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Thursday, 26 December 2013

T&T traffic laws: Speeding

After reading the Trinidad Express’ article which tells of the ASP’s ‘warning’ that there will be “Zero tolerance for speeding & drunk driving during the holidays”, I was a little confused as to exactly how the law regarding speeding is going to be enforced in Trinidad & Tobago. 
Firstly, considering that speed guns won’t be here until February 2014, I see this is vacuous rhetoric.

Secondly, however, we all know that speed-guns aren’t the only way to determine whether or not a car is speeding; sometimes we can just tell, right?

In Ohio, USA, in a 5-1 judgement, the case of Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420 determined that a police officer’s "unaided visual estimation of a vehicle's speed is strong enough to support a ticket and conviction”, but this ONLY applies if the officer has been trained and certified by the Ohio Peace Officer Training Academy or similar organization.

We have no such organisation in Trinidad & Tobago or even in the wider Caribbean, or as a matter of fact, nothing even internationally that our TTPS officers are subjected to.

Yet, from my understanding, the ASP is suggesting that a police officer parked at the side of the highway can issue a speeding ticket that will hold up in court? Are we saying that a police officer --who has NEVER been trained in speed estimation--, cannot be wrong? And this is before I raise the issue of the intelligence and education of our officers...

Now, thirdly, we have pacing, which is when the police officer following or "pacing" a suspected speeder uses his/her own speedometer to clock the suspect's speed. This technique has many rules to be followed in the countries that use them and also comes with numerous problems, bringing into question its reliability.

I am in no way condoning speeding, but using arbitrary regulations to “police” speeding will only create problems.

I for one know that if, upon my return to T&T next week, I am given one of these ridiculous tickets, I will definitely test our legal system.


Friday, 13 December 2013

Land Law: Proprietary & Promisory Estoppel

Q: My father allowed a lady and her five children to live on his land and chattel house. It has been about 8 years and he has decided he wanted to make improvements. The "lady" has never paid rent. He asked the "lady" to leave and she took him to court claiming she made renovations to the home. The case was heard in court and she was awarded the house and my father remains the landowner. How is this possible??

The text I used in Law school

A: He lost because of the doctrine of Proprietary Estoppel

Proprietary estoppel arises where:-
(a) the owner of land (O) induces, encourages or allows the Claimant (C) to believe that he has or will enjoy some right or benefit over O’s property
(b) in reliance upon this belief, C acts to his detriment** to the knowledge of O and
(c) O then seeks to take unconscionable advantage of C by denying him the right or benefit which he expected to receive

The leading case on the matter is Dillwyn v Llewelyn [1862]:
The father thought he had given his younger son land in Wales, in signing a memorandum and presenting it to him “for the purpose of furnishing himself with a dwelling-house”. The memorandum was not by deed. The son built his home on the land. When the father died, the elder son disputed his brother’s title.

It is just as easy to fall into the other category of estoppel; Promissory Estoppel.

Promissory Estoppel is when one party depends on the promise or conduct of another and acts in his/her detriment in reliance on that promise.
  First established in: Hughes v Metropolitan Railway (1877)
  Clearly laid down in: Central London Property Trust Ltd v High Trees House Ltd [1947]
  Fully restated and defined by Lord Denning in: Combe v Combe [1951]

When can the doctrines be used?
Proprietary estoppel can be used to take the owner to court, whereas, promissory estoppel can only be used as a defence when taken to court by the owner. 

Equitable Estoppel: Possible merger of Proprietary & Promissory Estoppel
In Waltons Stores (Interstate) Ltd v Maher (1988), the Court handed down its most significant decision on the topic of estoppel. The significance of this case was that it consolidated promissory and proprietary estoppels into the single, and broader, principle of equitable estoppel!

 Alan v El Nasr [1972]
Detrimental reliance is not a requirement of promissory estoppel. It only needs to be established that the promisor has changed their position

Waltons Stores (Interstate) Ltd v Maher (1988)
However, … minor expenditure such as day to day living expenses or minor repairs will not qualify.

