Judgment no. 1048/2020/DSPT date 23/11/2020 on a Claim for termination of acts of hindering people from exercising land use rights

THE PEOPLE’S COURT OF HO CHI MINH CITY

JUDGMENT NO. 1048/2020/DSPT DATE 23/11/2020 ON A CLAIM FOR TERMINATION OF ACTS OF HINDERING PEOPLE FROM EXERCISING LAND USE RIGHTS

On November 23, 2020, at the headquarters of the People's Court of Ho Chi Minh City, an appellate trial was conducted to hear the case No.  438/2020/TLPT-DS on September 9, 2020 in the matter of “Claim for termination of acts of hindering people from exercising land use rights” as the first-instance civil judgment No. 196/2020/DS-ST dated July 28, 2020 of the People's Court of District M, Ho Chi Minh City was appealed.

Based on the Decision to Bring the Case to Appellate Trial No. 5013/2020/QDXXST-DS dated September 28, 2020; under the Decision to adjourn the hearing No. 18406/2020/QDPT-DS dated October 26, 2020, between the involved parties below:

1. Plaintiff: Ms. Nguyen Ngoc D, born in 1934 Permanent address:  Street 128B/8 NCT, Ward 3, District 10, Ho Chi Minh City. (not appeared in court) Authorized representative of the plaintiff: Ms. Quach Thi T Address:  520 NT, Ward 8, District 5, Ho Chi Minh City. (appeared in court)

 2. Defendant: Ms. Ho Thi T, born in 1969 Address: Street 128B/8 NCT, Ward 3, District 10, Ho Chi Minh City. (appeared in court) Defender of Ms. Trang: Mr. Nguyen Van N - Lawyer of KH Law Firm affiliated to the Ho Chi Minh City Bar Association.

Appellant:  Ms. Ho Thi T

FACTUAL AND PROCEDURAL BACKGROUND

* According to the petition of the plaintiff and the process of solving the case, the authorized representative of Ms. K presented:  The house No. 128B/8 NCT, Ward 3, District 10, Ho Chi Minh City is owned and used by Ms. Nguyen Ngoc D according to the certificate of house ownership and land use right No. 24117/2001 issued by the People's Committee of Ho Chi Minh City on October 29, 2001. When Ms. D intended to sell the house, she could not find the certificate of house ownership and residential land use right (hereinafter referred to as the Certificate), she applied for another certificate, when conducting the listing procedure at the People's Committee of Ward 3, District 10, Ms. D received Document No. 938/UBND-MT dated November 12, 2019 from the People's Committee of Ward 3, District 10, replying that the Certificate for house No. 128B/ 8 Elderly, Ward 3, District 10, Ho Chi Minh City, as informed by Ms. Ho Thi T to the committee, was held by Ms. T.

Ms. D then complained Ms. T to the People's Committee of Ward 3 and the Committee made a working report on December 18, 2019, at the Committee Ms. T did not agree to return the Certificate to Ms. D. Therefore, the People's Committee of Ward 3 and the People's Committee of District 10 did not reissue a Certificate to Ms. D. Ms D did not hand over the Certificate to Ms. Trang.

There was no transaction between Ms. D and Ms. T to buy and sell the house and other transactions according to the defendant's presentation in the Minutes of Working between the defendant and the Court on March 4, 2020.

Now, Ms. D was filing a lawsuit to request the Court to force Ms. Ho Thi T to return the Certificate No. 24117/2001 issued by the People's Committee of Ho Chi Minh City on October 29, 2001 to Mrs. D.

On February 21, 2020, Ms. D filed an application for amendments to the lawsuit request as follows:

- Force Ms. T to return the Certificate No. 24117/2001 issued by the People's Committee of Ho Chi Minh City on October 29, 2001 to Ms. D.

-In case Ms. T fails to return the Certificate to Ms. D, Ms. D is entitled to file an application for reissuance of a new Certificate with competent authorities in accordance with the law.

