Creating your own Will

Q: Can I make my own Will?



A: Yes, you can, but you must understand the laws regarding Wills and you MUST ensure that the Will meets the legal requirements in order for it to be valid. Therefore, I would recommend having someone with legal knowledge prepare your Will.
In Trinidad and Tobago, the laws regarding Wills are enshrined in the Wills and Probate Act - Chapter 9:03.


Capacity
The Testator (person writing the Will) must be 18 years old or over and of sound mind, memory and understanding.

Intention
There must be clear intention to dispose of the property. If a Testator is unduly influenced (coerced or pressured) or forced into making the Will, a Court may set it aside. Similarly, a Court may set aside all or part of a Will if the execution of a Will was obtained by fraud or if it was forged after the person’s death.

Signature and Attestation
In the majority of cases, a Will must be in writing for it to be valid, although there are certain exceptions to this general rule. It must also be signed by or on behalf of the Testator, and the signature must be made in the presence of 2 witnesses present at the same time.

Sample Attestation Clause:
We, the undersigned Testator and the undersigned witnesses, respectively, whose names are signed to the attached or foregoing instrument declare:
(1) that the Testator executed the instrument as the Testator's Will;
(2) that, in the presence of both witnesses, the Testator signed or directed another to sign for the Testator in the Testator's presence;
(3) that the Testator executed the Will as a free and voluntary act for the purposes expressed in it;
(4) that each of the witnesses, in the presence of the Testator and of each other, signed the Will as a witness;
(5) that the Testator was of sound mind when the Will was executed;
(6) that to the best knowledge of each of the witnesses the Testator was, at the time the Will was executed, at least eighteen (18) years of age.

Alterations
Any alterations made to a Will after it has been executed, will not be valid unless the alterations have been duly executed (meets all necessary requirements listed above).


Q: What happens after death?

A: Probate is a process by which a Will of a deceased person is proved to be valid. Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid Will. A probate court decides the validity of a Testator's Will.

A Probate interprets the instructions of the deceased, decides the executor as the personal representative of the estate, and adjudicates the interests of heirs and other parties who may have claims against the estate.

Workmen's Compensation: Injury at work

After reading this story on pg.35 of the Trinidad Express this morning, I am appalled by the treatment this woman is receiving despite clear legislation on the issue.

The Workmen's Compensation Act 1960 (as amended) is an Act to provide for the payment of compensation to workmen for injuries suffered during the course of employment.

Who is a "workman"?:
1. A person who has entered into or works under a contract of service or apprenticeship with an employer
2. Performs manual labour or otherwise
3. Contract is expressed or implied, oral or in writing
4. whether the remuneration is calculated by time or by work done
5. whether by the day, week, month or with reference to any other period whatever
6. includes a person engaged in fishing on board any fishing vessel

Exceptions are:
1. Members of the Protective Services (Coast Guards aren't specified, but I'm sure they would still fall into the category)
2. Family Members living in the same house
3. Non-manual workers who earn more than $5000 (five thousand TT dollars) a year. This goes to show how antiquated this legislation is, because minimum wage workers make TT$2000 a month.

2(5) - Any injury mentioned under the Second Schedule of the Act is seen as a permanent injury.

4(a) - Must be disabled for at least 3 days

4(2) - Regardless of fault by the employee, any death or serious and permanent dismemberment is the employer's responsibility.

Section 5 deals with what and how you should be paid.

Part X of the Act has copies of the specific forms to be used when corresponding with your employer on a claim for compensation.


Know your Rights!

Holiday Entitlement at work

Q: What are my holiday entitlements at work?

Me in Paris 2010, thanks to my GUARANTEED UK holiday entitlements.


A: This is an area of employment law that MUST be addressed by the government of Trinidad and Tobago. Currently, there is no legislation or policies regarding holidays, UNLESS you're a State employee. How can we as a country, leave holiday entitlements up to the private companies to overwork employees? The government MUST ensure that employers fulfill their duty of care towards employees.

Yes, we have numerous public holidays, but if an employee wants to take a vacation and is denied the time, that employee has no rights or recourse. How could that be fair? Why hasn't this yet been addressed? My suggestion is that we follow the format used in the UK where there is a minimum right to paid holiday, but the employer may offer more than this. The main aspects of holiday rights in the UK include:

•you are entitled to a minimum of 5.6 weeks paid annual leave - 28 days for someone working five days a week (capped at a statutory maximum of 28 days for all working patterns)

•part-time workers are entitled to the same level of holiday pro-rata (so 5.6 times your usual working week, e.g. 22.4 days for someone working four days a week)

•you start building up holiday as soon as you start work

•your employer can control when you take your holiday

•you get paid your normal pay for your holiday

•when you finish a job, you get paid for any holiday you have not taken

•bank and public holidays can be included in your minimum entitlement

•you continue to be entitled to your holiday leave throughout your ordinary and additional maternity leave and paternity and adoption leave

Getting bail in Trinidad and Tobago

Q: What are the laws concerning bail?



