;

(b) Having five hundred and sixty nine (569) rounds of ammunition in his

possession without a licence contrary to Section 6 (1) of the Firearms Act; and

(c) Having a prohibited weapon in his possession contrary to Section 6(2) of the

Firearms Act.

2. At the time of arrest the Claimant was in custody at the Prison on sedition charges.

Summary of facts as presented

3. On the 10th

November, 2005, at around 4:30am, a search for arms and ammunition was

carried out at the compound of the Jamaat al Muslimeen at Mucurapo Road, St. James by a

party of Police Officers who were equipped with a search warrant to search for guns and

ammunition.

4. During the said search P.C. Frith entered a room on the south eastern side of the compound

where two men, Oluyemi Abdul Basit and Tahir Ali were asleep. The occupants of the said

room were informed by Constable Frith that he was in possession of a search warrant to

search for guns and ammunition.

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5. Whilst P.C. Frith was searching a wooden wardrobe located in the south eastern corner of

the said room, he alleged that he found hidden behind some clothes a brown and black,

wood and metal object resembling a firearm with a scope affixed with the markings Sturn-

Ruger cal 223 with what appeared to be a magazine inserted. P.C. Frith says he removed the

said magazine and found inside same four brass-coloured cylindrical metal objects

resembling ammunition. In addition, he alleged that he found a black plastic bag with a box

containing a quantity of brass coloured-cylindrical metal objects resembling ammunition,

three metal objects resembling magazines used in firearms and an oval shaped metal object

with the marking M26 with what appeared to be a pin inserted which resembled a hand

grenade.

6. P.C. Frith enquired from Basit and Ali whether they were the holders of a firearm user’s

licence and they did not answer. He then cautioned both men and Basit replied “I eh know

about that” and Ali made no reply. Both men were arrested and taken to the St. James

Police Station where they were formally charged for possession of the discovered objects.

7. Having received information from the occupants of the compound that the Claimant was the

person who had full control of the compound, P.C. Frith formed the opinion that the

Claimant had constructive possession of the illegal arms found on the compound and went

on the following day, the 11th

November, 2005, to the Port of Spain Magistrates’ Court

where he swore to information before a Clerk of the Peace and obtained three warrants from

a Magistrate for the arrest of the Claimant for the offences of possession of firearm;

possession of ammunition; and possession of a prohibited weapon.

8. Having obtained the arrest warrants, Constable Frith on the said date went to the State

Prison in Port of Spain where the Claimant was in custody and formally arrested and

charged him.

9. The Claimant was remanded into custody on the arms and ammunition charges until the

24th

January, 2006 when the Director of Public Prosecution filed a notice of discontinuance

in favour of the Claimant. After the arms and ammunition charges were discontinued the

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Claimant remained in custody on the sedition charges which had been previously instituted

against him.

Claimant’s Case

10. It is the Claimant’s case that on the 11th

November, 2005 he was wrongfully and without

reasonable and probable cause arrested and charged for possession of illegal arms and

ammunition found on the compound of the Jamaat al Muslimeen.

11. As a result of the said charges he contends that he:

i. was falsely imprisoned for 76 days on the arms and ammunition charges;

ii. faced the onset of a groundless prosecution;

iii. suffered injury to his credit, character and reputation;

iv. suffered severe mental anguish and pain;

v. was assaulted when the police refused to give him his prescribed

medication which was delivered by his relatives;

vi. was denied entry into countries such as the United States and the United

Kingdom;

vii. lost business contracts and opportunities; and

viii. incurred financial expense in defending himself.

Defendants’ Case

12. In their Defence and Amended Defence the Defendants admitted that P.C. Frith pursuant to

a warrant of arrest issued by a magistrate, arrested and charged the Claimant for the

possession of arms and ammunition.

13. The Defendants denied however that P.C. Frith had been actuated by malice or that he

lacked reasonable and probable cause to effect the arrest.

