LAW 1010 LLS

Exam Preparation

The Reception of Law in the Commonwealth

Caribbean and its Historical Context
1. “The reception of law doctrine and its historical context has framed our law and
legal systems in the Commonwealth Caribbean.” Discuss.

The law and legal systems of our society today have been strongly influenced by the past
law and legal systems in the Commonwealth Caribbean. According to Antoine 2008, the
reception of law is the process whereby laws are taken from one jurisdiction and exported
and developed for another. In Nyali Ltd v AG [1955], Lord Denning stated that the word
‘imposition’ is more in keeping with an accurate record of the history of the Caribbean,
which was not peaceful nor benevolent. From all accounts the common law was imposed
onto the colonies. This term reflects the reality of colonization as laws were introduced to
maintain social order and to ensure the imperial powers benefited from an oppressive
society. Therefore, from a Caribbean perspective, the most accurate term would be
‘imposition’ as opposed to “reception’ being used. Lord Stowell in Rudling v Switch
(1821) stated that, "when the King of England conquers a country...the conqueror by
saving the lives of the people conquered, gains a right and property in such people; in
consequence of which he may impose what laws he pleases." The reception of law
doctrine has significantly shaped the law and legal systems of the Commonwealth
Caribbean. The impact of reception can be seen through the following mentioned below.

Rationale for Imposition: The imposition of law in the colonial territories had little to
do with the positive development of the citizenry. The laws were proposed for
maintaining social order and efficiency for the benefit of the metropolitan parent country.
The laws were only imposed as necessary and based on convenience, but also an essential
instrument of dominance and oppression. There was no genuine attempt by the colonizers
to have the law reflect the political and social needs of the society.
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The doctrine of reception is clearly linked to the historical background of the region, thus
a distinction between territories that were conquered and those settled has to be made. A
settled colony where there were no previous inhabitants by indigenous or ‘civilized’
people, or which had previously been inhabited by an imperialist country and was
subsequently abandoned. These islands include: Anguilla, Antigua, Bahamas, British
Virgins Islands and St. Kitts. The definition is under scrutiny because of the historical
reality of the Caribbean. The definition fails to address the existence of indigenous
people. Conquered territories refer to a territory which was held by one imperialist power
and was subsequently transferred to another imperialist conquering power. These islands
include Dominica, Belize, Guyana, St. Lucia and Trinidad and Tobago. N Liverpool in
Legal Systems of the World, argued that although Dominica was a conquered territory, it
is not treated as such for the purposes of ‘imposition’ or reception doctrine, as the British
refused to accept French law applied to the island during French occupation.

The impact of reception on the law and legal system includes:

- Courts have the flexibility to choose between the common law tradition or common
law as a set of principles via application of the local circumstances rule. This
flexibility is reflected in the local circumstances rule, which allows the court to determine
the suitability of received law to the circumstances at hand. An example of the local
circumstances rule can be seen in the case of Trust for Cayman Islands v Planning
Appeals Tribunal Central Planning Authority and Humphreys (Cayman) Ltd. In this case,
the court held the English law against contingency fees was not contrary to public policy
in the Cayman Islands. While this case is from a dependent territory, it serves as a clear
example of how the local circumstances rule may apply. For instance, Persaud vs
Plantation Versailles &S choon Ordinance. The relevant issue in the case was whether
the remedy of unjust enrichment was part of the laws of Guyana. Money had been
deducted from the wages of employees to support payment of goods from a recreation
club even after the club had been closed down. Although the court did decide that the
remedy was part of the laws of Guyana, the attitude of the judges was different from this
in Johnson and Jemmot. Crane J found it was the duty of a court of an independent
country to formulate jurisprudence to suit the needs of an ever-changing society. The
dates of reception were secondary to his judicial duty.

In the Persaud and Jemmot decision, the court was willing to view the reception of law as
having a cut off point, after which Caribbean judges should not be restricted to the
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common law as defined by our ex-colonist, but rather, such decisions should be viewed
as merely persuasive. This view rejects the declaratory theory.

The case of Bridge Trust Company and Slatter v AG, Whar Hansen and Compass Trust
Co Ltd. shows that although accepting that the Bahamian courts had not addressed
themselves to the question as to whether local circumstances justified a different judicial
development to the equitable principles on charities. Harre, CJ, felt that the "only sensible
thing to do" was to apply the common law as it had developed over the intervening years
from the actual date of imposition.

- The common law as a set of legal principles, means there is no flexibility for the
development of local jurisprudence, as Caribbean law judges are bound to follow
the law expressed by English judges. The reception of law imports a definite rigidity to
Commonwealth Caribbean systems. There is further controversy when one considers the
declaratory theory which has been accepted as the underlying principle of the English
common law and judicial precedent. The theory presumes that only English Court judges
have the authority to find and declare the common law principle, thus it further suggested
that Caribbean judges and courts have no power to adopt the common law to the local
circumstances. This was suggested in De lasala v De lasala, which stated, the reception
of common law needs to be uniformed or poses a universal interpretation in accordance
with English law. According to Lord Diplock in Kaadesevaran v AG [1970] AC 1111, p
1116 he says that, "in the case of former British colonies...the English common law is
incorporated as part of the domestic law of the new independent State and because it was
imposed upon the colony..."

Since English judges declare law from the existing body of common law, in instances of
common law principles being observed, more so in unsettled islands, the judgements by
the English court are binding. For instance, Johnson v R. in which the decision by the
House of lords was binding in the Commonwealth country, although the court lies outside
the hierarchy of Caribbean Courts. Wooding J accepted that the law received was binding
and not just a common law tradition but rather common law legal principles, both
precedent and statutory interpretation by English Courts. The difficulty with the decision
lies in its reasoning, which was based on an English case that the judge saw as imposing
both English statute and common law, as defined by the English courts, on the West
Indies.
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Although this was a post-independence case, the issues of the effect that political
independence might have on the reception of English law and the attitude toward
accepting that English law as binding on West Indian courts, were not addressed. Ideally,
whether received or imposed, English laws should not restrict the development of a
Caribbean jurisprudence to reflect our own needs, but rather should be something for
which an indigenous legal system should be built and where necessary to deviate from, in
modelling a local jurisprudence.

The imposition theory impacts Commonwealth legal systems through the declaratory
theory. The theory presumes that only English Court judges have the authority to find and
declare the common law principle, thus it further suggests that Caribbean judges and
courts have no power to adopt the common law to the local circumstances. Since English
judges declare law from the existing body of common law, in instances of common law
principles being observed, more so in unsettled islands, the judgements by the English
court are binding.

