JLP lose court ruling on Portmore Toll Road

[BakYaSoh]

Re: JLP lose court ruling on Portmore Toll Road

Originally posted by Wardob:
[qb] Just an observation


YARDIE: - “ Jamaica is not a common law state, it is a constitutional one. (Britain has no constitution.)

Not a common law state? I am not questioning your legal knowledge but from my understanding Jamaica is governed by both common and statute laws. And clearly by its definition (Common law is the law of the land from time immemorial) they do have the legal foundation for habitual use.

YARDIE: - “(I am not sure, but I think Jamaican law is like Russian law in that neither recognizes precedents -- each judge rules independently and is not held to a previous judge's precedent.)

Your legal knowledge may be far superior to mine, but all judge rule or should rule independently regardless of precedent. But that does not say reference or precedents are not used in our courts, on the contrary I believe our judges or often guided by and refer to precedents set by others.

YARDIE: - “Therefore, Jamaica has no legal foundation for habitual usage.”

Again I am not questioning your legal knowledge but as a friendy advice if you have a piece of property in Jamaica that is been used as a pathway constantly by the citizens for certain period, (I believe 5yrs and over) without they been disturbed you may loose it. At least once a year close it off, stop them by either written notification clearly posted or put up a gate and lock it for a day or two [/qb]

Btw, Yardie didn't say those things, I did. [img]/forums/images/graemlins/laugh.gif[/img]

The USA is NOT a common law country. Common law isn't simply following the law from time immemorial, it is a constitutional framework. In general, Constitutional governments are not common law governments. That doesn't mean that many common law concepts don't exist in constitutional law. I don't know if Jamaica is a hybred of the two, but that would be unusual for a former British colony.

In the USA, judges may NOT ignore precedent. Precedent is VERY important in American law. In the Russian Federation, precedent means almost nothing at all. Unlike the American system, judges generally ignore the decisions of other judges. I am not sure which system Jamaica has, but my understanding is that although judges may defer to precedent, they do so out of choice only. If anyone knows for sure, I would love some clarification on this one.

Homesteading laws (or whatever they are called in Jamaica) are very different from Habitual Use laws in Germany. Homesteading laws generally have many stipulations for rights of way and easements and habitual uses -- which are distinct from non-land property laws. This is true in every country, Jamaica included.

Whereas a German Habitual Use law might prevent the Government from charging a toll for what has habitually been a free road, Jamaica has no framework for Habitual Use protection, remembering that homesteading laws make exceptions that don't exist in non-land property law. (Habitual Use in the German system is a legacy of German disunity and had a different intention and function originally than the one it has evolved into in present day Germany.) To my knowledge, the Jamaican Government does not have to give way to habitual usage in non homesteading situations.

(I do not know Jamaican law very well. But I am well versed in American legal concepts.)

[Wardob]

Re: JLP lose court ruling on Portmore Toll Road

Well I don’t want to get into legal wrangling with a former law teacher, but I must disagree with you on the rights been transferred to the Government and not the citizen.
(The party or parties using it)

This is how I understand it. If opposition to and or denial to access does not occur for some given time, (as you pointed out) a right of passage will deemed to exist for any citizen who access such grounds, right of passage to the public, not a transfer of property to the Government, and the right of passage is confined to the area or areas been in constant use without restriction. In cases such as right of passage, generally Government will only come into play, if such earned rights of the citizens are threatened.
(So it seems what we have in Portmore is a SELL OUT)

I agree it is a waste of time to challenge the Government on this issue, where and when have they ever listen to the plight of or acted on the citizen‘s behalf?

YAHDIE:- “I thought habitual law also applied in Jamaica, because there is a law that says a squatter occupying premises for over 60 years, becomes the legal owner and can apply to have the title transferred to his/her name.”

Very interesting, now may I ask, what if the owner of the land been occupied by squatters although absent for such period of time, have for those said years paid his/her taxes for the said property? Under such circumstances does the law rule in favor of the squatters? How say you Dr?

[BakYaSoh]

Re: JLP lose court ruling on Portmore Toll Road

Originally posted by Dr.Dudd:
[qb] I taught mercantile law in college in Jamaica for a while too, and mercantile laws abe strictly British common law,which is seperate from the general laws as practiced in the country.
It is based on previous decisions of courts ranging back to as far as laws exsted.
There is a habitual aspect of right of way use of path way. This is the basisi why every ptivate road in Jamaica has ti be gazzetted as closed to the public at least on dat every year. thuis is because unopp[sed use of a right of way will result in the right being transfered to the state,not the party using it.
Amy way only the government could benefit from any such use if the kaw as existed. I think that therr really is no case to be heard on the bridge. [/qb]

I didn't know about registering private roads every year in Jamaica. Once such a road is registered once in most places in America, that is good forever. Even if the owner permits people to tread a path on his land for 50 years, the owner still retains the right to restrict usage.

