University of the West Indies, St.

Augustine Campus
Faculty of Law

LAW 1010 – LAW & LEGAL SYSTEMS

Sources of Law II: Equity, Custom & Convention Worksheet #5

TOPIC OUTLINE
1. Equity
(i) Origins of Equity
(ii) Nature and Content of Equity
(iii) Caribbean Offshore Developments in Equity

2. Custom
3. Convention

LEARNING OUTCOMES
After preparing this worksheet, students should be able to:
1. Identify and describe equity, custom and convention with clarity and in detail. You
should also be aware of the hierarchy of the different sources.

2. Describe the current challenges in the Commonwealth Caribbean with the

development of each of these three sources of law.

REQUIRED READINGS
Antoine, RM, Commonwealth Caribbean Law and Legal Systems, 2nd ed. Chaps. 9, 10
& 11

RECOMMENDED READINGS
  The Maya Leaders Alliance v. The Attorney General of Belize [2015] CCJ 15
(October 30, 2015)
 Pratt and Morgan v AG of Jamaica [1993] 43 W.I.R. 340
 Joseph & Boyce v AG of Barbados (2006) 69 WIR 104

I. EQUITY AS A SOURCE OF LAW

(i) Origins of Equity
Historically, the term common law simply denoted the manner in which it
developed – the centralized law of the royal courts of justice that came to be
administered throughout the realm as the law common to the country.
As the rules and practices of the common law became increasingly rigid, the
practice developed of petitioning the King in individual cases. Such petitions were
dealt with by the Lord Chancellor, who would exercise justice or equity in hard
cases. In this way with the passage of time a specific Court of Chancery
developed, in which a system of rules were applied that became known as ‘equity’
– which was distinct from the rules of common law applied in ordinary courts.
This in a nutshell, describes the origins of equity. In a sense it is primarily important for
historical reasons, given that the administration of law and equity was fused since 1875
– meaning that there is no need to go to separate courts for the administration of one or
the other. However, the substantive body of rules are still distinct, and for this reason it
is important to understand the differences between law and equity. This too will be the
subject of specialised study in your second year.
(ii) Nature and Content of Equity
(iii) New Rights and Remedies (injunction, specific performance, rectification,
restitution)
(iv) Caribbean Offshore Developments in Equity (i.e. Mareva injunction, Anton
Pillar Order, flight clauses, confidentiality laws)

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II. CUSTOM AS A SOURCE OF LAW
Antoine, Chap. 10
Michael Zander, The Law Making Process (6th ed.) 448-455
The Nature and characteristics of custom
Custom is a principal source of all English law, as it formed the basis of the common
law. However, English law now makes a distinction between custom and the common
law. The common law is the law which applies to the entire realm, whereas custom is
localized and is distinct from common law rules. However, Zander states that this story
is more poetic than historically accurate. According to Zander a high proportion of these
‘so-called customs were almost certainly invented by the judges’.
Custom has two fundamental characteristics:
1. It must be an exception to the CL, and
2. It must be confined to a particular locality.

Proof of custom
A party relying on custom must first prove its existence. The requirements are
demanding. The test for establishing a custom was laid down by Blackstone, under
which a number of features must be established related to the length of existence, the
manner of enjoyment and the nature and characteristics of the practice (antiquity,
continuance, peaceable enjoyment, mandatory, certainty and clarity, consistency, and
reasonableness).

Application of Custom in the Caribbean

Custom of Queen’s Chain, beach and beachfront land use vs. Common law rules that
favour alienability and development.
English understandings of land ownership and alienation vs. West Indian understanding
of indigenous or native title, family land, and children property (ex. Chattel houses)
Growing recognition of indigenous rights and customs in national and international law
Collective rights vs. Individual rights.

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III. CONVENTION AS A SOURCE OF LAW
Defining Conventions
Practical Importance of Conventions

Deciding which UK Conventions were transplanted to the CC

UK and Commonwealth Caribbean Constitutional conventions – enforceable?

Ex. 2000 Elections in T & T

Ex. Ouster Provisions in the CC Constitutions

IV. INTERNATIONAL LAW

 Andrew Welch, “The History of International Law in the Caribbean and the
Domestic Effects of International Law in the Commonwealth Caribbean” (2014) 1
SOAS L.J. 124-138
 Antoine, Chap 12
 Lewis v AG of Jamaica
 Pratt and Morgan v AG of Jamaica
 Joseph & Boyce v AG of Barbados

Sources of international law

Sources of international law as provided by art 38 of the Vienna Convention on the Law
of Treaties are:
 Treaties or international agreements
 Custom and
 Opinions and decisions of international courts and tribunals.
National legal systems adopt rules of international law by way of agreement – through
conventions – or by practice, which could then develop into binding custom.

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Incorporation of Treaties
In dualist states, merely acceding to a Treaty does not make it law internally. The
principal reason for this relates to the doctrine of separation of powers, by which law-
making functions are theoretically reserved to the Legislature. Since Treaties are
entered into by the Executive, to honour the doctrine of separation of powers a treaty is
not automatically binding upon accession, but must go through the process of formal
incorporation into domestic law. This is achieved through legislative act, at which stage
the Treaty achieves binding effect through legislation.
By contrast, in monist states there is no need for this duality of process, and once
ratified treaties form part of domestic law.
Justice Wit of the CCJ wrote an incisive critique of dualism in his judgment in Joseph
and Boyce.
The indirect influence of international law
In dualist states, Treaties are obviously important once they are incorporated into
domestic law – but this is not to say that they are without influence even if this process
is not undertaken. As a number of cases have shown, unincorporated treaties may have
an indirect (but no less important) effect on domestic law through a variety of means.

V. LEGISLATION
 Biggs v COP (1982) 6 WILJ 121
 Mohammed v Morraine (1995) 49 WIR 37
 Antoine, Chapter 13

Nature of Legislation
This is the pre-eminent and primary source of law. It takes precedence over every other
source.
Its authority is derived from the legitimate institutions of the State – namely, Parliament.
In T&T, see Constitution, s. 53.

Functions of Legislation
This formal source of law exists primarily to regulate societies. Thus legislation can be
found which governs practically every area of life.

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Types of Legislation
Legislation may take a variety of forms, including the following:
 Orders in Council from the prerogative
 Acts of Parliament
 Delegated or subsidiary legislation
 Autonomic legislation

Questions
1. Describe the development and importance of equity.

2. How does custom impact the Commonwealth Caribbean legal systems and our
understanding of the development of law in our societies?

3. Describe the settled versus the contentious nature of conventions as a source of

law in the Commonwealth Caribbean.

4. It is often said that the flexibility of the common law makes it a more important
source of law than legislation. Do you agree with this view?

5. ‘The instances where international law and custom impact upon the legal system
are perhaps fewer than other sources of law, but they are no less important to
our understanding of the development of law in our societies.’
Discuss.

Course Director: Emma Perot

Worksheet prepared by: Professor Rose-Marie Belle Antoine