A: Human rights jurisprudence is interdisciplinary and its advocacy is a universal phenomenon. Human rights encompass civil and political rights as well as economic, social and cultural rights. One right recognized in human rights jurisprudence as pivotal in the promotion of a criminal justice system that satisfies international human rights standards is fair trial, which includes the right to bail. The institution of bail traces its origins to international conventions that protect and guarantee the fundamental rights of the individual to liberty, the presumption of innocence and the due process of the law.

In Trinidad and Tobago, the relevant legislation concerning bail is the Bail Act 1994, Chapter 4:60, which instructs:

5. (1) Subject to subsection (2), a Court may grant bail to any person charged with any offence other than an offence listed in Part I of the First Schedule.
(2) A Court shall not grant bail to a person who is charged with an offence listed in Part II of the First Schedule and has been convicted on three occasions arising out of separate transactions—
(a) of any offence; or
(b) of any combination of offences, listed in that Part, unless on application to a Judge he can show sufficient cause why his remand in custody is not justified.
(3) In calculating the three prior convictions referred to in subsection (2), only those convictions recorded within the last ten years shall be taken into account.

First Schedule
Exceptions to Person Entitled to Bail
Part I
Circumstances in which Persons are not entitled to Bail

Where a person is charged with any of the following offences:
(a) murder;
(b) treason;
(c) piracy or hijacking;
(d) any offence for which death is the penalty fixed by law.

Part II
Circumstances in which Persons MAY BE entitled to Bail

(a) trafficking in narcotics or possession of narcotics for the purpose of trafficking;
(b) possessing and use of firearms or ammunition with intent to injure;
(c) possession of imitation firearms in pursuance of any criminal offence;
(d) rape;
(e) sexual intercourse with a female under fourteen;
(f) buggery;
(g) shooting or wounding with intent to do grievous bodily harm;
(h) robbery, robbery with aggravation, armed robbery;
(i) larceny of a motor vehicle;
(j) burglary and housebreaking;
(k) perverting or defeating the course of public justice;
(l) arson;
(m) an attempt to commit any offence listed in this Part or in Part I;
(n) receiving stolen goods.

Re: Section 5(2)- How many times have we read the news where a criminal is granted bail and then below we see an extensive criminal history. Are our Magistrates aware of our three-strike rule? I won't be surprised if they don't because this is a third world country where all kinds of nonsense is allowed to flourish.

We also need reform in making bailable offences directly related to the non-bailable offence of murder, non-bailable. i.e., possession of a firearm, shooting or wounding with intent to do grievous bodily harm and robbery! Reform is necessary!!!!!

State of Emergency: Citizen Rights

Q: With all the incidents of Military and Police abuse of powers during the SoE, what are our rights as citizens?


A: I recently heard a story from my friend and his wife who were held at Chaguanas Police Station (the most corrupt police station in Trinidad and Tobago) for being outside after the curfew. The car shut down close to curfew time, but as responsible adults, instead of waiting to be arrested, they locked their car and walked to the station to procure a permit, but they were greeted with hostility as the Officers saw an opportunity to flex their muscles.

While there, they observed the officers getting ready to go out on patrol around 10:45pm and they were very excited at the prospect of being able to assault, arrest, or possibly take bribes from members of the public who were unfortunate enough to still be outside. The Officers were making comments like, "Licks go pass tonight"and "I sure we locking up plenty man tonight". The same officers who have sworn to protect and serve the citizens of Trinidad and Tobago with pride.

Anyway, I have disgressed and I apologise. To answer your question, I found some very useful information on the Trinidad and Tobago Defence Force's website:

What is the extent of the powers of the Military in a State of Emergency?
The President acting in accordance with Section 7 of the Constitution has issued the Emergency Powers Regulations 2011. The main legal authority for members of the Trinidad and Tobago Defence Force is contained in Regulation 22 (1) which states that the Commissioner of Police may request assistance from the Chief of Defence Staff during this SoE and where such a request for assistance has been exercised under Reg. 22 (1) all members of the Force acting under the directions of the Chief of Defence Staff ‘shall have the powers of a police officer’ for the duration of the SoE by virtue of Reg. 22(2). The powers of members of the Trinidad and Tobago Defence Force under these Regulations include:

Reg. 10 -power to stop and search for firearms.

Reg. 15- -power to enter and search any premises; power to stop and search any vessel (Coast Guard), vehicle and person.

