Church of God v Temaera [2011] KICA 7; Civil Appeal 10 of 2011 (31 August 2011)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION

HELD AT BETIO
REPUBLIC OF KIRIBATI

Civil Appeal No. 10 of 2011

BETWEEN

REGISTERED TRUSTEES OF THE CHURCH OF GOD: REV BURANGKE TEKITA AND OTHERS
APPELLANTS

AND

RITARA TEMAERA AND OTHERS
RESPONDENTS

Before: Paterson JA
Williams JA
Barker JA

Counsel: Michael Takabwebwe for appellants
Banuera Berina for respondents

Date of Hearing: 27 August 2011
Date of Judgment: 31 August 2011

JUDGMENT OF THE COURT

1. On 22 October 2010, the Chief Justice entered judgment in favour of the appellants in varying amounts totalling $6,981. The order was noted as having been made by consent. The Court record confirms that counsel then acting for the appellant did in fact consent to the entry of judgment.
   
2. On 14 February 2011, the appellant filed what purported to be a notice of appeal without any application for leave to bring an appeal out of time. Affidavits in support alleged that a lawyer acting for the appellant at the time of entry of judgment failed properly to consult with them, and, failed to advise them properly about appeal rights, had no instructions to consent to judgment.
   
3. The appellant is one of five trustees of the Church of God in Kiribati. The Church had operated a school and the respondents had been teachers there who had sued to recover payment of wages. It was only when the respondents attempted to execute their judgment on 14 January 2011, that the appellant took steps to obtain different legal advice. On that date, the appellant was served with an application for examination of a judgment debtor.
   
4. The amended grounds of appeal claimed that the consent judgment be set aside because the proceeding had been irregular in that only one trustee of the Church had been sued instead of all five as required by section 6(1) of the Religious Bodies Registration Ordinance (Cap. 89).
   
5. The Court considers that the submission of counsel for the respondents is unanswerable. Namely, that a consent order can only be set aside by way of fresh action. See Ainsworth v Wilding [1896] UKLawRpCh 42; [1896] 1 Ch 673 and Wilding v Sanderson [1897] UKLawRpCh 120; [1897] 2 Ch 534.
   
6. In the present case, were that course to be followed, then all the facts surrounding the entry of the consent judgment would have to come before the Court. The appellant would have to waive privilege in order for the Court to hear the lawyers' version of what happened which may be quite different from what is now advanced by the appellant. Moreover, the basis on which the appellant had been sued would be explored. There was a suggestion from counsel for the respondents that the appellant had been happy enough to be cited as the representative of the Church.
   
7. The Court hopes that such an outcome might not be necessary and that common sense might prevail. It seems that the respondents are owed wages for their work at the school which has now ceased to function. The appellant's complaint seems to be that it should not be he who pays them. As was pointed out by counsel for the respondents, the figures for the various amounts, said to have been due to various respondents, came from him and the Principal of the school.
   
8. The Court considers it pointless to entertain an appeal since the appellant's only remedy is to issue an action to set aside the consent judgment.
   
9. Leave to appeal is accordingly refused. Costs to the respondents $500 plus disbursements as fixed by the Registrar.
   

Paterson JA

Williams JA

Barker JA