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Itinnaibo v Attorney General [2025] KIHC 92; Civil Case 20 of 2021 (19 December 2025)

IN THE HIGH COURT OF KIRIBATI
Civil Jurisdiction
Held at Betio


Civil Case No. 20 of 2021


Between:

Mote Rui Itinnaibo Plaintiff

And:

Attorney General

(in respect of Marakei Island Council) 1st Defendant
(in respect of the Kiribati Police Service) 2nd Defendant


Counsel: Mr. Banuera Berina for the Plaintiff

Mr. Nenebati T. Tainimaki for the Defendants


JUDGMENT

I. Introduction

  1. This case concerns whether a local council resolution restricting movement during the COVID-19 pandemic constituted “law” under section 14(3)(b) of the Constitution, and whether the plaintiff’s confinement amounted to false imprisonment.
  2. The plaintiff, Mr. Mote Rui Itinnaibo, alleges that the defendants, the Marakei Island Council and the Kiribati Police Service, unlawfully prevented his family from disembarking and confined him to his home for three days, thereby breaching his constitutional right to freedom of movement and committing false imprisonment.
  3. The defendants deny liability, asserting that their actions were lawful, proportionate, and executed in good faith under the Local Government Act 1984 and the constitutional framework for public health emergencies.

II. Undisputed Facts

  1. Against this backdrop of competing constitutional and statutory claims, the Court first sets out the factual matrix that is not in dispute.

III. Issues

  1. The Court identifies the following issues for determination:
  2. For clarity, the Court notes that both parties framed their submissions in terms of a “curfew order.” Counsel for the plaintiff adopted that terminology, and the defendants likewise referred to an “order” in their submissions. However, the evidence demonstrates that the only operative instrument was the Marakei Island Council’s resolution of 21 May 2021 (herein referred to as the Council’s resolution), formally expressed as “lockdown now.” No byelaw or formal order was enacted. Accordingly, throughout this judgment the Court will refer to that instrument simply as the resolution, treating “curfew order” as shorthand used in submissions.
  3. The Court therefore proceeds to interpret that resolution in its full context, beginning with the minutes and contemporaneous conducts of the Marakei Island Council. This ensures that the subsequent analysis rests on the correct doctrinal footing.

IV. Legal Framework

  1. The dispute is governed by constitutional provisions, statutory authority under the Local Government Act 1984, and common law principles of false imprisonment.

In assessing restrictions under section 14(3)(b), the Court applies a tripartite standard/test:

  1. Prescribed by law: Is the restriction grounded in a valid legal instrument or statutory delegation?
  2. Legitimate aim: Does the restriction pursue a constitutionally recognized objective, such as public health?
  3. Necessity and proportionality: Is the restriction reasonably required, procedurally fair, and no more intrusive than necessary to achieve its aim?
(b) Local Government Act 1984 (herein the “1984 Act”)

Together, these provisions authorize councils to regulate movement for public health, provided procedural requirements and constitutional safeguards are observed.

(c) False Imprisonment requires: This tort requires total restraint imposed intentionally and without lawful authority.

These cases affirm that lawful authority and total restraint are essential elements. Mere inconvenience or advisory restrictions do not suffice.

Comparative Authorities:

The Court is guided by three core precedents:

Other authorities, such as R (Bourgass) v Secretary of State for Justice [2015] UKSC 54, R (Miller) v Prime Minister [2019] UKSC 41, and Dolan v Secretary of State for Health and Social Care [2020] EWCA Civ 1605, similarly affirm that restrictions on liberty must be lawful, proportionate, and procedurally fair, but they are not central to the present reasoning.

(d) Damages and Cultural Harm

These authorities inform the Court’s assessment of damages absent a constitutional or tortious breach, with particular regard to cultural dignity.

V. Summary of Submissions

  1. The Court records, in brief, the competing positions advanced.
  2. These submissions are considered in detail in Section VI below, where the Court addresses each issue in turn.

VI. Analysis and Consideration

  1. The Court turns to the substantive issues, beginning with whether a valid resolution was in place.

Issue 1. Was there a valid resolution restricting movement in place?

Plaintiff’s Submissions

  1. The plaintiff contends that only a byelaw enacted under section 50 of the 1984 Act could restrict movement with the force of law, and that no such byelaw was produced. He argues that the Council’s resolution lacked legal effect and therefore could not override constitutional rights.