* In the working report dated March 4, 2020, the defendant presented:  She is an Australian citizen, she goes back to Vietnam regularly, about 4 times a year, each stay for about 1 month, from August, 2019 until now. She has lived at the house No. 128B/8 NCT, Ward 3, District 10. From 2007 to now, Ms. D has handed over this house to her because she has paid the entire amount for the house to her mother and has taken care of her mother for nearly 20 years and her mother deducted the amount of money that her biological sister, Ms. Ho Thi Thanh T, owed her in Australia, so that she could buy this house; and all the court fees, judgment enforcement costs and attorney's fees paid by her according to the judgment No. 170 dated March 4, 2014 of the People's Court of Ho Chi Minh City, and with all the electricity and water bills of the house above, but she did not write the confirmation of the money she gave to Ms. D and deducted the money owed by Ms. Thuy as she trusted her mother and siblings. Therefore, Ms. D made a will for the house 128B/8 NCT, Ward 3, District 10, the entire original certificate of land use rights and 2 copies of the will she kept.

She did not agree to return the Certificate to Ms. D.

In the first instance civil judgement No. 196/2020/DSST dated July 28, 2020, the People’s Court of Ho Chi Minh City judges:

Pursuant to Point a, Clause 14, Article 26; Point a, Clause 1, Article 35; Point a, Clause 1, Article 39; Article 45; Clause 1, Article 147; Article 266; Point b, Clause 2, Article 227; Clause 3 Article 228; Article 271; Clause 1, Article 273 of the Civil Procedure Code.

Pursuant to Articles 1, 3, 14, 163, 164, 169, 179, 185, 186, 189, 190, 192, 193, and Article 194 of the Civil Code 2005.

Pursuant to Articles 97, 166, 167 and Clause 1, Article 168 of the Land Law 2013.

Pursuant to Article 5; Clauses 1 and 2 Article 6; Articles 10 and 12 of the Law on Housing 2014.

Pursuant to Clause 2 Article 26 of the Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly Standing Committee on court fees and charges, collection, exemption, reduction, management, and use thereof.

Declare:

1. Accept the lawsuit claim of Ms. Nguyen Ngoc D.

Force Ms. Ho Thi T to return Ms. Nguyen Ngoc D the Certificate No. 24117/2001 issued by Ho Chi Minh City People's Committee on October 29, 2001 and updated change of the name of the new owner on December 21, 2016 right after the judgment took legal effect.

In addition, the first-instance judgment also states the court fee and right to appeal of the litigants as per the law.

After the first instance trial;

On August 14, 2020, Ms. Ho Thi T filed an appeal requesting to annul the first-instance judgment for a retrial.

At the appellate court hearing;

The plaintiff, whose legal representative is Ms. Quach Thi T, did not withdraw the lawsuit petition and proposed not to accept the defendant's appeal request, affirming the first-instance judgment.

The defendant did not withdraw the appeal request to accept the appeal request to annul the first-instance judgment.

The litigants fail to agree on lawsuit settlement. The defender of the respondent presented:

The litigants, Ms. D and Ms. T, both have Australian citizenship, are residing in Australia without doing business, working or studying in Vietnam, so the case falls under the jurisdiction of the Provincial People's Court as prescribed in Clause 3, Article 35 of the Civil Procedure Code. The People's Court of District M accepted and settled the case beyond its jurisdiction, so it proposed to annul the first-instance civil judgment and transfer the case file to the People's Court of Ho Chi Minh City for settlement according to first-instance procedures.

Viewpoint of the representative of the People's Procuracy in Ho Chi Minh City on lawsuit settlement:

Regarding legal proceedings: The judge and members of the Trial Panel have strictly complied with the provisions of the Civil Procedure Code since the acceptance of the case until before today's court hearing.  The rights and obligations of the litigants have been guaranteed as prescribed by law.

