Judgement No. 347/2019/DS-PT dated august 15, 2019 regarding property ownership dispute

PEOPLE’S HIGH COURT OF HO CHI MINH CITY

JUDGEMENT NO. 347/2019/DS-PT DATED AUGUST 15, 2019 REGARDING PROPERTY OWNERSHIP DISPUTE

On August 15, 2019, at the headquarter of the People’s High Court of Ho Chi Minh City, the appellate trial of the case No. 295/2017/TLPT-DS entertained on October 31, 2017 regarding “Property dispute” took place;

Owing to the fact that the preliminary ruling No. 78/2017/DS-ST dated August 31, 2017 of the People’s Court of Long An province was appealed; 

According to the Decision to bring the case No. 1435/2019/QD-PT dated July 12, 2019 to the appellate court between litigants:

- Plaintiff: Mrs. Nguyen D (Nguyen Thi Ngoc L), born in 1959 (present)

 Address: M AVE S F NJ 07081, USA.

Temporary residence: Street Th (H), Ward 2, M city, Tien Giang province.

Plaintiff’s legal representative: Mrs. Le Thi Be N, born in 1954 (present)

Adress: Street Tr, Neighborhood 7, Quarter 7, Ward 6, M city, Tien Giang province.

- Defendant: Mrs. Nguyen Thi Ngoc D, born in 1968.

Address: No. 25, Street Ng, Ward 1, M city, Tien Giang province.

Defendant’s legal representative: Mr. Pham Ngoc D, born in 1972 (present)

 Address: B hamlet, T commune, C district, Tien Giang province. 

- Other persons with associated rights and obligations:

1/. Tien Giang province’s People’s Committee.

Address: Street 30/4, ward 1, M city, Tien Giang province.

Legal representative of Tien Giang province’s People’s Committee: Mr. Van DInh T – Deputy Director of Tien Giang province’s Land Registry. (absent)

2/. People's Committee of M city, Tien Giang province.

Address: Street H, Ward 7, M city, Tien Giang province.

Legal representative of People’s Committee of M city, Tien Giang province: Mr. Nguyen Van H – President. (absent)

3/. Mr. Nguyen Ba Nh, born in 1966 (absent)

4/. Mr. Nguyen Nhut T, born in 1993 (absent)

5/. Mr. Nguyen Huu T1, born in 1989 (absent)

Living at the same address: No. 25, Street Ng, Ward 1, M city, Tien Giang province.

- Witness:

1/. Mrs. Nguyen Thi Ngoc H, born in 1963 (absent)

Address: Street Th, Ward 2, M city, Tien Giang province.

2/. Mrs. Nguyen Thi Ngoc A, born in 1968 (absent)

Address: Street Th, Ward 2, M city, Tien Giang province.

3/. Mr. Nguyen Van D, born in 1969 (absent)

Address: Street 10C, B ward, B1 district, Ho Chi Minh city.

4/. Mrs. Nguyen Thi Ngoc S, born in 1963 (absent)

Address: Street Th, Ward 2, M city, Tien Giang province.

5/. Mr. Truong Cong T, born in 1958 (absent)

Address: Street Th, Ward 2, M city, Tien Giang province.

6/. Mrs. Truong Anh Ng, born in 1966 (absent)

Address: Street Th, Ward 2, M city, Tien Giang province.

7/. Mr. Nguyen Van M, born in 1962 (absent)

Address: Street Th, Ward 2, M city, Tien Giang province.

8/. Mr. Nguyen Ngoc Th, born in 1964 (absent)

Address: Street Th, Ward 2, M city, Tien Giang province.

9/. Nguyen Kim A, born in 1969.

Address: Street Ng, Ward 2, M city, Tien Giang province.

10/. Pham Ngoc U, born in 1964 (absent)

Address: Street T, Th, H district, Ho Chi Minh city.

- Appellant: Mrs. Nguyen D, Mrs. Nguyen Thi Ngoc D, Mr. Nguyen Ba Nh, Mr. Nguyen Nhut T, Mr. Nguyen Huu T1.

CASE DESCRIPTION

Plaintiff Nguyen D (Nguyen Thi Ngoc L)’s authorized representative, Mrs. Le Thi Be N, gave her statement as follows:

During the period from 1990 to 1995, Mr. Nguyen Van D informed Mrs. Nguyen D that the State was holding the liquidation sale of the land and associated real property located at No. 25 Ng Street, Ward 1, M city, Tien Giang province with a gross area of ​​97m². Mrs. Nguyen D bought that land and associated real property. However, because she was a foreigner, the law in force at the time did not prevent her from being named as the owner of such property, she asked her natural sister, Mrs. Nguyen Thi Ngoc D, to buy and bear her name as the owner of such property. Mrs. Nguyen D was making payment to the State Treasury of M city, Tien Giang province in person in the company of Mr. Nguyen Van D and Mrs. Nguyen Thi Ngoc A as witnesses.