Defendants’ Submissions

  1. The defendants submit that the resolution is intra vires under section 45 and Schedule 1 of the 1984 Act, which empower councils to safeguard public health and regulate movement. They rely on section 113, which permits publication of notices in conspicuous places, and argue that dissemination of letters and postings constitutes substantial compliance.

Deliberation

  1. The operative instrument was the Marakei Island Council’s resolution of 21 May 2021, adopted in a full council meeting addressing COVID-19 preventative measures and duly recorded in the minutes under section 26 of the Local Government Act 1984.
  2. The minutes of the resolution record two distinct elements: deliberative remarks, in which members urged that “Marakei should now be in lockdown; there should be no boat or speedboat coming in,” and the formal decision line, “Marakei should be in lockdown now.”
  3. The decision line is authoritative, but its meaning must be interpreted in light of the deliberative remarks and contemporaneous announcements. On its face, “lockdown now” is indeterminate. However, the surrounding context, including letters and notices disseminated to villages, and oral directions by the Clerk and police, makes clear that “lockdown” was understood to mean a prohibition on incoming vessels and restriction of external movement.
  4. The Court therefore reconciles the two by holding that the decision line incorporated the substance of the deliberative remarks, even if not repeated verbatim. In particular, there is no evidence to show the contrary.
  5. That resolution was enforced when the plaintiff’s family were prevented from disembarking on 22 May and when the plaintiff himself was instructed to remain at home for three days. On the face of these directions, which the plaintiff alleges, they amounted to a restraint on liberty, and it is this restraint which must be tested against the Constitution.
  6. In determining whether this resolution was capable of limiting constitutional rights under section 14(3)(b) of the Constitution, the Court analyzes the legality of the resolution.
  7. Section 45 of the Act provides:

“A warrant establishing a council may provide that, subject to such limitations and conditions as may be specified therein, a council either shall perform or may perform all, any or any part of the functions listed in the Schedule.”

  1. Schedule 1, made under section 45, expressly empowers councils “to safeguard public health and prevent the spread of disease.”
  2. Section 49 further provides:

“In the event of any sudden disaster or emergency endangering the life or property of any persons within the area of authority of a council, the president shall make such decisions and take such steps as may be reasonably necessary to deal with the situation...”

  1. These provisions when read together empower the council to deal with any emergency health related issues and prevent the spread of disease.
  2. The plaintiff’s argument on their liberty is enshrined under the Constitution. Section 14(1) guarantees freedom of movement:

“No person shall be deprived of his freedom of movement, that is to say, the right to move freely throughout Kiribati, the right to reside in any part of Kiribati, the right to enter and leave Kiribati, and immunity from expulsion from Kiribati.”

  1. This guarantee must be read alongside section 2 of the Constitution, which declares its supremacy and voids any inconsistent law. Any curtailment of freedom of movement must therefore withstand constitutional scrutiny. It declares:

“This Constitution is the supreme law of Kiribati and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.”

