Judgment No. 219/2017/DS-ST dated septermber 15, 2017 on dispute over land use right transfer agreement

THE SUPERIOR PEOPLE’S COURT IN HO CHI MINH CITY

JUDGMENT NO. 219/2017/DS-ST DATED SEPTERMBER 15, 2017 ON DISPUTE OVER LAND USE RIGHT TRANSFER AGREEMENT

On September 15, 2017, at the court room of the Superior People’s Court in Ho Chi Minh City, an appellate trial court is conducted to hear the civil case No. 300/2016/TLPT-DS dated November 25, 2016 on “Dispute over land use right transfer agreement”.

As the First Instance Civil Judgment No. 10/2016/DSST dated September 23, 2016 of the People’s Court of Can Tho city was appealed.

Based on the Decision to Bring the Case to Trial No. 134/2017/QDPT-DS dated March 29, 2017 between litigants:

- Petitioner:  Mrs. Le Thi V; address: TT area, PT ward, OM district, Can Tho city (present).

- Respondent:

1/ Mr. Le Van Ph (present)

2/ Mrs. Nguyen Thi T; co-address: TNB area, PT ward, OM district, Can Tho city (absent).

Authorized legal representative of Mrs. Nguyen Thi T:  Mr. Le Van Ph (letter of authorization dated June 8, 2012).

3/ Mrs. Le Thi Be B; address: 210/6, TH area, PT ward, OM district, Can Tho city (present).

Protector of legitimate rights and interests of Mrs. Le Thi Be B: Mr. Tran Viet H, lawyer of VH Law Office, affiliated to Bar Association of Soc Trang province (present).

- Persons with related interests and obligations:

1/ Mr. NLQ1 (absent)

2/ Mrs. NLQ2, co-address: TH area, PT ward, OM district, Can Tho city (absent).

3/ Mrs. NLQ3; address: 402 Monroe-St 1 Rock Ville, MD 20850, THE USA (absent).

Legal representative of Mrs. NLQ3: Mrs. Le Thi Be B (letter of authorization dated May 27, 2011).

- Appellant: Mr. Le Van Ph, Mrs. Le Thi Be B (the respondent).

THE CASE

Representation of petitioner, Mrs. Le Thi V:

On July 26, 2002, the married couple Mr. Le Van Ph and Mrs. Nguyen Thi T sold her a piece of land 5m wide x 30m long = 150m2 (residential land), located in TH area, PT ward, OM district, Can Tho city for VND 23,000,000. The transfer was made in a handwritten document. Mr. Ph, Mrs. T said that she this piece of land was previously transferred from Mr. NLQ1, Mrs. NLQ2 on March 9, 2002 for VND 10,000,000. When buying the piece of land from Mr. Ph, Mr. Ph gave such transfer agreement to Mrs. V.

After buying this piece of land, on August 11, 2005, she entered into a contract with TL cooperatives to build a house 5m wide, 29m long, tin-roofed, brick wall, ceramic tiled floor. While building the house, because the width of piece of land is narrower than the house design, she agreed with Mr. NLQ1 and Mrs. NLQ2 to buy extra area 0.3m wide x 29m long = 8.4m2 for VND 1,232,000.

So, when she bought piece of land from Mr. Ph and Mrs. T to build the house, she transferred partial land area of Mr. NLQ1 and Mrs. NLQ2. So she confirms that Mr. NLQ1 and Mrs. NLQ2 totally knew that she bought the piece of land from Mr. Ph and Mrs. T. When the house was completely built, she let her parents live together with her.

In earlier 2007, Mrs. NLQ3 - an overseas Vietnamese in America returned to Vietnam and claim that the mentioned house and land is her property and the dispute arose.

At that time, Mrs. NLQ3 and Mr. NLQ1, Mrs. NLQ2 secretly registered Mrs. NLQ3’s name on the land title, she made a claim and received a decision on claim settlement No. 4014 dated December 2, 2010 by the People’s Committee of OM district to revoke the certificate granted to Mrs. NLQ3. However, this piece of land was granted to Mrs. Le Thi Be B thereafter and it has been under management of Mrs. Be B so far.        