Monday, 9 December 2013

Tenancy Rights: Quiet Enjoyment

Q: I previously briefly mentioned quiet enjoyment in May 2010, but today I need to elaborate based on this question: Does the law allow for a single tenant to host an event which will disrupt the peace and quiet of other tenants?

A: Yes, as long as there is no continuous, long term disturbance.

Quiet Enjoyment 
Based on case-law, all landlords are under an implied obligation to allow their tenants “quiet enjoyment” of the rental premises. No one, including the landlord, his/her employee or agent shall interfere with a tenant’s right to possession of and to the lawful use and enjoyment of the premises. 

Substantial Interference
It has long been understood that the word “quiet” in quiet enjoyment does not mean the absence of noise, although a number of cases on the subject have been noise related.  “Quiet” in this context means without interference.  Interference with the right of quiet enjoyment must be substantial and what amounts to substantial will always depend on the facts of the case.  

For example: London Borough of Southwark v Mills, Baxter v LB Camden [1999] 3 WLR 939
Mills & Baxter were tenants in government properties owned by the Borough. Their complaints related to the lack of soundproofing in the apartments, which meant they could hear the daily activities of their neighbours, such as walking across the floor, using the toilet, watching television, so they brought actions in nuisance against the Borough.

House of Lords' decision:
There was no nuisance. Nuisance is based on the concept of the reasonable user, and.the use of the apartments was reasonable. The claimants had not sought to argue that the neighbours created excessive noise or act in ways which were unreasonable. The Borough could not therefore be liable for authorising a nuisance that did not exist.

A temporary interference is also unlikely to give rise to a successful claim.
Essentially, in order to be successful in claiming a breach of the quiet enjoyment covenant a tenant must prove that:
1.       there has been a new activity after the grant of the lease; and
2.       that there has been serious and persistent disturbance to the tenant’s occupation of the premises.

Saturday, 7 December 2013

Law of Trusts: Life Estate

The simplest form of property ownership is a fee simple absolute in possession. A “fee simple absolute” means that the owner has a 100% undivided interest in the property. S/He can use it, sell or convey it, and leave it to someone via a Will.
Fee – inheritable interest in land
Simple – property could be inherited by heirs
Absolute – No restrictions

With a life estate, however, the person holding the life estate has only a partial interest in a property; this person is known as the "life tenant." A person who has a life estate is entitled to enjoy full use of the property during his lifetime, but does not have the right to confer the property upon his death. As a full owner, the life tenant can live on the property, build and/or renovate, rent, or sell the property.

When a life estate is created, the documents must stipulate who the property will go to (a remainderman) upon the life tenant's death. This person cannot take possession of the property until the life tenant's death.  
For example, if John dies and leaves his home "to Joe for life, and then to Jane," Jane is a remainderman because she will inherit the home in the future, after Joe dies.

When a life tenant dies, the remainderman's interest in the property immediately becomes active. This is true even if the life tenant attempted to leave the property in a Will to someone else, or has sold the property. A life tenant is unable to grant a greater interest than he himself has in the property, so any attempt by the life tenant to pass the property onto to someone else in a Will is invalid.

The fact that the life tenant's interest ends upon his death means that if he sells the property to someone else, their (the buyer’s) interest ends immediately upon the life tenant's death

*Another limitation on a life estate is the legal doctrine of waste, which prohibits life tenants from damaging or devaluing the property.

Thursday, 5 December 2013

Hamba Kahle Madiba... my idol, my hero.

Even before reading his biography, "Mandela: A Biography" by Martin Meredith, Nelson Mandela was my idol, my hero, the man I wanted to emulate, the Lawyer I wanted to become.

He wasn't perfect, he wasn't infallible
He wasn't a saint, he was human
After he fought against all odds, only time could bring an end to his struggles for equality.