14. By their written submissions dated the 17th

May, 2013 the Defendants contended that even

though the Claimant was in lawful custody at the time of the search and seizure he had

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constructive possession of the arms and ammunition. In support of this argument P.C. Frith

at paragraph 20 of his Witness Statement testified that he formed the opinion that the

Claimant had constructive possession for the following reasons:

“the fact that the occupants of the compound all indicated that Imam Yasin Abu

Bakr was the person who had total control of the compound; that the Imam had

given Rudolph Victor John permission to stay on the compound, which is clearly

expressed in the statement of Rudolph Victor John; the fact that the wardrobe in

which the items were found were the property of the Jamaat and the Wazir had to

give them permission to use the wardrobe; the location where the items were

found hidden and the type of illegal firearm to wit a rifle 3 ft 6’ long with an 18”

scope attached to the top of it and a grenade and it was common knowledge that

the Imam had a history with importation and possession of illegal firearms, I

formed the opinion that the Imam had constructive possession of the illegal arms.

I had difficulties believing that someone could smuggle such a weapon unto a

compound without the Imam knowing as he was in charge.”

Malicious prosecution

15. The law with respect to malicious prosecution is quite settled. The ingredients of the tort of

malicious prosecution are stated in Clerk and Lindsell on Torts at p 1042, para 19-05:

“In an action of malicious prosecution the plaintiff must show first that he was

prosecuted by the defendant, that is to say, that the law was set in motion against

him on a criminal charge; secondly, that in so far as they were capable of doing

so the charges were determined in his favour; thirdly, that it was without

reasonable and probable cause for the defendant instituting or carrying on those

proceedings; fourthly, that the defendant was actuated by malice; fifthly, that he

suffered damage. The onus/burden of proving every one of these is on the plaintiff

on a balance of probabilities.”

16. There was no dispute in this case that P.C. Frith arrested the Claimant pursuant to three arrest

warrants for the offences and the charges were determined in the Claimant’s favour when the

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Director of Public Prosecution discontinued the said proceedings. Therefore, essentially

consideration is focused on the third and fourth ingredients of the tort, namely:

(a) Whether the prosecution was set in motion by P.C. Frith without reasonable and

probable cause; and

(b) Whether it was actuated by malice.

Reasonable and Probable Cause

17. By written submission dated 10th June, 2013 the Claimant advanced that P.C. Frith had

commenced the prosecution for the offence of possession of arms and ammunition without

reasonable and probable cause and that he did so maliciously.

18. In order to sustain this action the onus is on the Claimant to prove on a balance of

probabilities absence of reasonable and probable cause and the presence of malice on the

part of P.C. Frith.

19. Reasonable and Probable cause was defined in the case of Hicks v Faulkner (1878) 8 QBD

as:

“an honest belief in the guilt of the accused based on 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.”

20. In the case of Harold Barcoo v The Attorney General of Trinidad and Tobago HC 1388 of

1989, Mendonca J (as he then was) identified the following questions to be posed in

determining the question of reasonable and probable cause at pages 4 and 6:

(i) “Did the prosecutor have an honest belief in the guilt of the accused?

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(ii) Did the prosecutor have an honest conviction of the existence of the

circumstances relied on?

(iii) Was the conviction based on reasonable grounds? and

(iv) Did the matters relied on constitute reasonable and probable cause in the

belief of the accused guilt?”

21. The first two tests outlined by Mendonca J are subjective and latter two are objective. The

officer must form a genuine suspicion in his own mind and there must also be reasonable

grounds for this suspicion which is formed. This position was outlined in the case of

O’Hara Chief Constable of Royal Ulster Constabulary [1997] A.C. 286 at p.458.

22. This court in Franklyn Algoo v The Attorney General CV No 2008-03355 held the view that

in considering whether there was reasonable and probable cause for a prosecution, the court

ought to consider the following:

(a) That the reference to the guilt of the accused does not relate to guilt in the

ordinary sense but to the concern instead that there is a proper case to lay before

the Court. The guilt or innocence of the person charged is therefore not for the

arresting officer to determine, he’s not required to be satisfied that there is enough

evidence to secure a conviction. See Glinski v McIvor [1962] A.C. at p. 727.

(b) That before an arrest and prosecution is pursued there must be proper and

reasonable grounds for suspicion. This position was advanced in the case of Irish

v Barry [1965] 8 WIR p 177 at 182.

