Judgement No. 111/2018/DS-PT dated november 15, 2018 regarding dispute over the land alienation contract

PEOPLE’S COURT OF BA RIA – VUNG TAU PROVINCE

JUDGEMENT NO. 111/2018/DS-PT DATED NOVEMBER 15, 2018 REGARDING DISPUTE OVER THE LAND ALIENATION CONTRACT

On May 15, 2018, at its headquarter, the People's Court of Ba Ria – Vung Tau province is opening an appellate court to the public to try the civil case No. 86/2018/TLPT-DS entertained on September 10, 2018 regarding “Dispute over the land alienation contract”.

Owing to the fact that the preliminary ruling No. 21/2018/DSST dated June 25, 2018 of the People’s Court of District X, Ba Ria – Vung Tau province is being appealed. 

According to the Decision to bring the case to trial No. 100/2018/QDPT-DS dated September 24, 2018; Decision to delay the trial No. 80/2018/QD-VKS-DS dated October 15, 2018; Notice of change of trial time No. 536/2018/TB-TA dated October 17, 2018; Decision on replacement of prosecutor No. 179/2018/QD-VKS-DS dated September 18, 2018, between the following litigants:

- Plaintiff: Mrs. NTTL, born in 1970 (absent).

Permanent residence address: No. 257/8 LNH, ward 8, city Z.

Contact address: No. 63, HVT street, ward 7, city Z, Ba Ria – Vung Tau province.

Plaintiff’s legal representative: Mrs. NTBV holding the Power of Attorney dated May 9, 2018 (present).

Address: No. 13 NTMK, ward PN, city C, Ba Ria – Vung Tau province.

Person protecting the plaintiff’s legitimate rights and interests: Solicitor Dang Van Quyen – Viet Minh A Chau Law Co., Ltd., as a member of the Ba Ria – Vung Tau Bar Association (present).

- Defendant: Mr. NDS, born in 1959 (absent).

Address: No. 34 B HD, neighborhood 24, quarter 2, ward XT, town LK, Dong Nai province.

- Persons with associated rights and obligations:

1. Mr. DTB, born in 1990 (present).

Address: No. 1316 (new number), street BD, ward PT, city C, Ba Ria – Vung Tau province.

Mr. DTB’s legal representative: Mrs. BNT, born in 1963 (present).

Address: No. 60, street BD, quarter 2, ward PT, city C, Ba Ria – Vung Tau province. According to the Power of Attorney dated September 5, 2017.

2. Department of Natural Resources and Environment of Ba Ria – Vung Tau province.

Address: No. 01, Pham Van Dong, ward PT, city C.

Authorized representative: Mr. Dang Truong Hoang Khoi, a specialist-rank public officer of Land Registration Bureau's Branch in town X (absent). 

CASE DESCRIPTION

- According to the petition to sue dated November 15, 2016 and during the litigation process, the plaintiff Mrs. NTTL and her authorized representative gave their following statements:

Since Mrs. NTTL and Mr. NDS had a long-term business relationship, Mr. NDS told Mrs. NTTL that  He had a land plot covering an area of ​​14,343m2 divided into plots numbered 45, 59, 60, 126, 131 and 132, map sheet number 20, located in commune TP, district X, Ba Ria - Vung Tau province. This land plot was acquired through the disposition or transfer process. At the time of receiving the transferred land, because Mr. NDS was a foreign national, he asked the married couple, Mr. NPD and Mrs. CTTT, to do him a favor to bear their name as the title holder and custodian of the land on his behalf.

When he returned home, Mr. NDS asked Mr. NPD and Mrs. CTTT to give back the right to the above land plot, but was met with their refusal. This took him to sue them. After returning home, because Mr. NDS was in economic situation, leaving him no money to support his life and suit, Mr. NDS and Mrs. NTTL decided to enter into a contract under which, until he successfully reclaimed the right of the above land plot, Mr. NDS was committed to offering Mrs. NTTL 50% of the area awarded by the court as a reward.