While I am extremely saddened by his death, I am so thankful for his life. 

A quote that I’ve always remembered by Madiba was when he made an application for recusal (the disqualification of a judge or jury by reason of prejudice or conflict of interest):
  • ·        “Why is it that in this courtroom I face a white magistrate, am confronted by a white prosecutor, and escorted into the dock by a white orderly? Can anyone honestly and seriously suggest that in this type of atmosphere the scales of justice are evenly balanced?”

And the one that pushed me in the direction that I took… the quote behind this website, the quote behind my specialisation in Employment law and now pursuing a PhD in Employment Law/Human Rights…
  • ·        “During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.”

Those who know me well, know that I have always promised to attend Mandela’s funeral, so I am making all arrangements to fulfill that promise to see the man who has greatly impacted my life in many ways. 

Hamba Kahle Tata, the first Black President of South Africa, a father, not only to his family, but to a nation and to many people around the world.

1918 – 2013: 95 years of greatness

Thursday, 31 October 2013

Fireworks law: Trinidad and Tobago

Q: What is the law on fireworks and bursting bamboo in Trinidad & Tobago? Secondly, I saw someone with a flare and my cousin told me that it's illegal. Is this true?

A: The use of fireworks isn’t illegal, but they must be used in accordance with the law.

An “explosive” is defined under the Explosives Act 1907, as amended as gunpowder, nitro-glycerine, dynamite, guncotton, blasting powders, fulminate of mercury or of other metals, coloured fires, and *every other substance, whether similar to those above-mentioned or not, used or manufactured with a view to produce a practical effect by explosion or a pyrotechnic effect; and includes fog signals, **fireworks, fuses, rockets, percussion caps, detonators, cartridges, ammunition of all descriptions, and every adaptation or preparation of an explosive as above defined;

*The above definition would also include bursting bamboo. 

**“Fireworks” is specified under the Summary Offences Act 1921, as amended to include bombs, torpedoes, squibs, rockets and serpents;

Where it can be used:
The Summary Offences Act 1921, as amended

99. (1) Except as prescribed by **Regulations under this Act, any person who throws, casts, sets fire to, or lets off any fireworks within any town is liable to a fine of one thousand dollars ($1000).

(2) In this section and in sections 100 and 101, “town” includes the City of Port-of-Spain, the City of San Fernando, and the Borough of Arima, and every part of the area within two miles of the boundaries of such City or of either of such Boroughs, and also any place or area declared by the Minister, by Order, to be a town or to be deemed to be included within a town for the purposes of the said sections.

100. Any person who throws, casts, sets fire to, or lets off any fireworks into, in, or upon any street not being in any town, or into, in, or upon any place being within sixty feet of the centre of any such street, is liable to a fine of four hundred dollars ($400).

This means that the use of fireworks without a permit can legally only occur in the most rural of areas.

**Permission to set off fireworks: Fireworks Permits Regulations (made under s. 101 of the SOA)

If someone wants to set off fireworks in one of the “banned” areas, permission must be obtained at least forty-eight (48) hours prior, from the Commissioner of Police or a Superintendent with the authority, which  will be in writing, prescribing the time and place.

Thursday, 3 October 2013

Bad and "big-name" Lawyers

I came across this article in the Trinidad and Tobago Newsday newpapers' website and came up with an idea for a blog post. In the article, the Former Minister of Justice of Trinidad and Tobago, Herbert Volney "lashed out at 'bad boy' lawyers whom he said are only concerned with making money".

Society believes that the "best" lawyers are the big-name ones who are extremely popular; i.e., the ones we see and and hear about on tv, but society couldn't be more wrong! What many people don't know is that when one goes to the "big-name" lawyers, one rarely gets the Lawyer him/herself; in most cases, a junior lawyer in the chambers (office space with numerous lawyers paying a rent to the "big-name" lawyer) deals with the matter. What the "big-name" guys do is set up chambers in their name, so people would run to that office and of course, the bigger the name the more rent the junior lawyers would have to pay. These "big-name" lawyers make money from (1) the rent (usually around $3000/month per lawyer (they usually have around 5 in chambers) and (2) the big time cases, so your little divorce or land dispute is nothing to him/her. 

