Judgment No. 220/2019/DS-PT dated june 12, 2019 on dispute over claim for land use right

THE SUPERIOR PEOPLE’S COURT OF HO CHI MINH CITY

JUDGMENT NO. 220/2019/DS-PT DATED JUNE 12, 2019 ON DISPUTE OVER CLAIM FOR LAND USE RIGHT

On June 12, 2019, the appellate trial is conducted at the office of the Superior People’s Court in Ho Chi Minh City to hear the civil case No. 354/2017/TLPT-DS dated November 13, 2017 on dispute over claim for land use right.

as the First Instance Civil Judgment No. 29/2017/DS-ST dated September 20, 2017 of the People’s Court of Ninh Thuan Province was appealed.

according to the Decision to Bring the Case to Appellate Trial No. 317/2019/QD-PT dated March 21, 2019, between litigants:

- Petitioner:  Mr. Truong Thai Ngh (Truong Nhi Thai), born in 1964; residing at: No. 303 Hedley, St Spring Ic 62703, USA; temporary residential address: No. 346 TN, PH ward, PR-TC city, Ninh Thuan province; (absent).

Authorized representative of the petitioner (according to the authorization contract dated November 3, 2017): Mr. Le Tan H, born in 1962; address: No. 103 NGT, TS ward, PR-TC city, Ninh Thuan province; (present).

- Respondent:

1. Mr. Dang Quang V, born in 1951; residing at:  neighborhood 1, MH ward, PR-TC city, Ninh Thuan province; (request for absentia).

2. Mrs. Nguyen Thi Nhu M, born in 1959; residing in:  neighborhood 1, MH ward, PR-TC city, Ninh Thuan province; (present).

Authorized representative of Mrs. M (according to the letter of authorization dated September 5, 2017): Mr. Phan Hoang Nh, born in 1960; residing at: neighborhood 2, PH ward, PR-TC city, Ninh Thuan province; (present).

- Person with related interests and obligations: Bank for Investment and Development of Vietnam (BIDV), Ninh Thuan branch; (request for absentia).

Address: No. 138, street 21/8, PM ward, PR-TC city, Ninh Thuan province.

- Appellant:

+ The petitioner, Mr. Truong Thai Ngh.

+ The respondent, Mrs. Nguyen Thi Nhu M.

THE CASE

- Representation of the petitioner, Mr. Truong Thai Ngh:

In later 2001, Mr. Dang Quang V received USD 7,000 sent by Mr. Truong Thai Ngh in order for Mr. V to buy a land plot with area of about 3 “sào” (1 “sào” = 500m2) of paddy crop land, located in neighborhood 1, MH ward, PR-TC city, Ninh Thuan province (next to TM sole proprietorship). Because he was in the USA at that time, he let Mr. V be free to deal the price, pay for the land, complete paperwork to transfer the title and have Mr. V’s name on the title transfer documents. When he returns to Vietnam, Mr. V will return the land to him. Since the land plot is about 4 m lower than to the road surface, Mr. V spent his own money on adding more dirt and levelling; currently, there is a coffee shop named LH on this land plot. In the record of deposition dated February 11, 2016 (case file p. 47), he only requires Mr. V and Mrs. M to return the area of LH coffee shop and TT sculpture shop (now is NM car wash shop), which is 1,448.7,2, of the land plot No. 25, of cadastral map No. 02, MH ward, PR-TC city. With regard to the area with the head office of TM company thereon, valued at USD 3,000, equivalent to VND 36,000,000 of 209m2, he agrees to gift it to Mr. V. From 2009 to 2010, he sent money to Mr. Dam Van K to build LH coffee shop, about VND 600,000,000, including the costs incurred in: facilities built on land, wages paid to workers, plants; these costs do not include expenses associated with purchase of tables, chairs, glasses, and mugs.