In addition to the rewarding contract mentioned above, Mr. NDS repeatedly sent handwritten documents reaffirming his transfer of the right to use 5,671.5m2 of the remaining area in total after transferring the land plot agreed upon as his reward. The total sum of land title transfer that Mrs. NTTL paid to Mr. NDS in full was VND 900 million and USD 10,000 with the following payment history:

+ First installment: He transferred 2,000m2 of land priced at VND 300 million to Mrs. NTTL as stated by Mr. NDS in the rewarding contract (no contracting day, month or year specified).

+ Second installment: Mr. NDS transferred 1,000m2 of land priced at VND 300 million to Mrs. NTTL.

+ Third installment: On September 25, 2015, Mr. NDS transferred to Mrs. NTTL 1,000m2 of land. Though the sum was not specified, he in fact gave Mr. NDS VND 200 million.

+ Fourth installment: On October 26, 2015, Mr. NDS transferred to Mrs. NTTL 1,500m2 of land. Though the sum was not specified, he in fact gave Mr. NDS VND 300 million.

+ Fifth installment: On March 17, 2016, Mr. NDS issued a handwritten note of transfer to Mrs. NTTL to transfer an additional part of land worth US $ 10,000. Mr. NDS confirmed that there was 1500m2 of the remaining land to be transferred.

The Court is petitioned to resolve the case as follows:

+ Recognizing contracts between Mrs. NTTL and Mr. NDS to transfer the right to land covering an area of ​​5,671.5m2 divided into land plots numbered: 45, 59, 60, 126, 131 and 132, map sheet number 20, located at the commune TP, district X.

+ Forcing Mr. NDS to transfer to Mrs. NTTL a land area of ​​5,671.5 m2 numbered: 45, 59, 60, 126, 131 and 132, map sheet number 20, located in commune TP, district X, Ba Ria - Vung Tau province.

- According to the supplementary petition to sue filed on August 17, 2017, the plaintiff requested as follows:

+ Declaration of cancellation of the contract for transfer of land use right between: The transferor Mr. NDS and the transferee Mr. DTB made on March 29, 2017, notarization number 636, book No. 01 TP/CC-SCC/HDGD signed at the Notary Public Office X to transfer land plots numbered: 45, 59, 60, 126, 131 and 132, map sheet No. 20 according to the Certificates of land use right numbered CG 385715, CG 385716, CG 385717, CG 385718, CG 385719 and CG 385720, respectively, located in the commune TP, district X, Ba Ria Vung Tau province.

+ Declaration of cancellation of transfer updated on May 4, 2017 of the branch of land registration office of district X in the land use right certificates numbered: CG 385715, CG 385716, CG 385717, CG 385718, CG 385719 and CG385720, issued by the Department of Natural Resources and Environment of Ba Ria - Vung Tau province on the same day 2-3-2017.

- On May 28, 2018, the plaintiff’s authorized representative filed a request for withdrawal of a part of the petition to sue with the following contents:

Withdrawing all of contents of the petition filed on November 15, 2016 to recognize the contract between Mrs. NTTL and Mr. NDS to transfer the right to land covering an area of ​​5,671.5m2 (rectified into 5,500 m2) divided into land plots numbered: 45, 59, 60, 126, 131 and 132, map sheet number 20, located at the commune TP, district X, and force Mr. NDS to transfer the right to land at the aforesaid plots covering an area of 5.500m2 to Mrs. NTTL.  Upholding the supplementary petition to sue filed on August 17, 2017.

- Defendant Mr. NDS:

From the date on which the case was entertained, the Court has fully and legally served procedural documentation but he failed to be present. So, he had no opinions and the Court did not receive any documents or evidencing materials from Mr. NDS.

- As a person with associated rights and obligations, Mr. DTB and his authorized representative made his statement as follows:

The rewarding contract was made on April 28, 2014 between Mrs. NTTL and Mr. NDS of their own free will, but not yet certified by the People's Committee of the commune and ward. The additional land sale document or written commitment made at the time when the disputed land area did not belong to NDS but was legally being used by Mr. NPD and Mrs. CTTT was in breach of regulations.

From the date on which the judgment of the case to settle the dispute of land use right between Mr. NDS and Mr. NPD, Mrs. CTTT became in effect, none of the contract for transfer of land use right has been made between Mrs. NTTL and Mr. NDS since then. Therefore, the rewarding contract dated April 28, 2014 was made between the potential rewarding party, Mr. NDS, and the potential rewarding party, Mrs. NTTL, has no legal validity.