(c) The test to determine whether an arresting officer has sufficient grounds for his

suspicion that a person committed an offence is both subjective and objective and

the officer must form a genuine suspicion in his own mind and there must also be

reasonable grounds for this suspicion which is formed. This position was outlined

in the case of O’Hara v Chief Constable of Royal Ulster Constabulary [1997] AC

286 at p.458

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Malice

23. Mc Shine JA in the judgment of Wills v Voisin (1963) 6 W.I.R. 50 at p. 67 stated as follows:

“...malice and reasonable and probable cause must unite in order to produce

liability...malice, i.e., an improper motive the onus of proof of which also rests on

the plaintiff-respondent...”

24. Malice proved must be malice in fact, showing that the Defendant was actuated by spite, ill

will or by indirect or improper motives. If the Defendant had any purpose other than that of

bringing a person to justice that will constitute malice. However where there was

reasonable and probable cause to initiate the proceedings the issue of malice would not

arise. The position was outlined in the case of Cecil Kennedy v Donna Morris and the

Attorney General CV App 87 of 2004. Once a lack of reasonable and probable cause has

been shown a Claimant must also prove malice in order to succeed in an action for

malicious prosecution. This position was outlined in the case of Michael Mungroo v The

Attorney General and Lowell H.C.A 491 OF 1984. Malice however, maybe inferred in the

absence of reasonable and probable cause as stated in the case of Bernard Baptiste v The

Attorney General and Others H.C.A 3617 of 2001. In some cases even with the lack of

reasonable and probable cause the courts have found no evidence of malice. See Trevor

Williamson v The Attorney General CV App 140 of 2007. In the Cecil Kennedy case

Stollmeyer J (as he then was) whose decision was upheld on appeal stated that in proving

malice a Plaintiff is not required to demonstrate spite or hatred, he is only required to

demonstrate that a prosecution was prompted by improper and direct motives and that the

proper motive for a prosecutor is the desire to secure the ends of justice and if this is not a

defendant’s true or predominant motive then a plaintiff will succeed in a claim for

malicious prosecution.

Reasoning and Decision

25. P.C. Frith testified that one of the reasons for believing that the Claimant had constructive

possession of the illegal arms and ammunition was based on information received from

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occupants of the Jamaat that the Claimant was the person in full control of the Jamaat and

that he was the only person who could give permission for entry into same. He also said

that a Wazir was the person in charge of security for the compound, the Claimant was not

the Wazir.

26. In addressing the issue as to whether P.C. Frith had reasonable and probable cause for

bringing the Claimant before the courts, the court had to consider whether P.C. Frith

honestly believed in the guilt of the Claimant and, whether the information he received

warranted the belief that the Claimant committed the offence or was a party to it. The court

had to also be mindful of the information that was in the mind of the arresting officer at

time of the Claimant’s arrest, and in so doing the court took into consideration the arresting

officer’s own account of the information which he had.

27. Taking all the circumstances of this case into account the court is of the view that P.C. Frith

did not have the requisite reasonable and probable cause for instituting the charges against

the Claimant for the following reasons:

1. The arms and ammunition were found in a wardrobe in a room occupied by two sleeping

men at the time of the charge. The Claimant, though he testified that he spent time, even

nights at the Jamaat compound, does not reside at same and at the time of the search the

compound was occupied by several persons. The court fully accepted the Defendant’s

position that someone can be found to have overall control of premises, though they

were absent from the premises at the time that the illicit substances were found, and in

circumstances where such premises were occupied by other persons. However, in these

circumstances the Court is not convinced on a balance of probability that there was

evidence to suggest that the Claimant was in control of the Jamaat compound at the

material time. Given the nature of the organization and having considered the fact that

the Claimant was in custody at the time the compound was searched and having regard

to the fact that there is no information or evidence as to when the arms and ammunition

allegedly found was brought onto the compound, it is difficult to understand how PC

Frith could have subjectively formed a genuine suspicion in his own mind as to the

Claimant’s involvement and there seemed to be no evidence which would have led to

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the formulation of a position that there were reasonable grounds to suspect that it was

proper to put the Claimant before the Court.