In 2000, he bought the land area of 54,000m2 in DD, now including the land plot No. 06 and 53 with area of 50,005.6m2, cropland type, valued at VND 22,000,000 from Mr. Tran Van Ch and Mrs. Nguyen Thi C, residing in HD village, PH commune, NP district, Ninh Thuan province. He paid money and made a receipt in person; this event was witnessed by Mr. Nguyen L and certified by him. After buying the land area, he bought some mango varieties from Mr. H living on NGT street to grow them on the land. All documents related to the land plot were given to Mr. V to complete the paperwork for title transfer; since he is an overseas Vietnamese who is not eligible for having name on title transfer documents, he agreed to let Mrs. Nguyen Thi Nhu M (her mother-in-law) have her name on title transfer documents, and she must return the land to him when he returns to Vietnam. This arrangement was only made orally, not in writing.

Now, he files a lawsuit, requesting the court to compel Mr. Dang Quang V and Mrs. Nguyen Thi Nhu M to return him all of land area and property on land of the land plot No. 25, cadastral map No. 02, MH ward, PR-TC city and the land area in DD located in HD village, PH commune, NP district, which are in the name of Mrs. Nguyen Thi Nhu M so far. If he cannot receive the land area in kind, he agrees to receive equivalent money.

- Representation of Mr. Dang Quang V:

In 1999, he received USD 7,000 from Mr. Truong Thai Ngh, his son-in-law, who lived in USA. He obtained title of certain agriculture land plots but not on the behalf of Mr. Ngh, in specific:

From 1999 to 2000, he bought from Mr. Tran Huu Thanh the land area of 209m2, paddy crop land type, for a price which he cannot remember. He has his name on land use right certificate, he also spent on adding more dirt and levelling and building the head office of TM sole proprietorship. Now, Mr. Ngh gifts him this land area, he agrees to receive it.

As for the land area of 1,439.7m2 (1,448.7m2 after measurement), located in neighborhood 1, MH ward, PR-TC city, Ninh Thuan province which was bought from Mr. Trao A from 2003 to 2004, paddy crop land type, for VND 12,000,000. He paid money and completed paperwork for title transfer in person; the land use right certificate is also under his name. He added more dirt and leveled the ground. All costs incurred were covered by him. In 2009, Mr. Ngh asked him to open a coffee shop. He personally applied for the construction permit and had his name on the construction permit. He spent money on building the coffee shop and buying stuff and then transferred the shop to Mr. Ngh and Mr. Ngh paid him the expenses incurred in stuff purchase. He only lends this land area to Mr. Ngh for running the coffee shop. Thus, he and his wife, Mrs. Nguyen Thi Nhu M, have title to this land area.

As for the land area in DD, located in HD village, PH commune, NP district, now includes the land plot No. 06 and 53 of 50,005.6m2, which was bought from the married couple Mrs. Nguyen Thi C for a price which he cannot remember, Mrs. Nguyen Thi Nhu M has her name on the land use right certificate.

Now, Mr. Truong Thai Ngh filed a lawsuit, requesting him to return the land area of 1,448.7m2 with LH coffee shop thereon, located in neighborhood 1, MH ward, PR-TC city, Ninh Thuan province, and the land area of 50,005.6m2, located in HD village, PH commune, NP district, he rejects it.  Because after divorce, he and Mrs. Nguyen Thi Nhu M agreed to divide their property; the title of land and property on land, LH coffee shop (including the sum of money he spent on levelling) and the land area of 50,005.6m2 in DD, PH commune, NP district were transferred to Mrs. Nguyen Thi Nhu M and Mrs. M was granted a land use right certificate associated with these land areas. Hence, he requests Mr. Ngh to deal with Mrs. M since he no longer relates to such property and he does not have any dispute over it. He requests the court to adjudicate the case in his absentia in the reconciliation meeting and court hearing (request for trial in absentia dated August 23, 2017-case file p. 94).

- Representation of co-respondent, Mrs. Nguyen Thi Nhu M:

The land area of 1.439.7m2 with LH coffee shop and NM car wash shop thereon, 1,448.7m2 (after measurement) of the land plot No. 25, located in neighborhood 1, MH ward, PR-TC city, is their marital property, which was previously in the name of Mr. Dang Quang V. After she and Mr. V got divorce, as agreed upon division of property, she has title to this land area.  Currently, she was granted the certificate of land use right, housing ownership and property on land No. BX 247069 on September 16, 2014 by the People’s Committee of PR-TC city associated with total land area of the land plot No. 25, located in neighborhood 1, MH ward, PR-TC city. She rejects the lawsuit request of Mr. Truong Thai Ngh forcing her to return the said land area because she has being used it legally. She agrees to return Mr. Ngh USD 7,000 which Mr. V received from Mr. Ngh, but she requires Mr. Ngh to dismantle all facilities on land to return this land area to her.