Mr. DTB’s receipt of the transferred right to land divided into land plots numbered: 45, 59, 60, 126, 131 and 132, map sheet number 20, located at the commune TP, district X, Ba Ria – Vung Tau province is conforming to legislative regulations.

Request the Court to reject the plaintiff's entire petition to sue regarding the request for declaration of cancellation of the entire land use right transfer contract dated March 29, 2017 between the transferor Mr. NDS and the transferee Mr. DTB and the entire contents updated after the grant of land use right confirmed by the branch of District X’s Land Registration Office on May 4, 2017 for land plots 45, 59, 60, 126, 131 and 132, map sheet number 20, located at commune TP, district X, Ba Ria - Vung Tau province.

Though all of 06 land plots that Mr. DTB received through transfer from Mr. NDS were worth a total of 07 billion VND, the parties agreed to 640 million VND specified in the contract.

- Representative of the Department of Natural Resources and Environment of Ba Ria – Vung Tau province gave the following statement:

Regarding the grant of land use right certificate to Mr. NDS, during the granting process, the Department of Natural Resources and Environment of the province did not receive any complaint or request for temporary suspension. This means that the grant of land use right certificate is conforming to legislative regulations. Procedures for the transfer of land use right from Mr. NDS to Mr. DTB have been implemented in accordance with regulations. Therefore, the Department of Natural Resources and Environment did not agree with the plaintiff's petition to sue.

According to the preliminary ruling No. 21/2018/DS-ST dated June 25, 2018 of the People’s Court of district X, the Court made the following pronouncement:

1. Dismissing the plaintiff's petition to sue regarding: Requesting the defendant to fulfill their contractual obligations to transfer the right to the land covering an area of 5,500m2 belonging to land plots numbered 45, 59, 60, 126, 131 and 132, map sheet number 20, located at the commune TP, district X, Ba Ria – Vung Tau province to Mrs. NTTL.

2. Rejecting the plaintiff's petition to sue regarding the request for declaration of cancellation of the entire land use right transfer contract dated March 29, 2017 between the transferor Mr. NDS and the transferee Mr. DTB and the entire contents updated after the grant of land use right confirmed by the branch of District X’s Land Registration Office on May 4, 2017 for land plots 45, 59, 60, 126, 131 and 132, map sheet number 20, located at commune TP, district X, Ba Ria - Vung Tau province.

3. Cancelling the Decision on enforcement of interim injunction No. 03/2017/QD-BPKCTT dated August 30, 2017 of the People's Court of District X. Refunding to Mrs. NTTL the amount of VND 50,000,000 paid according to the decision on enforcement of security measures.

In addition, the preliminary ruling made an official pronouncement on court costs, legal fees and the right to appeal of litigants.

- On July 5, 2018, Mrs. NTBV, as the plaintiff’s authorized representative, filed an appeal against the entire preliminary ruling, containing the following arguments:

1. The first-instance court has violated Point g Article 138 of the 2015 Civil Procedure Code upon declaring the annulment of the Decision on enforcement of interim injunction while the preliminary ruling has not yet taken legal effect. Requesting the appellate court to uphold the Decision on enforcement of interim injunction No. 03 dated August 30, 2017 of the People's Court of District X.

2. With respect to the part accepted as a reward under the contract dated April 28, 2014 under which Mr. NDS was committed to reward Mrs. NTTL with 7,171.5 square meters of land, Mrs. NTTL’s filing a petition to sue Mr. NDS to the People's Court of LK town, Dong Nai province and the receiving court’s acceptance of the case are deemed as ultra vires acts against Point g Clause 1 Article 40 2015 CPC, because this contract is effected in Ba Ria-Vung Tau province.

3. On May 28, 2018, the plaintiff petitioned the People's Court of District X to issue an official letter to prevent Mr. NDS from going abroad, but to date the Court fails to do so.

4. District X’s People's Court conducted trial in contravention of jurisdiction as prescribed in Clause 4, Article 34 of the CPC in 2015. Their acceptance of the case was ultra vires and their non-referral of the case to the provincial People's Court for first instance trial according to the request to initiate a lawsuit on the request for revocation of the land use right certificate were seen as the serious violation against the court proceedings.