If s/he does promise to take on your case personally, you'll most likely end-up with him/her rejecting your divorce hearing for a bigger, more lucrative murder trial and you'll be sitting at Family Court constantly trying the office number and not getting an answer (you wouldn't have his/her mobile number because s/he's too "big" to give you those details).

After continuously hearing complaints from clients of being ripped off by lawyers, especially well-known, "established" ones, I have decided to highlight some of the signs to look for when you end up with a quack, which unfortunately, is VERY common in Trinidad and Tobago. 
  1. Before s/he even talks to you, the first thing they discuss is money. 
  2. During the consultation, s/he barely looks at your documents or listens to your concerns and you feel rushed throughout the entire meeting. 
  3. Be wary of any lawyer who seems overly confident about the case and is only focused on giving you the positives and ignoring the potential downsides. 
  4. Condescending, rude and disrespectful. Some people believe that being a lawyer makes them better than the rest of society, and while it may come with some perks that make life easier, it does not in any way make anyone better. Find a cordial, down-to-earth lawyer. 
  5. Lawyers work for YOU, the client. You don't work for the lawyer, so s/he must follow your instructions. Don't ever let a lawyer bully you into making a decision that you don't want to make. You may think that they're making the best decision for you, but lawyers are humans, and so mistakes can, and will be occasionally made. 
Now, if you ignored those or didn't notice them and decided to retain the lawyer to represent you, there are also signs later on:
  1. Poor communication. S/He is hard to get on to, and your appointments are weeks down the road, unless of course s/he has a valid reason such as sickness, but otherwise, the time should be made within 2 days to meet a client, even if it's for a short period. I give all my clients 24/7 access; they all have my mobile number and I chat with them anytime, anywhere via phone or Whatsapp!  
  2. When your lawyer starts missing deadlines to file documents and has to ask for extensions and adjournments, your case is not important enough, so give it to someone else who would think it's important. 
  3. Your lawyer keeps bad records and has to ask for documents more than once because they were "misplaced". 
  4. S/He is late with the preparation of documents and late to court appearances. 
  5. Your lawyer DOES NOT show up at court. To me, this is the biggest red-flag. If it happens once, don't wait for it to happen a second time!
I hope that this information assists with your search for a good lawyer in Trinidad and Tobago. 

Remember, if you believe that your lawyer has been negligent, you can file a complaint with the Law Association of Trinidad and Tobago Disciplinary Committee.

Thursday, 29 August 2013

Intoxicated Driving: Criminal and Civil Consequences

Q: What is the law or consequences as [it] pertains to someone driving under the influence of alcohol and [the] passenger dies... what happens to the diver possibly? – by Shoma

70. (1) Any person who, when driving or attempting to drive or when in charge of a motor vehicle on a road, is under the influence of drink or a drug to such an extent as to be incapable of having proper control of the vehicle, is liable on first conviction to a fine of eight thousand dollars and to imprisonment for three years and on any subsequent conviction to a fine of fifteen thousand dollars and to imprisonment for five years.

(2) A person convicted of—
(a) two consecutive offences under this section shall, unless the Court for special reasons thinks fit to order otherwise and without prejudice to the power of the Court to order a longer period of disqualification, be disqualified for a period of three years from the date of the conviction from holding or obtaining a driving permit; and
(b) a third conviction for a like offence, shall be permanently disqualified from holding or obtaining a driving permit.