- Courts have the ability to draw on external sources in creating a regional

jurisprudence as reception allows our courts to review English precedent as it is
considered persuasive rather than binding. It is helpful to be able to see how similar
facts have been adjudicated, while still having flexibility to adopt a different approach.
The region is in a unique position as we are able to look at decisions from other countries
such as Canada, America and Australia in determining how to develop our laws. While
the flexibility to draw from foreign countries comes with a responsibility of judges to
ensure their judgments are well-reasoned, this responsibility is welcomed as judges have
the opportunity to develop the law as they see fit, without being restricted by binding
English precedent. Reception theory also permits the courts to fill in the gaps evident in
local law, even allowing some flexibility in choosing which English statutes are most
suitable for application. In Marchell v Antigua Aggregates Ltd, the High court dealt with
a deficiency in the companies act, by adopting the law and practice of England. Another
such example can be observed in the case of Fleming v Atkinson where the Supreme
Court of Canada finally decided that it was not obliged to follow House of Lords
precedents, as they did not necessarily embody the appropriate legal principles for
Canada.

- The region applies a maintenance of the Privy Council as a final court of appeal.
Courts are able to draw on established expertise until such time as we are ready to turn to
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the CCJ is beneficial for the region. The Privy Council is not necessarily deleterious to
the goal of regional development because, as demonstrated in the case of Cottle and
Laidlow v R, the Privy Council has considered local circumstances in the past. Perhaps,
where local circumstances will be disregarded are areas where the region is not in
compliance with International Human Rights. However, lawful discrimination is contrary
to a progressive society, and the region should be receptive to external influence in this
regard. While some might argue maintaining the Privy Council extends imposition and
can be attributed to a lack of self-confidence which stems from imposition, we have made
this choice willingly, and the fact that there is an alternative route is further evidence of
the significance of reception to the modern legal system. Guyana and Barbados maintain
the CCJ as their final court of appeal.

The Privy Council is made up of judges who are historically considered

superior-psychological remnants of colonialism-breaking free of all colonial ties will
allow us to develop more confidence in ourselves to enable us to make our own final
decisions. It has also been established that the Privy Council also wants to get rid of
appeals from the Caribbean. Lord Phillips (head of the UK Supreme Court) said that too
much of the court’s time (about 50%) is spent dealing with Caribbean cases. He said that
there is the need to restructure the arrangements so that the UK Court of Appeal (which is
lower than the Privy Council) hears some of the appeals from the Caribbean. This has the
potential to further diminish our identity as Caribbean people by being subject to lesser
legal considerations.

- There is also a lack of development in the law as territories chose to maintain

previously imposed laws by introducing savings clauses into constitutions. An
example of this is seen in the case of Marshall v Antigua Aggregates Ltd, Zilankas &
Others where the High Court of Antigua and Barbuda dealt with a deficiency in the
Companies Act, that is, the absence of rules for the winding up of companies, by relying
on the general jurisdiction of the High Court which permitted the court to adopt the law
and practice of England. Contrastingly.

- Countries have developed their laws to meet the needs of their multi-cultural and
ever-changing society. There exists the imposition of civil law in St. Lucia and Guyana
as they now have a hybrid legal system. Additionally, there is also the establishment of
Indian Law and Islamic Law in Trinidad and Tobago. This is evident in the case of
Maharaj v Maharaj TT 1958 HC 1 where the court had jurisdiction to pronounce a decree
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of divorce in a registered Hindu marriage under the Hindu Marriage Ordinance Chapter
29. It was found by the court that in England, Hindu marriages were polygamous and not
recognized by courts but in Trinidad and Tobago, Hindu marriages were monogamous
and the position was different. Effect of the Ordinance was to equate registered Hindu
marriages with those registered under the Marriage Ordinance which applied generally.
The law later evolved which resulted in the Hindu Marriage Act 1980, 1993 of Trinidad
and Tobago.

Case List

● Shillingford v AG of Dominica (1968) 12 WIR 57 - Like Grenada, Dominica was

taken from the French by the British. Dominica was also the subject, along with
Grenada, of the Royal Proclamation of 7 October 1763 by which power was given
to the Governor to summon a general assembly and with the consent of the
council and the assembly to make laws for the public peace and welfare of the
Colony. Before the assembly could meet and before any laws were made locally,
the Nullum Tempus Act was passed in England. The question in the case was
whether in the circumstances that Act applied to Dominica. The Court of Appeal
of the West Indies Associated States held that it did not apply since after the
Proclamation of 1763 laws made in England ceased to apply to the colonies
except where expressly stated to so apply.

Per Gordon J.A. (at p. 80):

“In so far as the ground of appeal relating to the Crown Suits Act 1769 (Nullum
Tempus Act) is concerned, consideration must be given to the text of the
Proclamation by which Dominica was ceded to the Crown in 1763. In that
document it is specifically stated that:

‘...we have also given power to the said Governors, with the consent of our said
Councils, and the Representatives of the People so to be summoned as aforesaid,
to make, constitute and ordain Laws, Statutes and Ordinances for the public
peace, welfare and good government of our said Colonies, and of the people and
inhabitants thereof, as near as may be agreeable to the laws of England, and under
such regulations and restrictions as are used in other Colonies; and in the
meantime, and until such Assemblies can be called as aforesaid, all persons
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inhabiting in or resorting to our said Colonies, may confide in our Royal

Protection, for the enjoyment of the benefit of the laws of our Realm of
England;...’

Having regard to the definition of the boundaries of “the Government of Grenada”

as therein set out, ie “comprehending the island of that name, together with the
Grenadines, and the Islands of Dominica, Saint Vincent and Tobago”, the fact that
the Grenada Assembly had been summoned in 1768 and therefore before the
Crown Suits Act 1769 was passed in the United Kingdom, the Crown Suits Act
1769 could only be applicable to Dominica if the Assembly which had been given
the power to make laws had adopted it. This was not done. I therefore am of the
opinion that the Crown Suits Act 1769 did not apply to “the Government of
Grenada” which comprehended among other islands, the island of Dominica.”

● Grupos Mexicano de Desorollo SA v Allison Bond Fund Inc - the US Supreme

Court rejected the mareva injunction, a modern creature of equity. The decision
turned on the scope of the jurisdiction conferred by the Judiciary Act 1789 on
federal courts over "all suits in equity." Decisions before this had interpreted this
as jurisdiction to administer in equity suits the principles of judicial remedies
which were administered by the English Court of Chancery at the time of
American Independence. However, the Supreme Court decided that the US
Federal court had no power to grant the injunction since such a jurisdiction had
not been received into US law by a majority vote. Its rationale was that in 1789,
the date of reception, there was a well-established general rule that a judgement
establishing a debt was necessary before a court would interfere with a debtor’s
use of his property.