  1. This supremacy clause ensures that any restriction on movement must be tested against constitutional standards before reliance on statutory powers.
  2. Nonetheless, section 14(3)(b) qualifies that guarantee by permitting restrictions “contained in or done under the authority of any law” where such restrictions are “reasonably required in the interests of defence, public safety, public order, public morality, public health, environmental conservation or in fulfilment of the international treaty obligations of Kiribati.”
  3. In other words, the guarantee enshrined in section 14(1) can be limited for a public health reason. However, this limitation should be prescribed by law (i.e. contained in or done under the authority of any law), pursue a legitimate aim (the aims are limited to defence, safety, order, morality, health etc.), and be proportionate (i.e. must be reasonable). The Court now examines whether the resolution satisfies each limb of the test.
  4. As to the first limb, prescribed by law, the resolution was duly minuted under section 26, traceable to section 45 (public health functions as spelled out in Schedule 1) and section 49 (emergency powers), and therefore “done under the authority of law.” The plaintiff’s contention that only a byelaw under section 50 could restrict movement is rejected. Byelaws are legislative instruments carrying penal force; resolutions are administrative acts. Section 14(3)(b) expressly encompasses both restrictions “contained in law” and acts “done under the authority of law.”
  5. As to the second limb, pursuit of a legitimate aim, the resolution was adopted in response to a public health emergency, specifically the risk of pandemic spread. It was done under the authority of the 1984 Act. Section 14(3)(b) of the Constitution expressly lists “public health” as a ground on which freedom of movement may be restricted. The Council’s resolution was evidently directed to preventing disease transmission by restricting incoming vessels, a measure squarely aligned with the statutory purpose of safeguarding public health. The Court is satisfied that the resolution pursued a legitimate aim, namely the prevention of disease transmission, satisfying the second limb.
  6. As to the third limb, proportionality and necessity, the resolution was geographically confined to Marakei, temporally limited, and enforced administratively without criminal sanctions. These features demonstrate that the measure was suitable to address the risk, necessary in the circumstances, and the least restrictive means available. By opting for administrative enforcement rather than penal sanctions, the Council adopted a measured approach that balanced public health protection with individual freedoms, demonstrating suitability to the risk, necessity in the circumstances, and a least-intrusive means. The Court is therefore satisfied that the resolution was proportionate, satisfying the third limb.
  7. Having applied the tripartite test, the Court holds that the resolution restraining the freedom of movement of the plaintiff was prescribed by law, pursued the legitimate aim of public health, and was proportionate. It was therefore consistent with the Constitution and capable of limiting rights under section 14(3)(b).
  8. This conclusion is consistent with comparative jurisprudence, which confirms that statutory delegations for public health may justify restrictions on liberty when prescribed by law and proportionately applied. In Borrowdale v Director-General of Health [2020] NZHC 2090; [2020] 2 NZLR 864, the New Zealand High Court held that restrictions must be “prescribed by law” and traceable to a clear legal instrument. In LibertyWorks Inc v Commonwealth (2021) 286 FCR 131, the Australian Federal Court upheld intrusive travel bans under the Biosecurity Act, emphasizing that harsh measures may nonetheless be lawful if authorized by statute. In Jacobson v Massachusetts [1905] USSC 38; 197 U.S. 11 (1905), the U.S. Supreme Court upheld compulsory vaccination laws as a valid exercise of police power in the interest of public health. UK authorities such as Dolan v Secretary of State for Health [2020] EWCA Civ 1605 and R (Bourgass) v Secretary of State for Justice [2015] UKSC 54 confirm that decisions affecting liberty must be traceable to statutory authority and remain within lawful limits.
  9. Accordingly, the resolution satisfied all three limbs of the constitutional test under section 14(3)(b), and it is therefore capable of limiting constitutional rights under section 14(3)(b) of the Constitution.

Issue 2: Applicability of the Resolution to the Plaintiff’s Family

  1. The Court now turns to the second issue, which concerns the origin of the plaintiff’s family and whether the resolution applies to them.

Plaintiff’s Submissions

  1. The plaintiff contends that his family arrived from Abaiang, a lower-risk island, not South Tarawa. He argues that the resolution was intended to target high-risk arrivals from Tarawa and that applying it to his family was arbitrary and disproportionate. He submits that the Council exceeded its authority by extending the restriction beyond its intended scope.

Defendants’ Submissions

  1. The defendants maintain that the family’s journey originates in South Tarawa before passing through Abaiang, and that the resolution is framed broadly to restrict all incoming travel to Marakei. They argue that uniform application is necessary to safeguard public health, avoid loopholes, and ensure consistent enforcement.

Deliberation

  1. The operative instrument is the Council’s resolution of 21 May 2021, which records the decision line: “Marakei should be in lockdown now.” This was preceded by deliberative remarks: “Marakei should now be in lockdown; there should be no boat or speedboat coming in,” and by the Clerk’s letters instructing villagers that “no-one should leave Marakei” and that families outside should not return until the matter was settled.
  2. This interpretation was not merely theoretical. On 22 May 2021, when the plaintiff’s family arrived from Abaiang, the Acting Clerk and a police officer instructed them not to disembark.
  3. Taken together, the contemporaneous statements and the intervention demonstrate that “lockdown now” was understood as a blanket prohibition on incoming vessels, not a selective ban limited to Tarawa. The resolution’s scope was general, applying uniformly to all external arrivals.
  4. On the facts, the plaintiff’s family disembarked from Abaiang, a lower-risk island. Yet the contemporaneous wording of the resolution, the accompanying directions, and the enforcement action at the shoreline confirm that “lockdown now” was applied uniformly. The Court therefore holds that the resolution applied consistently to all incoming vessels, including the plaintiff’s family, and its scope was lawfully general.
  5. Proportionality requires tailoring restrictions to actual risk, but comparative authorities (see for example Borrowdale, LibertyWorks, and Jacobson) affirm that general restrictions, even if over-inclusive, may be lawful in public health emergencies if they are prescribed by statute, pursue a legitimate aim, and are applied consistently. This Court has already found that the resolution satisfies each limb of that test.
  6. Accordingly, the Court finds that although the plaintiff’s family arrived from Abaiang, the Council’s resolution of 21 May 2021, interpreted in its full context and enforced by local officials, lawfully applied to them.

