IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 79 OF 2010

BETWEEN:	
ATTORNEY GENERAL IRO MINISTRY OF LINE AND PHOENIX
Applicant/Defendant

AND:	
ANTIERA BINATA, BINAORO TOTIE, KABORAUA TEENINGO AND TAUAPO NAATA
Respondent/Plaintiff

Date of Hearing:			17 AUGUST, 29 SEPTEMBER, 8 DECEMBER 2023
Date of Judgment:			9 JANUARY 2024

Appearances:				Mr. Monoo Mweretaka for the Applicant/Defendant
Ms. Taoing Taoaba for the Respondent/Plaintiff

JUDGMENT 

Case Background:
1.	By Writ of Summons dated 7 June 2010, the four plaintiffs sued the defendant for breach of contract and claimed for their salary difference and other benefits for the years 2006 to 2009, and continuing at the rate of $253.48 per fortnightly. 

2.	On 21 October 2010, the Court signed a Consent Order with the following terms:
“1. By Consent, judgment for the plaintiffs for $42,556.05, including interest, out of which the defendant is to pay $3773.79 to Kiribati Provident Fund on behalf of the Plaintiffs and the balance to Ms. Taoaba on behalf of the plaintiffs.
2. That the defendant continues payment to the plaintiffs at the rate of $243.38 per head by fortnight with effect 22 October 2010 until further arrangement agreeable to all parties.
3. That of the amount payable to Ms Taoaba on behalf of the plaintiffs, only $35,256.60 should be taxable at the rate specified under the Income Tax Act.”

3.	According to the parties, the defendant had complied with Term 1. In 2014, when the plaintiffs filed their application to seek enforcement of Term 2, the defendant filed this application to set aside this Consent Order on the ground of newly found evidence that the plaintiff’s employment had been terminated before the signing of the Consent Order. 

Submissions and Analysis

4.	The defendant/applicant called one witness, Ms. Daisy Korina, the Senior Assistant Secretary of the Ministry of Line and Phoenix (defendant), in 2014. She held this post since June 2014. Her evidence is that the employments of the four plaintiffs were terminated as per the Extract of the Public Service Commission (PSC) dated 22 January 2010, which was addressed to the Secretary of the Ministry of Line and Phoenix Development (Exh 1). The formal letter from PSC regarding this termination was not in the file, so the witness, as Senior Assistant Secretary, had to ask for it from PSC. They received a copy of this letter from PSC in August 2014 (Exh 2). Then, she provided the plaintiffs with copies of the termination letter, which they received in August 2014 (Exh 4).

5.	The respondent/plaintiffs, through the evidence of Antiera Binata, argued that the Consent Order should not be set aside as it was the defendant’s fault that the termination was not known when the Consent Order was signed. The defendant should have a copy of the termination letter in their files. The defendant had paid the plaintiffs under Term 1 of the Consent Order. 

6.	When cross-examined, the plaintiff/respondent agreed that since there was evidence regarding their termination, they were terminated a long time ago. When asked if they were no longer employees of the defendant, she replied, “I don’t know.” She also disagreed that the Consent Order must be set aside and that they were just placed at the Kiritimati Island Council to await the decision of their case against the defendant. The plaintiffs did not argue that they were not terminated; none is also stated in Antiera’s affidavit. Re-examination also did not establish this fact. 

7.	From the above, I accept the following facts: the Extract of the PSC regarding the termination of the plaintiffs’ employment was found by the defendant’s witness in 2014 when she started working there in June of that year; there was no concrete evidence that this Extract had been with the defendant before the signing of the Consent Order in 2010; the PSC letter to the Secretary regarding the termination of the plaintiff’s employment was received by the ministry (defendant) when the Assistant Senior Secretary (the witness) asked for it in August 2014; the Assistant Senior Secretary provided the plaintiffs with copies of the termination letters in August 2014; the plaintiff, through Antiera Binata, agreed that they had been terminated a long time ago; the plaintiffs/respondents did not deny that they had been terminated. 

8.	On the other hand, even if it were the defendant’s fault that they failed to realise the termination when they signed the Consent Order, such a fact was crucial to this case; the fact that there was this termination warrants that payments under the Consent Order must be seized. 
Conclusion

9.	In light of the above, I believe there is good reason to set aside the Consent Order, even though payment under Term One had been made. 

10.	The Consent Order is therefore set aside.

11.	No order as to cost.

Order accordingly.

HON TETIRO SEMILOTA MAATE MOANIBA
Acting Chief Justice