The American view is that the common law is a set of principles and rules
constantly evolving, thus reference to a date of reception is simply to refer to the
common law as it had evolved up to that point. An interesting development in the
continuing impact of the imposition of the English common law on its former
colonies is the recent dramatic twist on the evolution of the Mareva injunction in
the United States.

● The relevant provision, section 11 of the Eastern Caribbean Supreme Court Act
(CAP 143) stipulates: "The jurisdiction vested in the High Court in civil
proceedings and in Probate, Divorce and Matrimonial Causes, shall be exercised
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in accordance with the provisions of this Act . . . and where no special provision
is therein contained such jurisdiction shall be exercised as nearly as may be in
conformity with the law and practice administered for the time being in the High
Court of Justice in England."

The Court rejected counsel’s submission that the appropriate UK Act was the
Insolvency Act 1986, the most recent one on the subject. Rather, as was the
practice, it was the rules under the Companies Act 1948 of the UK, which were to
be adopted, since that Act was closest to Antigua’s Companies Act and not the
more modern legislation. As Georges J explained: "...it would not...be apposite to
invoke the rules of an Act to which there is no parallel in Antigua and which is
principally designed for the liquidation of insolvent companies in England and
Wales."

● Campbell v Hall 1774 - the appellant argued that, since the Crown had had no
power to make laws for the colony of Ceylon which offended against fundamental
principles, at independence it could not hand over to Ceylon a higher power than
it possessed itself. It was held that the King can issue new laws without council of
parliament but however he cannot make any new change contrary to fundamental
principles of the common law.
● Blades v Jaggard (1961) – Jaggard was the Parish priest of the St Matthias
Church, an Anglican church in the Diocese of Barbados. He gave notice to the
plaintiffs who are regular worshippers at said church that permission was given by
the Bishop to allow building works to be done at the Church. The plaintiffs then
filed a writ against the defendants claiming: (1) a declaration that the work was
irregularly or illegally executed and without valid authority because proper
procedure allowing them to voice their opinion regarding the works were not
followed. The defendants submitted that the ecclesiastical law as part of the
common law of England is not applicable to Barbados, but only such statute law
as has been enacted by the Barbados legislature.

It was held that (i) that ecclesiastical law as part of the common law of England
applies in Barbados; (ii) that an applicant for a faculty must beforehand obtain the
views of the parishioners (iii) in the circumstances the alterations being carried
out were irregular and without valid authority. Judgement for the plaintiffs.12.
Reception carried intent to maintain an unjust social order
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● Lord Denning in Nyali Ltd v AG [1955] 1 All ER 646 CA - The Kenyan and
British authorities agreed for the building by the plaintiff of a bridge supported by
the imposition of tolls. The British military were exempt from payment with there
being only one unit of military at that time however as time went on more troops
arrived, and the bulk of the traffic was exempt. The bridge owner challenged the
arrangement in Britain. Held: The term ‘military’ included all soldiers of the
Queen and was not restricted to the original detachment. The task of making
qualifications to English law to suit the circumstances of overseas territories
called for wisdom on the part of their judges in applying the common law
qualified as necessary to suit local circumstances.
● Levy and Wood v Administrator of the Cayman Islands [1952-79] CILR 42 - a
case from the Cayman Islands (a settled territory and still a British colony), the
Court of Appeal held, in a contest for title to land, that ‘ownership by the
Government was the natural consequence of the introduction of the common law
of England by the first settlers of the Islands’. Accordingly, there was no evidence
of land being previously occupied by anyone, not even first peoples.
● Jemmot v Phang (1963) 6 WIR 88 - here the issue was whether s 18 of the
Gaming Act of the UK applied to Trinidad and Tobago. The court held that the
Act should apply. Section 12 of the Trinidad and Tobago Judicature Act of 1962
provides that: "Subject to the provisions of any enactment in operation on the first
day of March 1848 and to any enactment passed after that date the common law
doctrines of equity and statutes of General Application of the Imperial Parliament
that were in force in England on that date shall be deemed to have been enacted
and to have been in force in Trinidad."

This, therefore, was a reception of the law clause embodied in the Trinidad and
Tobago legislation. The court found that the Gaming Act was a statute of the
Imperial Parliament in force in England on 1 March 1848 and that it was a statute
of general application which had not been abrogated by local legislation.

● Thompson v R (1998) 52 WIR 203 - the Privy Council stuck resolutely to a cut-off
date in deciding to what extent the Police and Criminal Evidence Act 1984 of the
UK, on the admissibility of confessions, which had been received in St Vincent,
applied. It determined that the cut-off point was 1989, the date stated in the
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legislation. Accordingly, ss 76 and 78 of the Act applied, but Code C, which had
been added after 1989, did not.
● Musa v The Attorney General et al BZ 1998 SC 6 - the Supreme Court of Belize
had to decide the extent of parliamentary privileges in Belize and the power of the
Speaker of the House to commit contempt. Despite the existence of legislation on
the subject, the Belize Legislative Assembly (Powers and Privileges) Act 1962,
the Court looked to the English common law for the answer, finding that the Act
was "not the entire law on the subject." The Court was assisted by a wide
reception clause found under the Imperial Laws (Extension) Act 1899, which
read:

2(1) Subject to the provisions of this or any other Ordinance, the common law of
England and all Acts...declaratory of the common law passed prior to 1st January
1899, shall extend to this territory.

(5) Wherever by this Ordinance, or any other law, it is declared that the common
law of England...shall extend to Belize, the same shall be deemed to extend
thereto only as the jurisdiction of the court and local circumstances reasonably
permit and render such extension suitable and appropriate.

The Court found that it had no power to review the internal proceedings of the
House of Parliament which was protected by the common law privileges and
immunities. Further, the Speaker had the power to commit contempt. Indeed,
Meerabux, J emphasized the fact that Belize, unlike other countries, had
specifically incorporated the English common law into its own law.

