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Quality Academics Unit 1 Law Sources of Law Objectives: Students should be able to: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Explain the meaning of source of law Explain the concepts legal, literary and historical sources of law Identify the sources of law in the Commonwealth Caribbean Discuss the features of Commonwealth Caribbean constitutions and why these should be regarded as a superior and unique source of law Explain the nature of legislation Distinguish between primary and delegated legislation Explain the advantages and disadvantages of legislation and how it is controlled Explain the doctrine of binding precedent and how it operates within the context of the system of courts in the Commonwealth Caribbean jurisdictions Explain the significance of the ratio decidendi of a case, obiter dicta, (per)in curiam Distinguish between common law rules and rules of equity

The meaning of sources of law In considering the question of what are the sources of law in the Commonwealth Caribbean, we really are asking, where does the law come from? What is its origin or basis? The answer to this question will generally appear simple to those familiar with the history of the Commonwealth Caribbean. The short answer would be that law and legal systems in the Commonwealth Caribbean originated from the UK and its common law legal heritage. There is no doubt that the basis of the law in the English- speaking Caribbean is the English common law. However, the term has different meanings, as the origin of law and legal systems in the Commonwealth Caribbean is not only that which came from the UK but also includes those created within the regione.g: St. Lucia and Guyanas Hybrid legal system.

Categories of Sources of Law: 1. Literary sources: merely describes the location of the law, where the law can be found, ie for example, books, legal treaties, legislation. Here, one is not concerned with content, but with method and form. These literary sources of law merely tell us what the law is. They do not confer legitimacy on rules of conduct or social arrangements. 2. Historical sources: refers to the causative factors behind the rule of law, its historical origin and development. 3. Legal sources: the legal sources of law in the Commonwealth Caribbean are a) the Constitution b) legislation c)the common law d) judicial precedent e) equity d) customs and conventions

Apart from the written Constitution, the legal sources of the commonwealth Caribbean are similar to those of the UK.

The Constitution What it is? A constitution is a plan for the founding and ordering of a political society. In this sense it is the fundamental law. (Simeon McIntosh) An agreement between members of the state

A constitution is in substance an agreement reached between the representatives of various shades of political opinion in the state as to the structure of the organs of government through which the plenitude of the sovereign power of the state is to be exercised in the future. (Hinds v R)

What does it do? 1. Defines the structure of government A constitution defines the structure of government, the arrangements of those essential powers that mark the sovereignty of the State and its authority over other institutions of life. (McIntosh) 2. Balances the rights of the individual against the democratic rights of the majority A constitution is an exercise in balancing the rights of the individual against the democratic rights of the majority. On the one hand, the fundamental rights and freedoms of the individual must be entrenched against future legislative action if they are to be properly protected; on the other hand, the powers of the legislature must not be unduly circumscribed if the democratic process is to be allowed its proper scope. The balance is drawn by the Constitution. Lord Millett in Pinder v R 3. Vision of the peoples future A constitution represents or portrays a vision of the peoples future. Dow v Attorney General [1992] LRC 4. Moral aspirations for political life It speaks to our moral as well as political life. It is a plan for a way of life. It speaks to the peoples moral aspirations for political life. It enunciates those values that would support a certain conception of the good life and justice and an elaboration of those institutions by means of which this way of life is to achieved, the range of activities on which these institutions will bear and who as full citizens will share in the operation of those institutions. (McIntosh) Why is the Constitution considered a source of law?

The constitution is considered a source of law because it is often referred to by judges and lawyers for the continued protection of citizens rights and for the preservation of the rule of law. E,g, Maharaj v The Attorney General of Trinidad and Tobago, which upheld the constitutional principle that a man must be told of the case being brought against him. Maharaj v The Attorney General of Trinidad and Tobago (1979) Maharaj was committed to prison for contempt of court. The judge however, in failing to make plain to the appellant the nature of contempt breached the fundamental rights of natural justice. The High Courts jurisdiction was to enquire whether procedure before the appellants committal for contempt contravened his constitutional rights. It was found that his constitutional rights were infringed because he was deprived of liberty without due process of law and was therefore entitled to redress. NB: The redress clause may be found in s.19 of Jamaicas Constitution. The redress clause gives right to judicial review. The constitution of Jamaica and other Commonwealth Caribbean territories contains the establishment of and procedure to be adopted by the main organs of the State. That is, the executive, the legislature and judiciary with their respective jurisdictions, powers and functions. it also includes the fundamental rights section (Chapter 3 of Jamaicas Constitution), which lays down the protection offered to every citizen in matters such as the right to work, the right to a fair hearing and the right to own property. The constitution according to Antoine is arguably the most important legal source in the Commonwealth Caribbean. It is deemed to be the most important source of law and the supreme law of the land. England is one of the few the countries in the world that does not have a written constitution. The constitution is the premiere source of law for all Commonwealth Caribbean countries. Supremacy Clause Enshrined in the constitutions of most Caribbean Commonwealth countries is the supremacy clause as is displayed for Jamaica. These include: The constitution of Barbados, section 1 The Constitution of the Republic of Trinidad and Tobago, section 1

s.2 Jamaica Constitution subject to the provisions of sections 49 and 50 of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.

