Bolouri v The Ministry of Lands and Natural Resources [2024] TOLC 6; LA 14 of 2023 (11 October 2024)

IN THE LAND COURT OF TONGA
NUKU’ALOFA REGISTRY

LA 14 of 2023

BETWEEN:
ROBERT BOLOURI

- Plaintiff

AND:
THE MINISTRY OF LANDS AND NATURAL RESOURCES

- Defendant

RULING ON EX-PARTE APPLICATION FOR JUDICIAL REVIEW

BEFORE HON. JUSTICE TUPOU KC
Counsel: Mr D. Garret for Applicant
Date: 11 October, 2024

The application

1. The plaintiff, a retired businessman of Hamilton, New Zealand has applied for leave to bring this action by way of an application for a judicial review against the defendant. It is alleged that the defendant has acted unlawfully and/or alternatively in breach of his statutory duties by his failure to gazette a private road as a public road.
   
2. The plaintiff relies on Cabinet Decision No.700 of 2 August, 2013 where it was approved that:
   

“That pursuant to section 138 of the Land Act (Cap.132), the plot of Land at Tofoa more particularly described in Annex 1, be designate as land reserved for Public Road.”

The Facts

3. The proceedings concern a lease which was registered to Carmel Development Ltd (“the lease”), as lease No. 5422. The land is situated at Tofoa being Lot 1 on Survey Office Plan 5571. It comprised of a total area of 4017 square metres.
   
4. In order to access the lease, the plaintiff used a private road constructed and paid for by one Uliti Uata with his consent. Mr. Uata had requested a payment of $3,000 in lieu of the use of his road which the plaintiff paid. Mr. Uata later changed his mind, returned the cheque and stopped the plaintiff from using his private road.
   
5. The plaintiff sought assistance from the Minister of Lands to make Mr. Uata’s private road a public road so he may access his land. Various correspondences and meetings were held.
   
6. At one of those meetings the Minister requested the plaintiff relinquish a part of the lease to government to be merged with the existing private road with a promise to gazette that area as a public road.
   
6. The plaintiff agreed and relinquished the required area. As a result Lease No. 5422 became lease No.8443.
   
7. The road was never declared or gazetted as a public road and the plaintiff’s neighbour or agents continue to obstruct the plaintiff’s access to the lease.
   

Standing

8. At paragraph 11 of the Draft statement of claim, it is alleged that lease No.8443 was transferred to the plaintiff and his wife. The copy of the Deed of Lease bearing the same number attached and marked “C” to the plaintiff’s affidavit dated 24 August, 2023 bears the name Carmel Development Limited.
   
9. There was no evidence of any authorisation by Carmel Development Ltd in favour of the plaintiff to bring this action on its behalf and therefore standing was not established.
   

Jurisdiction

10. Further, in the case of Tafa v Viau [2006] TLR 125, 138-139, this court observed:
    

“[51] There is an obvious close correlation between the principles thus expressed, which have been developed in the Land Court jurisdiction over many years, and the more familiar and well-recognised principles applicable to judicial review proceedings. Although the principles in both jurisdictions have developed separately, it seems to me that the time has come when the position should be regularised so that whenever this court is called upon to determine the legality of decision-making powers exercised under the Land Act, it should apply the same tried and tested judicial review principles that the courts in other jurisdictions apply when confronted with similar challenges. There is nothing in the Land Act or in the rules of court which would prevent this court from exercising the judicial review powers enjoyed by the Supreme Court.”

11. In 2007 the Land Court Rules of 2007 Order 6 Rule 1 was amended by inserting sub rule 4 which state:
    

“Order 39 of the Supreme Court rules which sets out procedural provisions relating to the remedy of judicial review shall not apply but in all other respects the recognised principles applicable to judicial review shall so far as is practicable apply to any action where the relief claimed arises out of the exercise by an individual of a decision making power under the Act.”

12. Clearly, an application under Order 39 does not apply in this court. However, the recognised principles applicable in judicial review may be applied in any action brought in the Land Court. That has been the established practice in this court.
    
13. For that reason, the application for leave to bring this action by way of a judicial review is refused. The lessee however, is left with its rights on any separate action it may wish to bring in respect of its lease.
    

P. Tupou KC
J U D G E

DATED: 11 October, 2024