5. District X People's Court’s rejection of the plaintiff's petition to sue, forcing the plaintiff to bear the cost of on-site inspection, expertise, measurement and valuation, and cost of expertise of signatures and traces, was beyond trial jurisdiction.

Requesting the Appellate Trial Panel to cancel the entire civil judgment No. 21/2018 / DS-ST dated June 25, 2018 of the People's Court of District X. Requesting the People’s Court of Ba Ria – Vung Tau province to bring the case to the first-instance trial within their jurisdiction under regulations of the procedural law. 

At the appellate court: The plaintiff still retained the contents of the supplementary lawsuit on August 17, 2017 and withdrew a part of the request stated in the appeal at parts 2 and 5 regarding the jurisdiction to accept, resolve the rewarding contract, and the part concerning bearing the procedural costs. The representative of the person with related rights and obligations DTB still upheld his standpoint and requested the Trial Panel to reject the plaintiff's appeal and uphold the preliminary ruling. The involved parties did not provide new documents or evidence and did not request the subpoenaing of any witness or person with related interests or obligations that have not yet appeared in the court.

The plaintiff's solicitor raised the following opinion:

Based on the rewarding contract dated April 28, 2014 between Mr. NDS and Mrs. NTTL; Based on the land sale documents between Mr. NDS and Mrs. NTTL with the total area of ​​5,500 square meters, there are sufficient grounds to conclude that Mr. NDS’s commitment to offering 7,171.5 square meters of land as a reward, and transferring 5,500 square meters of land in plots 45, 59, 60, 126, 131 and 132, map sheet No. 20, located in commune city, district X, Ba Ria - Vung Tau province to Mrs. NTTL, is real. Although Mrs. NTTL has completed the work requested by Mr. NDS and has given enough money to Mr. NDS, Mr. NDS has not transferred the land. To such extent, she demanded to annul the entire land use right transfer contract dated March 29, 2017 between Mr. NDS and Mr. DTB; revoke all contents updated after grant of land use right dated May 4, 2017 to Mr. DTB for the above land plots to ensure the settlement of the dispute between Mrs. NTTL and Mr. NDS over the land.

Owing to the first-instance court’s serious violation against legal proceedings in terms of the jurisdiction to resolve the case, the Trial Panel is petitioned to annul the entire first-instance judgment and request the People's Court of Ba Ria-Vung Tau province to accept and settle the case in accordance with the first-instance trial process as provided for in Clause 4 Article 34 of the CPC.

* The representative of the Procuracy expressed his/her opinion on the resolution of the case:

+ Regarding the legal proceedings: The Court complied with regulations laid down in the Civil Procedure Code. Participants in the legal process has duly implemented their rights and obligations stipulated by law.

+ Regarding case contents: Considering that the land area that Mr. NDS transferred to Mr. DTB was provided as security for the fulfillment of Mr. NDS's obligation to offer a reward to Mrs. NTTL that the two parties agreed upon. In order to resolve the request of Mrs. NTTL for the revocation of the land use right certificate between Mr. NDS and Mr. DTB, it is necessary to consider the case of the above-mentioned rewarding contract that the People's Court of LK town is accepting and settling. In this case, District X People's Court must suspend the resolution of the case in accordance with Point d, Clause 1, Article 214 of the CPC, waiting for the results of the district X People's Court’s settlement of the case regarding the rewarding contract before the former case.

In addition, the plaintiff sued for the request for the cancellation of the transfer update on May 4, 2017 of the Branch of District X Land Registration Office in the land titles that Mr. NDS transferred to Mr. DTB. Thus, the authority to consider and cancel this administrative action of District X’s Land Registration Office falls under the jurisdiction of the People's Court of Ba Ria - Vung Tau province according to Clause 4 Article 34 of the CPC and Clause 3 Article 32 of the Law on Administrative Procedures. District X People's Court’s bringing the case to trial is in breach of regulations.

Requesting the Trial Panel not to accept the plaintiff’s appeal and to uphold the preliminary ruling No. 21/2018/DS-ST dated June 25, 2018 issued by District X People’s Court.

