BUSINESS LAW - LECTURE 1:
INTRODUCTION TO LEGAL SYSTEMS
1.0
LEGAL SYSTEMS
There are various definitions of the term "legal system": A legal system, as that term is here used,
is an operating set of legal institutions, procedures, and rules. The term "legal system" refers to
the nature and content of the law generally, and the structures and methods
whereby it is legislated upon, adjudicated upon and administered, within a
given jurisdiction.
1.2 Legal traditions or families
A
legal tradition, as the term implies, is not a set of rules of law about
contracts, corporations, and crimes, although such rules will almost always be
in some sense a reflection of that tradition. Rather it is a set of deeply
rooted, historically conditioned attitudes about the nature of law, about the
role of law in the society and the polity, about the proper organization and
operation of a legal system, and about the way law is or should be made,
applied, studied, perfected, and taught.
1.3 The Rule of Law
The Rule of Law represents a symbolic ideal against which proponents of
widely divergent political persuasions measure and criticise the shortcomings
of contemporary State practice.
According to the notoriously chauvinistic Dicey, the Rule of Law has
three distinct elements which together made for the Rule of Law as he
understood it:
• An absence of arbitrary power
on the part of the State. The extent of the State's power, and the way in which
it exercises such power, is limited and controlled by law. Such control is
aimed at preventing the State from acquiring and using wide discretionary
powers, for, as Dicey correctly recognised, the problem with discretion is that
it can be exercised in an arbitrary manner; and that above all else is to be
feared, at least as Dicey would have us believe.
• Equality before the law. The
fact that no person is above the law, irrespective of rank or class. This was
linked with the fact that functionaries of the State are subject to the same
law and legal procedures as private citizens.
• Supremacy of ordinary law.
This related to the fact that the English Constitution was the outcome of the
ordinary law of the land and was based on the provision of remedies by the
courts rather than on the declaration of rights in the form of a written
constitution
Joseph Raz
Raz claims that the basic requirement from which the wider idea of the
Rule of Law emerges is the requirement that the law must be capable of guiding
the individual's behaviour. He states some of the most important principles
that may be derived from this general idea:
• laws should be prospective
rather than retroactive. People cannot be guided by or expected to obey laws
which have not as yet been introduced. Laws should also be open and clear to
enable people to understand them and guide their actions in line with them;
• laws should be stable and
should not: be changed too frequently as this might lead to confusion as to
what was actually covered by the law
• there should be clear rules
and procedures for making law
• the independence of the
judiciary has to be guaranteed to ensure that they are free to decide cases in
line with the law and not in response to any external pressure;
• the principles of natural
justice should be observed, requiring an open and fair hearing to be given to
all parties to proceedings;
• the courts should have the
power to review the way in which the other principles are implemented to ensure
that they are being operated as demanded by the Rule of Law;
• the courts should be easily
accessible as they remain at the heart of the idea of making discretion subject
to legal control;
• the discretion of the crime
preventing agencies should not be allowed to pervert the law.
2.0 THE NATURE OF LAW
Law is a formal mechanism of social control and as such it is essential
that the student of law be fully aware of the nature of that formal structure.
Six categories were selected for the creation of this work on world
legal systems: civil law, common law, customary law, religious law, socialist
and mixed law systems, the latter referring not to a single system but to a
combination of systems.
In this category you will
find political entities that, apart from other sources, have drawn their
inspiration largely from the Roman law heritage and which, by giving precedence
to written law, have resolutely opted for a systematic codification of their
general law.
2.1.2
Common Law Systems
Like that of civil law, the common law system has taken on a variety of
cultural forms throughout the world. Notwithstanding the significant nuances
that such diversity can sometimes create, and which political circumstances
further accentuate, this category includes political entities whose law, for
the most part, is technically based on English common law concepts and legal
organizational methods which assign a pre-eminent position to case-law, as
opposed to legislation, as the ordinary means of expression of general law.
2.1.3
Customary Law Systems
Hardly any countries or political entities in the world today operate under a
legal system which could be said to be typically and wholly customary. Custom
can take on many guises, depending on whether it is rooted in wisdom born of
concrete daily experience or more intellectually based on great spiritual or
philosophical traditions.
