Tuinamuana v Suva City Council [2000] FJHC 58; Hbc0568j.97s (25 April 2000)

Fiji Islands - Tuinamuana v Suva City Council - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

CIVIL ACTION NO. HBC 568 OF 1997S

Between:

Plaintiff

and

SUVA CITY COUNCIL

Defendant

G. O’Driscoll for the Plaintiff

S. Parshotam for the Defendant

ass=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> JUDGMENT

On 1 January 1995 the Plaintiff was appointed the Suva Citncil’s Town Clerk and ChiefChief Executive officer for a period of 3 years. His contract of seris docu document No. 5 in an agreed bundle of documents.

Clause 6 of the contract states:

“A gratuity payment o on basic salary to be payable at the end of the contract pact period”.

At the end of the contract period the Counffered the Plaintiff a gratuity payment which represented 1ted 12% of the salary paid to him in his final year of employment. Hected the offer. The Plai Plaintiff’s case is that the clause entitles him to a gratuity of 12% not of his final annual salary b the whole of the sum of the 3 annual salaries paid to him. The question before fore tore the Court is the meaning of the term “basic salary” in the contract.

It is a cardinal principle of construction of the terms of contracts that the meanf a document or a particulaicular part of a document is to be sought in the document itself: “one must consider the meaning of the words used, not what one may guess to be the intention of the parties” (Smith v. Lucas [1881] UKLawRpCh 163; (1881) 18 Ch.D. 531).

Recognising these limitations, Mr. O’Driscoll did not call the Plaintiff of any other evidence. Mr. Parshotam did not any any evidence either. Mr. scoll’s main argument ment appeared to be that the clause, by not including the word “annuad to be taken to refer to the whole 3 year period. Mr. Parshotam, onother hanr hand aand argued that since the clause did not refer to the whole 3 year period it had to be taken to refer to the annual basic salary only. He did me to a letter fror from tgher Salaries Commission daon dated 8 July 1997 (document 7) which appeared to establish the Plaintiff’s “basic salary” but I found tnkage between the 2 documents to be tenuous at best and thed the admissibility of the document as an aid to the interpretation of the contract questionable. Ne counsel referred me to e to any authority.

I have not found any of the other acceprinciples of construction to be of assistance and indeed need none was advanced or advocated by either counsel. There was, in cular, no evno evidence of custom or practice.

Although not entirely satisfactory the contra preferentem rupears to offer the only meay means of answering the question with any degree of certainty (see John Lee & Son (Grantham) Ltd v. Railway Executive [1949] 2 All ER 581). Applying thie I hold that that the term “basic salary” in this contract refers to the total basic salary paid to the Plaintiff over the 3 year period. Accordingly, there we Judg Judgment for the Plaf in the amount of $18,436.,436.92. l hear counsel on the clai claim for interest and costs.

M.D. Scottn>

Judge

25 April 00

HBC0568J.97S