2. There was no evidence at the time of arrest or later which linked the Claimant to the arms

and ammunition found. The Court rejected P.C. Frith’s reasoning that because the

Imam had a history with importation and possession of illegal firearms that he formed

the opinion that he was guilty of the present charges. Police officers need to act based

on the evidence they have before them and every effort must be made to disabuse one’s

mind from bias whether conscious or unconscious. Reliance on previous information

and/or interactions and/or the history of a suspect however blemished by itself is not

sufficient so as to justify a decision that an individual is guilty, there must be other

cogent evidence that supports such a view and all citizens whether infamous or famous

have the democratic and constitutional right to be treated equally in the eyes of the law.

3. In cross-examination PC Frith acknowledged that he was aware that the mere alleged

finding of the guns and ammunition in the circumstances as they were, was not by itself

sufficient in accordance with the 2005 amendment to the Firearms Act Chapter 16:01.

He said he was aware that there must have been evidence upon which one could

reasonably conclude that the Claimant had some control of the weapon and not only

control of the premises. The witness also stated that based on his information he knew

that the Wazir was charged with the responsibility of overseeing the security of the

compound and this position was inconsistent with his assertion that it was the Claimant

who had absolute control of the compound.

4. Officer Frith admitted in cross-examination that there was no physical evidence that

suggested that the Claimant knew of the existence of the firearm. During the cross-

examination it was stated that the search of the compound was videotaped however no

credible explanation was advanced as to why the said videotaped recording was not

shown to the court.

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28. Having reviewed the evidence the Court is firmly of the view that prior to the institution of

the charges against the Claimant there was no evidence to suggest that the Claimant at the

material time had control of the compound.

29. Further given the fact that the Claimant was incarcerated it could not be said on the

evidence that the Claimant had an opportunity, whether he availed himself of it or not, to

ascertain in a general way that the illegal items were on the compound. The Court finds

that the evidence that was available to Constable Frith could not have reasonably led

him to form the view that the Claimant had constructive possession of the illegal items

allegedly found and the Court holds that the complainant in those circumstances could

not have had an honest belief in the guilt of the Claimant and the prosecution was set

in motion without reasonable and probable cause.

The Court must now consider whether PC Frith was actuated by malice

30. Counsel for Defendants submitted that the Claimant is unable to prove malice on the part of

P.C. Frith and that there is no evidence that Frith acted in any improper way towards the

Claimant or that he had any improper or oblique motive in charging the Claimant.

31. The Defendants further submitted that if a prosecutor fairly takes competent legal advice,

he is in all events justified in acting upon it and that no prosecutor can be made liable in an

action simply on the ground that he is mistaken on the law.

32. The Defendants also submitted that P.C. Frith did not rush with indecent haste to charge the

Claimant but rather that he sought the advice and permission of his senior officers,

Inspector Lezama and Assistant Superintendent Cadis and that the only reasonable

conclusion that the Court can come to on the totality of the evidence is that Frith acted in a

professional manner but that he and/or his seniors made an error in law in an area where the

criminal law is quite complicated.

33. Having found that P.C. Frith had no reasonable or probable cause for charging the Claimant

the court may infer the presence of malice. Though advice or instructions of a competent

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authority will tend to negate the presence of malice, the court is of the view that the

permission/advice and or instructions granted to P.C. Frith in this case did not do so. The

court is also of the view that P.C. Frith hastily moved to have the Claimant charged.

34. Having recognized that the Claimant was already in custody and that this was a difficult

area of the law, care should have been taken in carrying out a more thorough investigation

and legal advice ought to have been sought from the Office of the Director of Public

Prosecutions before the charges were laid.

35. The Court is of the view that a predominant factor that operated in Constable Frith’s

mind was the fact that the “Imam had a history with importation and possession of

illegal firearms”. The Court is of the view that the officer was prompted by improper

motives and that the desire to secure the ends of justice was not the predominant

motive. The complainant seemed to have been preoccupied with the Claimant’s

history and there was no proper and objective assessment of the evidence.

36. In light of the foregoing the court is of the view that the Claimant has succeeded in

establishing the tort of malicious prosecution in respect of the charges that were

instituted against him

False Imprisonment

37. According to the Claimant’s Statement of Case he was deprived of his liberty from the 11th

November, 2005 to the 24th

January, 2006 and his arrest and detention were unlawful.