● Wee Lian Construction SDN BHD v Ingersol Jati Malaysia Sdn BHD - a
Malaysian case where it was noted that s 5(2) of the Civil Law Act 1956 (the
CLA) has a specific cut-off date, ie 7 April 1956, for the application of the UK
Common law, rules of equity and statutes, subject to the provision that such
application is not to be inconsistent with local circumstances.
● Village Cay Marina v Ackland and Others - addresses the question of the taxation
and recovery of costs, the High Court of the British Virgin Islands reaffirmed the
Privy Council ruling in Zuliani et al v Veira that the English law relating to
solicitors and the taxation and recovery of costs, "except such as where provisions
in that law are unenforceable and could have no effect in the Virgin Islands or
where the rules of court here provide something that modifies that English law,
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prevails here and must be used and followed. It would therefore be acceptable to
look at English cases relating to the taxation of costs." The relevant law had been
incorporated by reference into the law of the British Virgin Islands.
● R v Commissioner of Police and Others ex p Cephas (No. 2) - the court decided
whether English statute applied to Jamaica. It stated that with regards to judge
made law, as a colony and partial self-governing colony, Jamaica continued to be
bound by the development of law and equity by the doctrine of stare decisis until
the country became an independent nation. It found that Jamaica adopted
provisions similar to the Supreme Court of Judicature Act 1873 of the UK, which
consolidated the court of law and equity in England. It was found therefore that
the Act did no more than to consolidate existing jurisdictions in one Supreme
Court, and to vest in the court and every judge, powers of law and equity in civil
cases. No new rights were created. Rights previously existing in the courts of
either law or equity were merely confirmed. After Jamaica’s independence,
existing laws were preserved by virtue of s 4(1) of the Constitution and thus the
existing regime was saved.
● Persaud v Plantation Versailles & Schoon Ordinance Ltd. (1970) 17 WIR 107 -
the court did not agree with the restrictive view of the doctrine of reception. The
relevant issue in this case was whether the remedy of unjust enrichment was part
of the law of Guyana. Money was being deducted from the wages of employees to
support payment of goods from a recreation club even after the club was closed
down. Although the court did decide that the remedy was part of the law in
Guyana, the attitude of the judges was clearly different to that exhibited in the
Johnson and Jemmot cases. Crane J noted that the English courts were unclear as
to whether the principle of unjust enrichment existed in English law, but also
found that the duty of a court in an independent country was to formulate a
jurisprudence to "suit the needs of our ever-changing society." For him, the date
or consequence of reception was secondary to this judicial duty.
● De Lasala v De Lasala [1980] 1 AC 546; [1979] 2 All ER 1146 - it was held that
while decisions of the UK House of Lords on general principles of the common
law were of persuasive authority, these principles did not apply where local
circumstances make it inappropriate to develop a field of common law in a
manner similar to England. If sufficient worth is accorded to such differences,
then the threshold of "repugnance" or "strong argument" outlined in the case law
for disassociating or de-linking from imposed English law, will be easier to cross.
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As a society and legal system mature, it becomes more difficult to reconcile or

submerge these differences and the courts will opt for a more divergent approach
to the common law based on the peculiar local circumstances of the society.
● Rose And Others v Chung And Others - contains an exhaustive account of the
application of the reception of English law doctrine in Jamaica, some of which is
reproduced here. The jurisdiction of the court was questioned as to its power to
grant damages either in lieu of or in substitution for specific performance. It
therefore found it necessary to consider the reception doctrine, particularly as the
Chancery Amendment Act, enacted in 1858 in the United Kingdom, had not been
enacted in Jamaica. The court noted that Jamaica had ‘received’ English laws and
statutes by virtue of its colonial status until 1728 and that Section 22 of the statute
1 Geo II Cap 1 sets the limitations for the reception of English laws and statutes
applicable to Jamaica prior to 1728. Further, the counterpart of this section is now
contained in s 41 of the Interpretation Act
● Leong v Lim Beng Chye [1995] AC 648 - the Privy Council held that a rule of law
should not be held unapplicable to local circumstances unless a solid ground is
raised to show an inconsistency with the settlers' needs. For example, where the
law to be received is grounded in some policy peculiar to its jurisdiction and
irrelevant to the receiving jurisdiction.
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Specialized & Ordinary Courts

1. Describe the various specialized judicial functions, courts, and tribunals in the
Commonwealth Caribbean. How do they differ from ordinary courts of law?

Court systems need to be well ordered and efficient and able to administer justice with
integrity to be valid and sustainable. The prevailing legal tradition in the Caribbean is the
common law system, originating in England which influences the court systems in the
Caribbean. The court systems are modelled after England. In the case of Hinds v R
[1976] All ER 353, the power to create and regulate court systems in the Caribbean have
derived from written Constitutions and local statutory instruments found in independent
territories. Court system is organized under a three-tier structure according to the rank
that the court is in the judicial system. The higher the court the more authoritative the
court. The Privy Council is the highest court in the hierarchy for most Commonwealth
Caribbean countries and thus, it is their final Court of Appeal.

Inferior Court/Courts of Summary Jurisdiction deal with lesser judicial matters and
have no appellate jurisdiction. They are empowered to issue summons and warrants of
arrest as well as grant bail for persons under arrest.Justice of Peace and Magistrates have
the power to conduct preliminary examination of persons charged with indictable
offences to decide if they should be committed to trial in High Court. The jurisdiction of
the inferior courts is limited: monetary limit placed by statute on type of offence which
can be heard, restricting jurisdiction on types of offence and statutory limits on fines
which magistrates can impose along with damages and costs they can award. Appeals
from Magistrates courts go to the Court of Appeal in the jurisdiction however, in
Barbados, appeals go to a special division in the High Court called Divisional Court.

Superior Courts/Courts of Record contain the Supreme Court/High Court and the
Court of Appeal. The High Court is the trial court or Court of First Instance and the Court
of Appeal does appellate function of the Supreme Court. Re Niles (No. 2) (2003) states
that the jurisdiction of Supreme Courts cannot be taken away except by the Constitution.
Inferior court’s jurisdiction such as magistrate’s court are derived from ordinary statute
which gives detail to jurisdiction of superior courts. The powers of the Court of Appeal
cannot be widened to restrict citizen’s rights unless provided for by the appropriate
constitutional procedure. In the case of The State v Boyce (Brad) (2005) 65 WIR 283 (CA,
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Trinidad and Tobago), statute attempted to give the DPP right of appeal in criminal
proceedings after an acquittal. This breached due process of rights of an accused and
breached constitutional provisions for amending jurisdiction of the Court of Appeal.

Specialized Courts are authorized by law to adjudicate on specific matters. It has a

limited jurisdiction concerning only those cases. It was developed to give special
attention and expertise to matters that could not be properly addressed in ordinary courts.
Specialized courts are important for expediency, reducing the overwhelming bulk of
matters in a specific legal area, simplifying certain procedures, highlighting the
importance and uniqueness of a specific area of law, improving specialist knowledge for
technical areas of law and promoting specialist knowledge for technical areas of law.

Specialized Court can be either:

- Superior Court of Record (eg. Industrial Court of Trinidad and Tobago where
appeals go directly to the Court of Appeal)
- Inferior Court (eg. juvenile court)
- Intermediate Court (eg. the Family Court in Jamaica)

These courts have usual power granted to courts of law in particular jurisdiction and have
original jurisdiction. They can try matters coming to them at first instance with the right of an
appeal to the appropriate court in the hierarchy. Specialised Tribunals are not vested with judicial
powers as a court. The difficulties that exist in specialised courts are that they are time
consuming, there are financial difficulties in facilitating training and the expertise must be
developed in the Commonwealth Caribbean. Types of specialised courts include family,
environmental, traffic, land, tax, equal opportunity, intellectual property, administrative and
sexual offences.