Issue 3: False Imprisonment

  1. The Court now turns to the third issue, whether the defendants’ actions amounted to false imprisonment.

Plaintiff’s Submissions

  1. The plaintiff emphasizes that he and his family were prevented from disembarking and later confined to their home. He argued that there was no byelaw or formal instrument to justify the measure, and that the council resolution lacked lawful force. He contends that these circumstances amounted to total restraint without lawful justification, satisfying the common law test for false imprisonment (see Bird and Rokotuiviva).

Defendants’ Submissions

  1. The defendants respond that the restriction is imposed under lawful statutory authority (section 45 and Schedule 1, 1984 Act). They argue that the plaintiff is not arrested, detained, or placed under custodial control; confinement is merely advisory and precautionary. Even if there is confinement, it is still lawful. They maintain that the measure was proportionate to the public health risk and executed in good faith.

Deliberation

  1. The Court accepts that the plaintiff and his family experienced constructive confinement. On 22 May 2021, the family were prevented from disembarking and remained overnight on the beach. Between 23 and 25 May, the plaintiff was instructed to remain at home. These directions restricted his freedom of movement in a manner that, absent lawful authority, would satisfy the common law requirement of total restraint.
  2. The doctrine of constructive confinement is well established. In Bird v Jones (1845) 7 QB 742, the Court of Queen’s Bench held that false imprisonment requires a total restraint of liberty, not merely partial obstruction. The principle is that confinement may be constructive: if a person is compelled to remain in a bounded area or prevented from leaving altogether, imprisonment exists even without physical custody. In Meering v Grahame-White Aviation Co Ltd [1919] 122 LT 44, further illustrates that imprisonment may exist even where the plaintiff is unaware of the restraint. More recently, in Austin v Commissioner of Police of the Metropolis [2009] UKHL 5, the House of Lords confirmed that containment, such as “kettling” protestors, may amount to imprisonment if not lawfully justified. These authorities demonstrate that constructive confinement suffices to establish restraint, subject always to the requirement of lawful justification.
  3. On the facts, the plaintiff’s family were prevented from disembarking on 22 May 2021 and the plaintiff was instructed to remain at home until 25 May. He was not arrested, placed in custody, or physically detained. He remained in his home with full access, unguarded and unlocked. The restraint was precautionary, advisory rather than custodial, and lacked the character of false imprisonment.
  4. The plaintiff’s liberty was curtailed: his family were prevented from disembarking and he was instructed to remain at home, amounting to constructive confinement within the meaning of Bird; Meering; and Austin.
  5. The critical question is whether such confinement was lawful. As established in Issue 1, the operative resolution of 21 May 2021 (‘lockdown now’), which creates the confinement, as duly minuted under section 26, enacted under section 45 and Schedule 1, reinforced by section 49, and executed bona fide. It was also substantially compliant with publication requirements under section 113, and constitutionally valid under section 14(3)(b). Unlike Rokotuiviva v Seveci [2008] FJHC 221, where detention was imposed without statutory basis, here the restraint was traceable to a valid legal instrument enacted for public health.
  6. In particular, the Court notes that section 104 of the 1984 Act expressly protects council members, officers, and employees from personal liability where actions are taken bona fide under the Act. This provision reflects a legislative policy that officers implementing council decisions in good faith should not be exposed to personal claims, even where their actions involve restraint of liberty.
  7. In the present case, the Acting Clerk and police officers enforced the Council’s resolution of 21 May 2021 in good faith, pursuant to sections 45, 49 and Schedule 1. Their conduct was precautionary, directed to safeguarding public health, and traceable to a valid resolution. There is no evidence to the contrary. Section 104 therefore operates to shield them from personal liability.
  8. Accordingly, while constructive confinement occurred, it was lawfully imposed under a constitutionally valid resolution. False imprisonment requires total restraint without lawful authority. Here, lawful authority existed under sections 45 and 49 of the Act and under section 14(3)(b) of the Constitution. The claim therefore fails.

Issue 4: Damages

  1. Finally, the Court turns to the fourth issue, whether the plaintiff is entitled to damages for emotional distress and cultural harm.