In NYC, on the corner of Christopher and 7th Street, on the southeast corner, there is a tiny triangle in front of a convenience store -- that tiny triangle is private property. The owner may, at any time, restrict people from treading on his tiny triange as he sees fit. This tiny triange has been private property for years. The convenience store owner leases the tiny triange of land so his customers can access his store.

[Wardob]

Re: JLP lose court ruling on Portmore Toll Road

My apology Yahdie and BackYaSoh transfer your practice to Florida; I will need a good Attorney soon.
Thanks for your clarifications BackYaSoh

[BakYaSoh]

Re: JLP lose court ruling on Portmore Toll Road

Originally posted by Wardob:
[qb] My apology Yahdie and BackYaSoh transfer your practice to Florida; I will need a good Attorney soon.
Thanks for your clarifications BackYaSoh [/qb]

I wish I had listen to my mother and become an attorney. They make way more money than I do. [img]/forums/images/graemlins/frown.gif[/img]

But then, I've never met an attorney I liked. Would that be lawyophobia? [img]/forums/images/graemlins/704555_dwl.gif[/img]

[Dr.Dudd]

Re: JLP lose court ruling on Portmore Toll Road

Gazzetted is not registering. It is publicising. That means that published notice is required by law to maintain control of the righr of way.
right of way is not ownership of property,it therefore restrichs the use to teresteral conveyance.
A loss of control by a property owner,of a private right-of-way makes it a public thoroughfare.

In Jamaica only the government has the right tof control of any public thruoghfare,although it is held on the behalf of the citizens.
Even the privately operated toll roads are operaated under the authority of the government

[Q3210]

Re: JLP lose court ruling on Portmore Toll Road

In Jamaica, what Wardob refers to you may see implemented on certain public holidays, by closing access to the public and also published prior to its closing, notices in the daily newspapers.
An example of a location is the slip road belonging to Palace Amusement Group by Carib cinema that joins Brentford Road to that crescent by the Cross Roads police station.
By my reading this thread, I now understand why those roads are so closed.
Russell Graham`s Palace/ Carib property might be claimed by outside interests if not locked at least once every year.
That very road allows easy access for commuters travelling from western Kingston and St.Andrew, Brentford Rd. to get into the omnibus hub, Cross Roads.

So yes Wardob, we Portmore people have been deceived and sold out, stolen of our free access to and fro Kingston via Marcus Garvey Drive.
We lost out because we didn`t act by way of court of appeal within a 5 year period of the plan being gazetted by Pickersgill.
So, it seems that the govt. by the very law, time allotted, claimed the Causeway theirs.
And when I say govt. I mean govt. not for the people, but against the people.
The corruption manifests itself brightly when you disembark the present Toll Road coming from Spanish Town`s westerly direction into the cane piece part of the Mandela highway between Ferry and Caymanas Crossing.
That road should have continued and built as the entrance in to Kingston part of Highway 2000.
Instead, they diverted costs and energy to the Portmore Causeway and have breached our the citizens of Portmore contracts to rightful access since the late 1960`s when the dormitory community was started constructing.

[mari]

Re: JLP lose court ruling on Portmore Toll Road

Very interesting, now may I ask, what if the owner of the land been occupied by squatters although absent for such period of time, have for those said years paid his/her taxes for the said property? Under such circumstances does the law rule in favor of the squatters? How say you Dr? [/QB][/QUOTE]


Interesting question. I would also like to know the answer.

[Dr.Dudd]

Re: JLP lose court ruling on Portmore Toll Road

Originally posted by Yahdie:
[qb] Very interesting, now may I ask, what if the owner of the land been occupied by squatters although absent for such period of time, have for those said years paid his/her taxes for the said property? Under such circumstances does the law rule in favor of the squatters? How say you Dr? [/qb]

Interesting question. I would also like to know the answer. [/QB][/QUOTE]
The law would likely rule in favour of the squatter,because it is based on the property not exerting right of ownership by way of either giving the squatter notice ri quit or demanding compensation for use of the propetry.

He could also post a notice to quit on the property and in the lpcak newspaper,if he does not know the name or names of the squatter/s.

[Tuff Gong]

Re: JLP lose court ruling on Portmore Toll Road


Solution sought for Portmore traffic
published: Friday | September 15, 2006

Trevor Jackson, managing director of TransJamaican Highway, will today meet with senior traffic police in an attempt to find a solution for the long lines of traffic which have in recent times affected the Portmore leg of Highway 2000 during peak hours.