2.1.4
Religious Law Systems
An example of this is muslim and talmudic legal systems. The Muslim legal system is an autonomous
legal system which is actually religious in nature and predominantly based on
the Koran.
2.1.5 Socialist Law
This type of law reflected the communist legacy of much of the 20th
century. True, despite recent political
upheavals, Marxist-Leninist thought still plays a sometimes significant role in
the legal organization of certain countries. But the criterion which governed
the creation of a category of socialist law, as opposed to western law, was a
material one, whereas we on the whole have given greater importance to the
technical aspects of the systems, to legal concepts and to methods of
developing and expressing law, without confining ourselves to superficially
formal criteria.
2.1.6 Mixed Legal Systems
The term "mixed",
which we have arbitrarily chosen over other terms such as "hybrid" or
"composite", should not be construed restrictively, as certain
authors have done. Thus this category includes political entities where two or
more systems apply cumulatively or interactively, but also entities where there
is a juxtaposition of systems as a result of more or less clearly defined
fields of application. There are also
mixed jurisdictions and mixed legal systems which are legal systems in which
the Romano-Germanic tradition has become suffused to some degree by
Anglo-American law. Mixed jurisdictions
are really political units (countries or their political subdivisions) which
have mixed legal systems. Common law / civil law mixed jurisdictions include
Louisiana, Québec, St. Lucia, Puerto Rico and South Africa.
3.0
3.0 COMMON LAW SYSTEM
3.1 COMMON LAW AND EQUITY
The common law has been romantically and inaccurately described as the
law of the common people of England. In fact, the common law emerged as the
product of a particular struggle for political power. Prior to the Norman
Conquest of England in 1066, there was no unitary, national legal system. The
emergence of the common law represents the imposition of such a unitary system
under the auspices and control of a centralised power in the form of a sovereign
king; and, in that respect, it represented the assertion and affirmation of
that central sovereign power.
By the end of the 13th century, a refusal to deal with substantive
injustices, because they did not fall within the particular parameters of
procedural and formal constraints, bv necessity led to injustice and the need
to remedy the perceived weaknesses in the common law system. The response was
the development of equity.
Common law remedies are available as of right. Remedies in equity are
discretionary, in other words, they are awarded at the will of the court,
depend on the behaviour, and situation, of the party claiming such remedies.
3.2 COMMON LAW AND STATUTE LAW
Statute law refers to law that has been created by Parliament in the
form of legislation. Although there has been a significant increase in statute
law in the 20th century, the courts still have an important role to play in
creating and operating law generally and in determining the operation of
legislation in particular.
3.3 PRIVATE LAW AND PUBLIC LAW
Actions of the State and its functionaries vis-à-vis the individual
citizen, and the legal manner in which, and form of law through which, such
relationships are regulated: that is, public law.
Matters located within the private sphere are seen as purely a matter
for individuals themselves to regulate, without the interference of the State,
whose role is limited to the provision of the forum for deciding contentious
issues and mechanisms for the enforcement of such decisions.
3.4 CIVIL LAW AND CRIMINAL LAW
Civil law is a form of private law and involves the relationships
between individual citizens.
Criminal law, on the other hand, is an aspect of public law and relates
to conduct which the State considers with disapproval and which it seeks to
control and/or eradicate.
4.1 LEGISLATION
It is recognised that Parliament has the power to enact, revoke or alter
such, and any, law as it sees fit.
4.2 THE LEGISLATIVE PROCESS
Parliament consists of three distinct elements; the House of
Representatives, the Senate and the President. Before any legislative proposal,
known at that stage as a Bill, can become an Act of Parliament it must proceed
through and be approved by both Houses of Parliament and must receive the
Presidential Assent.
An Act of Parliament comes into effect on the date of the Presidential
Assent, unless there is any provision to the contrary in the Act itself.
4.3 CASE LAW
Case law refers to the creation and refinement of law in the course of
judicial decisions. The foregoing has highlighted the increased importance of
legislation in its various guises in today's society but, even allowing for
this and the fact that case law can be overturned by legislation, the United
Kingdom is still a common law system and the importance and effectiveness of
judicial creativity and common law principles and practices cannot be
discounted.
