Tabora v Registrar of Births, Deaths & Marriage [2025] KIHC 119; Civil Case 05384 of 2024 (25 July 2025)

DeathIN THE KIRIBATI HIGH COURT ] Civil Case: 2024-05384
CIVIL JURISDICTION ]
HELD AT BETIO ]
REPUBLIC OF KIRIBATI ]

BETWEEN: TAKABWEBWE TABORA

APPLICANT

AND: REGISTRAR OF BIRTHS, DEATHS & MARRIAGE

1^ST RESPONDENT

AND: TOANTEITI TABORA

2^nd RESPONDENT

Before: Hon. J. Aomoro T. Amten

Date of hearing: 12 June 2025
Date of decision: 31 July 2025

Counsels: Ms Batitea Tekanito for the Applicant

Mr Tairake Ioane for the 1st Respondent

Mrs Botika M McDermott for the 2nd Respondent

JUDGMENT

AMTEN, J. – This is an application invoking Order 58 Rule 1 of the High Court (Civil Procedure) Rules (1964) requiring this court to make certain declarations in respect of the registration of the 2nd respondent. In support, the applicant relied on his own affidavit dated October 16, 2024. In summary, the applicant claimed that they are the legitimate heirs of Tabora Ienraku and asserted that Tabora never consented to the registration of the 2nd respondent under his name, nor did he recognize her as his child. He referenced Order 58 Rule 1.

2. In opposition, the respondents generally argued that since it was a late registration, it was done properly and in compliance with sections 15 to 17 of the Ordinance.

3. Order 58 Rule 1 provides:

“Any person claiming to be interested under a deed, will, or other written instrument may apply by and for a declaration of the rights of the persons interested.”

4. In analyzing the aforementioned Rule, I find that this rule by itself discloses essential elements that require examination. The first element is the necessity for an applicant to assert an interest under a deed, will, or other written documents. Secondly, the originating summons must be intended for resolving a question of construction that arises from the concerned instrument. Additionally, a third aspect to consider is the construction question, which should lead to a declaration of the rights of the individual interested in the interpretation of the said instrument. Finally, it is important to note that the person utilizing an originating summons in determining questions of construction must also possess a vested interest in the outcome of the inquiry.

5. This means that issues regarding questions of construction related to matters specified in Rule 1 can only emerge when there is a dispute concerning the meaning, scope, purpose, intention, extent, or application of the instrument or any of its components. This is due to the fact that, firstly, there must be a person asserting an interest under a deed, will, or written instrument. The key phrase here is "written instrument". The person making the claim must assert an interest under the written instrument. Unfortunately, this phrase “written instrument” is not defined by the High Court (Civil Procedure) Rules, neither is it defined by the Interpretation and General Clauses Ordinance^[1]. In default, the usual canons of interpretation must be applied. "Written instrument" should be interpreted ejusdem generis (that is “of the same kind”) to encompass only written materials that belong to the class of deeds or wills, etc. Thus, "other written instruments" would refer to such documents as agreements, contracts, powers of attorney, personal declarations, trade dispute awards^[2] etc.

6. Having heard counsel, it occurred to me that the application stems from the procedure the 2nd respondent followed in registering her birth details with the Civil Registration Office (the 1st respondent). The applicant deposed in his affidavit that the entry of the 2nd respondent’s name, under Tabora Ienraku, constitute a violation of their rights as issues and as legal heirs of the said Tabora. Counsel argued that the 2nd respondent is an illegitimate child and hence, section 19 of the Ordinance should apply. The registration must not be carried out until and unless the consent of the mother and the alleged father has been obtained, or the 2nd respondent to have proved through paternity that her father was Tabora. Neither of these procedures were done prior to the said registration.

7. Counsel raised this question for determination, “whether the registration of the deceased Tabora Ienraku, as the father of Toanteiti in the register of births was done in compliance with the legal requirements that both of the mother and the person acknowledging himself to be the father of the illegitimate child must jointly request in writing and sign for such an entry?”.

8. Upon reviewing the applicant's arguments, the question raised, and more crucially, the affidavit of the applicant, all he was saying was that the registration of the 2nd respondent was invalid as section 19 of the Ordinance^[3] had not been complied with. Thus, the issue is more on whether the 1st respondent had made an entry in breach of section 19 and thereby rendering its action a nullity. This cannot arise from any construction of law. It is more a question of fact. As said in Solomon Islands Government v Solomon Islands Public Employees Union^[4], the question for construction put before the Court under the said rule must be such that the question demand constructions so as to answer the issues raised between the parties, and not simply questions which the party wants answers to, just for the sake of it^[5]. In particular, they also fail to specify which written instrument is under examination. Is it the entries, the birth certificate, or the guidance provided by the Civil Registration Registrar? Additionally, I find that there are substantial oppositions from the respondents which are matters of fact and would not be able to be dealt with appropriately here unless there is a full trial. Hence, a decision made one way or the other would not resolve all issues in dispute between the parties, but would necessitate additional litigation. The application therefore is not suitable to be initiated by originating summons^[6]. As Warrington, J. said in Lewis v Green^[7],

“The order is confined to enable the Court to decide the question of construction and nothing else, and the order does not enable the court to grant any relief, it can only determine the question of construction, and declare the rights of the parties.”

His Lordship went on to say this at p. 334,

“It is only intended to enable the court to decide questions of construction where the decision of those questions, whichever way it may go, will settle the litigation between the parties. It is not intended that questions of construction which, if they are decided in one way only, will settle the dispute between the parties, should come up for decision on an originating summons”.

9. I agree with Warrington’s views; they apply equally to the application before me. The cause of action lies elsewhere. Even, as Warrington had said, an originating summons does not enable the court to grant any relief, which follows that the reliefs sought by the applicant are misguided.

10. All in all, the application is refused and is dismissed. Parties are to bear their own costs.

16. ORDER accordingly.

Dated this 25^th July 2025.

Hon J. Aomoro T. Amten

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^[1] CAP 46.
^[2] Kiribati Shipping Services Ltd v Kiribati Shipping Union [2003] KICA 17 (PacLII)
^[3] Ibid note 1
^[4] [2003] SBHC 63 (PacLII)
^[5] ibid
^[6] See also Rigden v. Whistable Urban District Council [1958] 3 W.L.R. 205
^[7] [1905] UKLawRpCh 85; [1905] 2 Ch 340