UNIVERSITY OF TECHNOLOGY, JAMAICA

SCHOOL OF BUSINESS ADMINISTRATION

BUSINESS LAW

UNIT 1-INTRODUCTION TO THE JAMAICAN LEGAL SYSYTEM

Introduction to studying law

Definition of Law
Law may be defined as a body of rules, created by the State, binding within its
jurisdiction and enforced with the authority of the State through the use of sanctions.
(Adams; Law for Business Students)

Breakdown of the definition:

Rules: are commands regulating behavior; rules tell us what we can and cannot do.

Some Characteristics of the Jamaican Legal System:

The Jamaican legal system is based on the English legal system. Some of these features
include:

 The system of Precedent

 The Judiciary
 Common Law and Equity

Legal Sources
Rules of law are derived from various sources in English Law. These include;

 The Constitution of Jamaica

 Legislation
 Judicial precedents.

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The Constitution of Jamaica (Highest source of law. Above all other laws)

The Jamaican Constitution is the Supreme Law of the land of Jamaica and all other laws
must conform with the Constitution or they will be struck down. In 2011 a new Charter of
rights was passed by Parliament, known as The Charter of Fundamental Rights and
Freedoms (Constitutional Amendment) Act, 2010 This significantly changed Chapter III
of the Constitution.

“Traditional human rights protected by our old arrangements, such as the rights to life,
liberty, property, freedom of conscience, expression and movement remain protected by
the new Charter.

Additionally, we now have constitutional

 rights to equitable and humane treatment by public authorities

 not be discriminated against on the grounds of religion, social class or being male
or female
 to vote in free and fair elections
 to be granted a passport.

The latter goes hand in hand with the now constitutionally recognized right to leave the
island, previously excluded.

The Charter provides a number of more modern rights, including

 the right of every child to public primary education

 the right to enjoy a healthy and productive environment free from the threat of
injury or damage from environmental abuse and degradation of the ecological
heritage.

These seemingly ambitious rights are nonetheless enforceable by the Charter's express
provision for redress, not just against the state but also in citizen versus citizen litigation.
Claims may be brought by the person aggrieved or by civic organizations with the
permission of the court, where there is an allegation that any of the provisions of the
Charter has been, is being or is likely to be contravened.”

Legislation:
Parliament is responsible for creating most laws and it may delegate its law-making
responsibility to other persons or bodies, particularly Ministers of government, power to
make regulations for specified purposes. This is referred to as delegated legislation. Such
regulations have the same legal force as the act under which they are made.

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Judicial Precedent:
This doctrine of binding precedent ensures certainty in the law. Over a period of time in
England, judges began to pay more attention to previous decisions and not just make a
decision based on the individual case before them for determination. This system of law
reporting where cases were published made it easier for judges to access these earlier
decisions. It then became the established practice that judges were bound to follow the
decisions of higher courts in similar cases. This general rule called the doctrine of
binding precedent was established in the 19th century and has been consistently followed
since then.

For judicial precedent to be relied upon, there has to be a comprehensive and accurate
system of law reporting. Examples of Law Reports are the Jamaican Law Reports, West
Indian Law Reports, in which cases decided upon in the Caribbean can be found. In
England, some examples are the Law Reports which are divided into four series. The

Appeal cases, which has reports on decisions from the House of Lords and the Privy
Council. The other series are known as, Queen’s Bench, Family Division and Chancery
Division.

Common Law and Equity

The legal system in Jamaica is also based on two (2) complementary systems of law
known as the common law and equity.
Common law was the first of the two systems to be developed, however its rules were
very rigid and would result sometime in harsh and unjust decisions. This created room for
the development of another system known as equity, to supplement the common law with
flexible rules based on principles of good conscience and equality, which would result in
fairness and justice to those involved.

Classification of Law
There are various ways to classify law. One of these divisions is Criminal Law and Civil
Law.

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Criminal Law
This area of the law focuses on certain acts of wrongdoings which are seen as offences
against the State and punishable by the State.
Crime is defined as “an act of disobedience of the law forbidden under pain of
punishment.” Anyone who is charged with a criminal offence is presumed innocent until
proven guilty the punishment upon being convicted of a criminal offence can range from
 Death
 imprisonment
 money penalty (fine)
 community service
 absolute discharge. Examples of business crimes are fraud, theft and forgery.