Regarding the land area of 50,005.6m2 of the land plot No. 01, map No. 00 located in DD, PH commune, NP, she agrees that Mr. Ngh bought it from the married couple Mrs. Nguyen Thi C in person for the price which she could not know. Mr. Ngh also bought mango varieties to grow on the land for the price which she could not know. Mr. Ngh claims that, after buying the land, he asked them to have their names on the title on his behalf; but in fact, Mr. Ngh totally gifted the land to them and they have overseen and cared for it since Mr. Ngh could not do it while living abroad. Currently, she was granted the certificate of land use right, housing ownership and property on land No. BU 174199 on October 31, 2014 by the People’s Committee of NP district associated with the land area of 50,005.6m2 of the land plot No. 06 and 53 of the map No. 49 of PH commune, NP district, Ninh Thuan province according to the extract of cadastral map of the office on August 28, 2017. Now, as for Mr. Ngh’s lawsuit requesting her to return this land area, she rejects it. Because Mr. Ngh totally gifted to her and her husband and she was granted the title to the land use right by the state.

- Representation of person with relevant rights and obligations, Bank for Investment and Development of Vietnam (BIDV), Ninh Thuan branch:

Mrs. Nguyen Thi Nhu M took out a loan from the Bank to do business of VND 2,000,000,000 under the credit agreement No. 02/2017/8216808/HDTD dated March 3, 2017. Until September 5, 2017, the principal is VND 2,000,000,000 and interest is VND 4,270.000. Mrs. M pledged the following property to the Bank to secure the loan: The certificate of land use right, housing ownership and property on land No. BX247069 granted by the People’s Committee of PR-TC city on September 16, 2014 to Mrs. Nguyen Thi Nhu M under the land use right mortgage agreement No. 04/2016/8216808/HDTC dated October 17, 2016; the certificate of land use right, housing ownership and property on land No. BU174199 granted by the People’s Committee of NP district on October 31, 2014 to Mrs. Nguyen Thi Nhu M under the land use right mortgage agreement No. 02/2016/8216808/HDTC dated January 27, 2016.

Bank for Investment and Development of Vietnam (BIDV), Ninh Thuan branch requests the court to compel Mrs. Nguyen Thi Nhu M to maintain these two mortgage agreement to guarantee the debt collection for the Bank.

In the First Instance Civil Judgment No.  29/2017/DS-ST dated September 20, 2017, the People’s Court of Ninh Thuan province judged:

Pursuant to Article 332 of the Civil Code 2015 in Viet Nam; Article 100, Article 203 of the Law on Land 2013 in Viet Nam; Article 159 of the Law on Housing 2014 in Viet Nam; Articles 26, 37, Clause 4 Article 147, Article 165 of the Civil Procedure Code in Viet Nam; Article 48 of the Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the Standing Committee of the National Assembly on court fees and charge, exemption, reduction, collection, transfer, management and use thereof.

Declare: Accept partial lawsuit request of the petitioner; accept total independent claim of person with relevant rights and obligations, BIDV Ninh Thuan branch.

Hereby judges: 

Recognize the voluntary agreement between litigants as follows:  Mrs. Nguyen Thi Nhu M agrees to pay Mr. Truong Thai Ngh: VND 159,320,000 (one hundred fifty nine million three hundred twenty thousand dong) (valued at USD 7,000); VND 25,000,000 (twenty five million dong) of seedlings.

Recognize the voluntary consent of this Circular to gift Mrs. Nguyen Thi Nhu M all property on the land area of 50,005.6m2 of the land plot No. 6 and 53 of the map No. 49 in PH commune, NP district, Ninh Thuan province.