Reg. 16-power to arrest and detain person(s): TTDF member must have reason to suspect a person(s) is acting or is about to act in a manner prejudicial to public safety and security; use of force must be reasonably and necessary and their shall be no detention of person(s) in excess of 24hrs (extension allowed up to seven (7) days under authority of a Magistrate or Assistant Superintendent).

Reg. 18- any female persons subject to a search must be search by another female TTDF
member.

Reg. 21 - imposes an obligation on drivers of any motor vehicle to stop when instructed to do so by a TTDF member.

Which rights of citizens are normally affected during a state of emergency?
All derogable rights and freedoms enshrined under Sections 4 and 5 of the Trinidad and Tobago Constitution such as the freedom of movement and freedom of association and assembly under S. 4(g) and (j) are curtailed and /or suspended in a material respect.

What mechanisms are in place to treat with any allegations of misconduct or breaches of the powers that the members of the Defence Force now possess?

The Trinidad and Tobago Defence Force has a two (2) tier system of military justice which is provided for under the Defence Act Chapter 14:01 Laws of the Republic of Trinidad and Tobago.

Tier 1 provides Summary mechanisms deals with less serious of minor breaches of service discipline which is normally adjudicated over by an Officer in Command (OC) or a Commanding Officer (CO) both of whom exercise jurisdiction similar to that of a Magistrate in the Magistrates’ Courts. The main aim of the disciplinary process in Tier 1 is to expeditious treat with the offender and returns him/her to his respective Unit in order to not disrupt the Operational Effectiveness of that Unit.

Tier 2 provides for trial by Court-Martial which resembles the High Court Criminal Court. Access to this Tier is based on an election by the alleged offender or based on a recommendation by the Commanding Officer based on the serious nature of the offence. At Tier 2 the offender is entitled to have a Defending Officer as well as his own civilian Legal Counsel at the trial which is adjudicated over by a civilian Judge Advocate and the members will normally comprise Commissioned Officers. The punishment imposed is quite severe and can result in discharge and/or imprisonment.
The Military Justice System at Tier 2 allows for the exercise jurisdiction over any person subject to military law who commits a civil offence under Section 78 of the Defence Act Chapter 14:01.


Now that you know your rights, ensure that you aren't taken advantage of by rogue Officers in our protectvive services. The other issue is getting any accusations to stick because it will be a citizen's word against theirs.

Important case:
The case of Lawless v. Ireland (1957-61) was the first international court decision, interpreting and applying international human rights law, and the first dispute between an individual and a State to be tried by an international tribunal.

Human Trafficking in Trinidad and Tobago

After watching the video for my favourite song for Carnival 2K12, Shurwayne Winchester's "Wine", I am disappointed that he saw the need to use the serious issue of trafficking in his video intro, albeit in jest. And on top of that, the Trinidad and Tobago flag seen at 0:42 is UPSIDE DOWN! Seriously, Shurwayne?

Anyway, because there are ZERO laws on human trafficking in a country that is seen as a transit point from South America, I am going to copy the latest report by the United Nations High Commissioner for Refugees' (UNCHR):

2011 Trafficking in Persons Report - Trinidad and Tobago

Trinidad and Tobago (Tier 2)

Trinidad and Tobago is a destination, source, and transit country for adults and children subjected to sex trafficking and adults subjected to forced labor. Some women and girls from South America and the Dominican Republic are subjected to sex trafficking in Trinbagonian brothels and clubs. Trinbagonian teenagers enticed into providing sex acts for shelter or material goods by local men are a high risk group for sex trafficking. Economic migrants from the region and from Asia may be vulnerable to forced labor. Some companies operating in Trinidad and Tobago reportedly hold the passports of foreign employees, a common indicator of human trafficking, until departure. Trafficking victims from Trinidad and Tobago have in the past been identified in the United Kingdom and the United States. As a hub for regional travel, Trinidad and Tobago also is a potential transit point for trafficking victims traveling to Caribbean and South American destinations.

The Government of Trinidad and Tobago does not fully comply with the minimum standards for the elimination of trafficking; however, it is making significant efforts to do so. The government demonstrated some progress during the reporting period, most notably by formalizing and implementing victim identification procedures, training numerous officials, and identifying more potential victims. Legislation that would criminalize all forms of human trafficking and provide extensive protections to trafficking victims was introduced to parliament in April 2011. The absence of such legislation and related policies or laws on victim protection, however, limited the government's ability to prosecute trafficking offenders and provide comprehensive assistance for trafficking victims during the reporting period.


Recommendations for Trinidad and Tobago:
Enact draft legislation that prohibits all forms of human trafficking and includes victim protection measures; encourage victims' assistance in the investigation and prosecution of trafficking offenses, including by offering legal alternatives to foreign victims' removal to countries in which they would face retribution or hardship and by ensuring that identified victims are not inappropriately incarcerated, fined, or otherwise penalized solely for unlawful acts committed as a direct result of being trafficked; vigorously investigate and prosecute trafficking offenses, and convict and sentence trafficking offenders; implement a national public awareness campaign in multiple languages that addresses all forms of trafficking, including forced domestic service and other forms of forced labor.