Civil: As a driver, a duty of care is owed to both passengers and pedestrians. As a result, the driver will be held liable for any injuries or death as a result of his drunken driving. However, the driver can rely on the defence of Contributory Negligence to reduce the amount of damages according to the Trinidad & Tobago case: Gunness v Ramdeo (2001)

Also, according to the Limitation of Certain Actions Act 1997, asamended, the injured person or the family of the deceased, must bring a claim within 4 years...
·         5(2)(a) from the date of tort
·         5(2)(b) from the date the injury was noticed
·         5(3)(a) from the date of death

Monday, 22 July 2013

Minimum Wage & Overtime

1. How many hours should a worker work in one week legally?

2. Does that apply across the board i.e. Public and Private ?

3. If 40 is the answer to number 1, how come there is no overtime for employees at cloth store or other private owned places and labour board doesn't mention it.

4. I work Monday- Friday 8:00-4:30 ( with 1/2 hr lunch) and Saturdays 8-2pm ( no lunch break) Is this legal?

According to the Minimum Wages (Shop Assistants) Order, 1991:

1. Section 4 - 40 hours INCLUDING lunch

2. Yes. Laws cover the entire country, regardless of sector

3(a) You are entitled to over-time under Section 5 – 1.5x your regular rate for the first 4 hours over 40 hours, 2x for the second 4 hours and 3x for any time after that. 

(b) The "Labour Board" can only deal with issues that are brought to its attention. Your first step is writing to your employer. You are protected from being fired for complaining, so don't worry. 

4(a) Based on my calculation (and I’m not very good at Math), you are currently being illegally made to work an extra 6.5 hours/week. This means you should be paid an extra 1.5x/4 + 2x/4 + 3x/.5

(b)You are also entitled to lunch on Saturdays; i.e., 45 minutes break after every 4.5 hours worked; this is according to Section 4 of the Minimum Wages Order

Friday, 19 July 2013

Pregnancy-related sick-leave and pay

Q : I have exhausted my 14 days sick leave, actually I took 18 days and was suspended without pay for 5 days. The reason for my absence is due to illness since I am 7 months pregnant along with time off taken to attend clinic appointments. Can my boss fire me for taking more time off if sick before I go on maternity leave. I have been employed with this company for 9 years and 5 months.

A:  After a pregnant employee has exhausted her sick leave entitlement (usually 14 days), subsequent pregnancy-related sick leave DOES NOT count toward the entitled sick leave and the employer is not obliged to pay the employee for those days. Employers should not pay the pregnant employee for those extra days because it will be considered discriminatory against the other employees. 

Time off for prenatal (antenatal) and postnatal appointments must be allowed, and do not count towards sick leave. 

Disciplinary action taken (which is the case here) as a result of any pregnancy-related time-off is discriminatory, and you can bring action against your employer.

Tuesday, 16 July 2013

Trinidad & Tobago law on killing animals

Q: After my neighbour accused me of poisoning his dog, I thought I'd state the law in this area.

A: According to section 16 of the Summary Offences Act 1921, as amended (it really is time for this antiquated legislation to be reformed/repealed/updated):

"Any person who unlawfully and maliciously kills, maims, or wounds any dog... is liable on first conviction to a fine of one thousand dollars over and above the amount of the injury done or to imprisonment for three months and on any subsequent conviction to imprisonment for six months."

Friday, 5 July 2013

Continuous extension of Fixed-Term Contracts

Q: What happens when a fixed-term contract is being continuously renewed?

A: Employers usually use this tactic to deny employees of their rights because many employment rights and benefits require continuous employment for a certain amount of years. In Trinidad and Tobago, the government is the main offender. If this was a criminal offence, the government of Trinidad and Tobago would be public enemy #1.

However, despite this blatant attempt to deny rights of employees, employees will automatically achieve these rights in certain circumstances.

Extension (rolling-over) of contracts for a certain amount of times translates into what is called the right of expectation, which means that the employee will become a permanent employee - contract or not - and will begin to enjoy the rights as permanent employees. While there is not yet a set amount, it will usually begin after 4 years or the 4th renewal, whichever is sooner depending on contract lengths.