Therefore, she filed a lawsuit requesting annulment of the transfer agreement dated July 26, 2002 between her and Mr. Ph and Mrs. T and requesting Mr. Ph and Mrs. T to return the transfer amount of VND 23,000,000 and compensate the difference in area of 150m2 according to the valuation record of the People’s Court of OM district.

Annul the land use right certificate No. CH02545 dated May 26, 2011 in the name of Mrs. Le Thi Be B.

On May 31, 2016, Mrs. V filed a supplemental lawsuit petition and re-determined the lawsuit request:

- Request Mrs. Le Thi Be B to return the entire house according to the valuation record of the People’s Court of OM district;

- Request cancellation of the land purchase and request Mr. Ph and Mrs. T to return VND 23,000,000 and compensate the difference in area of 150m2 located in CH residential area, PT ward, OM district.

Representation of the respondent, Mr. Le Van Ph:

Previously, he bought 150m2 of residential land from Mr. Le Van Thong, located in TH area, PT ward, OM district, Can Tho city. In 2002, he sold this piece of land to Mrs. V for VND 23,000,000; both parties completed handing over the land and receiving payment.

In 2003, Mrs. V sold this piece of land to her aunt living abroad, Mrs. NLQ3 (overseas Vietnamese in America) because Mrs. NLQ3 intended to repatriate to Vietnam in her old age. Although Mrs. NLQ3 and Mrs. V did not make any transfer agreement, she called her siblings and descendants to notify that she bought a piece of residential land. In 2005, Mrs. NLQ3 returned to Vietnam and planned to build a house but she was ineligible for having her name on the land title. So, she agreed to let Mrs. Le Thi Be B have her name on the land use right certificate on behalf of Mrs. NLQ3. At that time, he, Mrs. V, Mrs. NLQ3 asked Mr. NLQ1 to complete paperwork to transfer the land use right to Mrs. Le Thi Be B. Mrs. NLQ3 asked Mrs. V to supervise the house construction because Mrs. V’s husband is a construction worker. The construction cost was completely paid.

So, Mrs. NLQ3 bought this piece of land from Mrs. V and she asked Mr. NLQ1 to complete paperwork to transfer the land use right to Mrs. Le Thi Be B. So, he rejected the lawsuit request of Mrs. V.

- Representation of Mrs. Le Thi Be B: she agrees with the representation of Mr. Le Van Ph. She disagrees with the lawsuit request of Mrs. V. Because Mrs. V sold this piece of land to Mrs. NLQ3 for USD 2,000. Although Mrs. NLQ3 had been granted the certificate but it was revoked because she is a foreigner, so she has had her name on the land use right certificate on behalf of Mrs. NLQ3 until Mrs. NLQ3 returns to Vietnam. Therefore, Mrs. V’s claim to return the house of Mrs. NLQ3 under her management has no valid grounds.

Representation of Mr. NLQ1, Mrs. NLQ2 in the records of depositions although they submitted requests for trial in absentia: In 2002, they sold the piece of land 150m2, located in CH residential area, PT ward, OM district, Can Tho city to Mr. Ph for VND 10,000,000, in a handwritten document. They agreed that when the certificate was granted, they will complete paperwork for transfer to Mr. Ph. After that, Mrs. V (Mr. Ph’s sister) took Mrs. NLQ3 (overseas Vietnamese in America) to their house and said that Mr. Ph sold this piece of land to Mrs. NLQ3 and asked them to make a handwritten transfer document to Mrs. NLQ3. They contacted Mr. Ph and Mr. Ph confirmed this fact. Thus, they completed the paperwork for transfer to Mrs. NLQ3. Then, Mrs. NLQ3 was granted a certificate but it was revoked by the People’s Committee based on a claim of Mrs. V. And this certificate was granted to him thereafter.  After that, they agreed to let Mrs. Le Thi Be B have her name on the land use right certificate on behalf of Mrs. NLQ3 so he completed the paperwork for transfer. And Mrs. Be B was granted the certificate.