Later, since the house was degraded, Mrs. Nguyen D repaired the house at her own expense. A few years later, Mrs. Nguyen D continued to buy more land covering an area of ​​380.1m² (after the land survey was completed and she was granted the land tenure certificate (certificate of occupancy), the area of land recorded in the original tenure certificate No. 31572 in the register issued on February 5, 2002 by the People's Committee of Chau Thanh district, Tien Giang province to Mrs. Nguyen Thi Ngoc D's for the land covering an area of 348.5m² situated at neighborhood 14, hamlet P, commune P1, M city, Tien Giang province), located at neighborhood 14, hamlet P, commune P1, M city, Tien Giang Province, and asked Mrs. D to bear her name as the holder of the certificate.

Up to now, as Vietnamese law allows foreigners to hold the title of house and the tenure of land, Mrs. Nguyen D asked Mrs. D to return the house and land, but Mrs. D disagreed and replied that “Concerning the Sixth sister (Mrs. Nguyen D)’s house, D and I can make arrangement", which was recorded by Mrs. Nguyen D and the audio recording was submitted to the Court on August 22, 2017, and Mrs. D asked Mrs. Nguyen D to buy her another house as a precondition for return of the disputed house and land.

Due to failure to reach agreement, Mrs. Nguyen D sued to petition the Court to resolve the following issues:

Firstly, forcing Mrs. Nguyen Thi Ngoc D and persons whose rights and obligations related to Mr. Nguyen Ba Nh, Mr. Nguyen Nhut T, and Mr. Nguyen Huu T1 to hand over the land and house located at No. 25, Ng Street, Ward 1, M city, Tien Giang province (through the site survey, as stated in the certificate of the survey results issued on June 26, 2017 by the land survey company D, this land parcel covers an area of 94.6m²) and the garden land located at neighborhood 14, hamlet P, commune P1, M city, Tien Giang province (through the site survey, as stated in the certificate of the survey results issued on June 26, 2017 by the land survey company D, this land parcel covers an area of 260.4 m²).

Secondly, requesting the revocation of the original land tenure certificate No. 31572 recorded in the register on February 5, 2002 and issued by the People's Committee of Chau Thanh district, Tien Giang province to Mrs. Nguyen Thi Ngoc D as the homeowner for the land located at neighborhood 14, hamlet P, commune P1, M city, Tien Giang province (now M city, Tien Giang province and requesting the revocation of the original certificate of occupancy of land and title to the house No. 12296 dated December 19, 2012 issued by the People's Committee of Tien Giang province to Mrs. Nguyen Thi Ngoc D and Mr. Nguyen Ba Nh for the house and land located at No. 25, Ng street, ward 1, M city, Tien Giang province.

- Thirdly, requesting Mrs. D to fulfill her obligation to repay VND 26,900,000 (including VND 1,900,000 as the cost of land survey and VND 25,000,000 as the cost of disputed property valuation) as total cost of survey and valuation to Mrs. Nguyen D.

Plaintiff Nguyen Thi Ngoc D's authorized representative, Mr. Pham Ngoc D, gave his statement as follows:

Mrs. Nguyen Thi Ngoc D disagreed with the petition to sue of Mrs. Nguyen D. The disputed house and land are the property of hers and Mr. Nh, Mr. T and Mr. T1. The properties, including: Land and house located at No. 25, Ng Street, Ward 1, M City, Tien Giang Province through the site survey, as stated in the certificate of the survey results issued on June 26, 2017 by the land survey company D, this land parcel covers an area of 94.6m²), and the garden land located at neighborhood 14, hamlet P, commune P1, M city, Tien Giang province (through the site survey, as stated in the certificate of the survey results issued on June 26, 2017 by the land survey company D, this land parcel covers an area of 260.4 m²). As these property items are currently under Mrs. D's family’s management for a long-term and stable use and taxes on these property items were paid by Mrs. D to the State, she did not agree to return the house and land to Mrs. Nguyen D. Due to disagreeing with the plaintiff's petition to sue, Mrs. D had no idea about the request for payment of the reimbursement for the survey and valuation costs to Mrs. Nguyen D, which is worth VND 26,900,000 (including VND 1,900,000 as the survey cost and VND 25,000,000 as the cost of valuation of the disputed property).