While on this topic, I should also mention some things on the termination of fixed-term contracts. There is a popular belief, that employment AUTOMATICALLY ends when the contract expires, but this is NOT true. Usually, a fixed-term contract is used when there is a set piece of work to do. If that set piece of work has come to an end, the reason for non-renewal is likely to be redundancy, on the basis that the requirement for an employee to do the work has ceased or diminished.

However, if that is not the case, the dismissal can potentially be unfair if the employee has been hired for 12 months or more. Despite the contract "expiring", the reason for non-renewal MUST be a fair reason, and especially not due to an automatically unfair reason like pregnancy.

So everyone in T&T who did not have their contracts renewed when there was a change in government has a claim for unfair dismissal. I have heard that this is common practice in the country. Very sad. Very despicable.

Thursday, 27 June 2013

Update: Legal Aid and Advisory Authority

I previously posted some information on Legal Aid and Advice in Trinidad and Tobago, but more than a year later, there has been updates, with a much better website:

Legal Aid, advice and representation in Court are provided by Legal Officers and Attorneys- at-Law in private practice who have registered to be the panel of attorneys attached to the Authority. Legal Aid and advice may be attained in matters such as:

Criminal Law -
  •  Indictable offences- offences which may be tried by a Judge and a Jury;
  •  Summary offences- usually criminal matters before the Magistrate's court;
  •  All offences in a court of Summary Jurisdiction which involves a child or young person;
  •  Proceedings before a Coroner's Court i.e. inquests touching the death of a person.

Civil Law -
  •  Divorce
  •  Custody
  •  Access
  •  Maintenance
  •  Guardianship
  •  Domestic Violence
  •  Possession/ Eviction/ Ejectment Proceedings (Including Matters between Landlords and Tenants in residential agreements)
  •  Petty Civil Court Matters
  •  High Court proceedings
  •  Grants of Probate and Letters of Administration where the value of the Estate does not exceed one hundred thousand dollars ($100,000).

Legal aid is not provided for ‘defamation election petitions’ and ‘traffic matters’.

Eligibility for Legal Aid

An applicant's eligibility for Legal Aid is dependent on a number of factors. To be approved for Legal Aid in Civil High Court matters the Authority must be satisfied that:
  •  The applicant has reasonable grounds for taking, defending, continuing or being a party to any proceedings;
  •  The applicant does not possess nor is entitled to disposable capital that exceeds a maximum value of $5000.00*;
  •  The applicant's disposable income does not exceed $7000.00* annually after certain deductions are taken out.

    *These criteria are being increased presently with the passage of the Legal Aid and Advice (Amendment) Bill 2012.
In criminal matters, approval for Legal Aid is dependent on the discretion of the Judge or Magistrate before whom the matter is being heard.

Payment for Services

Legal Officers are available at various locations throughout Trinidad and Tobago. In cases where an attorney appears on behalf of, or represents the applicant in a legal matter, the applicant is not required to pay the Attorney. However depending on an applicant's means particularly in civil High Court matters, the Legal Aid and Advisory Authority may request from the applicant a small contribution that is paid directly to the Authority. In such cases, an official receipt is issued for the amount paid.

Wednesday, 19 June 2013

Employee Insubordination: Unethical and Illegal requests

Q: Email from Alana N. with 4 separate questions. This is question #4


A: If an employee is asked to carry out a specific task (by senior management) which is deemed unethical and goes against company’s procedure it is well within their right to refuse this task not so? 

An employee should ALWAYS refuse to perform any task that is illegal or unethical. However, "ethics" can be subjective, meaning that different people will have different views on what is right or wrong, so this can be a tricky situation for an employee if the matter does go to court. 

I have never come across a case involving an unethical request, but for illegal requests see:  Showboat Entertainment Centre v Owens [1984] ICR 65