Because of old age, poor mobility, and finding it irrelevant, they requested a trial in absentia.

Because of unsuccessful reconciliation, the case is brought trial as per the law.

At the court hearing, the petitioner Mrs. Le Thi V withdraws partial request as follows:

- She requests cancellation of land purchase documents between her and Mr. Ph and Mrs. T; request Mr. Ph and Mrs. T to return her VND 23,000,000 and 50% of the increased difference of the transferred piece of land of 150m2 (according to the valuation record dated July 26, 2012) of VND 26,000,000. The total amount is: 49,000,000 VND.

- Request Mrs. Le Thi Be B to return her the value of house of VND 225,000,000.

In the First Instance Civil Judgment No. 10/2016/DS-ST dated September 23, 2016, the People’s Court of Can Tho city judged:

Pursuant to Clause 121 Article 127, Article 134, Article 137, Article 169, Article 170, Article 689, Article 697, Article 698 of the Civil Procedure Code 2005 in Viet Nam;

Pursuant to Article 166, 167, 168 of the Land Law 2013 in Viet Nam;

Pursuant to Article 26, Article 37, Point a Clause 1 Article 39, Article 91, Article 92, Article 227 of the Civil Procedure Code 2015 in Viet Nam;

Pursuant to Ordinance on Court Fees and Charges in Viet Nam.

1/ Accepting a part of the lawsuit petition of the petitioner.

Cancel the transfer agreement between Mrs. Le Thi V and Mr. Le Van Ph, Mrs. Nguyen Thi T dated July 26, 2002 since it is null and void; compel Mr. Le Van Ph, Mrs. Nguyen Thi T to return Mrs. Le Thi V VND 49,000,000.

Accept the request of Mrs. Le Thi V to compel Mrs. Le Thi Be B to return the value of house of VND 225,000,000.

2/ Reject the lawsuit request of Mrs. Le Thi V requesting annulment of land use right certificate No. CH02545 dated May 26, 2011 granted by the People’s Committee of OM district to Mrs. Le Thi Be B.

In addition, First Instance Judgment also pronounced the liability to pay interest, court fee and regulations on judgment enforcement and right to appeal of litigants.

On September 27, 2016, Mr. Le Van Ph wholly appealed the First Instance Judgment. Mr. Ph claims that the piece of land in dispute was previously sold by Mr. NLQ1, Mrs. NLQ2 to him on March 9, 2002. On July 26, 2002, he resold this piece of land to Mrs. V. In 2003, Mrs. V resold it to Mrs. NLQ3 (overseas Vietnamese in America).  In 2005, Mrs. NLQ3 returned to Vietnam to build a house but she was ineligible for having her name on the land title as she is a foreigner. So, Mrs. V, Mrs. NLQ3 and he met Mr. NLQ1 and asked Mr. NLQ1 to transfer the land title to Mrs. Le Thi Be B. Thus, this piece of land was resold from Mrs. V to Mrs. NLQ3. The land transfer agreement between him and Mrs. V does not stipulate the liability for compensation but First Instance Judgment compelled him to return the initial purchase amount and compensate VND 49,000,000. This was an unreasonable decision. Alternatively, First Instance Judgment declared annulment of the transfer agreement between him and Mrs. V, compelled him to make compensation to Mrs. V but did not compel Mrs. V to return the piece of land to him. This was a groundless and inconsistent decision. He requests the Court of Appeal to reconsider the entire First Instance Judgment.

On October 6, 2016, Mrs. Le Thi Be B filed an appeal against partial First Instance Judgment. Mrs. B claims that First Instance Judgment’s compelling her to return Mrs. V VND 225,000,000 of construction cost was wrong, because such construction cost was paid 10 years ago. She requests the Court of Appeal to reconsider the First Instance Judgment.

At the appellate court hearing:

Mrs. Le Thi V does not withdraw the lawsuit petition and upholds the First Instance Judgment. Mr. Le Van Ph and Mrs. Le Thi Be B do not withdraw the appeal and uphold their statements. The litigants fail to agree on lawsuit settlement.