COURT’S COMMENTS

After studying documents and evidences in the case file which have been examined at the court session and based on the litigation results at the court session and the Procuracy’s arguments, the Trial Panel forms the following judgements:

[1] Regarding court procedures and legislative relation regarding dispute:

[1.1] As the plaintiff's appeal was made according to the regulatory processed and within the prescribed time limit, it should be accepted and processed according to appellate court proceedings.

In the court of appeal, the plaintiff withdrew part of his appeal. Whereas the withdrawal of a part of the plaintiff's appeal is not contrary to the provisions of law, does not affect the legitimate rights and interests of other parties, it should be accepted and resolution of subject matters of the appeal should be suspended. The appellate court only considers the remainders mentioned in the appeal in accordance with regulations.

[1.2] Based on the petition to sue filed by Mrs. NTTL, the first instance trial panel’s statement that the dispute-related legal relationship of the case is "Dispute over land use right transfer contract"; the case falls under the first-instance jurisdiction of the People's Court of district X according to the provisions of Articles 26 and 35 of the Civil Procedure Code in Viet Nam, is founded.

[1.3] Due to the plaintiff’s withdrawal of part of the petition to sue regarding "Request for recognition of land use right transfer contract" for the land of 5,500 m2 and the handover of the land divided into ​​the plots numbered 45, 59, 60, 126, 131 and 132, map sheet No. 20, located at commune TP between Mr. NDS and Mrs. NTTL, the first instance court’s suspension of the settlement of this part of the request is completely founded.

Due to the plaintiff’s mere petition for the declaration of cancellation of the entire land use right transfer contract dated March 29, 2017 between Mr. NDS and Mr. DTB, and the entire update made on May 4, 2017 on the transfer of the land to Mr. DTB after the grant of land use right confirmed by the branch of District X’s Land Registration Office for land plots 45, 59, 60, 126, 131 and 132, map sheet number 20, located at commune TP, district X, obtaining the land use right certificates issued by the Department of Natural Resources and Environment of Ba Ria—Vung Tau province, the object of dispute needing to be resolved is “Request for revocation of the land use right transfer contract" and "Request for cancellation of the update made after the grant of land use right".

[1.4] Defendant Mr. NDS was absent, although the Court has served a valid summons. Pursuant to regulations set forth in Article 227 and 228 in the Civil Procedures Code, Mr. NDS has been tried in absentia.

[2] Regarding dispute content and appeal request:

[2.1] Regarding the request for revocation of the whole of the land use right transfer contract dated March 29, 2017 between Mr. NDS and Mr. DTB, and cancellation of the whole of the update made after the grant of land use right:

Realizing that, according to the land use right registration file provided by the branch of the land registration office of district X, the documents contained in the case file, the total land area of ​​14,343m2 belonging to land plots numbered 45, 59.60 , 126,131 and 132, map sheet No. 20, located in commune TP, district X, Ba Ria-Vung Tau province has been acquired by Mr. NDS through the transfer since 2001; Although there was a dispute over land use right between Mr. NDS and the person who registered the land use right on behalf of Mr. NDS, it was resolved by the Court with an appellate judgment in effect No. 80/2016/DS-PT dated April 25, 2016 of the People's High Court of Ho Chi Minh City. On March 2, 2017, Mr. NDS was issued with a certificate of land use right by the Department of Natural Resources and Environment of Ba Ria-Vung Tau province.

At the first instance trial, the plaintiff withdrew part of the petition for the request made on May 28, 2018 regarding: Forcing Mr. NDS to transfer the 5,500 m2 land area and hand over the land to Mrs. NTTL. For that reason, after consulting the provisions of Point c, Article 217 of the Civil Procedure Code, the trial panel’s decision to dismiss the settlement of this request content is founded.

The plaintiff argued that: On April 28, 2014, Mr. NDS signed a rewarding contract with Mrs. NTTL to transfer the area of ​​7,171.5 m2 to her. From 2014 to 2015, Mr. NDS sent her a written memo of transfer to transfer to Mrs. NTTL a land area of ​​5,671.5 m2 numbered 45, 59, 60, 126, 131 and 132, map sheet number 20, located in commune TP, district X, Ba Ria - Vung Tau province. But so far, Mr. NDS not only failed to implement the above contract but also transferred the entire land area after the Court has accepted the case. This constitutes an act of concealing and disguising property and violation against the law.