Legislation as a source of Law

The Constitution, strictly speaking is part of the legislative process in the Commonwealth Caribbean Legislation is the process of making laws. There are two types: A) Primary Legislation those laws made by Parliament (statutes). For instance, Gun Court Act (1974) of Jamaica or the Criminal (Law) Procedure Act of Guyana. (s.48 of Jamaicas Constitution gives parliament powers to make laws)2 B) Secondary/Subsidiary Legislation laws made by a government authority or functionary that is given power by parliament to make such legislation. E.g. Section 129 of the constitution of Trinidad and Tobago authorizes the Service commission to make regulations. Some government functionaries are also given law making power within defined boundaries. Review section 2 of the Hindu Marriage Act of Trinidad and Tobago and Chapter 51, section 2 of the Motor Vehicle and Traffic Act of Guyana.

Interpretation of Legislation by Courts After parliament creates the law, the court is held with the charge of applying it. This may be due to the phrasing of the laws by citizens and the courts are entrusting the duty of clarifying the intended law. Please note that the function of the judiciary is not to question the laws made by the legislative, but rather to apply and interpret the. Rules of interpretation were created to guide the courts in the interpretation of the law: 1. Literal Rule words and phrases in a statute should be given its ordinary and literal meaning Baptiste v Alleyne (1970) The defendant was found outside a house with his hand through a window choking a female occupant. He was charged and convicted of the offencefoundin a building with intent A provision of s.29(d) of the then Larceny Ordinance allowed that for a person to be convicted of such an offence, there must be clear and unmistakable evidence that he had been, as the section says found in the building. MJ of Appeal posited that he cannot in the courts view be said to have been found in the building on a literal meaning or ordinary interpretation of the words of s.29(d) of the Larceny Ordinance. R v Ramsonahai and Duke (1961) The appellants had conspired to and did plant two bottles of bush rum on one Mohammed Ali whom the police eventually found to have had bush rum in his possession.

Charges were laid against the appellants. The indictment charged a conspiracy to prosecute Ali, knowing him to be innocent of the summary conviction offence of being in unlawful possession of bush rum under s.330 of the Criminal Law Ordinance of British Guiana Counsel for the appellants argued that an offence under the section is not committed if evidence discloses an intention merely to cause a public prosecution to be instituted against Mohammed Ali. Counsel said inter alia (among other things), the ordinary primary meaning of the words to prosecute is to commence proceedings by laying information. Counsel further contended that if the legislature intended the meaning of the words to prosecute to be extended to include cause to be prosecuted then Parliament would have said so, as it had in many other enactments. Defects of the literal rule a) The assumption that words have plain, ordinary meanings apart from their context. b) Judges who apply the rule often speak of using the dictionary meaning of a word. However, dictionaries usually provide alternative meetings and these are often ignored. Where there is more than one meaning to a word, it still requires interpretation, which may be a subjective process. See page 249 of the Antoine for more defects

2. The golden rule should not be viewed as a significant departure from the literal rule. Essentially, it suggests that the judge must follow the literal approach and the golden rule will only be resorted to where the judge is prepared to hold that the result of the literal meaning is manifestly absurd or unreasonable.

Davis v R (1962) The defendant was convicted for the offence, which prohibited parking a vehicle elsewhere than in the place provided for that purpose and in a manner required by an authorized officer CJ McGregor it seems clear that the intention of the regulation was to create two offences, the one, parking otherwise than in a place provided by the Minister for that purpose; the other, parking otherwise than in a manner required by an authorized officer. To obtain this interpretation it is necessary to insert the words otherwise than between the word and and in the manner The dicta in this case provides the perfect example of the courts exercise of its power to reinterpret statute thus curing the absurdity that would result from a literal interpretation of a particular piece of legislation.