Opinions of the lawyer of Mrs. Le Thi Be B:

In terms of court procedures: The Court of First Instance neither notified nor carried out reconciliation procedures as to the supplemental lawsuit request of the petitioner, and changed the litigation position of Mrs. B from person with relevant rights and obligations to the respondent. These decisions were incorrect. Alternatively, the rights and interests of Mrs. NLQ3 and Mrs. B are opposite but the Court accepted the authorized representative status of Mrs. B. This was also an incorrect decision.

In terms of the content: The Court of First Instance has not investigated clearly items of evidence presented by the petitioner, such as house construction contract, image files, etc.

Thus, request the Trial Panel to accept the appeal of Mrs. B and correct the First Instance Judgment towards rejecting the lawsuit request of the petitioner.

Opinions of the representative of the Superior People’s Procuracy of Ho Chi Minh City:

Regarding adherence to law of the Judge and Trial Panel: From the acceptance of the case to the trial, it is considered that

The Judge and Trial Panel have complied with the Civil Procedure Code during the case settlement.

In terms of court procedures: The First Instance Judgment did not determine litigation position of Mrs. B consistently in the case, so case was heard improperly.

In terms of the content: The Court of First Instance has not assessed the CD disk provided by the respondent.

Request the Trial Panel to quash the First Instance Judgment and refer the case file to the Court of First Instance to retry under general procedures.

JUDGMENT OF TRIAL PANEL

After consideration of the case files assessed and the adversarial process at the court hearing, the Trial Panel judges as follows:

[1] Determination of litigation positions of litigants: In the original lawsuit petition, Mrs. V only sued Mrs. Nguyen Thi T and Mr. Le Van Ph. The court rightly determined Mr. Ph and Mrs. T as the respondent; and Mrs. B as person with relevant rights and obligations. After decision to bring the case to trial was issued, Mrs. V submitted a supplemental lawsuit petition. The Court of First Instance accepted this supplemental lawsuit petition and determined Mrs. B as co-respondent in this case and compelled Mrs. C to return Mrs. V VND 225,000,000 whilst Mrs. B only had her name on the land use right certificate on behalf of Mrs. NLQ3. This determination was wrong.

[2] Taking of evidence and demonstration: At first instance trial, the litigants presented a CD disk and claim that this CD disk proves that the house and land in dispute are owned by Mrs. NLQ3, but the Court of First Instance did not assess to clarify it. This was a serious violation against the Civil Procedure Code in taking of evidence and demonstration.

Because the First Instance Judgment has a mistake in determining litigation positions of litigants and a serious procedural error which cannot be remedied in appellate trial, it cannot be corrected toward not accepting the lawsuit request of the petitioner as requested by the lawyer of Mrs. B. The view of the representative of the High-level People's Procuracy in Ho Chi Minh city to quash the First Instance Judgment which is well-grounded and accordant with the opinion of Trial Panel should be accepted. It is necessary to quash the First Instance Judgment and refer the case file to another first instance court to retry it under general procedures.

Because First Instance Judgment is annulled, the litigants are not obliged to pay appellate civil court fee as per the law.

Based on the above-mentioned facts and matters,

HEREBY DECIDES

Pursuant to Clause 3 Article 308 and Clause 1 Article 310 of the Civil Procedure Code 2015,

1/ Do not accept the appeal of Mr. Le Van Ph and Mrs. Le Thi Be B. Quash the First Instance Judgment No. 10/2016/DSST dated September 23, 2016 of the People’s Court of Can Tho city and refer the case file to the Court of First Instance for retrial under first instance procedure.

2/ Regarding appellate civil court fee: Refund Mr. Le Van Ph, Mrs. Le Thi Be B VND 200,000 (two hundred thousand dong) of the court fee advance according to the receipts No. 043, 044 dated October 7, 2016 of Department of Judgment Enforcement of Can Tho city.

The Appellate Judgment shall take legal effect from the date of pronouncement.