| 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:
JOVECI TUINAMUANA
Plaintiff
and
SUVA CITY COUNCIL
Defendant
G. O’Driscoll for the Plaintiff
S. Parshotam for the Defendant
JUDGMENT
On 1 January 1995 the Plaintiff was appointed the Suva City Council’s Town Clerk and Chief Executive officer for a period of 3 years.
His contract of service is document No. 5 in an agreed bundle of documents.
Clause 6 of the contract states:
“A gratuity payment of 12% on basic salary to be payable at the end of the contract period”.
At the end of the contract period the Council offered the Plaintiff a gratuity payment which represented 12% of the salary paid to
him in his final year of employment. He rejected the offer. The Plaintiff’s case is that the clause entitles him to a gratuity of
12% not of his final annual salary but of the whole of the sum of the 3 annual salaries paid to him. The only question before 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 meaning of a document or a particular 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).
Where examination of the document does not clearly reveal its meaning extrinsic evidence may, in very limited circumstances, be admissible
but those circumstances do not include drafts of the contract, preliminary agreements or letters of negotiation. And neither is
it permissible to adduce evidence to show what the parties’ subjective intentions were or that they were not in accord with the particular
expressions used in the contract ( see generally Chitty on Contracts – 24 Edn para 735).
Recognising these limitations, Mr. O’Driscoll did not call the Plaintiff of any other evidence. Mr. Parshotam did not call any evidence
either. Mr. O’Driscoll’s main argument appeared to be that the clause, by not including the word “annual” had to be taken to refer
to the whole 3 year period. Mr. Parshotam, on the other hand 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 refer me to a letter from the Higher Salaries Commission dated
8 July 1997 (document 7) which appeared to establish the Plaintiff’s “basic salary” but I found the linkage between the 2 documents
to be tenuous at best and the admissibility of the document as an aid to the interpretation of the contract questionable. Neither
counsel referred me to any authority.
I have not found any of the other accepted principles of construction to be of assistance and indeed none was advanced or advocated
by either counsel. There was, in particular, no evidence of custom or practice.
Although not entirely satisfactory the contra preferentem rule appears to offer the only 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 this rule I hold 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 will be Judgment for the Plaintiff in the amount of $18,436.92. I will hear counsel on the
claim for interest and costs.
M.D. Scott
Judge
25 April 00
HBC0568J.97S
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