Paul v Kispe [2001] PGNC 132; N2085 (17 April 2001)

Civil – Practice and Procedure – Originating process – Writ of Summons - Competency – Drafted in English language by National Court Staff member with no legal qualifications - Signed by illiterate plaintiff who did not understand content of Writ – Whether Writ should be set aside for irregularity – Official language of formal Courts discussed – Access to the Courts by illiterate persons discussed – Court raising issues as to competency of proceedings on its own initiative at any stage of the proceedings discussed.

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Fande Balo v. The Queen [1975] PNGLR 378.
Anton Parao v. Tei Abal [1976] PNGLR 253.
State v. Hallau Honian N421(M)(1983)
Rundle v. MVIT (PNG) Trust [1988] PNGLR 20;
State v. Alphonse Woinangu N966 (1991).
State v. Kai Wabu [1994] PNGLR 498
Siaman Riri & Anor v. Simon Nusen & Ors N1375 (1995).
MVIT (PNG) Trust v. Viel Kampu SC587 (1998),

INJIA, J.: On 15 March, 2001 I refused the plaintiff’s motion for default judgment. At the hearing of that motion, I raised the issue of competency of the Writ of Summons instituted by the plaintiff.

And the issue relates to the language in which the Writ is drafted and the plaintiff’s inability to communicate in the English language. The plaintiff is uneducated and illiterate in the English language but the Writ of Summons was drafted in the English language and signed by the plaintiff. The Writ was drafted by an officer (named) of the National Court who is not a lawyer, who worked in the National Court Registry at Lae. The content of the Writ was not read and explained to the plaintiff in a language he understood before the plaintiff signed the Writ. There is no evidence to show that the contents of the Writ were read and explained to the plaintiff in a language he understood and that the plaintiff understood the contents of the Writ before he signed it. The plaintiff simply told the officer his story and the plaintiff assumed that the Writ accurately recorded everything he told him so he signed it.

On the face of the Writ, a liquidated claim K42,500.00 is pleaded for damage to the plaintiff’s P.M.V. motor vehicle caused by the negligent driving of another vehicle by the first defendant, an agent or servant of the Second and Third defendants. The Writ meets the requirements of Order 4 r16 and form 5. The issue arose as to whether or not the Writ of Summons was defective or irregular and amounted to an abuse of the process of Court and should be struck out for the reason that the plaintiff signed the Writ which was drafted in the English language which he did not understand. Both counsels were given until 21 March 2001 to prepare their submissions. Having heard their submissions on 21 March 2001, I deferred my ruling to today.

Mr. Siminji of counsel for the plaintiff concedes that the Writ in this case is irregular or defective for this reason. But he submits the defect is merely a formal one because there is no question about the reasonableness of the cause of action pleaded in the Writ. He submits the defect can be cured in two ways: 1. the person who drafted the Writ can interpret or explain the contents in the Pidgin language and file an affidavit to the effect that the plaintiff has now understood the contents and agrees with its contents. 2. A lawyer can interpret the same and file an affidavit to that effect. Mr. Ovia of counsel for the defendant submits that the defect goes to the very foundation of the originating process and it cannot be cured in the way suggested by Mr. Siminji and that the Writ should be struck out for abuse of process of the Court. Neither counsel was able to cite any authority in the rules of Court or established principles, to support their respective contentions.

There is no question of the plaintiff’s standing or right to institute these proceedings in his own name, be he literate or illiterate, and his right to be heard by the Court in whatever language he chooses to speak. It is the duty of the Court to facilitate the full exercise of these rights. The issue before me is a narrow one: As a matter of practice, is a person who institutes proceedings in the National Court required to know and understand the content of the document which he or she is the author of or signatory to?

In my research, I am unable to find any legislation which specifically prescribes and defines the official language of this country and the official language of the formal Courts. It is a well known fact that there are some 700 different "tok ples" or local dialect spoken in Papua New Guinea. The main languages spoken are English, Tok Pisin and Motu.

The only statutory reference to the languages of this country is found in the Constitution in the National Goals and Directive Principles No. 2(11) which is entitled "Equality and Participation". It says "we accordingly call for .... all persons and governmental bodies to endeavour to achieve universal literacy in Pisin, Hiri Motu or English", and in "tok ples", or "ita eda tano gado". And it is the duty of all government departmental bodies to apply and give effect to this call as far as lies within their respective powers: Constitution, S.25. There is no specific mandate in Goal No. 2(11) as to which of those languages is to be the official language(s) of PNG. However in practice, in modern-day PNG, there appears to be a general acceptance that English is the language of the modern age and all businesses conducted in the modern institutions, be they in government or the private sector, are to be conducted in English. Specific statutory provisions have been designed in many areas of modern day practice in PNG to enable a translation of language other than English spoken or used in a document to be translated into the English language or vice versa. The Courts are of no exception. Some legislative provisions and rules of the Court dealing with the procedure of the Courts suggest that English is the official language of the formal Courts. Take a few examples:

Forms 4-8. The evidence of persons giving evidence in Court in a language other than English, is required to be translated into English for purposes of the record.

in "English", an English translation of it must be filed with the Registrar.