Compel Mrs. M to pay Mr. Ngh the profit of the land area of 1,448.7m2 of VND 324,643,360 (three hundred twenty four million six hundred forty three thousand three hundred sixty dong).

Compel Mrs. M to pay Mr. Ngh the profit of the land area of 50,005.6m2 of the land plot No. 6 and 53, of the map No. 49, located in PH commune, NP district, Ninh Thuan province: VND 20,000,000 (twenty million dong) of initial land transfer amount and VND 196,022,400 (one hundred ninety six million twenty two thousand four hundred dong).

In total, compel Mrs. M to pay Mr. Ngh: VND 724,985,760 (seven hundred twenty four million nine hundred eighty five seven hundred sixty dong).

Compel Mr. Ngh to dismantle all facilities built on the land area of 941.4m2 (LH coffee shop) of the land plot No. 25 of the map No. 02, MH ward, PR-TC city. including: A level-3B house of 18.8m2; a level-3A tea house of 92.9m2; a level-3C house of 158.2m2; a level-3B bar of 133.6m2; a level-3B warehouse + WC of 17.2m2; a level-4C glass washing place of 21.6m2, a level-3 WC of 40m2; a level-3A house of 90m2; a water tank of 1,000 litter and other structures and auxiliary works; iron net roof of 208m2; Bat Trang brick floor of 40.6m2; cement yard of 432.3m2; iron roof with iron frame of 163,6m2; brick wall of 2.4m high; 02 pillar gates of bricks and coated with schist of 2.2m2; iron gate with rail of 14,6m2; brick block coated with stone of 6.9m3; brick flower bed of 1.6m3; ornamental bridge of 0.6m3; 03 Vietnamese penjings.

Keep maintaining 2 mortgage agreements No. 04/2016/8216808/HDTC dated October 17, 2016 and No. 02/2016/8216808/HDTC dated January 27, 2016 between Mrs. Nguyen Thi Nhu M and BIDV Ninh Thuan branch.

In addition, the Court of First Instance also declared obligations of judgment debtor in delayed judgment enforcement, the first instance civil court fee and the right to appeal as per the law.

On October 5, 2017, the petitioner Mr. Truong Thai Ngh filed an appeal against the entire First Instance Judgment for the reason that: the Court of First Instance has not adjudicated based on objective truths and proper civil laws and regulations, which compromises his legitimate rights and interests. Because he is an overseas Vietnamese who spent his own money on receiving transfer of land use right and asked Vietnamese people to have their name on the title and construction permit to build LH coffee shop. In this circumstance, the court was supposed to determine that the person who actually paid the sum of money to receive the title transfer and build the coffee shop and the person who has his/her name on the title have equal contribution in dividing the increased difference compared to the original price. Thus, request the Court of Appeal to protect his legitimate rights and interests.

On October 5, 2017, the respondent, Mrs. Nguyen Thi Nhu M, filed an appeal against the First Instance Judgment, stating that: The land area of the land plot No. 25, map No. 02, MH ward, PR-TC city is the marital property which was bought in 2003-2004, not relating to USD 7,000 borrowed from Mr. Ngh in 2001. And the land area of 50,005.6m2 in PH commune, NP district, Ninh Thuan province is gifted by Mr. Ngh to them. Hence, she only agrees to return Mr. Ngh USD 7,000 which they borrowed from him in 2001 and return Mr. Ngh VND 25,000,000 of seedlings.

At the appellate court hearing:

The petitioner, Mr. Truong Thai Ngh, with authorized representative at the court hearing, still upholds the appeal and states:  Because Mr. Ngh is an overseas Vietnamese who spent his own money on receiving transfer of land use right and asked Vietnamese people, Mr. V and Mrs. M, to have their name on the land title. In this circumstance, the Court of First Instance was supposed to determine that the person who actually paid the sum of money to receive the title transfer and build the coffee shop and the person who has his/her name on the title have equal contribution in dividing the increased difference compared to the original price. Therefore, request the Court of Appeal to protect his legitimate rights and interests by compelling Mrs. M to return Mr. Ngh the original price he paid to receive the title of land use right and 50% of the increased difference compared to the original price.

