IN THE HIGH COURT OF JUSTICE. Between YASIN ABU BAKR. And THE ATTORNEY GENERAL OF TRINIDAD AND TOBAGO THE COMMISSIONER OF POLICE

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1 THE REPUBLIC OF TRINIDAD AND TOBAGO Claim No IN THE HIGH COURT OF JUSTICE 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: 29 th July, Page 1 of 23

2 Introduction 1. This is an action in which the Claimant is seeking Damages for Malicious Prosecution, False Imprisonment from 11 th November, 2005 to the 24 th January, 2006, and Assault. The Claimant was arrested and charged on the 11 th 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 10 th 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. Page 2 of 23

3 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 11 th 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 24 th 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 Page 3 of 23

4 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 11 th 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 17 th May, 2013 the Defendants contended that even though the Claimant was in lawful custody at the time of the search and seizure he had Page 4 of 23

5 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 Page 5 of 23

6 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? Page 6 of 23

7 (ii) (iii) (iv) Did the prosecutor have an honest conviction of the existence of the circumstances relied on? Was the conviction based on reasonable grounds? and 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 This court in Franklyn Algoo v The Attorney General CV No 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 (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 Page 7 of 23

8 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 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 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 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 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 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 Page 8 of 23

9 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 Page 9 of 23

10 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 crossexamination 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. Page 10 of 23

11 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 Page 11 of 23

12 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 11 th November, 2005 to the 24 th 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 11 th November, 2005 while incarcerated in the Royal Jail, Port of Spain; Page 12 of 23

13 ii. iii. The Claimant remained in prison for the said offence until the 24 th January, 2006 when the Director of Public Prosecutions formally issued a Nolle Prosequi; and 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: Page 13 of 23

14 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 11 th 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. Page 14 of 23

15 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. Page 15 of 23

16 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 The Page 16 of 23

17 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 27 th 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 Page 17 of 23

18 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, 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 Page 18 of 23

19 as to quantum of legal fees expended in this regard. During cross-examination the Claimant said that he paid $200, 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 30 th 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 The Claimant appeared before the Chief Magistrate on the 10 th 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 6 th December, 2005 Volney J again refused to grant Bail to Bakr. On the 19 th January, 2006 Bakr was committed to stand trial for the four offences as Page 19 of 23

20 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 20 th 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 Page 20 of 23

21 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. Page 21 of 23

22 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 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 Page 22 of 23

23 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, and each party shall bear its own costs.... FRANK SEEPERSAD JUDGE Page 23 of 23