4.3.1 Precedent
The doctrine of binding precedent, or stare decisis, lies at the heart
of the English legal system. The doctrine refers to the fact that, within the
hierarchical structure of the English courts, a decision of a higher court will
be binding on a court lower than it in that hierarchy. In general terms, this
means that when judges try cases they will check to see if a similar situation
has come before court previously. If the precedent was set by a court of equal
or higher status to the court deciding the new case, then the judge in the
present case should follow the rule of law established in the earlier case.
Where the precedent is from a lower court in the hierarchy, the judge in the
new case may not follow but will certainly consider it.
Not everything in a case report sets a precedent. The contents of a
report can be divided into two categories:
• Ratio decidendi
The ratio decidendi of a case may be understood as the statement of the
law applied in deciding the legal
problem raised by the concrete facts of the case.
• Obiter dictum
Any statement of law that is not an essential part of the ratio
decidendi is, strictly speaking, superfluous; and any such statement is
referred to as obiter dictum (obiter dicta in the plural), that is, said by the
way.
4.3.2 Advantages of case law
There
are numerous perceived advantages of the doctrine of stare decisis amongst
which are:
• Consistency. This refers to
the fact that like cases are decided on a like basis and are not apparently
subject to the whim of the individual judge deciding the case in question.
• Certainty. This follows from,
and indeed is presupposed by, the previous item. Lawyers and their clients are
able to predict what the likely outcome of a particular legal question is
likely to be in the light of previous judicial decisions.
• Efficiency. This refers to the
fact that it saves the time of the judiciary, lawyers and their clients for the
reason that cases do not have to be reargued.
• Flexibility. This refers to
the fact that the various mechanisms by means of which the judges can manipulate
the common law provide them with an opportunity to develop law in particular
areas without waiting for Parliament to enact legislation.
4.3.5 Disadvantages of cases
It should be noted that the advantage of flexibility, at least,
potentially contradicts the alternative advantage of certainty, but there are
other disadvantages in the doctrine which have to be considered. Amongst these
are:
• Uncertainty
This
refers to the fact that the degree of certainty provided by the doctrine of
stare decisis is undermined by the absolute number of cases that have been
reported and can be cited as authorities.
• Fixity
This refers to the possibility that the law in relation to any
particular area may become ossified on the basis of an unjust precedent with the
consequence that previous injustices are perpetuated.
• Unconstitutionality
This is a fundamental question that refers to the fact that the
judiciary is overstepping their theoretical constitutional role by actually
making law rather than restricting themselves to the role of simply applying
it. This possibility requires a close examination of the role of the courts in
the process of law making.
• Bias
Where an issue arises before a court for the first time, it follows, as
a matter of course, that there can be no precedent for the court to follow,
and, given the rapid change in contemporary society, it can only be suggested
that such innovations and potentially innovatory court cases, are increasingly
likely. Courts may impose a bias
inconsistent with aspirations of society.
• Reform
The question arises as to how the law is to develop and change to cater
for changed circumstances if cases are always to be decided according to
precedent.
4.4 BOOKS OF AUTHORITY
When a court is unable to locate a precise or analogous precedent, it
may refer to legal textbooks for guidance.
4.5 CUSTOM
There is some academic debate about the exact relationship of custom and
law. Some claim that law is simply the extension of custom and that with the passage
of time customs develop into laws. From this point of view, law may be seen as
the redefinition of custom for the purposes of clarity and enforcement by the
legal institutions.
5.0 THE SEPARATION OF POWERS
Although the idea of the separation of powers can be traced back to
ancient Greek philosophy, it was advocated in early modern times by the English
philosopher Locke and the later French philosopher Montesquieu and found its
practical expression in the constitution of the United States. The idea of the
separation of powers is posited on the existence of three distinct functions of
government, the legislative, executive and judicial functions, and the
conviction that these functions should be kept apart in order to prevent the
centralisation of too much power.
5.1 Parliamentary sovereignty
5.2 Judicial independence
Statutory interpretation is a particular form of a general problem - the
understanding of meaning or, more broadly still, communication.