38. The Claimant in paragraph 9 of his Amended Statement of Case gave the following

particulars for his false imprisonment claim:

“Particulars of false imprisonment

i. The Claimant was charged with the offence on the 11th

November, 2005

while incarcerated in the Royal Jail, Port of Spain;

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ii. The Claimant remained in prison for the said offence until the 24th

January, 2006 when the Director of Public Prosecutions formally issued a

Nolle Prosequi; and

iii. The Claimant was therefore falsely imprisoned for 76 days.”

39. The Defendants by their submissions submitted that the Claimant was never “arrested” as

such on the arms and ammunition charges since at all material times he was incarcerated on

the sedition charges, such incarceration being sanctioned by judicial authority.

40. The Defendants further submitted that the Claimant cannot make out a case for False

Imprisonment and is therefore not entitled to damages. On this point the Defendants relied

on the learning in Clerk and Lindsell on Torts, which said:

“the Claimant cannot sue in false imprisonment in respect of that period of

detention authorized by the magistrate,” “Detention subsequent to

remand cannot give rise to an action for false imprisonment because of the

intervention of the judicial process” and “if a party goes before a

magistrate who thereupon issues a warrant for arrest and production

before the a magistrate’s court, then his liability, if any, is clearly for

malicious prosecution.” In such event “the party making the charge is not

liable to an action for false imprisonment, because he does not set a

ministerial officer in motion but a judicial officer. The opinion and

judgment of a judicial officer are interposed between the charge and

imprisonment.”

41. In Jeffery John v The Attorney General of Trinidad and Tobago HC 1536/2009 Dean-

Armorer J stated as follows:

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“The law in respect of the tort of false imprisonment is in my view well settled. When

the Claimant proves the fact of the arrest, the burden shifts onto the arresting officer to

justify same.

Arresting officers have traditionally sought to justify arrests in two ways:

(a) By asserting and proving that an arrest without a warrant had been effected with

reasonable cause to suspect that the arrested person had committed an arrestable

offence; and

(b) That the arrest had been effected on the authority of a warrant.”

42. The tort of false imprisonment is therefore established when the Claimant has proved on a

balance of probability the fact of the imprisonment and having done so the burden of proof

then shifts to the arresting officer to justify the imprisonment. There must therefore be

evidence that there was lawful authority to justify the imprisonment.

43. It is undisputed in this case that:

i. The Claimant was arrested and charged by P.C. Frith for possession of arms and

ammunition on the 11th

November, 2005, at which time the Claimant was already in

prison on sedition charges; and

ii. The Claimant’s arrest was pursuant to three warrants, which were obtained by P.C. Frith

following his swearing of information at the Port of Spain Magistrates Court.

44. The court also considered the decision of Lord Jauncey in Hague v Deputy Governor of

Parkhurst Prison and others [1991] 3 All ER 733, where he stated that:

“false imprisonment is total deprivation of liberty, that is, of all such liberty as

the individual presently enjoys and not deprivation of total liberty, namely liberty

which is otherwise wholly unrestricted.”

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45. This court is of the view that at the time the Claimant was arrested for possession of arms

and ammunition he had no liberty to be in any place other than in prison given that he was

in lawful custody on remand and therefore he had no liberty capable of deprivation by P.C

Frith.

46. In light of the foregoing the Claimant’s claim for damages for false imprisonment is

hereby dismissed.

Assault

47. The Claimant contended that while he was incarcerated the Police refused to give him the

medication that was delivered by his family even though he made it known to the

authorities that he suffered from hypertension and diabetes. The Claimant contended that

the police’s refusal to give him is medication compromised his physical and emotional

health.

48. By their written submissions the Defendants submitted that the Claimant has failed to lead

any evidence to substantiate his assault allegation and as such is not entitled to any

damages.

49. The Court accepts the Defendant’s submissions and finds that there is no evidence before

the Court upon which the Court could hold on a balance of probabilities that the Claimant

was the victim of an assault as he has alleged.

50. Accordingly the Claimant’s claim for damages for assault is hereby dismissed.

51. The issue that must now be determined is the nature and extent of damages that ought to be

awarded to the Claimant on his claim for malicious prosecution.

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52. Having found that the Defendants maliciously and without reasonable and probable cause

instituted the charge against the Claimant, damages may be recoverable upon proof that the

Claimant suffered damage to his reputation, person or property.