The respondent, Mrs. Nguyen Thi Nhu M, still upholds her appeal and states: She will not return Mr. Ngh USD 7,000 that they borrowed him in 2001 and return Mr. Ngh VND 25,000,000 of seedlings until the court recognizes that the land plot No. 25, of the map No. 02, MH ward, PR-TC city is their marital property in 2003-2004 and does not relate to USD 7,000 they borrowed from Mr. Ngh; and recognize that Mr. Ngh gifts them the land area of 50,005.6m2 in PH commune, NP district, Ninh Thuan province.

Opinions of procurator in the appellate court hearing on behalf of the People’s Procuracy as to the resolution of the case:

With respect to adherence to the law in the course of resolution of the case at appellate stage: The Judge - presiding judge and the Trial Panel have complied with the Civil Procedure Code; the litigants have performed their rights and obligations as prescribed in the Civil Procedure Code.

With respect to appeal of the petitioner, Mr. Truong Thai Ngh, and appeal of the respondent, Mrs. Nguyen Thi Nhu M: The Court of First Instance determined that Mr. Ngh paid his own money and asked the married couple Mr. Dang Quang V and Mrs. Nguyen Thi Nhu M to have their names on the title transfer associated with the land area of 1,439.7m2 (1,448.7m2 after measurement) of land plot No. 25, of map No. 02, MH ward, PR-TC city and the land area of 50,005.6m2, of land plot 6 and 53, map no. 49, in PH commune, NP district, Ninh Thuan province. The Court of First Instance was grounded when considering the contribution in preservation and care to increase the value of land use right of Mr. V and Mrs. M to divide them eight tenths and divide Mr. Ngh two tenths out of the abovementioned increased difference.

After amicable divorce of Mr. V and Mrs. M, they mutually agreed to transfer titles of all land areas to Mrs. M and she was granted respective land use right certificates.  Therefore, the Court of First Instance was grounded when compelling Mrs. M to return Mr. Ngh all the original price and two tenths of the increased difference.

The petitioner, Mr. Truong Thai Ngh, and the respondent, Mrs. Nguyen Thi Nhu M, filed appeals but they do not provide any new evidence, request the Trial Panel to reject their appeals; and uphold the First Instance Judgment.

JUDGEMENT OF THE COURT

The appeals of Mr. Truong Thai Ngh and Mrs. Nguyen Thi Nhu M were filed within the time limit required and in due process as per the law, so they are considered lawful.

At appellate court hearing, the respondent, Mr. Dang Quang V, and the person with relevant rights and obligations, BIDV Ninh Thuan branch are absent with requests for trial in absentia, so the court conducts the court hearing in their absence as prescribed in Clause 2 Article 296 of the Civil Procedure Code:

- In terms of court procedures: The Court of First Instance has determined correct disputed legal relationship, accept and resolve the case with proper jurisdiction and procedures as prescribed in the Civil Procedure Code.

- In terms of the content:

[1] Regarding the land area of 1,439.7m2 (1.448.7m2 after measurement) of land plot No. 25, of map No. 02, MH ward, PR-TC city, Ninh Thuan province:

[1.1] Although Mr. Dang Quang V, in person, paid money and completed paperwork for title transfer of the land area of 1,439.7m2 (1.448.7m2 after measurement) of land plot No. 25, of map No. 02, MH ward, PR-TC city (the land area of 1,448.7m2, of land plot No. 25, of map No. 02, MH ward, PR-TC city) of Mr. Trao A in 2003-2004; the land use right certificate is also in the name of Mr. V. Mr. V added more dirt and leveled the ground. All costs incurred were covered by him. In 2009, Mr. V also applied for construction permit and had his name on the construction permit to build LH coffee shop and spent his own money on buying stuff for the coffee shop on this land plot.