Due to the plaintiff’s withdrawal of part of the petition to sue regarding the request for recognition of land use right transfer contract for the land of 5,500 m2 divided into plots numbered 45, 59,60, 126,131 and 132, map sheet No. 20, located at commune TP between Mr. NDS and Mrs. NTTL, the trial panel has dismissed the settlement of this request in accordance with regulations. So, the transfer of land use right between Mr. NDS and Mrs. NTTL in this case was not considered. This means that the transfer of land use right between Mr. NDS and Mrs. NTTL in this case is not considered. Therefore, there is no grounds for determining whether Mr. NDS deceived Mrs. NTTL with respect to the case of land transfer.

According to documents and evidence in the case file, the transfer of land use right between Mr. NDS and Mr. DTB conformed to the order and procedures; regulations of the Law on Land in Viet Nam concerning authority, size and purposes of transfer of land.  Mr. DTB was granted a land use right certificate by a competent authority and, in reality, is managing and using the land. So there is no ground for accepting the request for revocation of the land use right transfer contract made on March 29, 2017 between Mr. NDS and Mr. DTB and cancellation of the transfer update on May 4, 2017 of the Branch of Land Registration Office of district X for the above disputed land plots.

From the analyses and deliberations above, there are sufficient ground to confirm that the fact that Mr. NDS was granted a land use right certificate by the competent authority of Ba Ria-Vung Tau province under the decision of the legally effective judgment is quite legitimate. Mr. NDS’s entering into a contract to transfer his land use right when he was granted this land use right certificate for the land of 14,343m2 to Mr. DTB is lawful and there is no ground for revocation of the land use right transfer contract and cancellation of the content updated after grant of permission for transfer of land use right from Mr. NDS to Mr. DTB upon the plaintiff’s request.  Thus, the resolution of the case still falls under the jurisdiction of the People's Court of District X and it is not necessary to transfer the provincial People's Court to settle the case at the request of the plaintiff.

[2.2] Regarding the dispute over the rewarding contract between Mrs. NTTL and Mr. NDS:

Whereas, at the appellate hearing, the plaintiff's representative withdrew this appeal request, the Appellate Trial Panel does not consider resolving this request.

[2.3] Regarding the request for continued enforcement of the decision of the People's Court of district X to apply interim injunctions:

Whereas the revocation of the Decision on enforcement of interim injunction No. 03/2017/QD-BPKCTT dated August 30, 2017 of the first instance trial panel, and the refund of the security amount to the plaintiff conform to regulations. Because of the fact that, according to the law, the authority that makes a decision to apply interim injunction may consider cancelling this decision when it is established that it is not relevant and necessary, the acceptance of the plaintiff’s request is unfounded.

[2.4] Regarding the petition to request PC of district X to issue a written document to preven Mr. NDS from going abroad:

Realizing that the PC of district X’s refusal to issue a written document to preven Mr. NDS from going abroad is founded. Because of the fact that: Only when the requester has grounds to prove that Mr. NDS is implementing exit procedures to avoid his obligations, based on the plaintiff's request, the Court will consider and decide to apply the interim injunction to prevent Mr. NDS from going abroad to fulfill his obligations stated in the case to the plaintiff. In this case, the plaintiff only petitioned the Court to cancel the entire land use right transfer contract dated March 29, 2017 between the transferor, Mr. NDS, and the transferee, Mr. DTB, and cancel all contents updated after issuing land use right on 04-5-2017 for land plots, the Court shall consider the legality of these documents to judge whether cancellation is permitted or not. The Court’s decision on cancellation of these documents does not depend on either the presence or absence of Mr. NDS and Mr. DTB if they are absent after receipt of procedural documents served by the Court. Therefore, there is no sound and sufficient grounds for accepting the plaintiff's appeal claim.

[2.5] Regarding the request for reconsideration of the first instance ruling to force the plaintiff to bear procedural costs:

Whereas, at the appellate hearing, the plaintiff's representative withdrew this appeal request, the Appellate Trial Panel does not consider resolving this request.

[3] Regarding costs of field inspection, measurement, appraisal and expertise:

Since the first instance trial court has duly assessed these costs, the appellate court shall not have it reconsidered.