The Industrial Court of Trinidad and Tobago was created to deal with the breakdown of
industrial relations due to high levels of strike activity. It was instituted by Industrial
Stabilization Act 1965 and replaced by Industrial Relations Act 1972. The court was created
because of the belief that the ordinary courts of law proved insufficient to deal with labour
relations matters and courts refused to recognize collective labour activities as valid. The
Industrial Court of Trinidad and Tobago is a High Court or Supreme Court of Record that has
jurisdiction to try all labour law matters. Appeals from court go to the Court of Appeal but the
right of appeal is limited to Trinidad and Tobago. Persons who sit on these Courts are not all
required to be legal persons (eg. economists, accountants, persons experienced in industrial
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relations, trade unionists etc) For industrial disputes, court only assumes jurisdiction after
attempts of voluntary reconciliation broke down and legislative reconciliation exhausted. The
court has powers, rights and privileges as exercised in the High Court in dealing with actions
brought before it. The court takes into account facts it considers relevant even if such facts are
not admissible in another court of law. The court has wide powers to award remedies (eg.
reinstatement of dismissed workers, exemplary compensation) The court contributed to
development of law industrial relations and males relief in these matters more accessible.
Specialisation has caused a backlog and in the case of Joharsingh v AG of Trinidad and Tobago,
there was a failure of the Industrial Court to deliver a judgement after six and a half years and
this constituted a violation of the plaintiff’s constitutional rights. Another case that was
addressed in Industrial Court is Caroni 1975 Ltd v Association of Technical, Administrative and
Supervisory Staff (2002) 67 WIR 223 (CA, Trinidad and Tobago) at pp 224-25.

The Family Court (established in 2004) falls under the Family and Children Division of the
High Court, Judiciary of Trinidad and Tobago. It is a problem-solving court which seeks to
resolve conflict in family matters by providing specialist support where necessary. The Family
Court offers a number of services which include: requests for copies of court orders, access to
domestic violence court services including protection orders, registration for online
court-ordered maintenance payments, enforcement of maintenance orders (eg. preparation of
warrants), family mediation to resolve family disputes, psychosocial enquiries for
evidence-based decision making, counselling for children, DNA testing as ordered by the court,
divorce proceedings, the adoption process, court applications and variations to existing court
orders. The Family Court is a ‘one-stop-shop’ which offers a range of support services located in
one building. The Court can readily refer parties to make use of the family mediation and
counselling services available. The Court is fully computerized and has an automated case
management information system - the Trinidad and Tobago Judicial Information Management
System. This facilitates speedy and efficient means of dealing with routine operations such as
filing, processing and retrieving case information.

Family law legislation in Trinidad and Tobago:

- Family Law (Guardianship of Minors, Domicile and Maintenance) Act Chapter 46:01
- The Family Proceedings Rules 1998 (as of June 2003)
- Matrimonial Proceedings and Property Act Chap 45:51

The Children Court of Trinidad and Tobago is a court for children under the age of 18 and the
court became operational on February 28th 2018. It was established under the Trinidad and
 16

Tobago Juvenile Court Project. It is a sub-division of the Family and Children Division of the
High Court. This court hears cases involving: children who are accused of breaking the
law/charged with a crime, children in need of supervision, children who are in need and
care/protection and it also hears children's drug and mental health matters. The Children’s
Authority of Trinidad and Tobago can make various applications pursuant to its duty as guardian
of the children of Trinidad and Tobago under the Children Authority Act Chapter 46:10 and the
suite of children legislation. These include; applications for wardship, applications for interim
supervision orders, care orders and recovery orders. Children who come before the court must
participate in an Intake Conference where a representative from the court will speak with the
child to enquire about them and the cause of them being before the court. The Children Court can
appoint a children’s attorney who will ensure that the voice of the child is heard throughout the
case. Custodial sentencing options are administered by the Court and non-custodial sentencing
options are also utilized that support the rehabilitation and reintegration of child offenders back
into society.

The case of DPP v Mollison (2003) 64 WIR 140 (PC, Jamaica) shows the relevance of the
Children Court. Kurt Mollison was convicted at age 19 of murdering a woman in the course of a
robbery carried out when he was 16 years old. He was sentenced to be detained during the
Governor-General’s pleasure. Under Jamaican law, persons convicted of capital murder shall be
sentenced to death, but a child under 18 years of age convicted of murder must instead be placed
in indefinite detention with the decision of release entrusted in the Governor-General’s
discretion.
The Court of Appeal of Jamaica refused the respondent’s application for leave to appeal against
the conviction, but the Court was concerned whether the sentence imposed on the respondent
was compatible with the Constitution of Jamaica. The Court of Appeal then allowed the
respondent’s appeal: the sentence of detention during the Governor-General’s pleasure was set
aside and a sentence of life imprisonment substituted, with a recommendation that the respondent
be not considered for parole until he had served a term of 20 years’ imprisonment. The Director
of Public Prosecutions then appealed to the Judicial Committee of the Privy Council against the
setting aside of the sentence of detention during the Governor-General’s pleasure. In response,
the respondent cross-appealed to uphold that order, but cross-appealed against the sentence of
life imprisonment which was substituted.

The High Court has an original jurisdiction that is for both criminal and civil cases. There is no
limit on the award of damages although in practice, certain principles exist in assessing the
quantum of damages. The civil jurisdiction of the High Court includes: common law, divorce,
 17

matrimonial causes, probate, bankruptcy, admiralty as well as all actions and proceedings in
equity. The case of Re Crutchfield BZ (1998), establishes that the jurisdiction of High Courts of
Superior Courts is roughly the same as the High Court of England. The criminal jurisdiction
covers treasons, felonies and misdemeanors. More serious offences are tried and indictment in
High Courts while lesser offences are tried summarily in inferior courts/intermediate courts.
Criminal statute offences created by statute consists of a presumption that such offence is triable
by the High Court in absence of any express provision to the contrary.

In Trinidad and Tobago, special provisions exist allowing particular cases to go directly to the
Judicial Committee of the Privy Council without exhausting remedy available at the Court of
Appeal. All Constitutions of the Commonwealth Caribbean provide for judicial review, this is
where a citizen may make an application for redress via the High Court or Supreme Court where
they claim that their fundamental rights have been infringed upon. If the judicial review
application has failed under the Supreme Court, a constitutional motion can be made to the Privy
Council or CCJ by a citizen who seeks redress for alleged breach of fundamental rights under the
Constitution.