According to the literal rule it is the task of the court to give the
words to be construed their literal meaning regardless of whether the result is
sensible or not. Lord Esher put the proposition succinctly in 1892: If
the words of an Act are clear, you must follow them, even though they lead to a
manifest absurdity. The Court has nothing to do with the question whether the
Legislature has committed an absurdity.
The so-called 'golden rule' was attributed to Lord Wensleydale by Lord
Blackburn in River Wear Commissioners v. Adumson, in which he
said:
I believe that it is not disputed that what Lord Wensleydale used to
call the golden rule is right, viz., that we are to take the whole statute
together, and construe it all together, giving the words their ordinary
signification, unless when so applied they produce an inconsistency), or an
absurdity or inconvenience so great as to convince the Court that the intention
could not have been to use them in their ordinary signification, and to justify
the Court in putting on them some other signification, which, though less
proper, is one which the Court thinks the words will bear.'
The classic statement of the mischief rule is that given by the Barons
of the Court of Exchequer in Heydon’s case (1584) 3 Co. Rep. 7a:
And it was resolved by them, that for the sure and true interpretation
of all statutes in general (be they penal or beneficial, restrictive or enlarging of the
Common Law), four things are to be discerned and considered:
1. What was the Common Law before the making of the Act.
2. What was the mischief and defect for which the Common Law did not
provide.
3. What remedy the Parliament hath resolved and appointed to cure the
disease of the commonwealth.
4. The true reason of the remedy; and then the office of all the Judges
is always to make such construction as shall suppress the mischief, and advance
the remedy and to suppress subtle inventions and evasions for continuance of
the mischief.
7.0 CIVIL LAW
In
ancient Rome, the term jus civile ("civil law") was used to
distinguish the proper or ancient law of the city or state of Rome from the jus
gentium, or the law thought to be common to all the peoples comprising the
Roman world, as developed and incorporated with the former through the praetors
(magistrates) and jurists.
In the 5th and 6th centuries western and central Europe was dominated by
Germanic peoples. Among the many
strands that went into the weaving of the complex pattern of medieval law, the
customs of the merchants and the canon law of the Roman Catholic Church were of
special significance. It was through the canon law that the ideas of ancient Rome
continued to make their presence felt, even when, as a whole, Roman law had
been forgotten. In the late 11th century Roman law was rediscovered and made
the subject matter of learned study and teaching by scholars in northern Italy,
especially at Bologna. In the Holy
Roman Empire of German nations the reception was facilitated because its
emperors cherished the idea of being the direct successors of the Roman
Caesars; the Roman law, collected in the Corpus juris civilis by the
emperor Justinian I between 527 and 565, could be regarded as still being in
effect simply because it was the imperial law.
Decisive for the reception, however, was the superiority of the
specialized training of Roman law jurists over the empiricist activities of the
lay judges and practitioners of the local laws; equally decisive was the
superiority of the Roman-canonical type of procedure, with its rational rules
of evidence, over the forms of local procedure involving proof by ordeal, battle,
and other irrational methods. Nowhere, however, did the Roman law completely
supplant the local laws. So far as the content of the law was concerned, there
developed various amalgams. Roman law strongly influenced the law of contracts
and torts; canon law achieved supremacy.
The rise of nationalism that accompanied the unification and
stabilization of the European nations and their struggle for hegemony had an
impact in the field of law through national codification of laws. Because of the personality of their backer
and the novel technique applied, great fame and influence were achieved by the
Napoleonic codifications of the private and criminal law of France, especially
their central piece, the Civil Code (Code Civil or Code Napoleon) of 1804.
Codification continued after the Napoleonic era. In Belgium and Luxembourg,
which had been incorporated into France under Napoleon, his codes were simply
left in effect. The Netherlands, Italy, Spain, and numerous countries of Latin
America followed the French model not only in the undertaking of national
codification but also in the techniques and arrangements of their codes.
Naturally, their courts and legal scholars were, at least in the earlier
decades of the 19th century, inclined to pay great attention to French legal
learning.
In Germany national codification came considerably later than in France.