English filed in PNG in a country in which English is not the official language is required to file a translation of the document in the official language of that other country.

These and many other similar provisions appear to assume that all documents filed in the National Court are to be in the English language. And the Courts have held
that English is the "ordinary language", the "official language", the "language of the Court" or the "language on the record" of the formal Courts in Papua New Guinea: State v. Hallau Honian N421(M) (1983), Anton Parao v. Sir Tei Abal [1976] PNGLR 251.

The NCR does not specify any procedure for the Registrar to ensure that an illiterate author of an originating process understands the nature and content of the document he is authoring and adopting by placing his signature on the document: The only provision in the NCR which prescribes a procedure for translating a document authored by an illiterate person is found in O11 r22which relates to affidavits. Order 11 rule 22(3), (4) provides:

*(3)*	*Where it appears to the person before whom an affidavit it sworn that the deponent is illiterate or blind, he must certify in or below the jurat that—*
*(a)*		*The affidavit was read in his presence to the deponent; and*
*(b)*		*The deponent seemed to understand the affidavit.*
*(4)*	Where an affidavit is made by an illiterate or blind deponent and a certificate in accordance with Sub-rule (3) does not appear on the affidavit, the affidavit may not be used unless the Court is satisfied that the affidavit was read to the deponent and that he seemed to understand it.

A similar provision is found in S.94(c)(2) the District Courts Act which relates to the written statements of witnesses tendered at the committal proceedings. That section states:

(2)

Before admitting(the evidence contained in) a written statement, the Court shall be satisfied that the person who made the statement had read and understood it, or if unable to read, had had it read to him in a language that he understood.

see State v. Kai Wabu [1994] PNGLR 498 for suggested practice guidelines as to the procedure for explaining contents of written certified statement in English to illiterate deponents.

The English language is a language foreign to Papua New Guineans. Ironically, it appears to be the "official language" or the language of the formal Courts in this country. A person who is illiterate in the English language and an overwhelming majority of Papua New Guineans are, can be said to be under disability and equated with a blind person who cannot read or write in that foreign language: Fande Balo v. The Queen [1975] PNGLR 378. Therefore, such a person cannot be said to have adopted the document in the English language as his own by signing or putting his mark on it. And no party in a proceeding may rely on it or expect the Court to use it.

The issue before me raises question of access to the formal Courts by illiterate persons. It is a well known fact that an overwhelming majority of the people in this country are illiterate. But it is also accepted that procedures of the National Court in civil claims are stringent "with all the attended legal formalities", Rundle v. MVIT (PNG) Trust [1988] PNGLR 20; and those procedures must be fully complied with before the judicial discretion of the Court is invoked by a party and exercise by the Court: MVIT (PNG) Trust v. Viel Kampu SC587 (1998).

In recent times this Court has witnessed an increasing number of claims filed and presented in person, mainly by illiterate or semi-illiterate persons, or educated persons but with no legal background. Many of the documents, it seems to me, are being drafted by persons with no legal qualifications or by legally qualified people with little or no practical experience. As a result, the documents are fraught with irregularities and deficiencies in both form and content. When these people front up in Court, they do little to explain the document placed before the Court and expect the Court to explain the documents and give them advice on matters of practice and procedure and law.

If one were looking for an underlying explanation to this wave of litigants, it is not difficult to find one – either they cannot afford the fees of a private lawyer or that the Public Solicitor or the PNG Law Society has turned their backs on them.