With reference to content: Ms. T has Australian citizenship and is residing in Australia without doing business, working or studying in Vietnam, so the case falls under the jurisdiction of the Provincial People's Court as prescribed in Clause 3, Article 35 of the Civil Procedure Code. The People's Court of District M accepted and settled the case beyond its jurisdiction, so it proposed to annul the first-instance civil judgment and transfer the case file to the People's Court of Ho Chi Minh City for settlement according to first-instance procedures.

JUDGEMENT OF THE COURT

After taking account of documents and evidence contained in the case files which have been verified at the trial and based on the results of the oral argument at the trial, The Trial Panel found that:

[1] The first-instance judgment of the People's Court of District M, based on the verification results on April 3, 2020 of the Police of Ward 3, District 10, determines that Ms. T registered to temporarily reside and actually resided at the house 128B/8 NCT, Ward 3, District 10, Ho Chi Minh City from September 19, 2019 to August 3, 2020, so the case falls under the jurisdiction of the People's Court of District M as prescribed in point a Clause 1 Article 35; Point a, Clause 1, Article 39 of the Civil Procedure Code. This decision was made inconsistency with Article 7 and Point a of Resolution 03/2012/NQ-HDTP dated December 3, 2012 of the Council of Judges of the Supreme People's Court on guidelines for the application of the general provisions of the first part of the Civil Procedure Code (amended and supplemented in 2011) as follows:  The litigant is a foreigner who does not reside, do business, study or work in Vietnam, appeared or not appeared in Vietnam at the time the Court accepted the civil case.  Because, in Official Letter No. 807/QLXNC –P4 dated April 8, 2020 of the Immigration Department of the Ministry of Public Security, it was determined that Ms. Ho Thi T, born on January 1, 1969, Australian nationality, passport No. N 7803201 (old passport number L 4040744) has entered and exited Vietnam a total of 37 times.  According to the Article 3, Clause 2 of Decree No. 138/2006/ND-CP dated November 15, 2006 of the Government on elaboration of the Civil Code on civil relations involving foreign elements, a foreigner is a person without Vietnamese nationality, including people with foreign nationality and stateless people.  Ms. T is an Australian citizen but has not settled, studied, worked or worked in Vietnam.

[2] In addition, at the appellate court, Ms. T presented Nguyen Ngoc Dang's passport bearing number N 5127946 showing that Ms. D has Australian citizenship.  Ms. K also confirmed the fact that after Ms. T did not allow Ms. D to enter her house on February 7, 2020, Ms. D moved to Australia to live and now Ms. D is in Australia.  This was a new fact found at the appellate level.

Based on the above provisions, Ms. D and Ms. T are foreigners who do not reside, study, work or do business in Vietnam, so the case falls under the jurisdiction of the Provincial People's Court as prescribed in Clause 3, Article 35 of the Civil Procedure Code. The People's Court of District M accepted and handled it without proper jurisdiction.

Therefore, the Trial Panel accepted the defendant's appeal request, annulled the first-instance civil judgment and transferred the case file for the People's Court of Ho Chi Minh City to accept and settle according to first-instance procedures.

[3] At the trial, the representative of the People's Procuracy of Ho Chi Minh City proposed the Trial Council to annul the first-instance civil judgment and transfer the case file for the People's Court of Ho Chi Minh City to handle it according to first-instance procedures.  As noted above, this proposal is grounded and should be accepted.

Regarding appellate civil court fee: Because the appeal was accepted, Ms. T did not have to pay the appellate civil court fee. For the foregoing reasons;

DISPOSITION

Pursuant to Clause 3 Article 308 of the Civil Procedure Code. Declare:

Annul the first-instance civil judgment No. 196/2020/DSST dated July 28, 2020 of the People's Court of District M, Ho Chi Minh City and transfer the case file for the People's Court of Ho Chi Minh City to handle it according to first-instance procedures.

Regarding appellate civil court fee: Reimburse the advance payment of the appellate court fee of VND 300,000 according to receipt No. 0014947 dated August 14, 2020 of Civil Judgment Enforcement Department of District M, Ho Chi Minh City.

The appellate judgment takes legal effect from the date of pronouncement