[1.2] However, in the record of deposition dated March 12, 2015, Mrs. Dang Thi Nhu Ngoc (Mr. Dang Quang V’s daughter) determines: Mrs. Ngoc received USD 10,000 from Mr. Truong Thai Ngh and sent it to Mr. V (case file p. 44). In addition, in the records of deposition dated November 27, 2014 (case file p. 83) and dated October 9, 2014 (case file p. 81), Mr. V declares: Mr. V received Mr. Ngh USD 10,000 to buy a land area of 1 “sao” (1,000m2) which is paddy crop land. Mr. V leveled the land area to be as high as the 16/4 road surface in order to build LH coffee shop. Mr. V agrees to return Mr. Ngh USD 10,000. If Mr. Ngh receives the land, he shall return the cost of levelling to Mr. V. In fact, promptly after Mr. V applied for and had his name on the construction permit to build LH coffee shop, he handed over this shop to Mr. Ngh for doing business and he admits that Mr. Ngh paid the costs of buying stuff to him.

[1.3] Therefore, there are valid grounds for determining that Mr. V received USD 10,000 from Mr. Ngh to have his name on the title transfer; this sum of money is private property of Mr. Ngh, not relating to Mrs. Ngoc. After that, Mr. V used that sum of money to receive transfer of land area of 1,448.7m2, of land plot No. 25, of map No. 02, MH ward, PR-TC city. The Court of First Instance was grounded when determining that all land area of land plot No. 25, of map No. 02, MH ward, PR-TC city is not marital property of the married couple Mrs. M and Mr. V.

[1.4] However, Mr. Truong Thai Ngh claims that: As being an overseas Vietnamese, he sent USD 10,000 to Mr. Dang Quang V and asked Mr. V to buy land on his behalf. In 1999-2000, Mr. V spent USD 3,000 (equivalent to VND 36,000,000) out of USD 10,000 on buying the land area of 209m2 from Mr. Tran Huu Thanh, paddy crop land type, to build the head office of TM company; Mr. Ngh agreed to gift this land area to Mr. V. After that, in later 2001, Mr. V used the remaining USD 7,000 to buy the land area of 1,448.7m2, of land plot No. 25, of map No. 02, MH ward, PR-TC city to build LH coffee shop and TT sculpture shop (now is NM car wash shop). Under which, Mr. Ngh requests Mr. V and Mrs. M to return the land area of LH coffee shop and TT sculpture shop (now is NM car wash shop). If he cannot receive the land area in kind, he agrees to receive equivalent money. Therefore, there are sufficient items of evidence to determine that the representation of Mrs. Nguyen Thi Nhu M claiming that Mr. Ngh sent USD 7,000 to them as a loan is ungrounded.

[1.5] Regarding the original price to receive transfer of the land plot No. 25, map No. 02, MH ward, PR-TC city:

Although Mr. Ngh claims that Mr. V used USD 7,000 to receive transfer of the land plot No. 25, map No. 02, MH ward, PR-TC city; Mr. V counterclaims that Mr. V received transfer of this land plot from Mr. Trao A in 2003-2004, paddy crop land, for VND 12,000,000. Meanwhile, Mr. Ngh cannot determine specific amount of money to receive transfer of such land area. so, the Court of First Instance accepted the statement of Mr. V that he received transfer of such land area for VND 12,000,000. This acceptance is considered justifiable.

[1.6] According to the Official Dispatch No. 488/UBND-NC dated February 20, 2017 of the People’s Committee of Ninh Thuan province (case file p. 269) and the Official Dispatch No. 1906/SXD-QHKT dated June 27, 2017 (case file p. 270-271), the above agricultural land area of the land plot No. 25 is under the Southern new urban area planning on street 16/4 (D2-D7 route), MH ward, PR-TC city. Meanwhile, as an overseas Vietnamese, Mr. Ngh is not eligible for buying a house associated with land use right in Vietnam as prescribed in Clause 1 Article 186 of the Land Law 2013.

[1.7] Based on the Precedent No. 02/2016/AL in Viet Nam chosen from Cassation Decision No. 27/2010/DS-GDT dated July 8, 2010 and announced in Decision No. 220/QD-CA in Viet Nam dated April 6, 2016 of the Chief Justice of the Supreme People’s Court: “In a case when an overseas Vietnamese who, at his/her cost and expense, acquired transfer of land use right and asked a Vietnamese citizen to put the land use right in the name of that person on his/her behalf is involved in a dispute with such Vietnamese citizen, the Court should have considered that Vietnamese citizen’s contribution to preservation and restoration to increase the value of the land use right; where it is impossible to determine specific contribution, it is supposed to consider that the overseas Vietnamese and the Vietnamese citizen have equal contribution to the increased value of land use right in comparison with its initial value”. In this case, the Court of First Instance was correct when applying the Precedent No. 02/2016/AL to resolve the case.

