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Attorney General & Secretary of Ministry of Education v Aorito [2025] KIHC 58; Miscellaneous Application 05873 of 2025 (1 September 2025)

IN THE HIGH COURT OF KIRIBATI
CIVIL JUDRISDICTION

MISC. APP 2025-05873 from
HIGH COURT CIVIL CASE 2025-05431

BETWEEN: ATTORNEY GENERAL & SECRETARY FOR THE MINISTRY OF EDUCATION

Applicant

AND: TETUAI AORITO

Respondent

Date of Hearing: 14 August 2025
Date of Judgment: 1 September 2025

Appearances: Ms Famelea Awerika for the Applicant
Ms Taaira Timeon for the 1^st Respondent

RULING

1. The applicants in this miscellaneous application (AG and Secretary for MOE) apply to strike out the Originating Summons in High Court Civil Case 2025-05431 filed by Tetuai Aroito, now the respondent, on the following grounds;
   
   • (i) The Originating Summons is defective and an abuse of the court process;
   • (ii) The originating summons specifies a claim for damages which does not conform with Order 58, Rules 1 and 2 of the High Court Civil Procedure Rules.
     
2. Brief background of the case, on May 5, this year, by Originating Summons, the respondent (Tetuai Aroito), also the applicant in the substantive matter numbered High Court Civil Case 2025-05431, applied to this Court for a declaration that his constitutional right, protected under section 8 of the Constitution, had been violated. He claims this occurred when the applicants, who are the respondents in the substantive matter (AG and Secretary for MOE), through the actions of the Keuea Community members and the Butaritari Island Council on Butaritari Island, entered and cleared his land for the purpose of constructing a new primary school, without his permission.
   
3. On July 4, this year, the AG and Secretary for MOE entered their response to the Originating Summons. On the same day, they filed this miscellaneous application to strike out the Originating summons for the grounds stated above in paragraph 1.
   
4. The primary arguments in favour of striking out are that an originating summons is intended to request the court's interpretation of legal issues and that there are no factual disputes. The applicants contend that the facts are indeed disputed, as demonstrated in their defence filed. This method is not suitable for initiating the case; instead, a writ of summons should be employed. Furthermore, the applicants also assert that it is inappropriate to seek general damages through an originating summons, as per Order 58, Rules 1 and 2 of the High Court Civil Procedure Rules.
   
5. In response, counsel for the respondent argues that the question before the Court relates to the interpretation of the respondent’s constitutional right to property protection under section 8 of the Constitution, and the facts are not disputed because the respondent owns the land in dispute, Tawanang 165-3, which was unlawfully entered and cleared by the applicant without his consent and in breach of sections 6, 7, 8, and 9 of the State Acquisition of Lands Ordinance, Cap 95B.
   
6. I have reviewed the submissions from both parties, including their supporting affidavits, the Originating Summons, and the Defence/Response. I find that there are indeed factual disagreements. The main dispute concerns whether the Keuea Community members entered and cleared the land on their own, without the knowledge or instructions of the applicants or respondents in the substantive case (AG and Secretary for MOE). The AG and Secretary for MOE deny directing this community to enter Tetuai Aroito’s land or to cut down the trees there. According to the AG and Secretary, their only instructions to the Keuea Community and the Island Council were to find suitable land for a new school, with explicit instructions to report back to the IEC officer once the land was identified, so the IEC officer could inspect the property and inform them (AG and Secretary) about it.
   
7. The declarations requested by the respondent or the applicant in the substantive matter concluded that it was the Attorney General (AG) for the Secretary who instructed the Ekeuea community members to enter and clear his land without his permission and in breach of the provisions of the State Acquisition of Lands Ordinance, therefore, this action constitutes a violation of his constitutional rights under section 8 of the Constitution. The Court cannot proceed with this application without first considering the factual evidence to ascertain whether the Attorney General for the Secretary of the Ministry of Education (MOE) was involved (through the actions of Keuea Community) in the intrusion and trespass onto the land without the landowner’s consent. This issue cannot be determined through the originating summons.
   
8. For the above reasons, the application is granted.
   

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice