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Fiji Rugby League v Suva City Council [1995] FJHC 115; Hbc0252d.95s (13 July 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 252 OF 1995.

Between:

FIJI RUGBY LEAGUE
Plaintiff

- and -

SUVA CITY COUNCIL
Defendant

Mr. D. Jamnadas for the Plaintiff.
Mr. R. Gopal for the Defendant.

DECISION

This is an application for an injunction restraining the defendant (hereafter referred to as the "Council") its servants and/or agents from permitting the Suva Rugby Union and all the teams under its jurisdiction to use Albert Park Ground No.3 (hereafter referred to as the "ground").

Upon hearing ex parte an interim injunction was granted, modifying the application, restraining the Council from permitting the use of Ground No. 3 "to any other Rugby Body or organisations".

Hearing inter partes took place on 22 June 1995.

Mr Jamnadas wants the injunction to continue whereas Mr Gopal says that it should be dissolved.

The Plaintiff's submission is that the use of the ground has been given to it by Council until the end of the Rugby season by letter dated 28 March 1995. Mr Jamnadas agrees that it is a "licence" but he says that the Plaintiff has an "equitable" right to use the ground. He complains about the manner in which the licence is being revoked in that it is "unconscionable". He says that damages is not a proper remedy in this case. Mr Jamnadas further states that the permission to use has been given to the Plaintiff under Regulation 3(1) of SUVA (PARKS, RESERVES AND GARDENS) BY-LAWS, LAWS OF FIJI Vol VII Cap. 125 S408-S409 which provides, inter alia as follows:-

"3.-(1) Subject to the provisions of these By-laws, the Council may grant permission to any sporting, social or other organisation or body to have exclusive use of the whole or any part of any public park on any particular day or days for purposes approved by the Council and may give such organisation or body power to levy charges for admission:

Provided that-

(a) notwithstanding the grant of any such permission, the Council may, in its absolute discretion, revoke such permission to enable the public park to be used for other purposes in connection with a special occasion;"

(b) ....." (underlining mine)

Mr. Jamnadas says that the licence can be revoked only on "a special occasion" in terms of the said by-law. He argues that since this is not a "special occasion" it cannot be revoked.

Mr Gopal for the Council on the other hand submits that the Council has the right to revoke the licence (which is gratuitous in this case) upon giving reasonable notice. He submits that the said by-law is not "exhaustive or conclusive" and the licence can be revoked "on other occasions" other than on "a special occasion". He says that the Council has offered the Plaintiff the use of another ground, namely, Ram Lakhan Park at Samabula.

The decision whether to dissolve the injunction or not will depend upon whether the licence to use the ground under the circumstances is revocable or not and whether this is a proper case for the grant of an injunction.

In the said letter of 28 March 1995 the Council stated, inter alia, that:

"After careful consideration, Council has decided to allocate one ground (No.3) at Albert Park for the 1995 session to the Fiji Rugby League. This ground shall be available for training and competition on Mondays, Tuesdays, Thursdays and Saturdays throughout the 1995 season".

Then on 18 May 1995 the Council informed the Plaintiff in writing, inter alia, that:

"I regret to inform you that the earlier decision to allocate Ground No.3 at Albert Park for the Fiji Rugby League has been revised, and Council will not be able to release the same for the 1995 season".

I find that on the facts of this case the Plaintiff was the holder of a licence permitting it the "use" of the ground. It has not paid the Council any "usage fee" (as per Town Clerk's affidavit). The fact that it was a licence is not disputed by Mr Jamnadas except that he complains about it being "inequitable" and "unconscionable" the way it is being revoked.