Only a commercial code had been uniformly created by the independent German
states shortly after the revolution of 1848, The unification of the criminal
law came almost simultaneously with the political unification of the country,
which occurred in 1871. Codification of the organization of the courts and of
civil and criminal procedure came in 1879. But the Civil Code (Bijrgerliches
Gesetzbuch fiir das deutsche Reich) was not completed until 1896, and it did
not take effect until January 1, 1900. But all through the 19th century the
vigorous German science of law exercised much influence in Austria (which as
early as 1811 had codified its law in a technique different from that of
France), in Switzerland, in the Scandinavian countries, and, later on, in most
of eastern Europe. When Swiss law was codified in 1907-12, it became the model
for the Turkish codification of 1926 and strongly influenced that of China,
which is still in effect in Taiwan.
Due to the different dates of codification and the different style and
attitude of legal learning, the civil-law family of laws is thus divided into
the French, or Romance, branch and the German, or Germanic, branch. Their main
features are determined by those of their prototypes. The legal system of Japan
belongs essentially to the German branch, but it presents important features of
its own national codifications.
9.0
CIVIL LAW AND COMMON LAW: DIFFERENCES IN SOURCES, CONCEPTS AND STYLE
Common law and civil law legal traditions share similar social
objectives (individualism, liberalism and personal rights) and they have in
fact been joined in one single family, the Western
law family, because of this functional similarity.
My analysis will therefore explore the sources, concepts and style of
the two Western sources of law.
The English doctrine of stare
decisis compels lower courts to follow decisions rendered in higher courts,
hence establishing an order of priority of sources by "reason of
authority". Stare decisis is
unknown to civil law, where judgments rendered by judges only enjoy the
"authority of reason". This distinction makes sense. Confusion would
result in the common law world if the core of the law was to differ from one
court to the other. This is not true in the civil law world, where the general
principles are embodied in national codes and statutes, and where doctrine
provides guidance in their interpretation, leaving to judges the task of
applying the law.
The essence of the civil law is that every law of the country is
"codified," or written into the law. Codification is the
responsibility of the legislative body. The judge's role is limited to the
application of the law to the facts of a given case. For years, scholars
believed that a judge was not ever allowed to interpret the law. If a judge
heard a case for which there was no law, he/she was obligated to refer the case
to the legislative body, who would then codify a law to deal with the
circumstances of the case. Unlike the common law, then, the civil law
apparently had no "judge-made", or common, law. This lack of judicial
precedent was designed to restrict the power of the judicial branch. Prior to
the French Revolution, the power of the bench had been overwhelming. Therefore,
one of the main points of the French Revolution was the restriction of judicial
power. Because the factual nature of
each case varied so drastically, however, the legislative bodies soon became overwhelmed
by the number of judicial referrals. They simply could not make laws quickly
enough to deal with each circumstance.
Accordingly, there developed an unwritten system of judicial
precedent. Basically, when a case came
before a judge, the lawyers would very persuasively inform the judge about all
of the similar cases which had previously been decided by the court, and would
urge the judge that the facts of the case merited the same treatment. Of
course, judges were not bound to follow those previous decisions, as they would
be in a common law system, but as a practical matter they would usually adhere
to their previous rulings.
9.2 Absence of Reasons
Also unlike the common law, though, the civil law decisions never stated
the reasons for the particular outcome of a case. That information was kept
confidential in the court's dossier (file). Instead, the decision would consist
of one sentence. For example, "Whereas the [insert particular facts];
whereas the law states in code provision [insert provision]; held for [winner
of case]." Due to the cursory
nature of the legal opinions, common law scholars, who were accustomed to
reading legal opinions full of rationale and logic, believed that the judges
were strictly limited to the application of the law. In the past two decades, however, several scholars have delved
into the court dossier, only to discover that common law-type legal argument
does occur, just not officially. This "unofficial" debate has created
an anomaly; because judges are not bound by precedent, yet free to pursue legal
debate, they now have just as much, if not more, power than before the French
Revolution.