The Court of Appeal has appellate jurisdiction only and they do not sit with a jury as it is not
concerned with reviewing the facts of a case. It rules on matters of law and has an uneven
number of judges (usually three) to make up the Court. Appeals are as of right in exceptional
cases such as alleged violation of constitutional rights. This court may hear appeals from the
Magistrate’s Court and High Court or Supreme Court of First Instance or specialised courts (eg.
St. Vincent Family Court). Generally, cases require leave to appeal. Criminal appeals are limited
to: against conviction on any ground pertaining to a question of law alone, with leave of Court of
Appeal or upon certificate of trial judge that is a fit case for appeal and with leave of Court of
Appeal against sentence where it is not one fixed by law. The Court of Appeal has jurisdiction to
hear appeals from special courts decisions 9eg. Industrial Court of Trinidad and Tobago, certain
statutory quasi-judicial bodies). Re Niles (No. 2) (2003) states that the Court of Appeal has
residual power to revisit/reopen an appeal in appropriate cases despite the original order of court.
The power is to be exercised in exceptional cases such as one where there had been procedural
unfairness.
 18

The Jury System

1. "Trial by jury is an outdated and useless system in the Commonwealth Caribbean
and should be abolished." Discuss.

Trial by jury is a useful system within the Commonwealth Caribbean that should continue
to be enforced within our legal systems. According to Section 19 of the Jury Act of
Trinidad and Tobago, a jury is made up of twelve persons for trials of murder and treason
whereas it is made up of nine persons or all other trials. The purpose of the jury is to be
the sole judges of fact as opposed to the law and if any jury has knowledge of facts, he
must state this publicly. There is no right to a trial by jury in all cases. Commissioner of
Police v Davis (1993) 43 WIR 1 was the case of an attempt to try and punish drug-related
offences through the magistrate’s courts and the Court found that it was an
unconstitutional attempt to oust trial by jury. Additionally, in the case of R v Stone (1977)
25 WIR 458, the Jamaican Court of Appeal disagreed that the trial without a jury in the
gun court violated a constitutional right as trial by jury in criminal cases was not
expressly/impliedly entrenched in any of the constitutional provisions. In the case of
Morales v Morales (1962) 5 WIR 235, it is made clear that the rules of court are that civil
trials are by a judge only unless the party applying for a jury can show sufficient cause as
to why there should be a jury trial. The jury is a prominent and unique feature of the
common law legal system and therefore an active part of the judicial process of the
Commonwealth Caribbean. However, there is a debate presently on whether the jury
system should be retained. To effectively decide, one must look objectively and critically
at the advantages and disadvantages of the jury system in the Commonwealth Caribbean.

The jury system has many benefits such as:

- The lack of legal training allows them to bring a fresh outlook as opposed to
the legal professional opinion of a judge who may have become hardened and
cynical over the years. However this can also be a disadvantage of the jury
system as the jurors may lack the necessary legal expertise to assess the case
thoroughly (while the judge is there to guide the jury, they can instigate
misdirection which in turn can taint the outcome of the case) members of legal
profession may hold the jury system in low esteem as the judge essentially has the
final say of the decision of a case. In the case of Nannan v The State (1986) 35
WIR 358, we see the impact of the lack of knowledge and expertise the jurors can
 19

have on the court. Jurors are usually not legal experts and may struggle to
understand complex legal concepts, evidence, or technical jargon. Four jurors
swore on oath that the verdict wasn’t unanimous since the foreman did not know
the meaning of the word. Such lack of expertise can lead to misinterpretations of
evidence and an inability to make informed decisions in complex cases. Belle
Antoine argues that illiteracy and low educational levels are major obstacles to a
proper functioning jury system in the Commonwealth Caribbean, suggesting that
a minimum educational standard is necessary.
- A person’s fate is not decided by a single person but a panel of jurists and
judges. The jury’s size means safety in numbers with regards to preventing
political corruption within the system. However the Caribbean has a limited pool
of jurors which can in turn restrict the diversity of the jury.
- The jury is open to criticism and allows challenges. If a particular juror is
biased, he may be challenged and asked to step down if the challenge is justified
by the court. One example of such is present in the case of R. v. Mason [1981]
Q.B. 881 where the reason for challenge is not necessary but a suspicion of bias
must be raised before the juror is challenged. The Jury Act of Trinidad and
Tobago allows peremptory challenges on certain grounds such as: where a juror
has been sentenced to death or imprisonment, is an alien and has no knowledge of
the English language. One can be challenged for cause on the grounds of
knowledge of the defendant, involvement with the case and prejudice or pretrial
publicity. The judges decide if the challenge is to be allowed. The issue of pretrial
publicity can be observed in the case of R v Kray (1969). In the case of R v
Broderick [1970], there was a request for an all black jury in Britain however,
race was not seen as a valid cause for a challenge for cause.
- There is the expression of a community's conscience. The jury reflects society’s
ideals and feelings on particular issues. Participatory justice shows that there is a
public stamp of approval on the results of the case which avoids fear of retaliation
that the judges may experience. In general, the verdict can only be disturbed if it
is found to be unsafe or unsatisfactory. In the case of (R v Potter), large crowds
assembled daily around the courthouse making remarks against the accused and
intimidating the jurors. The jurors represent this public opinion and outlook on the
case.
-
 20

2. "There are too many things that can go wrong in jury trials. As such, it is not the
most efficient system for procuring justice". Discuss.

Jury trials can be deemed as inefficient and ineffective for procuring justice due to a
number of factors that contribute to its demise:

- Misdirection is one such circumstance that contributes to the downfall of the

jury system. There are situations where the judge of a case can initiate
misdirections and improper instructions or influences and this results in a
potential mistrial. Misdirection can occur where; a judge may make inappropriate
comments that can influence the jury during a trial, a judge may deliberately or
inadvertently try to influence the jury in his summing up. An example of
misdirection can be seen in the case of R v Townsend [1982] where the judge
failed to make the defendant aware of communication that occurred between the
jury and the judge. The jury had come to a split decision and they were informed
by the judge that the decision must be discussed again if it is unanimous. The
judge did not have to reveal the exact details of the note received by the jury but
he was responsible for publicizing the occurrence of said interaction. Similarly, in
Senevirante v R [1936] it was found on appeal that the judge misdirected the jury
as to the status of the law. Judges have the ability to sway the jury based on their
own inherent biases that are not applicable to the case or issue at hand. In Thomas
v R (1992) the attorney for defence was a leading political activist who was
unpopular with the judge and the judge made insulting remarks about the attorney.
This in itself was enough to order a retrial as there was undue influence on the
jury and this may have affected their decision as they would have believed that
the judge had already made a decision.
- The judge may mistakenly leave an issue of law for the jury to decide or fail
to leave a question of fact for the jury to decide (the jury decides on fact, the
judge decides on law). The judge may misrepresent the status of the law when
attempting to guide the jury on a question of law. In Sookram v R (1971) the trial
judge left it up to the jury to decide whether self-defence arose and on appeal it
was held to be a misdirection by the judge. It was a question of law which was the
function of the judge as the judge is responsible for deciding the law and the jury
must decide on fact. There may be difficulty for the jury to distinguish between
fact and law although that is their role as a juror.
 21