The criminal charge is laid against the accused or defendant. The Case is brought by the
Crown through the Police whose duty as public servants is to prevent and detect crime
and prosecute offenders before the Courts of law.

Civil Law
Civil law is that part of law that is concerned with the rights and duties of individuals
towards each other. It includes the following which are the major branches of civil law:

(1) Law of Contract

(2) Law of Tort
(3) Law of Property
(4) Law of succession and
(5) Family Law

The chief distinction between criminal law and civil law is that in civil law the legal
action is begun by the private citizen to establish rights against another citizen or groups
of citizens, whereas criminal law is enforced on behalf of or in the name of the State.

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The aim of criminal law is to punish the offender, (hence the offender if found guilty may
be imprisoned or asked to pay a fine which goes to the State), whilst the aim of civil law
is to compensate the innocent party (hence the wrongdoer may be asked to pay damages
to the other party for loss suffered).

The main witness in a criminal case (save and except murder) who is usually the victim
of the crime is called the Complainant.

The person who initiates a claim in the civil court is called the Plaintiff or Claimant.
The person against whom the claim is commenced is called the Defendant.

Jamaica’s Head of state is the Queen and her representative is the Governor General.

Citation of Cases
Cases names look a lot like „football fixture lists‟, example – James v Brown. A case in
the court is essentially a contest between two parties with the judge being the umpire. The
name of the case is usually underlined.

Where cases are determined by a court at first instance, that is heard for the first time, the
proceedings are cited as follows:

Civil Case
(a) James v. Brown

Criminal Case
(b) Regina (or R.) v. Green

If Brown and Green decide to appeal against the decision at (a) and (b), Brown and Green
are called the Appellants and James and Regina are known as the Respondents in the
appeal cases.

Terminology
Jurisdiction: The law of any country is binding only within its territory.

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Enforcement: Laws are enforced by a relevant party initiating proceedings in a
competent court.

The Jamaican Legal System

Prior to 1962, Jamaica was a colony of Britain. In 1962 upon attaining Independence,
Jamaica through the Doctrine of Incorporation adopted into its Constitution the
Westminster Form of Parliamentary Democracy in England.

The Jamaican Government has three (3) branches which provide a system of checks and
balances to ensure that there is not an abuse of powers by any of these bodies. There is a
separation of powers and these branches are called the Executive, Legislative and Judicial
Arms.

The Executive arm is responsible for running the Government.

The Legislature, commonly known as Parliament is where the laws (Statutes) are created.
This branch of government has two houses, the Upper House and the Lower House.
The Upper House is the Senate and compromises 21 Senators appointed by the Governor
General. Thirteen (13) members are appointed on the advice of the Prime Minister and
eight (8) on the advice of the Leader of the Opposition. The Lower House, which is
called the House of Representatives, is where the elected Members of Parliament sit.

The Judiciary is the branch of government that is primarily responsible for interpreting
the law. This is primarily based on the Court structure of the United Kingdom. The head
of the Judiciary is the Chief Justice. Under Section 98 of the Constitution, the Chief
Justice is appointed by the Governor General on the recommendation of the Prime
Minister after consultation with the leader of the Opposition.

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The Structure of the Jamaican Court System
The Courts have been given the duty under the Constitution to examine activities
undertaken by the State and determine if acts by the State through its various agents are
inconsistent with the Constitution and therefore of no legal effect. Acts of Parliament are
also subject to review by the Courts to see if there is any inconsistency with the
Constitution.

The Constitution of Jamaica provides for the establishment of the Supreme Court as a
Court of Origination. Decisions of the Supreme Court upon appeal are heard by the Court
of Appeal which is the highest Court physically located in Jamaica, however under the
Constitution, the highest Court in the Jamaican Court Structure and the final Court of
Appeal from decisions of the Court of Appeal is the Judicial Committee of the Privy
Council which is based in England.

There are other Courts that are not created by the Constitution and have been created by
Acts of Parliament.

The Court System is looked at below.