53. According to Lord Holt in the case of Savile v Roberts (1699) 1 Ld. Raym. 374, 378

damages for malicious prosecution may be recoverable by the Claimant under the following

three heads of damage:

1. “To his fame as if the matter whereof he is accused be scandalous.

2. To his person as where a man is put in danger to lose his life, limb or liberty.

3. To his property as where he is forced to spend his money in necessary charges to

acquit himself of the crime of which he is accused”

54. Damages may also be awarded for injury to a person’s reputation. In Walter v. Alltools

(1944) 61 TLR 39 at 40, Lawrence J said “a false imprisonment does not merely affect a

man’s liberty, it also affects his reputation.”

Injury to fame and reputation

55. Though the court is mindful of the fact that the Claimant is an Imam and a religious

and spiritual leader, the court is of the view that the Claimant’s reputation was not

injured by the instant charges. The Claimant is in fact known both locally and

internationally as being the person who orchestrated the 1990 attempted coup d état.

At the time the instant charges were instituted, the Claimant was already in custody in

relation to sedition charges which had been proffered against him and there is no

evidence to suggest that the Claimant suffered any loss of fame.

56. The Court considered the directions given by the Board in the Privy Council

judgment in the case of Terrence Calix v. The Attorney General of Trinidad and

Tobago [2013] UKPC15. In the instant case there is no speculative assessment that is

being made in relation to the Claimant’s involvement in the events of 1990. The

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Claimant agonistically and arrogantly admitted his orchestration and involvement in

the attempted coup and said that he was the architect of same. It is not disputed that

as a result of the attempted coup several citizens of Trinidad and Tobago lost their

lives, the nation’s Prime Minister was shot and that millions of dollars of damage was

occasioned to buildings and infrastructure in Port of Spain. The Claimant’s

involvement and responsibility for the said 1990 attempted coup does not therefore

touch or concern peculiarity of character, it impacts directly on the Claimant’s

reputation. While this Court accepts that reputation has an objective value, the fact is

that over 20 years have elapsed since the ill fated events of July 27th

1990 but the

society still has not fully understood and/or reconciled the events that occurred and

the Claimant has remained in the public view. In fact, the nation awaits a report from

the Commission of Enquiry that was established at great expense to review the facts

and circumstances concerning the said attempted coup. The Claimant in this matter

was the beneficiary of an amnesty with regard to the events of July 1990 which was

granted by the Acting President of the Republic of Trinidad and Tobago, the said

amnesty does not however erase the scars that were inflicted upon our democracy and

the national psyche by the Claimant and his followers.

57. On a balance of probabilities, it cannot be said that an objective person, duly seized of

all the information relative to the Claimant’s orchestration and involvement in the

1990 attempted coup de état as well as the fact that subsequent criminal charges were

laid against him including offences under the Sedition Act and Anti-terrorism Act

which are still pending, could reasonably form the view that the Claimant had a

reputation which was or was capable of being altered or negatively judged or affected

by virtue of the institution of the arms and ammunition charges against him.

58. In the instant matter and having regard to all the relevant circumstances which

include the Claimant’s admitted and unapologetic assault on this nation’s democracy,

as well the current criminal pending charges against him, damages to his reputation

cannot and simply does not arise. It cannot be said that the Claimant is a man of good

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character nor can it be said that the Claimant was, at the time the instant charges

were instituted, a man of unblemished reputation in fact in the minds of most of the

citizens of this country the Claimant is cloaked with a shroud of infamy. In addition

the Claimant has led no credible evidence that his reputation was in fact damaged.

59. Accordingly no award of damages is made for injury to fame and reputation.

Loss of Property

60. The Claimant claimed that prior to the institution of the subject charges he was the recipient

of US $5,000 from the World Islamic Call Society (WICS). The Claimant however failed

to adduce any documentary evidence in support of his contention. He said that the sums

were paid in cash and that he paid taxes on the sum. The Claimant did not call any witness

from the WICS to support this position nor did he provide any of his annual tax returns to

support his assertion that he paid income taxes on the said monthly sum of US$5,000.00 in

the year(s) prior to the institution of the subject charges. In Ratcliffe v. Evans (1892)2 QB

at 524, Bowen LJ stated:

“As much certainty and particularity must be insisted on, both in pleading and

proof of damage, as is reasonable, having regard to the circumstances and to the

nature of the acts themselves by which the damage is done. To insist upon less

would be to relax old and intelligible principles. To insist upon more would be the

vainest pedantry.”