- There is the issue of pretrial publicity that can lead to the jury being subject
to biases in their decision. This can pose a challenge to the jury system in
assessing the facts of the case from an unbiased perspective. An example of this
can be seen in Boodram v AG and Another where the defendant was a high-profile
drug lord and murderer. Similarly in the case of Grant v DPP, the jury returned
with a verdict of murder but was unable to name the guilty person. Similarly, the
close-knit nature of the Caribbean and the limited geography of the region can
make it difficult to avoid the issue of pretrial publicity. For instance, in the case of
R v Kray (1969), the murderers known as the Kray brothers were on trial.
Although, because of the widespread publicity afforded this case, challenges for
cause were successfully made on the ground of pretrial publicity. The jurors
would have been exposed to many outside views or biases which could have
affected their views. These biases can impact their ability to render an impartial
verdict, leading to unfair outcomes, especially in cases involving sensitive issues
such as race, gender, or socio-economic status. This can also be observed in the
case Howe v R. (1972) 19 W.I.R. 517 where one of the jurors had been present at a
previous conviction of the accused and this was sufficient grounds to establish
bias. Within this scope, there may be wide exemptions to jury service and
reluctance by persons to be jurors which leads to a shortage of jurors.
- Studies show that women are underrepresented in the Caribbean jury
system. Evidence of this can be seen in the case of Rojas v Berliaque (AG
Intervening) [2004] where the issue of gender was successfully raised as a
constitutional challenge to jury trials. Although jurors were randomly selected
from the jury list, in practice, juries were all male because men and women were
treated differently in the jury compilation list. The Privy Council found that where
a jury mode of trial was in existence, the method of jury selection had to be one
which gave citizens a fair trial and a non-discriminatory method of the
compilation of jury lists was required. The limited gender diversity in Caribbean
jury may be attributed to the small population of the region. According to the case
of Gibson v R, after the start of a murder trial, the court found that one of the
jurors was the brother of the deceased. The juror was discharged. Such cases can
lead to the appearance of bias, compromising the impartiality of the jury.
Additionally, the jury selection process may exempt or disqualify certain
demographics from jury duty resulting in a lack of diverse perspectives, thus
affecting the fairness of the trial.
 22

*provide recommendations for each disadvantage that is faced by the jury system
and state the likely success rate of the proposed recommendation; ensure to restate
your stance at the end of the essay after listing recommendations.
 23

Legal Families and Tradition; Hybrid Legal Systems

1. “The concept of a hybrid legal system is a viable one in the contemporary study of
comparative law. This is adequately illustrated in the Commonwealth Caribbean.”
Discuss.

A legal system is the sum of legal rules, legal institutions and machinery which operate
within a specific country or jurisdiction. It is not limited to a geographical jurisdiction as
there will be rules of international law originating from outside of a country’s territorial
area that will be a part of its legal system. In the Commonwealth Caribbean, the hybrid
legal systems are present in Guyana and St. Lucia. These legal systems are a mixture of
the common law and civil law and the legal systems exist as a result of colonization,
cession, purchase or annexation by a State or power having a different legal system that
the jurisdiction acquired.

The common law legal tradition originated from historical developments of countries in
the Commonwealth Caribbean jurisdictions. Caribbean countries rediscovered by
Europeans in the 15th century were conquered and dominated by the English and became
the space for imperialism. The English common law system was the legal tradition in
England and was imposed on the former conquered territories through colonization. The
common law tradition includes: legal rules of the common law, equity, legal concepts and
institutions. Common law rules were developed on an ad-hoc basis by common law
courts as matters came before the courts. It is referred to as ‘soft law’ or ‘judge-made
law’ to show the changeable and arbitrary origins of the common law.

The Doctrine of Judicial Precedent consists of applicable legal rules and norms handed
down through judicial decisions. Common law created a coherent system of rules and
procedure by which new legal principles can be created. The common law tradition
consists of legal concepts such as: trust, bailment, estoppel, writ of habeas corpus,
consideration and trespass. Its legal traditions include the jury system and the civil law
tradition. The sources of common law include: judicial precedent, legislation and equity.

The Civil Law or Romano-Germanic Tradition is historically based in continental Europe

with its origins in ancient Rome. Transplantation occurred from Europe to other nations
via colonization and imperialism. The civil law tradition can be seen in St. Lucia and
Guyana. Within this tradition, the monist doctrine prevails and international law is treated
 24

as binding on ratification by a treaty. This depicts a drastic contrast with the common law
dualist tradition where ratified treaties are simply influential unless incorporated into
domestic law by statute.

It is influenced by the natural school of thought and teaches a rational law based on
reason suitable for universal application. This tradition relies on statute in the form of
code, which is the ultimate legal source. Codification is the compiling of legislation and
legal rules on any subject. Codified law is also known as ‘hard law’ and it is enshrined in
statute. Written Constitutions and Bills of Rights in the Commonwealth Caribbean lean
towards codification and it is a departure from common law rules. The Bill of Rights sets
out fundamental rights of the citizen and that is obtained from the civil law tradition.

The Socialist Legal Tradition has its historical origins in the Bolshevist revolution of
1917. This began the new international political and economic order known as socialism
and communism. The main feature of the socialist legal tradition is ideology, whereas in
the common law or Romano-Germanic tradition, it is based on legal technique and form.
The socialist legal tradition was given meaning from the Russian Revolution that aimed
at achieving a communist state. In the socialist legal tradition, the law has value in
relation to the economic and political structure. There is a reliance on legislation to
promote legal rules. The Republic of Guyana declared itself to be socialist through the
constitution but there are doubts as the legal framework has not been brought in
conformity with the socialist system.

Guyana

Dutch and British colonial periods left a legacy of Dutch law and English common law.
The colonization of Guyana by the Dutch, which ended at the end of the16 century,
resulted in the transplantation of Roman Dutch law in the colony. Guyana was ruled by
the French in addition to the Dutch and the British, but it was the Dutch and the British
legal systems that took root.

The legal system under Roman-Dutch law consists of law received from the colonizer
and statute law enacted by legislative bodies. The Civil law legal tradition of Guyana can
still be seen in areas of law such as law relating to the acquisition and expropriation of
property, insolvency, matrimonial causes and the law of succession. The Civil Law of
Guyana Chapter 6:01 enforces the remaining civil law.
 25

The legal system of Guyana was one of Roman-Dutch law, until the cession of the island
by the British. This resulted in a steady erosion of the civil law tradition in Guyana. the
English capitulation of 1803 had a profound effect upon the jurisprudence of Guyana,
resulting in a Hybrid legal system which derived its principles from both the civil and
common law.