Prosecution

The government made limited progress in its prosecution and punishment of sex and labor trafficking offenders during the reporting period. The lack of comprehensive legislation that would make human trafficking a crime and would ensure protection of trafficking victims was a significant limitation in the government's ability to prosecute trafficking offenders and address human trafficking in Trinidad and Tobago. Nevertheless, the government's anti-trafficking task force, which was established in November 2009, drafted comprehensive legislation during the year that reportedly criminalizes all forms of trafficking and provides for victim protection; the legislation progressed to final stages of executive branch review before introduction to Parliament. Debate on the legislation began on April 8, 2011. The government claimed to have investigated trafficking offences during the reporting period, but did not provide the number of investigations, nor did it provide data on any prosecutions, convictions, or sentences of trafficking offenders or any officials guilty of trafficking complicity under any statute. In partnership with IOM, the government co-funded a series of trainings for over 100 government officials, including police, immigration authorities, school guidance counselors, and labor inspectors, in responding to human trafficking.

Protection

The government made progress in victim protection during the reporting period. It reportedly identified at least two potential sex trafficking victims during the reporting period; this is an improvement over the lack of any victims identified during the previous year. An NGO reportedly identified at least five additional sex trafficking victims during the reporting period. The government's trafficking task force developed a formal system to identify trafficking victims, which officials used on an ad hoc basis between June and October 2010 and then consistently since October. It is now part of the standard operating procedure for all brothel raids. The Ministry of Labor reported it has hired translators to assist during labor inspections at job sites where there are Chinese laborers to better screen for unfair labor practices and human trafficking. During the reporting period, the government provided shelter and protection for at least one victim. The government offered human trafficking victims some social services directly and through NGOs that received government funding, but there was no specific budget dedicated toward trafficking victim protection.

Trinbagonian authorities encouraged crime victims in general to assist with the investigation and prosecution of offenders, though without legislation prohibiting human trafficking or providing formal protections for trafficking victims, few incentives existed for trafficking victims to assist in practice. During the reporting period, at least five victims reportedly were detained for immigration violations and deported.

Prevention

The government made some progress in the prevention of human trafficking during the reporting period. On occasion throughout 2010, both the newly elected prime minister and the new minister of national security spoke out publicly to raise awareness about human trafficking. An NGO that received government funding launched a human trafficking awareness day in March 2011 that involved a national teaching campaign for NGOs, government officials, and the general public, and explicitly addressed the demand for commercial sex acts. The government anti-trafficking task force included four NGO members, met monthly throughout the reporting period, and made final recommendations to the cabinet in October 2010 regarding legislative reform, government training, and public awareness. The government has no formal system for monitoring its anti-trafficking efforts. The government has dedicated a number for a future trafficking hotline, but the number is not yet functional. NGOs that operate existing hotlines with government funding for child abuse and domestic violence have participated in trafficking awareness training. Authorities did not consider child sex tourism to be a problem in Trinidad and Tobago during the reporting period and reported no cases of it identified, investigated, or prosecuted.


Can you believe that we are this backward? This report is VERY shocking. I honestly believed that we were at a more advanced stage than this. Despite this, Trinidad and Tobago has not made ANY effort to rectify the deficiencies.

State of Emergency: Trinidad and Tobago

Q: What are the laws regarding the SoE in Trinbago?



A: Our Prime Minister, Mrs. Kamla Persad-Bissessar announced a State of Emergency in Trinidad and Tobago on 21 August 2011 at 8PM. The laws relating to the SoE are enshrined in The Constitution of the Republic of Trinidad and Tobago. However, my personal view is that this SoE did not meet the requirements set out in Section 8(2) for it to be declared.


PART III
Exceptions for Emergencies

7. (1) Without prejudice to the power of Parliament to make provision in the premise. but subject to this section, where any period of public emergency exists, the President may, due regard being had to the circumstances of any situation likely to arise or exist during such period, make regulations for the purpose of dealing with that situation and issue orders and instructions for the purpose of the exercise of any powers conferred on him or any other person by any Act referred to in subsection (3) or instrument made under this section or any such Act.
(2) Without prejudice to the generality of subsection (1), regulations made under that subsection may, subject to section 11, make provision for the detention of persons.
(3) An Act that is passed during a period of public emergency and is expressly declared to have effect only during that period or any regulations made under subsection (1) shall have effect even though inconsistent with sections 4 and 5 except in so far as its provisions may be shown not to be reasonably justifiable for the purpose of dealing with the situation that exists during that period.

Period of public emergency.