3. The mischief attempts to look at what defect, wrong or mischief Parliament was trying to correct when it enacted the particular statute. It is now called the purposive rule. It was laid down in Heydons Case (1584) that judges must consider 4 factors when deciding cases: i) ii) iii) iv) What the law was before the statute was passed What mischief or problem the statute was trying to remedy What remedy parliament was trying to provide. The reason of the remedy

R v George Green (1969) the appellant was convicted on indictment of the offence of cultivating ganja contrary to s.7(c) of the Dangerous Drugs Act. At the trial, the evidence did not disclose whether the plants which the appellant was found to be cultivating contained any pistilate plant known as cannabis sativa. The court held that the term ganja as defined by s.2 of the act is referable only to the pistilate known as cannabis sativa and did not include any part of the staminate plant and therefore the offence of cultivating ganja contrary to s.7 of the law relates only to cultivating the pistilate plant known as cannabis sativa. Note in this case that the court went behind the statue in order to discover the reason behind the creation. Tutorial Questions #2 a) What does the term sources of law mean? (3 marks) b) Name three recognised sources of law. (3 marks) c) Describe each of the sources of law named in (B) #3 Justice Silas, when interpreting Section 15 of the Agricultural Workers Act 1989 in an Industrial Relations matter before him, finds that the result is an injustice to the workers. a) With reference to ONE decided case or example for EACH rule explain the THREE rules of statutory interpretation that Justice Silas must consider in coming to a decision. (20 marks) b) Identify which rule Justice Silas could apply, giving reasons for your answer. (5 marks)

Common Law An important source of law in the Commonwealth Caribbean is the common law or case law. This describes the legal principles derived from examining the judgments of cases where there are no applicable statutes. Common law or case law is both a legal and an historical source. It is a historical source because its existence is directly linked to the experience of colonization in the region. The unique characteristic of the common law as a legal source is its ad hoc nature. Each case or judgment of the courts builds on the principles stated in the previous judgment. Its original conceptualization was oral, which means that it was pretty much a body of unwritten legal rules which were formulated by the Kings court in an informal and flexible manner. The Kings courts were: the Court of the Kings Bench, the Court of the Exchequer and the Court of Common Pleas Rigid procedures for administering common law legal rules were developed overtime, one such procedure is the writ, which regulates the initiation of legal proceedings in court.

The Doctrine of Judicial Precedent The doctrine of precedent is central to the notion of the common law as a legal source. The principle of precedent is that decisions taken at a higher are to be followed by a lower court. In some cases the precedent is merely persuasive; in others it is binding- meaning that the lower court is under an obligation to follow decision of the higher court. Note however that this rule is only applicable in cases where the decision in the case coming from the higher courts turns upon similar facts and principles as those contained in the matter to be decided by the lower court. For the territories of the Commonwealth Caribbean where the Privy Council is the final court of appeal (or in the case of Barbados, the CCJ), the decisions of the Privy Council are binding. Guyana is an exception to this case as they abolished the Privy Council in 1967, so the decisions from the Privy Council are only persuasive and the courts in this territory are not bound to follow the decisions of the Privy Council. Another important thing to note is that a high court is not obligated to follow the previous decisions of another high court, but may do so based on principles of stare decisis (which means standing by decisions and not disturbing settled points, simple translated to let the decision stand) . it must however follow the decisions of courts above, that is the Privy Council and the Court of Appeal

The State v Sharma and Williams

The Court of Appeal of Guyana referred to and applied the interpretation it placed on the phrase to prosecute, in the earlier case of R v Ramsonahai and Duke (1961)

A Court of Appeal is bound by its own decisions. Vierra v Winchester (1966) It was argued in the Court of Appeal of Trinidad and Tobago that its previous decision in the case of Camp v Harris was wrong. Justice of Appeal dissented: before the court could say that its own decision is wrong, it was bound by a principle and it is this: the Court of Appeal is bound by its own decisions unless it can be shown that such was given per incuriam (in error) Having examined the arguments and facts the court held that it was bound by the decision in Camp v Harris.

The Hierarchy of Courts The operation of the doctrine of precedent depends on a system of the hierarchy of courts. Decisions of judgments from the Privy Council or the CCJ are the most authoritative Next in the hierarchical structure are Courts of Appeal, High Court or Supreme Court, Intermediate courts such as(family courts and RM courts), Inferior courts such as magistrates and Juvenile Court.