The Plaintiff was a mere licensee. It cannot be said that there was a contract in this case. It was a mere licence to the Plaintiff giving it "permission" to have the "use" of the ground (the word "allocate" is used in the said letter of 28 March) for the period specified in the said letter. In the words of MARTIN B in WILLIAMS v JONES [1864] EngR 564; (3 H & C 256 Vol [1864] EngR 564; 159 ER 528 at 530) the defendant "might at any moment he thought fit, have revoked the licence, put an end to the user, and desired the carpenter to remove his tools, for there was no contract whatever between the parties." MARTIN B further states that: "we are not aware of any authority that a contract exists where a person occupies a shed under a licence, or any obligations beyond that which the law imposes in respect of negligence." The evidence does not show that there was exclusive possession of the ground; the licence did not entitle the Plaintiff to occupy the ground apart from using it on the days specified. As is stated in HALSBURY'S LAWS OF ENGLAND 4th Ed. Vol 22 p. 16:

"A licence is normally created where a person is granted the right to use the premises without being entitled to exclusive possession of them, ...... If the agreement is merely for the use of the property in a certain way and on certain terms while the property remains in the owner's possession and control, the agreement will operate as a licence, even though the agreement may employ words appropriate to a lease."

(underlining mine).

The fact that this was a licence only and the consequences that flow from it is supported by WILKIE -v- LONDON PASSENGER TRANSPORT BOARD (1947) 1 AER 258 CA. There it was held that a "pass" entitling Plaintiff to travel free on board's omnibuses was a mere licence and not a "contract for the conveyance of a passenger". In his judgment LORD GREENE, M.R. discusses the circumstances which create a licence and when there can be a contractual force in a licence. He said at p. 260:

"to regard it as having any contractual force is entirely to misinterpret it. There is no contractual animus to be found in relation to it. It is clearly nothing but a licence subject to conditions, a very common form of licence, e.g., a licence to a neighbour to walk over a field, providing he does not go with a dog. You cannot spell such a thing as that as being a contract: "I will let you go across my field in consideration of you, as a contracting party, agreeing not to take your dog." In other words, looking at this document shortly and sensibly, it contains no intention to contract. It is the mere grant of a revocable licence subject to a condition that, while the licence is being enjoyed, certain consequences shall follow. That is not contractual, but is a term or condition of the licence, and if anyone makes use of the licence he can only do so by being bound by the condition."

It is only right that I should also refer to GORE v VAN DER LANN (LIVERPOOL CORPORATION intervening) 1967 1 AER 360 C.A. where WILKIE (supra) was distinguished. LORD WILMER L.J. in GORE (supra at p.365-366) said:

"Wilkie's case (6), being a decision of this court, is binding on us unless it is distinguishable. I have found the question one of no little difficulty, but I have come to the conclusion, not without some hesitation, that the present case is to be distinguished. The circumstances surrounding the issue of the free pass in the present case were quite different from those in which the pass in Wilkie's case (6) was issued. There the pass was issued to an employee of the board as a matter of course as one of the privileges attaching to his employment. There was certainly nothing contractual about it; there was, as LORD GREENE said (8), no contractual animus. In the present case, on the other hand, the pass was issued, not to an employee, but to a stranger, and only in response to a written application. By the terms of the application which she signed the plaintiff specifically undertook and agreed that the use of the pass should be subject to the conditions. The very wording of that which the plaintiff signed was couched in the language of contract. It appears to me that all the elements of contract were present." (underlining mine)

In GORE (supra) "each party gave good consideration by accepting a detriment in return for the advantages gained". There was a contractual animus. Such is not the case before me. That being so it is fatal to the Plaintiff's application.

Having held that this was a licence, the question arises as to how can it be terminated. As to giving of notice this is what the Fiji Court of Appeal said in RAM PRASAD and DR. B.R. LOMALOMA & OTHERS (Civ. App. No. 7/89):

"So far as the matter of notice to vacate is concerned, we have no doubt that when the periods of the licence specified in the two licence agreements ran out, the plaintiff continued to occupy for periods of a month at a time upon the same conditions as those specified in the agreements. But during such periods he was still a licensee. We have been referred to no provision in the law of Fiji that requires a person holding over at the conclusion of a licence, or, if there is such a thing, a person occupying under a licence from month to month, to be given any notice to bring his licence to an end at the conclusion of a period of licence. We know of no such requirement elsewhere. If any notice is required, it would be a reasonable notice, ......