As a person with associated rights and obligations, Mr. Nguyen Ba Nha made his statement as follows:

Mr. Nh is Mrs. Nguyen Thi Ngoc D’s husband. For the property in dispute in the case, it is the common property of Mr. Nh's family, including: Mr. Nh, Mrs. D, Mr. T, Mr. T1. These items were all obtained through the legal purchase and sale, not bought and registered on behalf of Mrs. D as she put it. Mr. Nh has managed, used and paid taxes on such house and land continually since then. Therefore, Mrs. Nguyen D’s claim that she asked Mrs. D, Mr. Nh’s wife, to act on her behalf to bear her name in the land tenure certificate is ungrounded. Mr. Nh disagreed with Mrs. D claim on Mrs. Nguyen D’s property, including the land and house at No. 25, Ng street, ward 1, M city, Tien Giang province and the garden land at neighborhood 14, hamlet P, commune P1, M city, Tien Giang province.

As a person with associated rights and obligations, Mr. Nguyen Nhut T made his statement as follows:

Mr. T, who is the natural child of Mr. Nh and Mrs. D, agreed with Mr. Nh's statement. In addition, he did not have any other opinion or request and petitioned for his absence during the court’s resolution of the case.

As a person with associated rights and obligations, Mr. Nguyen Huu T1 made his statement as follows:

Mr. T1, who is the natural child of Mr. Nh and Mrs. D, agreed with Mr. Nh's statement. In addition, he did not have any other opinion or request and petitioned for his absence during the court’s resolution of the case.

In the Official Dispatch No. 168 / UBND-TN & MT dated January 24, 2017 and the Official Dispatch No. 729 / UBND-VP dated February 15, 2017 issued by People's Committee of M city, Tien Giang province as a person with related rights and obligations, they made the following statement:

- After consulting documents stating grant of the land tenure certificate for the ​​land parcel located at neighborhood 14, hamlet P, commune P1, Chau Thanh district, Tien Giang province (now M city, Tien Giang province); the original file of the land tenure certificate No. 31572 recorded in the register on February 5, 2002 which was issued by the People's Committee of Chau Thanh district, Tien Giang province to the homeowner, Mrs. Nguyen Thi Ngoc D, the People’s Committee of the city realized that this land was previously under Mrs. Nguyen Ngoc E’s ownership (Mrs. E was granted the land tenure certificate No. 31080QSD / 230 / QD.UBH in the register on March 6, 2000 for the area of 348.5m²), who was then transferred all of such land to Mrs. D on January 14, 2002 according to the land tenure transfer contract, which was examined by the Land Administration Department of Chau Thanh district and authenticated by the People's Committee of Chau Thanh district on January 25, 2002, and on February 5, 2002, Mrs. D received the land tenure certificate by the People's Committee of Chau Thanh district.

Granting the land tenure certificate to the homeowner Mrs. D conformed to the processes, procedures and provisions of law. However, because the land tenure certificate and the land tenure transfer contract between Mrs. D and Mrs. Em were both authenticated by the People's Committee of Chau Thanh district, the People's Committee of M city would provide the Court with related documents upon request.

According to the Official Dispatch No. 4039/UBND-TD dated August 25, 2017, the People's Committee of Tien Giang province, playing a role as a person with related rights and obligations, made the following statement:

The People's Committee of Tien Giang province already provided documents and evidence at the request of the Court in the Official Dispatch No. 1155 / TL-VPDK dated July 25, 2017 and attached documents.

With respect to the disputed property, including the house and land at No. 25, Ng Street, Ward 1, M City, Tien Giang Province, Mrs. D was entitled to buy a legal residential house in M city’s People's Committee under the house sale and purchase contract No. 28 / HD.N dated October 21, 1992 between M city’s Department of Basic Construction (representing M city’s People's Committee) and Mrs. Nguyen Thi Ngoc D. The purchase and sale was compliant with the provisions of Article 7 of the Government's Decree No. 60-CP in Viet Nam of July 5, 1994 on house title and urban residential land tenure. Regarding the residential land, Mrs. D has used the residential house attached to the residential land stably and continuously since 1992 and was certificated by a competent state authority as prescribed in Clause 1, Article 2 of the 1993 Law on Land in Viet Nam. Hence, the People's Committee of Tien Giang province has no grounds for revoking the land tenure certificate issued to Mrs. Nguyen Thi Ngoc D and Mr. Nguyen Ba Nh.

Witnesses, Mr. Tran Ngoc M and Mrs. Pham Ngoc U, made their testimonies as follows:

When Mr. M and Mrs. U, the niblings of Mrs. L and Mrs. D, bought the house and land at No. 25 Ng Street, Ward 1, M City, Tien Giang Province, Mrs. L directly hired Mr. M and Mrs. U, Mr. Nguyen Van M, Mrs. Nguyen Thi Ngoc S, Mr. Truong Cong T, Mrs. Truong Anh Ng to come to clean the house, and paid their wages. Mrs. D was not involved in the cleaning work. Then Mr. M and Mrs. U happened to know that Mrs. L directly bought the house and land at No. 25, Ng Street, Ward 1, City M, Tien Giang Province and asked Mrs. D to lend her name as the owner of that land and house.