9.3 Jurisprudence: style
Civil law judgments are written in a more formalistic style than common
law judgments. Civil law decisions are indeed shorter than common law
decisions, and are separated into two parts - the motifs (reasons) and the dispositif
(order). This is because civil law judges are especially trained in special
schools created for the purpose, while common law judges are appointed from
amongst practising lawyers, without special training. The method of writing judgments is also different. Common law
judgments extensively expose the facts, compare or distinguish them from the
facts of previous cases, and decide (if not create) the specific legal rule
relevant to the present facts. Civil law decisions first identify the legal
principles that might be relevant, then verify if the facts support their
application (only the facts relevant to the advanced principle thus need be
stated). (In Québec, the common law methodology is followed.)
9.4 Statutes: functions
Although statutes have the same importance in both legal traditions,
they differ in their functions. Civil law codes provide the core of the law -
general principles are systematically and exhaustively exposed in codes and
particular statutes complete them. Finally follows the jurisprudence. Common law statutes, on the other hand,
complete the case law, which latter contains the core of the law expressed through
specific rules applying to specific facts. (It is not surprising that the
English word "law" means all legal rules whatever their sources,
while the French word "loi"
refers only to written statutory rules. The word "droit" in the French civil law is the equivalent of
"law" in English common law.)
9.5 Consequences - evolution of the law
While the civil law principles, frozen into codes and often rigid
doctrine, are imposed on courts, most common law rules can be changed from time
to time, subject to the doctrine of stare
decisis. On the one hand, the realities of modern life can be addressed in
a more timely fashion through the common law, e.g. the salvage lien and repairer's lien. On the other hand,
common law judges are sometimes hesitant to change a rule, where the
consequences of doing so in relation to the whole of the law are not clear.
Less timid to reform, civil law
jurisdictions have sometimes hired learned authors to assist in effecting major
legal changes. An example is the engagement by the French Government of the
late Dean René RODIÈRE, then regarded as the premier maritime law author and
professor in France, to draft five statutes by which French maritime law was
reformed in the 1960s.
In civil systems there is no jury trial unlike the common law. In
the adversary procedure of the common law, arguments are addressed orally to
the court, and the evidence is directly presented to it or to the jury. In the
19th century, jury trial was widely adopted in civil-law countries, but only
for criminal cases. In the 20th century it was largely abandoned mostly in
favour of the system of the mixed bench, on which professional, legally trained
judges sit together with laymen and decide together with them not only, as the
common-law jury does, questions of fact but also those of law. In civil cases
concerning matters of business or of labour relations, the lay members of the
court are picked from among business people or from the circles of management
and labour. In common-law countries
the mode of adversary procedure is still followed rather consistently in both
civil and criminal cases. In civil law countries witnesses are generally
examined by the presiding judge, who has also the power to expedite the conduct
of a case and, when he regards it as necessary, to influence the parties'
conduct of the case. Although it is conceivable that a judge having such powers
may be swayed from strict impartiality, the scales can be balanced in favour of
the party represented by counsel less able or less ruthless than that of his
adversary.
A study of several differences in substantive law as between the civil
law and the common law is very instructive in illustrating the diversity of
basic juridical concepts underlying the two legal systems.
1. Economic loss
2. Pre-judgment interests
3. Lex mercatoria
4. Conflict of laws
5. Forum non conveniens
6. Forum conveniens
7. Arbitration
8. Interpretation /
construction of contracts
1. Restitution
2. Negligence - delict -
general tort of negligence
3. Foreseeable contractual
damages
4. Pre-judgment interests
5. Proof of foreign law
6. Contributory negligence
7. Marine insurance
Chapter 1 –
Commonwealth Caribbean Business Law – Ramlogan & Persadie
Jamaica Carpet
Mills Ltd v First Valley Bank (1986) 45 W.I.R. 278
Noel v Noel 1998
A.B.Q.B. 402
Tutorial
Questions:
1.
The Parliament of ValleyView recently passed
an Electoral Offence Act 2001, which created the following offence- Section
3(1) No one shall wilfully,
fraudulently and with intent to affect the result of any general election
impersonate any person entitled to vote at such election.
Facts:
Mumford Kenny, knowing that John Daniel had migrated to Canada and had not
returned to Valley View for over 15 years, had decided to use the poll card of
John Daniel, which had accidentally come into his possession, to vote in the
general elections. He proceeded to vote
in his own name, remove the ink stain from his finger and return and vote as
John Daniel. He was recognised by a
police officer and promptly arrested and charged for breach of Section 3(1)
above. Unknown to Mumford Kenny, John
Daniel had died three years previously in Canada. Applying the rules of statutory interpretation, would Mumford
Kenny be guilty of an offence under Section 3(1) of the Electoral Law?