61. Claimants are charged with an overriding duty to prove items of damage that are

specifically claimed and the Court should not be expected to engage in a process of

arbitrary estimation. In this case, the Court does not accept the Claimant’s assertion that he

received US$5,000 per month, since there was no credible evidence to support that

contention. It was open to the Claimant to discharge his obligation and adduce evidence that

could have assisted the Court in this regard.

62. It is not disputed that the Claimant filed several unsuccessful bail applications before the

High Court in an attempt to obtain bail on the subject charges. However he led no evidence

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as to quantum of legal fees expended in this regard. During cross-examination the Claimant

said that he paid $200,000.00 in legal fees relative to the subject charges. The Claimant did

not however plead this sum under the head of special damages nor did he lead any evidence

or produce any receipt to substantiate this contention that the sum was in fact paid. The

Claimant had an obligation to plead his special damages.

63. Accordingly no award is made for Loss of Property.

Injury to person/Loss of Liberty

64. Though not cited by any of the Attorneys in this matter, there is a written ruling in relation

to the Claimant’s attempts to secure Bail in the High Court. On the 30th

January 2006

Moosai J delivered a judgment in Yasin Abu Bakr v. The State. The Court noted that on the

November 2008, Bakr was charged with four (4) offences namely:

(i) Communicating a statement having seditious intentions contrary to sec. (4) of the

Sedition Act;

(ii) Incitement to demand property with menaces or by force contrary to common law;

(iii) Incitement to demand property of members of the Muslim community, with

menaces or by force, with intent to steal, contrary to common law;

(iv) Endeavouring to provide persons to commit a breach of peace contrary to section 5

of the Criminal Offences Act Chapter 11.01.

65. The Claimant appeared before the Chief Magistrate on the 10th

November, 2005 and bail

was denied by the Chief Magistrate. On the said day the Appellant through his Attorney

made an application for Bail to the High Court. The following day the charges relative to

the instant matter were laid. Justice Volney determined the High Court bail application and

gave written reasons for his decision. Volney J denied bail to Bakr on the four charges. The

charges with respect to the arms and ammunition offences were not considered by Volney J

in his ruling.

66. Moosai J stated that on the 6th

December, 2005 Volney J again refused to grant Bail to

Bakr. On the 19th

January, 2006 Bakr was committed to stand trial for the four offences as

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well as for the offence of knowingly promoting the commission of a terrorist act contrary to

section 4 of the Anti-Terrorism Act and upon committal, the Chief Magistrate refused bail

and outlined the reasons for the decision, these being:

(i) The likelihood of the Applicant committing other offences if admitted to bail;

(ii) The seriousness of the offences; and

(iii)The strength of the prosecution’s case.

67. On the 20th

January 2006, the application for bail came before Moosai J and at page 4 of his

judgment the Judge said that the state had disclosed its intention to discontinue proceedings

against Bakr on the arms and ammunition charges. Moosai J ruled that there was a change

of circumstance having considered the expert evidence that was called by the Defence on

the interpretation of Bakr’s alleged seditious speech and having regard to the fact that the

arms and ammunition charges had been discontinued. Moosai J at page 13 of his judgment

stated “I am of the view that the State had satisfied me on a balance of probabilities that

there are substantial grounds for believing that the Appellant, if released on bail, would

commit an offence while on bail” and the Court rejected the application for bail.

68. It is therefore patently obvious that the institution of the arms and ammunition charges

against the Claimant did not result in his incarceration for 76 days. The Claimant was

already on remand on the other charges and even when the DPP discontinued the arms and

ammunition charges he continued to be remanded in custody, his bail application was

refused by Moosai J and there is no evidence before this Court to suggest that the

Claimant’s experience on remand was altered or affected in any way by virtue of the

institution of the arms and ammunition charges. The Claimant was in custody prior to these

charges and remained in custody after they were discontinued.