He told The Gleaner yesterday that the problem started last Friday and continued into this week.

Mr. Jackson dismissed suggestions that an increase in the use of the roadway might have been a contributory factor to the delays, adding that the traffic count has not changed significantly.

Inching along

Many persons using the roadway yesterday morning found themselves inching towards Marcus Garvey Drive as there was a pile-up from the toll bridge.

Lorna Scotland, a regular user of the roadway, said that traffic came to a halt on the bridge about 7:40 a.m. yesterday, causing long delays.

She pointed out that the new highway was fast becoming a picture of the situation of the previous causeway, which had daily traffic problems.

It is believed that Marcus Garvey Drive, with its current two lanes, is incapable of facilitating a run-off and this creates a bottleneck.

http://www.jamaica-gleaner.com/gleaner/20060915/lead/lead2.html

[CeaBee]

Portmore Toll Road

Bouygues to fix Portmore traffic flow
published: Friday | September 22, 2006


Work will begin this weekend to improve the flow of traffic from Portmore on to Marcus Garvey Drive after government reached agreement with Bouygues to carry out the work, having been the only company to respond to the tender.

According to a statement issued last night by the Ministry of Housing, Transport, Water and Works, the four-month improvements will include the widening from two to three lanes from the intersection of Highway 2000 and Marcus Garvey Drive to Portia Simpson Miller Square with a fourth left lane being added at the intersection.

Short-term measures

Initial works will begin this weekend with short-term measures, the restriction of u-turns on Marcus Garvey Drive and the creation of new bus bays to allow buses to pull off the road thus reducing the obstruction caused to other traffic. Next week will see the extension of the Highway 2000 off-ramp leading on to Nelson Mandela Highway and the improvement of the Mandela/Caymanas intersection.

"The money to carry out these improvement works is included in a $400 million budget that is already available," the statement said.

Source

[Tuff Gong]

Re: Portmore Toll Road


The PNP has an historical problem with planning and technology. It is always after the fact.

[Tuff Gong]

Re: Portmore Toll Road

<span style='font-size: 17pt'><span style='font-family: Arial Black'><span style="color: #990000">Remember, I told you</span></span>
published:</span> Saturday | December 8, 2007

Pickersgill

The Editor, Sir:

The combined grouping of associations who claimed that they represented the interest of the residents of the Portmore municipality has indeed had their day in court. The Privy Council delivered their ruling on December 3.

The Privy Council ruling is definitive; it states that the construction of the Portmore Highway and the decision to charge a toll to meet the cost of financing this construction has not affected the right to property of any individual in the communities of the Portmore Municipality.

The Privy Council is clear, the only basis for any violation of the Constitution would only be so if the Government had undertaken the compulsory acquisition of parcels of land owned by residents and done so not guided by the laws of the country. There was no compulsory acquisition of property to build the Portmore Highway.

The ruling

I want it to be clear that the ruling says what I have always upheld; a government formed by the People's National Party would never seek to violate any element of the Constitution. The Government of the People's National Party would not seek to take away the rights of any grouping of citizens of this country.

The People's National Party government in response to the development needs of Jamaica took a deliberate decision at the close of the 1990s to pursue the construction of Highway 2000, of which the six lane Portmore Causeway is a component. The Government of the People's National Party was clear that it was necessary, to set the stage for further economic development, that our major infrastructure had to be either upgraded and where necessary new facilities put in place. This is the vision which guided both the Highway 2000 and North Coast Highway projects.

Concerns

During the construction of the Portmore Causeway and after several community meetings, we went further and held briefing sessions with various representatives to discuss the initiative. We responded to the clear and legitimate concerns raised by several residents. We moved to address the concerns raised, including the bottleneck created at the Marcus Garvey intersection and the need for improved road surface on the Mandela Highway.

We sought to give a listening ear and to guide the residents, advising that this was not a Constitutional matter. I certainly had an open door policy when I served as minister. It was unfortunate that a matter of development was politicised by the then Opposition Party.

Both the Constitutional Court and the Court of Appeal dismissed the appeals. Those who had brought this matter against the state were in fact advised that their case was devoid of merit to go further. The ruling by both courts then was that the Mandela Highway did in fact provide an appropriat route. The judgement delivered by the Privy Council on December 3, upholds both these decision.

I am, etc.,

ROBERT PICKERSGILL

PNP spokesman on transport

http://jamaica-gleaner.com/gleaner/20071208/letters/letters2.html