‘I just want this case to be over’

The six-year-wait to get a judge’s notes of proceedings has left senior citizen Monica Sommerville frustrated, depressed and upset that her appeal cannot proceed against a Supreme Court ruling.

Sommerville had filed a suit seeking a declaration that she was the spouse of the now-deceased Carol Downey with whom she cohabited for more than 40 years.

A hearing took place in 2017 and the judge ruled that she was not Downey’s spouse. She filed an appeal in July 2017 against the ruling and the Court of Appeal granted her a stay of the order, pending the outcome of the appeal. But, to date, she is yet to receive the judge’s notes in order to proceed with the case.

Senior attorney-at-law Bert Samuels has described the delay as “a travesty of justice” and a denial of a fair hearing within a reasonable time.

Speaking with The Sunday Gleaner last week, Sommerville outlined the numerous trips she has made to the registry of the Court of Appeal but, on each occasion, she said she was told that the judge’s notes were still outstanding, so her appeal cannot proceed.

“I am so so frustrated. I am having sleepless nights because I just want this case to be over,” Sommerville said.

On February 5, 2021, a letter was sent from the Court of Appeal registry to attorney-at-law Carlene McFarlane, who is representing Sommerville, stating that there was no response “to our request for a certified copy of the record of proceedings, reasons for judgment and notes of evidence” as required under the Court of Appeal Rules.

Last week, McFarlane told The Sunday Gleaner that she had been making frequent checks and, up to recently, was told that the registry had not received the documents from the Supreme Court.

Sommerville said she has written to Chief Justice Bryan Sykes, asking him to intervene in the matter.

‘WE WERE A HAPPY COUPLE’

Following a dispute between Sommerville and Tamaly Kelly Gay Downey, daughter of the deceased, over a dwelling house, Sommerville filed a suit in the Supreme Court seeking to be declared the spouse of the deceased under the Intestates Estate and Property Charges Act, but her application was refused by Justice Nicole Simmons on June 9, 2017.

The dispute is over a house in Golden Meadows, St Andrew, which Sommerville claimed that she and the now-deceased, Carol Constantine Downey, bought in 1977. But because of National Housing Trust restrictions at the time, she said, her name was not placed on the title.

The defendant claimed otherwise and told the court that Sommerville was only a helper and a friend of her father.

Sommerville then filed several grounds of appeal on July 25, 2017 in which she challenged the judge’s findings of fact and law. She is contending that the judge erred in her finding that she was not the common-law spouse of Downey.

Justice of the Peace Veronica Harrison had testified that she had knowledge that Sommerville was Downey’s spouse. Sommerville is asking the court to find that the judge erred in giving “no or no sufficient consideration” to Harrison’s evidence, who was at all times an independent witness. She contends further that the judgment was against the weight of the evidence and should be set aside.

Sommerville is challenging the judge’s findings of fact “that there was no evidence that Miss Sommerville assisted with household chores when she came home. That there was evidence from the defendant that the claimant had said because of her beliefs, she had stopped having sex. The court refused to accept that sex took place two weeks before death.”

Sommerville told The Sunday Gleaner that she and Downey lived together as man and wife from 1970 until he died in November 2013.

“We moved into the house in 1977 and, as a couple, we had a happy life together. I even made mortgage payments from my salary at times. I am still living at the premises but I just want this court matter to end so I can live a normal life again,” she said.

BREACH OF CONSTITUTIONAL RIGHTS

Attorney-at-law Samuels said there are far too many cases that are delayed because of outstanding transcripts, which breaches a person’s constitutional right.

“Delay in handing down judgment in civil or criminal matters has been held to be a breach of the citizens’ constitutional right under Section 16 of the Charter, which says that every citizen is entitled to a fair hearing within a reasonable time,” Samuels told The Sunday Gleaner.

“A fair hearing has to do with a person’s right to move from trial where that person has lost a trial to appeal. Therefore, a person who is awaiting the judge’s notes and reasons so that he can appeal, if that delay is inordinately long, and six years is manifestly long, then that person is denied the right to a fair hearing within a reasonable time.”

He continued, “The criminal case of Ray Morgan handed down in July by the United Kingdom Privy Council, Jamaica’s final appellate court, establishes that persons have the right to have the notes handed down on time so that they can establish their constitutional right to appeal, because the Constitution gives you a right of appeal.

“Now, a delay of six years is in fact a denial of the right to go to the next step, that is to an appeal. So, in my view, it is a travesty of justice where you are waiting for six years for a judgment to be written. We know that, if the judge becomes too ill or has died, that creates its own issues, and that is why expediency in the delivery of judgment for a person seeking to appeal must be guarded very closely.”

editorial@gleanerjm.com