8. (1) Subject to this section, for the purposes of this Chapter, the President may from time to time make a Proclamation declaring that a state of public emergency exists.
(2) A Proclamation made by the President under subsection (1) shall not be effective unless it contains a declaration that the President is satisfied-
(a) that a public emergency has arisen as a result of the imminence of a state of war between Trinidad and Tobago and a foreign State;
(b) that a public emergency has arisen as a result of the occurrence of any earthquake, hurricane, flood, fire, outbreak of pestilence or of infectious disease, or other calamity whether similar to the foregoing or not; or
(c) that action has been taken, or is immediately threatened. by any person, of such a nature and on so extensive a scale, as to be likely to endanger the public safety or to deprive the community or any substantial portion of the community of supplies or services essential to life.

Grounds for, And initial duration of Proclamation.

9. (1) Within three days of the making of the Proclamation, the President shall deliver to the Speaker for presentation to the House of Representatives a statement setting out the specific grounds on which the decision to declare the existence of a state of public emergency was based, and a date shall be fixed for a debate on this statement as soon as practicable but in any event not later than fifteen days from the date of the Proclamation.
(2) A Proclamation made by the President for the purposes of and in accordance with section 8 shall, unless previously revoked, remain in force for fifteen days.

Extension of Proclamation

10. (1) Before its expiration the Proclamation may be extended from time to time by resolution supported by a simple majority vote of the House of Representatives, so however that no extension exceeds three months and the extensions do not in the aggregate exceed six months. (2) The Proclamation may be further extended from time to time for not more than three months at any one time, by a resolution passed by both Houses of Parliament and supported by the votes of not less than three-fifths of all the members of each House.
(3) The Proclamation may be revoked at any time by a resolution supported by a simple majority vote of the House of Representatives.
(4) In this Chapter, "period of public emergency" means any period during which-
(a) Trinidad and Tobago is engaged in any war; or
(b) there is in force a Proclamation by the President declaring that a state of public emergency exists; or
(c) there is in force a resolution of both Houses of Parliament supported by the votes of not less than two thirds of all the members of each House declaring that democratic institutions in Trinidad and Tobago are threatened by subversion.

Detention of Persons.

11. (1) Where any person who is lawfully detained by virtue only of such an Act or regulations as is referred to in section 7 so requests at any time during the period of that detention and thereafter not earlier than six months after he last made such a request during that period, his case shall be reviewed by an independent and impartial tribunal established by law and presided over by a person appointed by the Chief Justice from among the persons entitled to practise in Trinidad and Tobago as barristers or solicitors.
(2) On any review by a tribunal in pursuance of subsection (1) of the case of any detained person, the tribunal may make recommendations concerning the necessity or expediency of continuing his detention to the authority by whom it was ordered but, unless otherwise provided by law, that authority shall not be obliged to act in accordance with such recommendations.

T&T Freedom of Information

Q: I am doing some research and I have been having difficulty getting the information and co-operation from government Ministries, what can I do?



A: With all the corruption that goes on in Trinidad & Tobago, I am not surprised by your difficulty, but thankfully, we have rights!
The Freedom of Information Act - Chapter 22:02 is "An Act to give members of the public a general right (with exceptions) of access to official documents of public authorities and for matters related thereto.

Section 3, states:
3. (1) The object of this Act is to extend the right of
members of the public to access to information in the possession
of public authorities by—

(a) making available to the public information about the operations of public authorities and, in particular, ensuring that the authorisations,policies, rules and practices affecting members of the public in their dealings with public authorities are readily available to persons affected by those authorisations, policies, rules
and practices; and

(b) creating a general right of access to information in documentary form in the possession of public authorities limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs
of persons in respect of whom information is collected and held by public authorities.

Section 13 gives guidelines on how to go about requesting the information by using the form, which is located after section 42 of the Act.

Remember, there are certain types of information that cannot be released due to security reasons (Part IV of the Act), but otherwise, the information you need for your research should be easy to procure.

Grounds for Divorce - Trinidad and Tobago

Q: I made a mistake and got married too young and have regretted it ever since so my question .....would I be able to get a divorce? (Question rephrased to exclude personal information).

A: See this post.

Trinidad and Tobago Muslim Marriage Act, Chap. 45:02

Q:I'm trying to get a copy of the Muslim Marriage Act, Chap. 45:02
Can you post it please?

A:
Here you go!
Muslim Marriage Act, Chap. 45:02.

Trinidad and Tobago Bigmay Law

Q: Hi, in Trinidad and Tobago what is the law for getting married to someone else while still married?




A: What you described is called "bigamy". According s.55(1) of the Offences Against The Person Act Chapter 1925, as amended: "Any person who being married, marries any other person during the lifetime of the former husband or wife, whether the second marriage has taken place in Trinidad and Tobago or elsewhere, is liable to imprisonment for four years."