69. Accordingly the Court finds that he suffered no loss of liberty as a result of the said

charges and therefore he is not entitled to damages in relation to the loss of his liberty

nor is there any evidence that he suffered loss to his person

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70. The Claimant failed to lead evidence that he suffered any distress or inconvenience as a

result of the subject charges. At paragraph 7 of his witness statement the Claimant said that

he ‘laughed’ at the said charges when he was informed of them. The Claimant during the

course of his evidence was extremely articulate and he stated unequivocally that he laughed

at the charges.

71. Accordingly the Court finds that the Claimant did not suffer significant anxiety or

distress as a result of the institution of the charges against him.

72. The Claimant failed in his Claim Form or Statement of Case to pray for exemplary

damages. Part 8.5 (2) of the Civil Proceedings Rules (1998) as amended provides “if the

Claimant is seeking exemplary damages he must say so expressly on the claim form.”

Aggravated damages may be awarded where the Court is of the view that the wrong is

exacerbated by factors such as violence, public humiliation or where the Claimant’s

detention was under conditions which were injurious to his health. The Court has found no

evidence in this case so as to hold on a balance of probability that any such factors operated

in relation to the Claimant.

73. In Thaddeus Bernard v. Nixie Quashie CA No 59 of 1992, de la Bastide CJ said at page 5:

“The normal practice is that one figure is awarded for general damages. These

damages are intended to be compensatory and to include what is referred to as

aggravated damages i.e. damages which are meant to provide compensation for

the mental suffering inflicted on the plaintiff as opposed to the physical injuries he

may have received”.

74. The Court went on to explain the term mental suffering and said “under this head of what I

have called ‘mental suffering’ are included such matters as the affront to the person’s

dignity, the humiliation he has suffered, the damage to his reputation and standing in the

eyes of others and matters of that sort”.

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75. In this case the Court has found that the institution of the arms and ammunition charges did

not cause an affront to the Claimant’s dignity, he suffered no humiliation nor was any

damage occasioned to his ‘reputation’ or his standing in the eyes of others.

76. Consequently the Court is of the view that this case does not require an award with

respect to aggravated damages.

77. As stated earlier there was no pleading in relation to any claim for exemplary damages. In

Rookes v Bernard [1964] UKHL 1, Lord Delvin stated that exemplary damages will be

awarded in circumstances where the conduct by servants of the government can be viewed

as being oppressive, arbitrary or unconstitutional or where the conduct was calculated to

make a profit or where exemplary damages were statutory authorize.

78. Even if the Claimant had included a prayer for exemplary damages in his claim form, no

evidence was led in this case upon which this Court could hold on a balance of probabilities

that the Claimant was subjected to any acts effected by agents of the state which were so

outrageous that a punitive element is necessary to ensure that justice is served.

79. Accordingly no award for exemplary damages to be made in this case.

80. In the absence of any evidence on the question of damages the Court is of the view that the

Claimant in this case is entitled only to an award of nominal damages for malicious

prosecution.

81. McGregor on Damages, 18th Edition paragraph 10-002 stated that:

“The best statement as to the meaning and incidence of nominal damages is given

by Lord Halsbury L C in the Medina where he said:

“Nominal damages” is a technical phrase which means that you have negative

anything like real damage, but that you are affirming by your nominal damages

that there is an infraction of a legal right which, though it gives you no right to

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any real damages at all, yet gives you a right to the verdict or judgment because

your legal right has been infringed.”

82. In Holison Stewart v The Attorney General of Trinidad and Tobago PC Carlos Carr No. #

12165H.C.2676/1992, the Plaintiff claimed Damages for assault, false imprisonment and

malicious prosecution. He succeeded in his claim for malicious prosecution only in part.

The Court awarded damages in the sum of $15,000 and in so doing took into account the

Plaintiff’s success in proving only the claim for malicious prosecution, albeit in part, and

also the fact that he was deprived of his liberty for 2 days. In Anthony Sorzano and Steve

Mitchell v The A.G and Dawson Victor HCA S. No. 46 of 1996, HCA No. 162 of 1996, the

court made an award for malicious prosecution in the sum of $10,000. The court took into

account the fact that the Plaintiff was never before arrested. The charges in this case were

murder and attempted murder.

83. In the circumstances the Defendant is to pay to the Claimant nominal damages in the sum

of $5,000.00 and each party shall bear its own costs..

…………………………………..

FRANK SEEPERSAD

JUDGE

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