As for the Court, on the one hand, it is within the power of the Courts to apply existing rules of Court with greater latitude or even formulate new rules of Court designed to ensure that citizens who wish to seek justice in the Courts are not prevented from doing so because of procedural obstacles or language impediment: see NCR O2 r7-8; Constitution, S.184 (rules of Court); S.185 (lack of procedural rules). It is the function of the Courts to construe existing rules or design rules of practice and procedure aimed at achieving an orderly and expeditious disposition of cases in a fair manner. But on the other hand, I do not believe it is proper of the Courts to bend, taint, distort, waive or ignore existing rules of practice and procedure and law, or devise new rules to suit the socio-economic standing of one of the party appearing before it, at the expense of the other. The rules of Court in my view have to be applied to all, equally and fairly. Accordingly, it is my view that all documents filed by all persons, of whatever background, appearing by lawyer or in person, will be judged and tested by the same rules and standards. Parties cannot expect the Court to be their legal adviser, consultant, counsellor, draftsman or editor. The integrity and the standard set by the Courts and its scarce resources and the integrity of the legal profession must be protected from this wave of litigants. The Court traditionally has and even in modern times, will never have the luxury of resources in abundance to attend to floodgate of claims created by persons filing documents, in whatever form and style, without proper legal advice or assistance.

The Writ of Summons in the present case is clearly irregular. O1 r7 – 8 applies to irregular proceedings. They provide:

The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void, unless the Court so directs, but the proceedings may be set aside, either wholly or in part, as irregular, or may be amended or otherwise dealt with, in such a manner, and on such terms, as the Court thinks fit.

The Court’s power to set aside irregular proceedings is discretionary. If the discretion is to be exercised in favour of setting aside the whole or part of the proceedings for reasons of irregularity, it is to be exercised only in special cases because O1 r8 creates a presumption of validity of proceedings irregularly instituted.

In the exercise of my discretion, whilst it is possible to rectify the Writ in the manner suggested by Mr. Siminji, the gravity of the flaw is such that I should exercise my discretion in favour of setting aside the whole proceedings. An originating process is the single first and most important document that enters the Court process. It is virtually important that the plaintiff must be fully aware of the nature of the claim and the serious consequences that follow from the institution of the proceedings in the Court. In the present case, the plaintiff was completely unaware of what he was signing to. This is a serious flaw in the originating process. Some even more substantive flaws are evident in other important documents such Notice of Motion and affidavits he deposed to and filed. This led me to refuse earlier his motion for default judgment. There is also an element of abuse of process of the Court by the National Court registry staff who drafted this Writ and the affidavits and Motions filed in these proceedings. It is not the function of the National Court registry staff to provide legal or clerical services to the public. This should not be allowed to happen. The plaintiff is a party to this complicity.

In arriving at the decision to strike out the whole proceedings, I have borne in mind that the claim will not become Statute barred if it were struck out now and the plaintiff will have adequate time to file a new Writ properly. I suggest the procedure to be followed is by way of certification or by affidavit of translation similar to the procedure I suggested in Kai Wabu in relation to taking of Statements from illiterate persons, or the requirement for affidavits in Order 11 rule 22(3). Whilst this Court has the power under S.185 of the Constitution to formulate rules in a particular case where there is none on a particular subject matter, I prefer to leave it to the Registrar or the judges to devise the appropriate rules. The Registrar or the Court obviously will have to devise some practice guidelines or rules to formalize the procedure.

Before I finish, the manner in which the issue was raised by the Court on its own initiative requires some explanation. This Court has wide powers to control the conduct of proceedings before it, subject of course, to jurisdictional limitations fixed by Statute. It is in the inherent jurisdiction of the Court to take firm control of the proceedings to ensure that the business of the Court is conducted in an orderly and fair and timely manner and to ensure that justice is done in the particular case. To this end, it is within the inherent jurisdiction of the Court to scrutinize the form and contents of documents before it. State v. Alphonse Woinangu N966 (1991).

There is a wide discretion vested in the Court by the NCR to screen and weed out claims which do not disclose as reasonable cause of action, are frivolous and vexatious or an abuse of process of the Court, (O12 r40) or the documents filed in Court is scandalous, irrelevant or otherwise oppressive (O2 r29), or on the ground of irregularity. That discretion is normally exercised upon application by an interested party. Nevertheless, it goes without saying that the Court may exercise that discretion on its own initiative. It is open to the Court to raise and determine questions concerning the regularity (O1 r1-9) or competency of proceedings at any stage of the proceedings with or without application by an interested party: see Siaman Riri & Anor v. Simon Nusen & Ors N1375 (1995). It is for this reasons that I raised the issue of competency on any initiative.

For these reasons, I hold that the Writ of Summons is invalid as being irregular and amounting to an abuse of process of the Court. I strike out the whole proceedings with costs to the defendant.
________________________________________________________________________
Lawyer for the plaintiff : Public Solicitor
Lawyer for the defendant : Gamoga & Co. Lawyers

National Court of Papua New Guinea

Paul v Kispe [2001] PGNC 132; N2085 (17 April 2001)