Petty Session
The Petty Session Court is presided over by three Justices of the Peace. These are not
Attorneys-at-Law. They preside over petty matters. These include pickpocketing,
common assault and use of indecent language. The Justices of the Peace Jurisdiction Act
confer various powers on the Justice of the Peace including the power to issue warrants
consequent on non-obedience to summons. The Clerk of Courts or a deputy clerk advises
the justices on points of law and procedure.

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The Parish Court
The jurisdiction of this Court is defined by Statute, The Judicature (Resident
Magistrate’s) Act and The Judicature (Resident Magistrates) (Amendment and Change of
Name) Act, 2015. These two Acts are to be read and construed as one.
The main amendments are 1. The Act is now referred to as (Judicature Parish Courts Act)
and the Court as the Parish Court.
There is a Chief Judge of the parish Court and the other Judges are referred to as Parish
Judges and not Resident Magistrates. The Chief Judge is appointed by the Governor
General on the advice of the Judicial Service Commission. The Chief Judge shall report
directly to the Chief Justice.
The Court’s Jurisdiction is limited in both civil and criminal matters. The amounts and
the extent of the jurisdiction of this court is provided for in the Judicature (Resident
Magistrate’s) Act. A Parish Court is situated in every Parish and it has jurisdiction within
that Parish and one mile beyond its boundary line.

There are specialized courts which are divisions of the Parish Court. These include the
Family Court, the Juvenile Court, the Traffic Court, Gun Court, Small Claims Court, the
Drug Court and the Night Court.

Civil matters such as recovery of rent, recovery of possession and debt collection of sums
up to $1,000,000.00 per claim are tried at a Parish Court. With regards to criminal
offences, the Parish court has no jurisdiction to hold a trial for murder, treason and rape.
In keeping with The Committal Proceedings Act, 2013, which came into operations in
January 2016 ('The Act'). the prosecution, at the Parish court level, does not have to
present the evidence of the prosecution's witnesses and to have them cross- examined by
the accused just to determine if there is a prima facie case for committal for trial in the
Circuit Court. The Act concerns serious indictable offences that are triable in the Circuit
Court, such as murder, wounding with intent, and most sexual offences.

The Parish Judge must be an Attorney-at-law of at least seven years standing since 2016.
Parish Judges are appointed by the Governor General and the Judicial Service
Commission.

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The Supreme Court
Judges of the Supreme Court are appointed by the Governor General on the
recommendation of the Judicial Services Commission. The Supreme Court has unlimited
jurisdiction in civil and criminal matters. The Supreme Court consists of the Chief
Justice, a Senior Puisne Judge and at least twenty other Puisne Judges. They have
jurisdiction to hear applications regarding breaches of fundamental rights and freedom as
provided for under the Constitution.

Three divisions of the Supreme Court are the Revenue Court established in 1971 and the
Gun Court established in 1974 and the Commercial Court in February 2001. There has
also been established a Western Regional Gun Court that hears gun offences committed
in the parishes of St. James, Trelawny, Westmoreland and Hanover.

Criminal offences committed in other parishes are heard at the sitting of the Circuit Court
of that parish. The Circuit Court is the criminal jurisdiction of the Supreme Court that is
convened in Parishes. The Supreme Court Judge travels to the parish for the hearing of
criminal offences that were committed in that parish. One of the advantages in having a
travelling court or Circuit court is the fact that if the witnesses and other parties involved
are from the parish where the offence was committed, they do not need to travel to
Kingston for the prosecution of cases. This is convenient and reduces expenses for these
parties.

The Circuit Court held for the parishes of Kingston and St. Andrew is called the Home
Circuit Court, while that which is convened in the other Parishes are named after the
respective Parish, for example, the St. Ann Circuit Court.

Puisne Judges must be Attorneys-at-law of at least ten years standing.

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The Court of Appeal
Appeals against decisions from both the Supreme Court and the Resident Magistrate’s
Court are heard in the Court of Appeal. The head of the Court of Appeal is the President.
Composition of the Court

The Judicature (Appellate Jurisdiction) Act provides that the Court of Appeal should
consist of not less than three nor more than twelve Judges. Presently, it consists of six
Judges of Appeal. Three Judges of Appeal sit in each division to hear an appeal in the
court’s two divisions. Judges of the Court of Appeal are appointed by the Governor
General on the recommendation of the Judicial Services Commission.