In the 19th century, the Roman-Dutch system was still thriving, but it inevitably and
steadily gave way to the English common law, by way of statute that replaced much of
the Roman- Dutch law. For example, the 1846 ordinances that introduced English
criminal law to replace the Roman-Dutch law. Hybrid mixture of English common law
and the Dutch legal tradition was further complicated by the reference to a socialist legal
tradition in the 1980 Constitution. In the case of Ramamugh and Another v Hand in Hand
Mutual Life Insurance and Others (1992) 47 WIR 198, the Guyanese court of appeal
found that although the civil law of British Ordinance 1917 had "sounded the death knell
of the Roman-Dutch system of law," the pre-1917 Roman-Dutch law and practice on
conventional mortgages had been preserved. Additionally, the case of Nazim v AG and
Others (2004) 67 WIR 147 (CA) Guyana shows that the court of appeal in Guyana looked
to the Civil Law of Guyana Act in a case of specific performance. The court stated that
the rules of specific performance would be those obtained in England by virtue of
reception of the equitable principles under Civil Law of Guyana Act.

St. Lucia

Historically, the island changed hands 14 times, alternating between French and English
domination/ Hybrid system in St. Lucia described a “fascinating blend of Quebec,
French, English and Indigenous law”

Colonization resulted in the translation of the civil law tradition to other Caribbean
territories such as Trinidad and Tobago and Guyana, but it was only St. Lucia the
substantial features and the content of the civil law and the form of a civil code survived
British colonial domination. Unlike the civil law tradition in Guyana, the tradition of St.
Lucia and a reliance so outstanding that made the legal system truly unique. There are
several reasons for this:

- The codification of civil law. This conferred a certain enduring quality on the law,
as codified law is tough law.
 26

- The historical experience of the island- the island changed hands 14 times
between the British and the French, thus this resulted in a real desire to protect the
French hegemony. Consequently, there was the formation of a well established
civil law institution and legal rules, which formed a solid and entrenched base
from which the opposition to anglicization of the law could support.

- The work of the island Administrator, De Voeux and the Chief Justice, James
Armstrong, who were determined to introduce certainty into the civil law as it
existed in St. Lucia. They did so the codification based on the English version of
the Quebec Civil Code. This adoption of the Quebec code was a compromise that
allowed the civil tradition to survive, with the elements of certainty within the
law. Additionally, the fact that the code was in English, pleased the British
administrators, and it required judges to include considerations of civil law

The erosion of the civil law began even before the enactment of the St. Lucia civil code. The
requirements for the St. Lucian bars were anglicised and more significant was that the trading of
judges and lawyers was done in the common law tradition. The infusion of common law into the
civil tradition was done firstly by the definite trend towards the adoption of the common law by
legislative provisions and secondly, perhaps contributing to the conservation of the civil code to
a hybrid one, was the introduction of English law reception provisions.

In the case of Prospere v Remy [2007] UKPC 2 it was common ground between parties that if
there was doubt about the interpretation of the St. Lucia Civil Code, the Board should seek
guidance from authority on the Civil Codes of Quebec and France. We see that the civil law still
has influence on St. Lucia’s legal system.

However, alterations to the civil code of St. Lucia did not change its civilian arrangement. The
Anglicisation of the St. Lucian law was even more deliberate with the passing of the St Lucia
(Reform and Revision) Ordinance in 1954. This allowed for the Law Reform Commissioner
power to assimilate the Code to the law England in accordance with the then needs of the island
where they differed.

The future of the St Lucia legal system hinges between the renewed vigour of a uniquely hybrid
system and the complete adoption of the common law. The latter choice may even be inevitable,
since the process of anglicisation has been allowed to undermine the civil law tradition to such a
degree that it will be difficult to reverse the process.
 27

There are a few developments in the region that breathe life into the Hybrid legal systems of the
region;

a) The participation of two civil law countries (Haiti and Suriname) in CARICOM. This
development points to greater awareness and sensitivity to civil legal norms in the region

b) The appointment of a Judge (Justice Wit) from a Civil law country to the region’s highest
court of appeal, the CCJ. This will lead to an enthusiasm and understanding towards the
Civil law, by encouraging more practitioners to do research on aspects of the civil law
and thus assisting in the development of the Hybrid legal system.
 28

2. Give an exposition of the fundamental features, similarities and differences of two major
legal traditions of your choice analyzing why they merit classification into separate and
distinct classifications.
 29

Cases

● Henry v Henry (1959) 1 WIR 149 - the wife in an Islamic marriage married under Muslim
Marriage and Divorce Ordinance Chapter 29 brought a maintenance claim however the
court refused the claims. This was based on the grounds that only monogamous marriages
were entitled to remedies, thus Muslim marriages are somewhat excluded due to
polygamy.
● Maharaj v Maharaj TT 1958 HC 1 - the court had jurisdiction to pronounce a decree of
divorce in a registered Hindu marriage under the Hindu Marriage Ordinance Chapter 29.
It was found by the court that in England, Hindu marriages were polygamous and not
recognized by courts but in Trinidad and Tobago, Hindu marriages were monogamous
and the position was different. Effect of the Ordinance was to equate registered Hindu
marriages with those registered under the Marriage Ordinance which applied generally.
● Rafique v Rafique T&T 1966 CA 132 - show that the inequitable and intolerant position
relating to Muslim marriages were remedied by Muslim Marriage and Divorce Ordinance
1961. The court found that the new legislation put Muslim marriages on par with all other
marriages recognized by the law of the land, with regards to the status of the marriages
and remedies under the law. However, the new law does not recognize the polygamous
feature of Muslim marriages.
● Mohammed v Moraine and Another (1995) 49 WIR 371 - a Muslim schoolgirl in Trinidad
challenged the rules of a convent high school which prohibited her from wearing a hijab.
The court found that the school's decision was unreasonable taking irrelevant
considerations into account. The schoolgirl won on the grounds of judicial review. The
court was able to use their morals to reach a fair decision that accepts and recognises the
student’s culture whereas the law failed to do so.
● Mohammed v the Commissioner of Police 12 January 2005 (HC T&T) - the court upheld
provisions of Prisons Act 1838 allowing Islamic tradition that "the hair and beard of a
Mohammedan shall not be cut except on the written order of the Medical Officer..."
● Dick v R GY 1985 CA 3 - the court of appeal highlighted the court's tolerance to various
religious beliefs in Guyana by stating that three books were allowed in courts for the
swearing in of persons testifying on the stand.