Witness, Mr. Nguyen Ngoc Th, gave his testimony as follows:

He is the natural younger brother of Mrs. L and Mrs. D. As a family member, he knew the truth about the disputed property, the house and land located at No. 25, Ng street, ward 1, M city, Tien Giang province. This property was directly bought by Mrs. L by the help of Nguyen Van D, as an intermediary, who worked in the state regulatory authority and knew the State's liquidation sale.  The reason why Mrs. L did not let Mr. Th or Mrs. H, as a younger brother or sister living in the same family, bear his/her name as the land tenure certificate holder, but decided to get Mrs. D to do so was because Mrs. D had not been named as the owner of any land.

Mrs. L bought the land parcel at neighborhood 14, hamlet P, commune P1, Chau Thanh district, Tien Giang province (now M city, Tien Giang province) after hearing about such property from Mrs. H's friend.  Mrs. L sent money from abroad to her mother, Mrs. Tr, to pay for the land and got Mrs. D to bear her name as the owner on her behalf.

Witness, Mrs. Nguyen Kim A, gave her testimony as follows:

When Mr. M and Mrs. U, the niblings of Mrs. L and Mrs. D, bought the house and land at No. 25 Ng Street, Ward 1, M City, Tien Giang Province, Mrs. L directly hired Mr. M and Mrs. U, Mr. Nguyen Van M, Mrs. Nguyen Thi Ngoc S, Mr. Truong Cong T, Mrs. Truong Anh Ng to come to clean the house, and paid their wages. Mrs. D was not involved in the cleaning work. Then Mr. M and Mrs. U happened to know that Mrs. L directly bought the house and land at No. 25, Ng Street, Ward 1, City M, Tien Giang Province and asked Mrs. D to lend her name as the owner of that land and house.

Witness, Mr. Nguyen Van D, gave his testimony as follows:

He is the adoptive child of Mrs. Tr (the natural mother of Mrs. L) and Mrs. D. In 1992, he was the Director of the Tobacco Factory of Tien Giang Province and was assigned to manage 6 houses, including the house and land at No. 25, Ng street, Ward 1, M city, Tien Giang province. He was the one who told Mrs. L to buy this house and land when the State made the liquidation sale. At that time, as an overseas Vietnamese, Mrs. L could afford to buy that property. In addition, he did not gave any other testimony and petitioned for his absence during the court’s resolution of the case.

Witness, Mrs. Nguyen Thi Ngoc H, gave her testimony as follows:

She is the natural younger brother of Mrs. L and Mrs. D. As a family member, she knew the dispute. The house and land located at No. 25, Ng street, ward 1, M city, Tien Giang province was directly bought by Mrs. L after she heard about such property from Nguyen Van D, who worked in the state regulatory authority and knew the State's liquidation sale.  The reason why Mrs. L did not let Mr. Th or Mrs. H, as a younger brother or sister living in the same family, bear his/her name as the land tenure certificate holder, but decided to get Mrs. D to do so was because Mrs. D had not been named as the owner of any land.

Mrs. L bought the land parcel at neighborhood 14, hamlet P, commune P1, Chau Thanh district, Tien Giang province (now M city, Tien Giang province) after hearing about such property from her friend.  Mrs. L sent money from abroad to her mother, Mrs. Tr, to pay for the land and got Mrs. D to bear her name as the owner on her behalf.

Witness, Mrs. Nguyen Thi Ngoc S, Mr. Truong Cong T, Mrs. Truong Anh Ng and Mr. Nguyen Van M, gave their testimonies as follows:

Mrs. S, Mr. T1, Mrs. Ng and Mr. M are siblings born to relatives of Mrs. L and Mrs. D. When Mrs. L bought the house and land at No. 25 Ng Street, Ward 1, M City, Tien Giang Province, Mrs. L directly hired Mrs. Kim A, Mr. M, Mrs. U, Mr. Nguyen Van M, Mrs. Nguyen Thi Ngoc S, Mr. Truong Cong T, Mrs. Truong Anh Ng to come to clean the house, and paid their wages. Mrs. D was not involved in the cleaning work. Then they happened to know that Mrs. L directly bought the house and land at No. 25, Ng Street, Ward 1, City M, Tien Giang Province and asked Mrs. D to lend her name as the owner of that land and house.