The Chief Justice is also an ex officio judge. He participates only when asked to do so by
the President of the Court of Appeal. The President of the Court of Appeal is also
appointed by the Governor General on the recommendation of the Prime Minister after
consultation with the Leader of Opposition.
A Judge of the Court of Appeal must be an Attorney-at-law of at least ten years standing.

The Judicial Committee of the Privy Council

The Judicial Committee of the Privy Council is the Court of final appeal for Jamaica and
some other Commonwealth countries that have retained the appeal to Her Majesty in
Council.

Five judges normally sit to hear appeal cases from the Commonwealth.

The Judicial Committee sits in the Privy Council Chamber in Downing Street, London,
England.

References to the various Judges.

Petty Sessions Court- Your Worship
Parish Court-Your Honour
Supreme Court and above –Your Lordship/Ladyship

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Legal Officers

(a) The Attorney-General

Section 79(1) of the Constitution of Jamaica provides that “there shall be an Attorney
General who shall be the principal legal adviser to the Government of Jamaica” This
is a political appointment. She is the principal legal adviser to the Government.
All civil proceedings by or against the Government are instituted in the name of
Attorney-General.

(b) The Director of Public Prosecutions

Section 94 (1) of the Constitution of Jamaica states that “there shall be a Director of
Public Prosecutions, whose office shall be a public office”. She is appointed by the
Judicial Services Commission on the advice of the Prime Minister. She is responsible for
the Crown Prosecution Services. The Director must be an Attorney-at-Law of at least ten
(10) years standing.

(c)The Solicitor-General
He and his staff represent the Crown in the Courts in civil matters where the public
interest is concerned. He also advises the Government departments on important legal
matters. He is appointed by the Governor General in accordance with the advice of the
Judicial Services Commission.

Alternative methods to resolve disputes

Arbitration
“Arbitration is the reference of a matter in dispute to one or more persons called
arbitrators.”
Arbitration is used as an alternative proceeding to litigation. In commercial matters,
parties often include a clause for arbitration in the event of disagreement between the
parties and a clause is often incorporated in partnership agreements should disputes occur
among partners.

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The contract may include a clause for a sole arbitrator or two arbitrators. An arbitrator
does not necessarily have to be a legally trained person, although this is recommended.

The advantages of arbitration are:

1. Speedy settlement of the matter: Litigation in the Courts can result in lengthy
delays before there is a trial.
2. Privacy: A Court room is a public place. Parties to a dispute may wish not to have
their personal or private matters disclosed in that environment neither may they
want confidential commercial matters heard in open court.
3. Expenses may be less as the time is shorter than if the matter went to Court.
4. Expert Knowledge: The arbitrator may be an expert in the field of the matter
which is disputed. Generally, the disputes are disputes of fact and not of law so
the need for a legal mind may be secondary in resolving same.
5. Convenience: The arbitration is held at a place and time convenient to the parties
and the arbitrators.

The disadvantages are said to be:

1. Where there are difficult points of law to be determined, an arbitrator may not
have the requisite expertise
2. Each case is decided on its merits so the doctrine of precedent does not apply.

Mediation

In Jamaica we have an established mediation center which is called the Dispute

Resolution Foundation (http://drfja.org). In mediation, the disputants themselves are
involved in finding a solution to the matter, whereas in the court system, the judge
adjudicates on the matter and determines the outcome. Below is the definition taken from
the website and shows clearly the purpose of mediation.

“Mediation in Our World What is Mediation?

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Mediation is the use of a facilitator (trained, unbiased, confidential) to help parties with
conflict to talk and listen with a view to designing a solution which meets their needs.
Mediation can be conducted in the court system, in community, workplace, police
stations, schools, or any setting where the disputants choose to use a third party to help
them settle their differences.

Why Mediation?

1. For the purpose of reaching solutions

2. It reduces delays;
3. It is cost effective and circumvents red tape and formality;

4. It allows for continued relationships.

Mediation is a consensual process in which an impartial third party, with no power to

impose a resolution, works with the disputing parties to help them explore and if
possible, reach, a voluntary and mutually acceptable resolution of some or all of the
issues in dispute.” (http://drfja.org)

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