[4] First-instance court cost:

Since the first instance trial court has duly assessed these costs, the appellate court shall not have it reconsidered.

From the above analysese and judgments, there is no ground to accept the plaintiff's petition to sue and appeal claims, and the court’s first-instance judgment shall be upheld.

[5] Regarding appellate court cost: Because the appeal is rejected, the plaintiff shall be fully liable for this cost. 

In light of the aforesaid arguments,

HEREBY DECIDES

- Pursuant to clause 3 of Article 289 in the Civil Procedures Code;

Dismissing the adjudication of the following appeal claims:

+ The acceptance of resolution of the case regarding the contract dated April 28, 2014 under which Mr. NDS was committed to reward Mrs. NTTL with 7,171.5 square meters of land is deemed as an ultra vires act against Point g Clause 1 Article 40 2015 CPC, because this contract was effected in Ba Ria-Vung Tau province.

+ District X People's Court’s rejection of the plaintiff's petition to sue, forcing the plaintiff to bear the procedural cost is going beyond its trial jurisdiction.

- Pursuant to Clause 1, Article 308 of the Civil Procedure Code; Not accepting the appeal of the plaintiff; upholding the first instance judgment No. 21/2018/DS-ST dated June 29, 2018 of the People's Court of district X.

- Pursuant to Clauses 2 and 3 of Article 26, Point a, Clause 1 of Article 35, Article 244, Article138, 147, 227, and 228 of the Civil Procedure Code; Pursuant to Articles 500, 501, 502 and 503 of the Civil Code in Viet Nam;

- Pursuant to Article 26 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the National Assembly’s Standing Committee regarding court costs and court fees.

+ Accepting the partial withdrawal of the plaintiff's petition to sue;

+ Rejecting the plaintiff's petition to sue;

Pronouncing:

1. Dismissing the plaintiff Mrs. NTTL's petition to sue regarding: Requesting the defendant Mr. NDS to fulfill contractual obligations to transfer the right to the land covering an area of 5,500m2 belonging to land plots numbered 45, 59, 60, 126, 131 and 132, map sheet number 20, located at the commune TP, district X, Ba Ria – Vung Tau province.

2.  Rejecting the plaintiff's petition to sue regarding: Pronouncing the declaration of cancellation of the entire land use right transfer contract dated March 29, 2017 between the transferor Mr. NDS and the transferee Mr. DTB and the entire contents updated after the grant of land use right confirmed by the branch of District X’s Land Registration Office on May 4, 2017 for land plots 45, 59, 60, 126, 131 and 132, map sheet number 20, located at commune TP, district X, Ba Ria - Vung Tau province.

3. Cancelling the Decision on enforcement of interim injunction No. 03/2017/QD-BPKCTT dated August 30, 2017 of the People's Court of District X. Refunding to Mrs. NTTL the amount of VND 50,000,000 (fifty million dong) paid according to the decision on enforcement of security measure No. 01/2017/QD-BPBD dated August 25, 2017 of the People’s Court of district X; shown in the  Payment order made by Bank of Agriculture and Rural Development of Vietnam’s branch of district X, Ba Ria-Vung Tau province on August 29, 2017, including information about the payer: NTTL, Account number 6004205189218 at Agribank X.

4. Regarding costs of field inspection, measurement, appraisal and expertise: As the first instance trial court has duly assessed these costs, the appellate court shall not have it reconsidered.

5. First-instance court cost: As the first instance trial court has duly assessed these costs, the appellate court shall not have it reconsidered.

6. Appellate court cost: Mrs. NTTL is liable for 300,000 VND. After deduction from the advance payment amount according to receipt No. 0003192 dated July 5, 2018 of District X Civil Judgment Execution Department, Mrs. NTTL has made full payment of such amount.

The judgement shall come in use from the pronouncement date (November 15, 2018).


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Judgement No. 111/2018/DS-PT dated november 15, 2018 regarding dispute over the land alienation contract

Số hiệu:111/2018/DS-PT
Cấp xét xử:Phúc thẩm
Agency issued: Tòa án nhân dân Bà Rịa - Vũng Tàu
Field:Dân sự
Date issued: 15/11/2018
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