Section 55(2) of the Act also states that: "Nothing contained in this section shall extend to any person marrying a second time whose husband or wife has been continually absent from such person for the space of seven years and has not been known by such person to be living within that time or shall extend to any person who, at the time of the second marriage or to any person whose former marriage has been declared void by the sentence of any court of competent jurisdiction."

Trinidad and Tobago Firearm Law

Q: Why do criminals arrested for the possession of illegal firearms and ammunition always end up back on the streets?




A: I really cannot answer this question, but I will state the law as it relates to this.

In Trinidad and Tobago, we are more vulnerable than other Caribbean countries to the trading of drugs and guns because of our proximity to South America. In light of this, it would be common sense for our laws to reflect punishment severe enough to deter criminals, but while the laws are there, the enforcement isn't. And when our own Police Officers are corrupt, there won't be much progress.

The first Firearms Act was introduced in 1970, but has had numerous amendments since then, with the latest amendment being assented on February 8, 2011.

According to Section 6(1) of the Firearms Act (as amended), in order to be in possession of a firearm, a person must hold a Firearm User's License, unless acting in the capacity of exceptions under 6(2) and 7(1), which includes, Police Officers, etc.

6(3)(a)(i) has been amended to state that the summary conviction for contravention of 6(1) will result in a TT$15,000 fine and 8 years imprisonment, which should be increased to 15 years upon indictment. Also see Section 6(4).

Then there is the issue of bail under the Bail Act (as amended). In this Act, crimes are separated into categories according to severity of the offence; Part I and Part II of the First Schedule. Part I offences are non-bailable, while Part II offences (which includes the offence of possession of firearms and ammunition) are bailable only for the first 3 offences within the last 15 years, according to Section 5(2).


That's the law, so why isn't it being upheld and enforced?

Divorce court hearing

Q: If you file a petition for a divorce, is it necessary to have a hearing in court? or if both parties agree via lawyers can the matter stay out of court?

A: You will usually only need to attend a hearing dealing with the divorce if the proceedings are contested. You may have to attend court if you or your spouse are unable to agree arrangements for your children or for financial provision. If you both consent to all the terms, then there is no need to go to court.

The Dangerous Dogs Act 2000

Q: Why do we have an 11 year old Act of Parliament that cannot be used?

A: Over the past few years we've seen a spate of dog attacks in Trinidad and Tobago. One woman was killed, another woman almost had a breast bitten off, a three year old was saved at the last minute, a 13-year old was bitten and this man narrowly escaped with his life after being attacked.

These five incidents are a small percentage of the cases where our citizens have been attacked, they all concern pitbulls and the owners have not been held accountable.

What is even more surprising is that we have legislation to govern this lawlessness. After the UK's Dogs Act 1871, we implemented our own Dogs Act 1918 (as amended). Since then, following the UK's Dangerous Dogs Act 1991 we again brought in our Dangerous Dogs Act 2000, which was passed during the UNC's term in office and had the full support of the PNM. However, this Act has not been "implemented". Also, there is this funny term called "proclaim", that Jumbie has been asking me about for a while, but even I have no clue. Why does an Act need to be "proclaimed"?

Usually, Acts may be implemented immediately, on a specific starting date, or in stages. The practical implementation of an Act is the responsibility of the appropriate government department, not Parliament.

However, not to disappoint the Third-World country critics, we don't have a government department to deal with the implementation of this Act.

Anyway, since our DDA has not been implemented, let's stick to the one that is. Section 15 of the DA had a more sensible definition of what a dangerous dog is, which is any dog that the judge thinks is a hazard to society. Unfortunately, we took a backward step in our DDA declaring that only 3 types of dogs could be considered "dangerous". I have seen very dangerous "pot hounds" before, which is not one of the three. Do breeds determine danger? Doesn't it depend on how the owner trains the dog?
This is the first reason why many owners who have dogs that attack people would not be able to be punished under the DDA. Section 12 and 13 of the DA also made it clear that these crimes should be punished by a fine and that the dogs should be "destroyed".
We have one stagnant Act (DDA) and one that is active (DA), but still not using it.

Why do we let these dogs continue to wreak havoc on our citizens while the government sits idly by playing politics? I think the DA should be amended and the DDA repealed because the restrictions on dangerous dog breeds are asinine.

Someone needs to do something. How many more must die or get injured before the government acts? These Acts should be a deterrent to this kind of behaviour by uncaring citizens who let 7 dangerous pitbulls attack a woman. Are we living in a civilised society with laws, or have we been transported back to pre-historic times?

Marriage of Convenience/Sham Marriage

Q: I married a Jamaican woman two months ago and it was a marriage of convenience. I would like to get a divorce. Would she be entitled to any of my estate or alimony? How do I proceed with this?