Witness, Mrs. Nguyen Thi Ngoc A, gave her testimony as follows:

She is the natural younger sister of Mrs. L and Mrs D. In 1993, after being recommended by Mr. Nguyen Van D, Mrs. L decided to buy the house and land at No. 25, Ng street, Ward 1, M city, Tien Giang province. At the time of paying money at the treasury, Mrs. D drove Mrs. A1 and Mrs. L to the treasury of M city and Mrs. D was the signatory to the receipt. After buying the house, Mrs. L asked Mrs. A1 and some other people to clean the house, and directly paid them. According to what she saw during my cleaning service, Mrs. A1 confirmed that Mrs. L directly bought the house and land at No. 25, Ng street, Ward 1, M city, Tien Giang province, and got Mrs. D to bear her name as the owner of such property.

According to the preliminary ruling No. 78/2017/DS-ST dated August 31, 2017, the People’s Court of Tien Giang province decided that: 

Pursuant to Articles 256 in the 2005 Civil Code; point c of clause 1 of Article 688 in the 2015 Civil Code.

Pursuant to Clause 2, Article 27 of the Ordinance on Court Charges and Fees in Viet Nam; Clause 1, Article 17 of the Resolution No. 01/2012/NQ-HDTP in Viet Nam dated June 13, 2012 of the Panel of Judges of the Supreme People's Court, guiding the application of a number of provisions of the law on court fees and charges; Clause 1, Article 48 of the Resolution No. 326/2016 / UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly, stipulating “rates, exemption, reduction, collection, payment, management and use of court fees and charges”.

 In accordance with the judicial precedent No. 02/2016/AL ratified by the Panel of Judges of the Supreme People's Court on April 6, 2016 and published as an annex to the Decision No. 220/QD-CA dated April 6, 2016 of the Chief Justice of the Supreme People’s Court.

Ruled that:

- Accept part of the petition to sue of Mrs. Nguyen D (Nguyen Thi Ngoc L) for the property.

+ Forcing Mrs. Nguyen Thi Ngoc D and other family members of hers such as Nguyen Ba Nh, Nguyen Nhut T and Nguyen Huu T1 to return Mrs. Nguyen D (Nguyen Thi Ngoc L) the house located on a land covering an area of ​​90.18 m² at No. 25 Ng, Ward 1, M City, Tien Giang Province, which is built with a concrete structure, walls, concrete roof, according to the house title and land tenure certificate No. 12296 dated December 19, 2002 issued by the People’s Committee of Tien Giang province to Mrs. Nguyen Thi Ngoc D and Mr. Nguyen Ba Nh, who bear their names as the owners of the property. 

+ Revoking the certificate of occupancy of land and title to the house No. 12296 dated December 19, 2012 issued by the People's Committee of Tien Giang province to Mrs. Nguyen Thi Ngoc D and Mr. Nguyen Ba Nh for the house located at No. 25, Ng street, ward 1, M city, Tien Giang province.

+ Mrs. Nguyen D (Nguyen Thi Ngoc L) is entitled to apply for the state authority’s grant of the certificate of house title and land tenure for the land at No. 25, Ng street, Ward 1, M City, Tien Giang Province, which is mentioned above, in accordance with the law.

+ Mrs. Nguyen Thi Ngoc D, Mr. Nguyen Ba Nh, Mr. Nguyen Nhut T and Mr. Nguyen Huu T1 may stay for a period of 06 (six) months from the effective date of this judgment. Upon the expiration of the above time limit, the above-mentioned house and land must be returned to Mrs. Nguyen D (Nguyen Thi Ngoc L).

+ Forcing Mrs. Nguyen Thi Ngoc D, Mr. Nguyen Ba Nh, Mr. Nguyen Nhut T and Mr. Nguyen Huu T1 to pay Mrs. Nguyen D (Nguyen Thi Ngoc L) an amount of VND 626,262,000 (six hundred twenty six million and two hundred sixty two thousand dong) determined in the valuation certificate dated August 1, 2017 of the Sai Gon Valuation and Appraisal Joint Stock Company for the land covering an area of 380.1m² (260.4m² defined after completion of the site survey) at Hamlet P , P1 commune, Chau Thanh district, Tien Giang province (now M city) according to the land tenure certificate No. 31572 / QSDD / PT dated February 5, 2002 issued to Mrs. Nguyen Thi Ngoc D as the homeowner.

+ Forcing Mrs. Nguyen Thi Ngoc D, Mr. Nguyen Ba Nh, Mr. Nguyen Nhut T and Mr. Nguyen Huu T1 to repay the costs of land survey and valuation totalling VND 26,900,000 (twenty-six million and nine hundred thousand dong) to Mrs. Nguyen D (Nguyen Thi Ngoc L).

Monetary payment, payment of land-related costs, costs of land surveying and valuation must be made after the judgment takes effect.