(The resulting rule with respect to the hierarchy of courts is that each court is bound by a decision of a court above itself in the hierarchy. In addition, a court is sometimes bound by the decisions of a court of equivalent status. Concepts Important to the Doctrine of Precedent Ratio Decidendi the reasoning upon which a case turns or principles of law upon which the court arrives at its decision. Not element of a decision is binding to a judge, but rather the particular principle, rule or ruling of law contained in the decision Obiter Dictum things said by the way is something said by the judge that wasnt essential to the decision of the case. It does not form a part of the ration decidendi and therefore creates no binding precedent but it is possible for the obiter dictum to become persuasive authority in a real case. Stare Decisis let the decision stand which means the precedent is applied when similar situations arise.

Distinguishing a Case

This means the differences in facts, circumstances, or reasoning are clearly identified between a present and previous case. Overruling a Case This means to set aside the decision of an earlier case. With the aid of a diagram, explain how the common law functions as a source of law.

Equity as a Source of Law

The defects of the common law Common law actions were begun by a writ, which was a kind of royal court order setting out the cause of action. The problem was that only a limited amount of writs existed and if there was no writ for a particular cause of action, then the complainant had no legal redress. In common law, money damages were the only remedy. The law favoured the rich and many rights were not recognized. No right of subpoena existed to compel witnesses to give evidence. The rise of equity

Equity is a source of law created to alleviate the harshness of the Common Law. It was created to provide additional remedies and to provide additional causes of actions that an aggrieved litigant can obtain. The common law was found to be too harsh and inflexible as only one remedy applieddamages- which was either compensation or money. Many litigants (one engaged in a suit) did not want compensation for damage, but rather harsher measures to be taken by the court. After the Norman Conquest 1066, litigants began to complain to the king about the limited remedies in the common law. The king sent the litigants to the chancellor, who is the kings chief minister and keeper of the kings conscience. The litigants began petitioning the chancellor who made judgments on disputes based on his moral views of the dispute. The chancellor made decisions on his own authority. These new remedies became known as equity.

** Keeper of the King's Conscience was a position in the English judiciary before the advent of parliamentary representative democracy. The person appointed as Keeper of the King's Conscience was usually a bishop. He was responsible for overseeing the international affairs of the monarchy and for delivering justice on behalf of the king. Today this position has become the Lord Chancellor. During the period beginning from William the Conqueror to Henry VIII of England, the person holding the Keeper of the King's Conscience post also held high position in the church.

What is Equity?

Equity is a body of laws which derived from common law that brings fairness and justice in law. It was in the 1615 Earl of Oxford case where it was stated that where conflict arises between the common law and equity, equity shall prevail. There was much debate on equity and the common law as litigants preferred going to the Court of Chancery. Equity makes decisions more fair, predictable, flexible, consistent and practical. It is not too harsh or limited in remedies. There are rights in equity. These rights are such as the right of beneficiary to a trust. Trust allows the ownership of property to be transferred legally from one person to another. There is right of equitable ownership where persons wishing for example, to have ownership of land, are given the right to do so. There is also right of parties to a contract. Parties who come to an agreement with the terms of a contract can set remedies if the contract is to be breached. Also, right of equitable redemption gives persons the opportunity to go to court to seek certainty and justice in the law
Equitable Remedies

Notwithstanding, equity also discovered remedies. The Anton Pillar Order is one such equitable remedy. It is much used nowadays and is a means by which the Court issues or allows the inspection and/or disposal of goods and documents which may be needed in a trial. This was what occurred in the leading case which has given its name to the remedy, Anton Pillar v Manufacturing Processors Ltd (1976) Another equitable remedy is the Mareva injunction, the name of which also derives from a leading case, Mareva Compania v International Bulk (1975). There, the court issued and ordered the defendants assets to be frozen in circumstances where the interest of the plaintiff would otherwise have been prejudiced or lost. The equitable estoppel is another equitable remedy which is often used by the Courts. It was first espoused by Denning J, as he then was, in Central Trust Properties v High Trees Ltd (1949). There, his Lordship enforced a promise made by a defendant where to

breach the promise would have materially affected the proprietary rights of the plaintiff. It is sometimes referred to as promissory or proprietary estoppel. Rectification is an equitable remedy which is applied where, in the interest of an equitable outcome, the Court rectifies the terms of a document and applies principles which enable the contract to be performed, equitably, applying reasonable intentions to the parties.

It was in 1873 when the Judicature Acts brought the turning point for equity and the common laws. The Judicature Acts established that both bodies of law, equity and the common law may remain separate bodies of law; however, they are administered by one court. Therefore, litigants go to one court to seek redress. The period extended from 1873 to now as the English brought these bodies of law to the Commonwealth Caribbean during the colonial period in history. Equity does not destroy the common law but assists it as it introduced more adequate and flexible rights and remedies in law. Equity and the common law are different bodies of law; however, they are both still law and will remain dominant.