PORT OF SPAIN, Trinidad, Dec 11, CMC – An Appeal Court has granted an application to former calypso monarch, Winston “Cro Cro” Rawlins, allowing him to appeal a High Court ruling that he pays TT$250,000 (One TT dollar=US$0.16 cents) in compensation to businessman, Ishan Ishmael, who claimed he had been defamed by the singer’s calypso “Another Sat is Outside Again” last year.
Justice of Appeal, James Aboud granted Rawlins his application for an extension of time to file the record of appeal, after Ishmael’s attorneys had filed an application for the dismissal of Rawlin’s notice of appeal because it was not filed within three months of Justice Frank Seepersad’s ruling on January 29.
Ishmael had in his lawsuit, claimed that the 2023 calypso directly named and defamed him and as a result of the lyrics of the song, he was viewed as a criminal, a racist and a thief.
Video recordings of the former monarch’s performance at a Trinidad and Tobago Unified Calypso Organisation (TUCO) competition went viral.
“This Court will not condone or accept any position which advances a narrative that social media comments or commentary by calypsonians are sacrosanct or that calypsonians should be free to say whatever they feel as they ‘speak their minds’ even if their content is divisive, derogatory, deceitful, dishonest or defamatory,” Justice Seepersad said in his ruling.
Rawlins allegedly penned the song following social media furore towards Ishmael based on his comments on the celebrations hosted by residents of Beetham Gardens, on the outskirts of the capital, after fellow resident Kareem Marcelle was called to the bar in November 2022.
In his ruling, the judge said that Rawlins did not deny that the song was directed at Ishmael though, he attempted to conceal his name. The judge said it was reprehensible to use the artform to attack a person’s reputation.
Rawlins was ordered to pay TT$215,000 in general damages, with an uplift for aggravating damages. Justice Seepersad also ordered Rawlins to pay Ishmael exemplary damages of TT$35,000.
In his ruling Justice Aboud said he weighed procedural delays against the broader implications of the case for the country’s cultural traditions.
He noted that while Rawlins’s legal team should have adhered to court timelines, the appeal raised significant cultural and legal questions.
“The demarcations between our calypso’s historic, satiric, and comedic commentary and the rules of strict journalism need to be delineated by our higher courts,” the Appeal Court judge said.
The appeal also challenges Justice Seepersad’s elevation of the four time calypso monarch’s ’s sung words from slander to libel, a legal distinction with broader implications for artists and performers.
Justice Aboud expressed doubts about the correctness of reaching this conclusion without reviewing the full notes of evidence, which had not yet been made available.
“I do not at first blush see how a slander can be elevated to a libel in the circumstances of this case. Damages for libel vastly exceed those for slander.
“If this elevation of a slander to a libel remained in our lawbooks, then our calypsonians would be restricted by this judgment in any live performance, whether at a private party among friends or at a public performance. Any poet or minstrel would likewise be constrained during the expression of his or her art if someone unexpectedly pulled out a camera phone.
“I am therefore unable, on the evidence before me, and without sight of the transcript of the evidence, to comment on whether the sung words can be elevated from a slander to a libel,” Justice Aboud said, adding “in my opinion, on the basis of the limited evidence, it cannot be said that there are no good prospects of success on the appeal on his point. It seems to me that the prospects of appeal are not perfect, but are arguable”.
The Appeal Court judge said that while there is the need for procedural discipline, he highlighted the importance of advancing jurisprudence and ensuring proportionality.
He also noted that while he had doubts that a “tortious slander can be elevated to a libel by the publication of a slander by a third party on his mobile phone to persons unknown,” calypsonians were “not to be equated with journalists reporting news but entertainers using wit and, sometimes, pointed innuendo. Lines need to be drawn.”
Justice Aboud said he could not say, “without sight of the unfiled record of appeal and, importantly, the transcript of the notes of evidence, whether Seepersad J was right or wrong in his legal or factual conclusions.
“On the submitted affidavit evidence, I have difficulty accepting that his conclusions are correct without the forensic interrogation of an appeal.
“That is a strong ground to grant the appellant’s extension of time application and to refuse the respondent’s strike-out application.”
He said at this stage, the “emergent prospects of success on an appeal are, however, not the only discretionary factor”.
CMC/fg/ir/2024