From the effective date of this judgement and Mrs. Nguyen D (Nguyen Thi Ngoc L)’s submission of the petition for judgment execution. If Mrs. Nguyen Thi Ngoc D, Mr. Nguyen Ba Nh, Mr. Nguyen Nhut T and Mr. Nguyen Huu T1 delayed paying the above amounts to Mrs. Nguyen D, they will have to pay the interest as prescribed in Article 357 of the 2015 Civil Code.

In addition, the preliminary ruling also rules on court costs and the right to appeal in cases according to the law.

On September 11, 2017, Mrs. Nguyen Thi Ngoc D, Mr. Nguyen Ba Nh, Mr. Nguyen Huu T1 and Mr. Nguyen Nhut T filed an appeal against the entire preliminary ruling.

On September 12, 2017, Mrs. Nguyen D made an appeal against part of the preliminary ruling with a view to requesting the defendant to return to her the tenure of 260.4m² of the land plot No. 2471 located at Hamlet P, Commune P1, M City, Tien Giang Province.

At the appellate court, the authorized representative of Mrs. Nguyen D withdrew an appeal against the recognition of the tenure of 260.4 m² of the land plot No. 2471 located at hamlet P, commune P1, ​​M city, Tien Giang province; concurrently, made the following statement: Mrs. D, as a tailor, and Mr. Nh, as a ward officer, cannot afford to pay 95 taels of gold. Because Mrs. L was a foreigner that could not bear her name as the owner of the property, she asked Mrs. D to lend her name as the owner. In fact, all sums paid for the purchase of such property was paid by Mrs. L.

Defendant Mrs. Nguyen Thi Ngoc D and persons with associated rights and obligations, including Mr. Nguyen Ba Nh, Mr. Nguyen Huu T and Mr. Nguyen Huu T1, made their statements as follows:  From 1992 up to now, the plaintiff has not had any documents proving that Mrs. L asked Mrs. D to lend her name as the homeowner. All papers and documents on such property show the name of Mrs. D as the homeowner, and there was no dispute arising from home construction activities. Therefore, they requested the Trial Panel to revise the preliminary ruling in the direction of not accepting the whole petition to sue from the plaintiff.

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

- Regarding legal process: Trial Panel and litigants strictly complied with the Civil Procedure Code.

- Regarding case contents:  The preliminary ruling that accepted part of the plaintiff's petition to sue is grounded and compliant with law. At the appellate court, as all litigants did not provide any new documents and evidence, they request the Trial Panel not to accept the appeals of the litigants; uphold the preliminary ruling.

Based on documents and evidence that have been checked and verified, results of questioning and litigation activities in court, after considering evidence and opinions of litigants and procurators in a full and comprehensive manner;

COURT’S ARGUMENTS

 [1] In the court of appeal, the plaintiff, Mrs. Nguyen D, withdrew a petition to appeal. Pursuant to Article 284 of the Civil Procedure Code, the Trial Panel adjourned the adjudication of the plaintiff's appeal.

[2] In the light of the appeal filed by the plaintiff and other persons with associated rights and obligations:

[2.1] With respect to the house at No. 25, Street Ng, Ward 1, M city, Tien Giang province:

Based on the testimonies of witnesses involved in the case, such as Mr. Tran Ngoc M, Mrs. Pham Ngoc U (the nephew or niece of Mrs. L (aka Nguyen D) and Mrs. D), Mr. Nguyen Ngoc Th, Mrs. Nguyen Thi Ngoc H and Mrs. Nguyen Thi Ngoc A (the natural younger sister of Mrs. L and Mrs. D), Mr. Nguyen Kim A, Mr. Nguyen Van D, Mrs. Nguyen Thi Ngoc S, Mr. Truong Cong T, Mrs. Truong Anh Ng, ... (relatives of both Mrs. L and Mrs. D ), the above real property was bought by Mrs. L through the recommendation of Mr. Nguyen Van D and Mrs. D was asked to lend her name as the homeowner.

For the land plot No. 2471 covering an area of 260.4m², located at Hamlet P, Commune P1, M city, Tien Giang Province, Mr. Th and Mrs. H, the natural younger brothers of Mrs. L and Mrs. D, confirmed that Mrs. L sent money from abroad to her mother, Mrs. Tr, to pay for such property and asked Mrs. D to lend her name to register as the homeowner.

Testimonies of witnesses were consistent with the plaintiff's statement in which the plaintiff stated that she paid for the transfer of the above-mentioned property. Because the plaintiff was an overseas Vietnamese that was ineligible to bear her name as the owner of the property in Vietnam, she asked the defendant to lend her name to register as the owner of the property. The defendant stated that she was directly involved in the sale and purchase of the aforementioned property but there was none of evidence of her payment.