[1.8] The original price used in title transfer was determined VND 12,000,000. And, according to the valuation report of the valuation council dated August 17, 2017, the value of this land area is VND 1,334,000/m2. But Mr. V, at his cost and expense, leveled the ground, so it was valued at VND 150,029,000 by the valuation council on August 17, 2017. Accordingly, the increased difference compared to the original price is VND 1,932,565,800 (1,448.7m2 x VND 1,334,000/m2) – VND 12,000,000 (original price) - VND 150,029,000 (value of leveled ground) = VND 1,770,536,800.

[1.9] Regarding contribution to the land value: The Court of First Instance judged that as the original price is very small compared to the current value of the land area, so it is advisable to divide Mr. Ngh two tenths and divide Mr. V and Mrs. M eight tenths out of the value. This judgment is incorrect and unaccordant with the Precedent No. 02/2016/AL. The Precedent No. 02/2016/AL states that "the Court should have considered that contribution to preservation and restoration to increase the value of the land use right of the person who has his/her name on the title; where it is impossible to determine specific contribution, c.”

[1.10] Although Mr. V was asked by Mr. Ngh to have his name on the title of the land plot No. 25, of map No. 02, MH ward, PR-TC city, Mr. V gifted it to Mrs. M under the gift deed for land use right dated June 17, 2014 without the consent of Mr. Ngh. After that, Mrs. M was granted the land use right certificate associated with this land area. So, Mrs. M is obliged to pay Mr. Ngh the original price VND 12,000,000 and 50% of VND 1,770,536,800 as the increased difference compared to the original price; in total, Mrs. M is obliged to pay Mr. Ngh VND 897,268,400.

[2] Regarding the land area of 50,005.6m2, of land plot 6 and 53, map no. 49, in PH commune, NP district, Ninh Thuan province:

[2.1] During the participation in the legal proceedings, Mrs. Nguyen Thi Nhu M admitted that Mr. Truong Thai Ngh solely negotiated and bought this land area at his own cost and expense from the married couple Mrs. Nguyen Thi C for a price that she could not know. Mr. Ngh also bought mango varieties to grow on the land for the price which she could not know. After buying the land, Mr. Ngh totally gifted the land to them and they have overseen and cared for it since Mr. Ngh could not do it while living abroad. However, Mrs. M does not have any evidence proving that Mr. Ngh totally gifted the land to her and her husband. Therefore, the Court of First Instance was grounded when determining that Mr. Ngh also spent money on receiving transfer of the land area of 50,005.6m2, of land plot 6 and 53, map no. 49, in PH commune, NP district, Ninh Thuan province and asked Mrs. M to have her name on the title transfer. In this case, the Court of First Instance was correct when applying the Precedent No. 02/2016/AL to resolve the case.

[2.2] Mr. Ngh received transfer of the land area of 50,005.6m2 for VND 20,000,000 and the valuation council determined that its current price is VND 20,000/m2, so the increased difference compared to the original price is VND 1,000,112,000 (50,005.6m2 x VND 20,000/m2) - VND 20,000,000 (original price) = VND 980,112,000.

[2.3] Regarding contribution to the land value: The Court of First Instance was incorrect when dividing Mr. Ngh two tenths and Mr. V and Mrs. M eight tenths out of the land value. Pursuant to the Precedent No. 02/2016/AL, the court should determine that the person who actually paid the sum of money to receive the title transfer and build the coffee shop and the person who has his/her name on the title have equal contribution in dividing the increased difference compared to the original price.

[2.4] Accordingly, Mrs. M is obliged to pay Mr. Ngh: VND 20,000,000 of the original price and 50% of VND 980.112.000 as the increased difference compared to the original price; in total, Mrs. M is obliged to pay Mr. Ngh VND 510,056,000.