A: The doctrine of "clean hands" is a rule of law that requires a person coming to court with a lawsuit or petition for a court order to be free from unfair conduct (have "clean hands" or not have done anything wrong) in regard to the subject matter of his/her claim. Going to court claiming that it was a marriage of convenience with your tacit knowledge of the fact (as opposed to force), is a first-class ticket to jail.

Some Trinbagonians get caught in NY, while some get caught in the UK.

Unfortunately for you, she's your wife regardless of the circumstances and if you get a divorce, she will be entitled to her share of your estate and alimony.

T&T Employment Discrimination (Part 2)

According to Part III of the Trinidad and Tobago Equal Opportunity Act 2000, Sections 8-10 outline the instances where discrimination can occur, with sections 11-14 highlighting the execptions to discrimination.


Discrimination against applicants
8. An employer or a prospective employer shall not discriminate against a person—

(a) in the arrangements he makes for the purpose of determining who should be offered employment;

(b) in the terms or conditions on which employment is offered; or

(c) by refusing or deliberately omitting to offer employment.

Discrimination against employees
9. An employer shall not discriminate against a person employed by him—

(a) in the terms or conditions of employment that the employer affords the person;

(b) in the way the employer affords the person access to opportunities for promotion, transfer or training or to any other benefit, facility or service associated with employment, or by refusing or deliberately omitting to afford the person access to them; or

(c) by dismissing the person or subjecting the person to any other detriment.

Vocational training
10. A person shall not discriminate against another person where that other person is seeking or undergoing training for any employment—

(a) in the terms or conditions on which that other person is afforded access to any training course or other facilities concerned with such training; or

(b) by terminating that other person’s training or subjecting that other person to any detriment during the course of training.

Exception: Genuine occupational qualification
11. (1) Sections 8 to 9 shall not apply in respect of discrimination on the grounds of sex in a case where being of a particular sex is a genuine occupational qualification for employment, promotion, transfer or training.

11. (2) Without limiting the generality of subsection (1), being of a particular sex is a genuine occupational qualification if—

(a) the duties relating to the employment can be performed only by a person having physical attributes (excluding physical strength or stamina) which only a person of a particular sex possesses;

(b) the duties relating to the employment or training involve participation in a dramatic performance or other entertainment in a capacity for which a person of a particular sex is required for reasons of authenticity;

(c) the duties relating to the employment or training involve participation as an artist’s photographic or exhibition model in the production of a work of art, visual image or sequence of visual images for which a person of a particular sex is required for reasons of authenticity;

(d) the duties relating to the employment or training need to be performed by a person of a particular sex to preserve decency or privacy;

(e) the nature of the establishment, or the part of it within which the work is done, requires the employment to be held by a person of a particular sex; or

(f) the person employed or being trained provides or is to provide persons of a particular sex with personal services concerning their welfare, education or health or similar personal services, and those services can most effectively be provided by a person of that particular sex.

11. (3) Sections 8 to 10 shall not apply in a case where—

(a) the duties relating to the employment or training involve participation in a dramatic performance or other entertainment in a capacity for which a person of a particular race is required for reasons of authenticity;

(b) the duties relating to the employment or training involve participation as an artist’s photographic or exhibition model in the production of a work or art, visual image or sequence of visual images for which a person of a particular race is required for reasons of authenticity.

Exception: Religious shop
12. Sections 8 to 10 shall not apply in respect of discrimination on the ground of religion in a case where being of a particular religion is a necessary qualification for employment in a religious shop.

Exception: Domestic services and family business
13. (1) Sections 8 to 10 shall not apply to the employment of not more than three persons in domestic or personal services in or in relation to the home of the employer.

13. (2) Notwithstanding sections 8 to 10, a family business may employ relatives in favour of non-relatives.

Exception: Inherent requirements, unjustifiable hardship, risk
14. Sections 8 to 10 shall not apply to the employment of a person with a disability if—

(a) taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of disability—

(i) would be unable to carry out the inherent requirements of the particular employment; or

(ii) would, in order to carry out those requirements, require services or facilities that are not required by persons without a disability and the provision of which would impose an unjustifiable hardship on the employer;

(b) because of the nature of the disability and the environment in which the person works or is to work or the nature of the work performed or to be performed, there is or likely to be—

(i) a risk that the person will injure others, and it is not reasonable in all the circumstances to take that risk; or

(ii) a substantial risk that the person will injure himself.

T&T Employment Discrimination (Part 1)

Despite living in London, I have decided to do my Employment Law Masters dissertation on Employment Discrimination in Trinidad and Tobago because the majority of people in T&T have no clue about their rights in regards to employment practices. The aim is to educate citizens and encourage the government to enforce policies to allow our heterogeneous society to be reflected in both the public and private sectors.