Therefore, there are grounds to conclude that the plaintiff's statement is the truth. The first-instance court’s recognition that the plaintiff spent money to buy the house and land at 25 Ng and the land plot No. 2471 at hamlet P, commune P1, M city, Tien Giang province is grounded.

 [2.2] However, the first-instance Court’s ruling that Mrs. Nguyen D had the house title and land tenure for the house No. 25 Ng, and recognition that the defendant Mrs. Nguyen Thi Ngoc D was allowed to continue using the land plot number 2471 at Hamlet P and refunded to the plaintiff the amount of VND 626,262,000, are in breach of the law.

[2.2.1] Under the provisions of Clause 2, Article 159 of the Law on Housing, foreign organizations and individuals are entitled to own houses in Vietnam by "... purchasing, lease-purchasing, receiving as a gift or donation of, inheriting commercial houses, including apartments and detached houses, within housing construction investment projects". Clause 1 of Article 75 in the Government’s Decree No. 99/2015/ND-CP dated October 20, 2015 providing guidance on implementation of the Law on Housing prescribes that “foreign organizations and individuals are entitled to own houses within housing construction investment projects only". The house No. 25 Ng is not part of a commercial housing construction project. The first-instance Court’s ruling under which Mrs. Nguyen D was entitled to the house title and land tenure for such house and Mrs. Nguyen Thi Ngoc D’s certificate is in breach of legislative regulations.

Mrs. Nguyen D can only be entitled to claim on the value of the house title and land tenure for the land at 25 Ng and the land plot No. 2471 at Hamlet P.

[2.2.2] Although Mrs. Nguyen Thi Ngoc D did not spend money to buy the house No. 25 Ng and the land plot No. 2471 but, from the time of purchase to now, Mrs. D and her family members were in the custody of such property. Therefore, it is obliged to apply the Legal Precedent No. 02/2016 / AL dated April 6, 2016 of the Panel of Judges of the Supreme People's Court to take into account the defendant’s effort to preserving and embellishing the disputed property.

According to the house purchase and sale contract dated October 21, 1992, the value of the house No. 25 Ng was VND 438,900,000 (equivalent to 95 taels of gold); Under the contract of land tenure transfer on January 10, 2002, the land plot No. 2471 at Hamlet P had the purchase price of VND 30,000,000. The value of the two items of property mentioned above according to the valuation certificate No. 391/18 / CT-CN-VALUINCO dated January 7, 2019 of Southern International Investment Consulting and Valuation Joint Stock Company is VND 9,717,100,000.

The plaintiff is entitled to the award calculated as follows: Principal amount VND 468,900,000 + ½ differential (current value of the property VND 9,717,100,000 – principal amount VND 468,900,000) = VND 5,093,000,000.

The defendant is entitled to the award calculated as follows: ½ differential between the current value of the property VND 9,717,100,000 – principal amount VND 468,900,000 = VND 4,624,100,000.

Thus, the defendant has the right to own the house and use the land at 25 Ng and the right to use the land plot No. 2471 at Hamlet P and must pay back to the plaintiff the amount of VND 5,093,000,000. In the event that the defendant fails to pay the above award, the plaintiff is entitled to request the sale of the house No. 25 Ng and the land plot No. 2471 at Hamlet P for payment.

[2.3] From the above arguments, the Trial Panel finds it necessary to accept part of the defendant's appeal, and revise part of the preliminary ruling.

[3] Due to the revision of a part of the preliminary ruling, the first-instance court fee is recalculated as follows: The plaintiff Mrs. Nguyen D is liable for 200,000 VND as civil court costs without quota for the petition to revoke the defendant's certificate of house title and land tenure which was rejected by the Trial Panel. Also, the plaintiff must pay 118,241,000 VND for the cost of first-instance court for the value of the property that the defendant is entitled to.

Defendants Mrs. Nguyen Thi Ngoc D, Mr. Nguyen Ba Nh, Mr. Nguyen Nhut T and Mr. Nguyen Huu T1 are liable for court fees for the amount of VND 5,093,000,000 repaid to the plaintiff: VND 122,930,000.

[4] The appellant is exempted from paying appellate court fees.

In light of the aforesaid arguments,

HEREBY DECIDES

Upon applying Article 284, Clause 2 of Article 308 of the Civil Procedure Code in Viet Nam, and Article 256 of the 2005 Civil Code; Point a, Clause 1, Article 688 of the 2015 Civil Code in Viet Nam.

Applying the Judicial Precedent No. 02/2016/AL in Viet Nam ratified by the Panel of Judges of the Supreme People's Court on April 6, 2016 and published as an annex to the Decision No. 220/QD-CA in Viet Nam dated April 6, 2016 of the Chief Justice of the Supreme People’s Court.

Upon applying the Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the Standing Committee of the National Assembly, stipulating rates, exemption, reduction, collection, payment, management and use of court fees and charges.