2. The traditional differences
between the common law and civil law systems are now disappearing in the face
of decreased judicial intervention and growing reliance on Parliament as the
primary body responsible for the making of laws. Discuss.
3. The
Municipal Corporations Act, Section 45 states, “In the event a
Corporation expands its boundaries and assimilates lands falling under District
Councils, the Corporation shall pay reasonable compensation to the District
Council so affected.” In 2000, the
Point Fortin Corporation decided to assimilate part of the lands of the Cedros
and Icacos District Councils respectively.
Subsequent to the assimilation, the Minister of Local Government, by
Order, consolidated the Cedros and Icacos District Councils with a new name of
the Ceacos District Council. The new
Ceacos District Council is claiming compensation under Section 45 of the
Municipal Corporation Act for the assimilation of the lands of the former
Cedros and Icacos District Councils but the claim is being resisted by the
Point Fortin Corporation. Discuss the
merits of the case of the Ceacos District Council using the main rules of
statutory interpretation.
4. The
Rule of law is essential for ensuring that the public and the business
community can operate within a legal environment that is supportive and capable
of ensuing proper social development.
Discuss.
5. Section 17 of the Jury Act of La La Land states “On announcement of a decision by the foreman
of a jury, the number of jurors voting for and against a decision must be
stated.
John Brown committed a terrible murder on November
14th 2000. He killed a
pregnant woman and her husband as they were taking a casual stroll in the Blue
Park Savannah. The nation was shocked
by this crime and the public opinion called for swift justice. The matter was heard before 12 jurors and a
unanimous decision was required for a murder verdict. However, a finding of guilty by 10 jurors out of 12 constituted a
verdict of manslaughter. John Brown’s
trial lasted two weeks and after a mandatory three hours of deliberations, the foreman
of the jury announced that 10 jurors had voted for a murder verdict but the
remaining jurors could not be persuaded.
The judge accepted the verdict and condemned John Brown to 20 years
imprisonment for manslaughter.
John Brown would like to appeal the conviction on
the basis of the contravention of the Jury Act. Please advise.
6. On
September 23, 2002 the Appellant was convicted of Section 253(a), having the
care and control of a motor vehicle while his ability to operate was impaired
by alcohol or a drug. The Court heard
that on March 9, 2002, Constable Bourgeois was dispatched to 10123 - 73 Street
and arrived at 1:01 a.m. He spoke with
a witness and was directed to a 1986 Ford Ranger motor vehicle. The Appellant was found in the vehicle. Constable Bourgeois saw the Appellant
sitting on the driver's seat, with his upper body lying towards the passenger
seat, and his feet and legs on the floor of the driver's side of the vehicle. The Appellant was sleeping and "with a
little bit of persistence" Constable Bourgeois woke up the Appellant. It was evident that the Appellant's ability
to operate a motor vehicle was impaired by alcohol. The officer formed an opinion to this effect and the Appellant,
in his evidence, admitted this. The
Constable stated that the motor vehicle was not running, but the keys were in
the ignition. The Constable agreed that
the Appellant was resting his upper body and head on property he had piled up
on the passenger seat and was using the property as a pillow. This was consistent with the Appellant being
asleep. The Appellant identified
several photographs that were made exhibits that described the layout of the
vehicle. Briefly, the Appellant
described the vehicle as a truck-type vehicle with a manual transmission. The transmission requires that a clutch be
used in order to put the vehicle into gear and into motion. In order to start the vehicle the Appellant
stated that the vehicle had to have the keys in the ignition, the clutch would
have to be depressed, the gears would have to be checked and the accelerator
would have to be activated. The
Appellant had driven the vehicle earlier, but at the relevant time had made the
decision not to drive. The Appellant
was sleeping and had decided that only when he was sober would he operate the
vehicle. The Appellant has asked for
your advise concerning the possible success of his appeal in light of the
prevailing rules of statutory interpretation.