Coincidentally, while researching and doing my proposal, Nizam Mohammed, the recently fired Police Service Chairman made a comment that there are too many Africans in the Police Service. Without getting into politics and detail, the comment lacked a historical perspective, but at the same time is true. This same imbalance in the TTPS can be seen in reverse in the medical field and on copious state boards. To me, the stark irony of Nizam's comment was that he, as the Chairman of the Police Service, was NOT of African descent.

Due to the amount of information to impart, I will have to spread this over the next few weeks, today starting with the characteristics that can precipitate discrimination. It is illegal to discriminate based on the following characteristics:

(a) the sex - does not include sexual preference or orientation

(b) race - a group of persons of common ethnic origin, colour or of mixed race

(c) ethnicity;

(d) origin, including geographical origin;

(e) religion;

(f) marital status; or

(g) Disability - includes:

• total or partial loss of a bodily function;

• total or partial loss of a part of the body;

• malfunction of a part of the body including a mental or psychological disease or disorder; or

• malformation or disfigurement of part of the body

Obscene Language/Profanity Laws

Q: What law says that it is illegal to curse in Trinidad & Tobago?

A: According to Section 49 of the Summary Offences Act Chapter 11:02;

Any person making use of any insulting, annoying or violent language with intent to, or which might tend to provoke any other person to commit a breach of the peace... or to the annoyance of any resident or person in [public]... is liable to a fine of TT$200 or imprisonment for 30 days.


This is a breach of one's freedom of expression in blatant contravention of Section 4(i) of Trinidad and Tobago's constitution. The only limit on obscene language should be when it incites, or has the potential to incite violence.


This is a very oppressive law.

Tenant Eviction

Q: I have a tenant who refuses to pay the rent on the grounds that the yard was not maintained, but the lease agreement states that she has to maintain the yard. Can I breach the contract and give her notice of eviction?

A: The inclusion of yard maintenance in the lease agreement is a positive covenant and it can be enforced by the Landlord/lady. If she refuses to do that, it is a breach of the lease agreement and only compounds the other breach of not paying rent.

Giving notice isn't breaching the contract, so don't worry. Give her notice of 45 days to vacate and do not try to physically remove her yourself, or else you won't get any of that unpaid rent if it goes to court.

Adverse Possession

Q:
What is Adverse Possession?



A:
Land owners must exercise control over their land because if they don't, another person (stranger/squatter) in occupation of that land may eventually be able to apply to the court for an order that he or she is in adverse possession of it.

Precedent on this matter comes from UK case law, but significant local case law on this topic is Salamat v Rajack & Others HCA NO.S1103 of 1994. Other cases include, Lucas v Jordan CV 2006 - 03612 and most recently, Harriram, Robert v Gopaul, Brandon; Gopaul, Simone H.C.S.1785/2002.


The law of adverse possession is grounded in the Real Property Limitation Ordinance Ch.5 No.7 sections 3 and 4 , which sets out the requirements to succeed in a claim for adverse possession:
(1) factual possession of the land for 16 years or more and
(2) the animus possessendi, that is, the intention to exclude the world.”
(Per Deyalsingh J. in Lyder v De Freitas H.C.A. 1310 of 2001 at pages 20 and 21 and see Poyer v Freitas Cv 2005 – 00632 at pages 17-79).

“Factual possession signifies an appropriate degree of physical control. The stranger must take control of the land and must make use of the land in full and open to the public and without interference from anyone. Examples of some acts that may show adverse possession are building on the land, fencing the land, living on the land, planting on the land and rearing livestock on the land. The more things done on the land, the more convincing the case for adverse possession. See Lord Browne-Wilkson in Pye v Graham [2002] 3 WLR 221 [P.C.] at page 234.

As for the animus possessendi “what is required is not an intention to own or even an intention to acquire ownership but an intention to possess“(see Pye op cit pg 235 AB) <--- VERY IMPORTANT!



Who is considered to be a stranger?

A stranger is someone who comes on or remains on the land without any permission and whose occupation has not been interfered with.


Exceptions:


(1) If a person occupies land by reason of some permission from the true owner then he or she cannot claim to be in adverse possession.

(2) If a person occupies land as part of some family arrangement, he or she cannot claim to be in adverse possession of that land.

(3) If a person occupies land under a tenancy agreement and has been paying rent all along, he or she cannot claim to be in adverse possession of the land.

If, however, a person occupied land as part of a tenancy agreement and has stopped paying rent, then that person’s adverse possession starts when the rent was stopped being paid.

Blogging Hiatus

I know that I have an inbox filled with unanswered questions, but I was swamped with work and my Masters degree assignments due last month.

I promise to answer ALL questions from Tuesday 15th, 2011.

Thanks for your patience and I apologize for any inconvenience, as I saw that some questions were urgent!