I/. Adjourning the adjudication of the appeal filed by the plaintiff Mrs. Nguyen D (Nguyen Thi Ngoc L).

II/. Accepting part of the appeal filed by Mrs. Nguyen Thi Ngoc D, Mr. Nguyen Ba Nh, Mr. Nguyen Nhut T, Mr. Nguyen Huu T1.

Revising the preliminary ruling No. 78/2017/DS-ST dated August 31, 2017 of the People’s Court of Tien Giang province. 

Ruling that:

1/. Accepting part of the petition to sue of Mrs. Nguyen D (Nguyen Thi Ngoc L) for the property.

Forcing the defendant Nguyen Thi Ngoc D and her family members, including Mr. Nguyen Ba Nh, Mr. Nguyen Nhut T and Mr. Nguyen Huu T1, to pay the plaintiff the total amount of VND 5,093,000,000 (five billion and ninety three million dong) as the value of the house title and residential land tenure for the house covering an area of ​​90.18m² at 25 Ng, Ward 1, M city, Tien Giang province, and the value of the tenure of the land covering an area of 260.4m² of the land plot No. 2471 located at Hamlet P, commune P1, M city, Tien Giang province.

Forcing Mrs. Nguyen Thi Ngoc D, Mr. Nguyen Ba Nh, Mr. Nguyen Nhut T and Mr. Nguyen Huu T1 to repay the cost of land survey and valuation totalling VND 26,900,000 (twenty-six million and nine hundred thousand dong) to Mrs. Nguyen D (Nguyen Thi Ngoc L).

From the date on which the judgement takes effect (for cases where the law enforcement agency has the right to take initiative in executing the court’s judgement) or from the date on which the judgment execution request is sent from the beneficiary of the court's award (for cases in which the award must be paid to the beneficiary) to the date on which the award is completely paid, the person obliged for the court order must be liable for the monthly interest on the money still owed at the interest rate prescribed in Article 377 and Article 468 of the 2015 Civil Code, unless otherwise prescribed by law.

2/. Rejecting the petition to sue of Mrs. Nguyen D (Nguyen Thi Ngoc L) for the revocation of:

- The certificate of occupancy of land and title to the house No. 12296 dated December 19, 2012 issued by the People's Committee of Tien Giang province to Mrs. Nguyen Thi Ngoc D and Mr. Nguyen Ba Nh for the house located at No. 25, Ng street, ward 1, M city, Tien Giang province.

- The certificate of occupancy of the land No. 31572/QSDD/PT dated February 5, 2002 issued by the People’s Committee of Chau Thanh district to Mrs. Nguyen Thi Ngoc D for for the land covering an area of 380.1m² (260.4m² defined after completion of the site survey) at hamlet P, commune P1, Chau Thanh district, Tien Giang province.

3/. First-instance court fee:

Mrs. Nguyen D has to pay 200,000 VND of civil court fee without quota and 118,241,000 VND for civil court cost with quota. Deducting VND 200,000 of advance payment for the court cost received from Mrs. Nguyen D according to the receipt No. 001785 dated December 16, 2016 of the Civil Judgment Execution Department of Tien Giang province. Mrs. Nguyen D also has to pay VND 118,241,000.

Defendants Mrs. Nguyen Thi Ngoc D, Mr. Nguyen Ba Nh, Mr. Nguyen Nhut T and Mr. Nguyen Huu T1 are jointly liable for the amount of VND 122,930,000 as the fee for the civil court with quota.

4/. Appellate court fee:

Refunding VND 300,000 of advance payment for the court cost to Mrs. Nguyen D (Nguyen Thi Ngoc L) according to the receipt No. 002135 dated September 12, 2017 issued by the Civil Judgment Execution Department of Tien Giang province.

Refunding VND 300,000 of advance payment for the court cost to Mrs. Nguyen Thi Ngoc D, Mr. Nguyen Ba Nh, Mr. Nguyen Nhut T and Mr. Nguyen Huu T1 per each according to the receipt No. 002134 dated September 11, 002191, 002192 and 001190 dated October 12, 2017 issued by the Civil Judgment Execution Department of Tien Giang province, respectively.

The Appellate Judgement shall enter into force from the pronouncement date.

In cases where the court judgement or decision is executed under the provisions of Article 2 of the Law on Civil Judgment Execution in Viet Nam, the oblige/beneficiary and obligor to execution of the civil judgment may have the right to negotiate about how the judgment is executed, voluntarily execute the court judgement or shall be subject to law enforcement processes under Articles 6, 7 and 9 of the Law on Civil Judgment Execution; the time limit for execution of the court judgement, shall be subject to regulations laid down in Article 30 of the Law on Civil Judgement Execution.