Plaintiff’s Submissions

  1. The plaintiff seeks $50,000 in general and aggravated damages for emotional and cultural harm. He argues that confinement and reputational injury as a respected unimwaane caused humiliation and loss of dignity. He relies on Rokotuiviva v Seveci and comparative authorities to argue that damages should reflect both the deprivation of liberty and the cultural significance of his standing. He maintains that because the Council’s resolution lacked lawful force, the restraint was unlawful and damages are warranted.

Defendants’ Submissions

  1. The defendants oppose damages, maintaining that no unlawful conduct occurred. They argue the restriction was lawful, precautionary, and proportionate under the order, so no actionable wrong exists. Without an actionable wrong, damages cannot be awarded. They contend that the plaintiff’s authorities are factually distinguishable and do not apply where restrictions were lawful and precautionary.

Deliberation

  1. As established in Issue 3, the plaintiff was subject to constructive confinement: his family were prevented from disembarking and he was instructed to remain at home. Such restraint, absent lawful authority, would ordinarily satisfy the common law requirement of total restraint (Bird; Meering; and Austin v Commissioner of Police). However, the Court has already found that the operative resolution of 21 May 2021 (“lockdown now”) was constitutionally valid under section 14(3)(b). Section 104 further reinforces that council officers acting bona fide under statutory authority cannot be personally liable. The confinement was therefore lawful.
  2. Damages presuppose liability. In Ashley v Chief Constable of Sussex Police [2008] UKHL 48, the House of Lords held that compensation cannot be awarded absent an actionable wrong. Here, although constructive confinement is acknowledged, lawful justification existed under the Constitution. The tort of false imprisonment is not made out, and no constitutional breach has been established. Accordingly, damages are unavailable.
  3. The Court acknowledges the plaintiff’s cultural standing as a unimwaane and the humiliation he suffered. Comparative authority recognizes that cultural harm may aggravate damages where liability exists (Hill v Church of Scientology of Toronto [1995] 2 SCR 1130; Selwyn v Attorney-General [2022] NZHC 2552). Recognition of cultural dignity is important, but it cannot substitute for the requirement of an actionable wrong. As no unlawful act has been found, damages cannot be awarded, though the Court records its recognition of the plaintiff’s cultural dignity and the impact of the events upon him.
  4. Accordingly, the Court finds that the plaintiff’s claim for $50,000 in general and aggravated damages must fail. Constructive confinement is acknowledged, but because it was imposed under a resolution that constituted “law” within the meaning of section 14(3)(b) of the Constitution, it was lawful. Without liability, damages are unavailable.

VII. Final Orders

  1. For the reasons set out above, the Court finds as follows:
  2. Accordingly, the Court holds that the Council’s resolution of 21 May 2021 was valid, applied lawfully to the plaintiff’s family, and justified the precautionary confinement. No false imprisonment or actionable wrong arises, and the claim for damages must fail. The proceedings are therefore dismissed.
  3. No order as to cost.

VIII. Observations and Recommendations

  1. Although the Court has dismissed the plaintiff’s claims, several procedural lessons emerge for future governance:
    1. Clarity of Resolutions: Councils should ensure that decision lines are drafted with precision. General expressions such as “lockdown now” invite uncertainty; clear wording avoids ambiguity and strengthens enforceability.
    2. Record-Keeping: Written instruments and minutes must be retained in accessible form. Reliance on oral testimony alone is insufficient; documentary records are essential for transparency and judicial review.
    1. Notice Practices: Where restrictions affect identifiable individuals or families, councils should provide personal notice in addition to general publication. Direct communication enhances fairness and reduces perceptions of arbitrariness.
    1. Consistency of Application: Emergency measures should be applied uniformly, with clear criteria for scope and duration. Consistency builds public trust and reduces disputes.
    2. Public Confidence: Procedural rigor is not a mere formality. It is integral to maintaining legitimacy and community confidence when fundamental liberties are curtailed.
  2. The Court acknowledges the plaintiff’s standing as an unimwaane and the humiliation suffered. Recognition of cultural dignity is integral to Kiribati’s constitutional order, especially in close-knit communities. While cultural harm cannot replace the requirement of an actionable wrong, its impact must be recorded. Councils and courts should remain attentive to cultural sensitivities when implementing and reviewing public health measures.
  3. These recommendations are not binding orders but constructive guidance. They aim to help councils and public authorities strengthen safeguards, ensure transparency, and maintain public confidence when exercising emergency powers. Above all, they stress the need for decision lines that clearly capture the intended scope of restrictions, so future courts need not rely on interpretive reconstruction to uphold their validity.

Delivered this 19th December 2025.


HON. AOMORO T. AMTEN
Judge of the High Court

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