If no notice was required, or reasonable notice was given, then at the end of the period the licensee becomes a trespasser. He can be ejected by anyone having the right to do so." (underlining mine)

As to reasonable notice it is stated in HALSBURY (supra at p.17):

"if the licensee under a revocable licence has brought property onto the land, he is entitled to notice of revocation and to a reasonable time for removing his property and in which to make arrangements to carry on his business elsewhere."

In answer to Mr. Jamnadas's submission that it would be 'inequitable' and "unconscionable" to revoke the licence in this manner, there is an interesting statement on the subject of licence and what a Court of Equity would do in such a case in the case of THE KING v THE INHABITATS OF HORNDON-ON-THE HILL 4 M & S561 E.R. 105 p.942 at 943. There LORD ELLENBOROUGH C.J. said:

"A licence is not a grant, but may be recalled immediately; and so might this licence, the day after it was granted. We cannot take into our consideration what it may be conjectured a Court of Equity would determine in this case. Perhaps a Court of Equity might interfere, but can we say with certainty that it would? We ought to see that the party has clearly an equitable interest, and not merely such a claim as might possibly induce a Court of Equity to interpose in some way or other. There was a mere personal licence, and not like one of the cases cited, a grant by copy of parcel of the land."

AND BAYLEY J also said:

"We cannot know how Court of Equity would deal with this case; probably the utmost that it would do be to grant an injunction if an ejectment was brought."

In the case before me, applying the principles stated above the Council was entitled to revoke the licence which it did. But in doing so it should have given a reasonable notice and not just a day's notice when for the following day the Plaintiff had organised some games. As a responsible body it would do well for Council not to in future for the sake of its credibility make such an arbitrary decision - particularly when as in this case it gave the ground for "throughout the 1995 season".

The Council although wishing to have the ground back, have offered another ground, namely, Ram Lahkan Park in its place. Hence the Plaintiff will not be left in the lurch.

In this application I am not concerned with as to whom the Council wants to give the ground to, but to merely decide on a point of law governing the grant of the licence and its revocation in the light of the facts of this case.

In the circumstances of this case, I do not consider this to be a proper case to grant an injunction in the exercise of Court's discretion. The principles governing the grant of an injunction are laid down in the leading case of AMERICAN CYANAMID CO. -v- ETHICON LTD [1975] UKHL 1; 1975 AC 396.

In CYANAMID (supra) at page 406 LORD DIPLOCK stated the object of interlocutory injunction as follows:

"..... to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where "the balance of convenience" lies".

As already indicated hereabove the action does raise the question as to whether the permission to use the ground is a contract or a licence but there is no serious question to be tried. The nature of the case is such that in considering this application I cannot do justice to it without dealing with the affidavit evidence before me on the very simple issue pertaining to licence. Hence I have dealt with the matter as above. In doing so I am not unmindful of the fact that in exercising the Court's discretion whether or not to grant an injunction, the "the court is not justified in embarking upon anything resembling the trial of the action upon conflicting affidavits in order to evaluate the strength of either party's case." (Note to Order 29/1/11 of the Supreme Court Procedure 1979 Vol. I).

On the facts of this case I consider that damages would be a proper remedy if the Plaintiff is successful, hence applying the very first principle of injunction law, prima facie the Plaintiff cannot obtain an injunction to restrain an actionable wrong in this case.

In the outcome, for the above reasons, I see no basis for the interim injunction to continue in the present case.

However, if Council is minded to revoke the permission to use the ground then it should give the Plaintiff a reasonable notice.

I therefore dissolve the interim injunction and the application for injunction is dismissed with costs which is to be taxed if not agreed.

D. Pathik
Judge

At Suva
13 July 1995

HBC0252D.95S