[3] Regarding the decision of the Court of First Instance to recognize the voluntary consent of Mrs. Nguyen Thi Nhu M to pay Mr. Truong Thai Ngh: VND 159,320,000 (one hundred fifty nine million three hundred twenty thousand dong) (valued at USD 7,000); VND 25,000,000 (twenty five million dong) of seedlings:

At the appellate court hearing, Mrs. Nguyen Thi Nhu M states: She will not return Mr. Ngh USD 7,000 that they borrowed him in 2001 and return Mr. Ngh VND 25,000,000 of seedlings until the court recognizes that the land plot No. 25, of the map No. 02, MH ward, PR-TC city is their marital property in 2003-2004 and does not relate to USD 7,000 they borrowed from Mr. Ngh; and recognize that Mr. Ngh gifts them the land area of 50,005.6m2 in PH commune, NP district, Ninh Thuan province. However, the Court of First Instance did not recognize the land plot No. 25, of the map No. 02, MH ward, PR-TC city as their marital property; and did not recognize that Mr. Ngh gifted them the land area of 50,005.6m2, of land plot 6 and 53, map no. 49, in PH commune, NP district, Ninh Thuan province; but recognized her voluntary consent to pay Mr. Ngh: VND 159,320,000 (one hundred fifty nine million three hundred twenty thousand dong) (valued at USD 7,000); VND 25,000,000 (twenty five million dong) of seedlings, this decision goes against her will. Therefore, it is necessary to correct this decision of the First Instance Judgment.

So, Mrs. Nguyen Thi Nhu M is obliged to pay Mr. Ngh VND 1,407,324,400 (VND 897,268,400 + VND 510,056,000).

[4] Therefore, the Trial Panel of the Court of Appeal accepts partial appeal of the petitioner, Mr. Truong Thai Ngh, and partial appeal of the respondent, Mrs. Nguyen Thi Nhu M; and corrects partial First Instance Judgment No. 29/2017/DS-ST dated September 20, 2017 of the People’s Court of Ninh Thuan province according to the above analysis and judgment.

[5] Because First Instance Judgment shall be corrected, the first instance court fee shall also be corrected as follows:

[5.1] Mr. Truong Thai Ngh has to pay first instance court fee as to the denied part of the appeal, equivalent to VND 1,525,353,400, so he is obliged to pay VND 57,760,602. Calculation: VND 36,000,000 + (VND 725,353,400 x 3%)

[5.2] Mrs. Nguyen Thi Nhu M has to pay first instance court fee as to VND 1,407,324,400 payable to Mr. Ngh, so she is obliged to pay VND 54,219,732. Calculation: VND 36,000,000 + (VND 607,324,400 x 3%)

In addition, she is also obliged to pay VND 300,000 (three hundred thousand dong) of first instance court fee as the independent claim of BIDV Ninh Thuan branch is accepted by the court.

Accordingly, in total, Mrs. M is obliged to pay VND 54,519,732 of first instance court fee.

 [6] Mr. Truong Thai Ngh and Mrs. Nguyen Thi Nhu M, as per the law, do not have to pay appellate court fees.

[7] Opinions of the procurator in the appellate court hearing which requests denial of the appeals of Mr. Truong Thai Ngh and Mrs. Nguyen Thi Nhu M and upholds First Instance Judgment do not conform to analysis and judgment of Trial Panel of the Court of Appeal, so they shall not be accepted.

[8] Other decisions of the First Instance Verdict which do not have any appeal will remain legally effective from the expiry of time limit for the appeal.

Pursuant to documents and evidence mentioned above;

HEREBY DECIDES

Pursuant to Clause 2 Article 308 of the Civil Procedure Code 2015.

- Accept partial appeal of the petitioner, Mr. Truong Thai Ngh and partial appeal of the respondent, Mrs. Nguyen Thi Nhu M; and correct partial First Instance Judgment No. 29/2017/DS-ST dated September 20, 2017 of the People’s Court of Ninh Thuan province:

Pursuant to Article 332 of the Civil Code 2015; Article 100, Article 203 of the Law on Land 2013; Article 159 of the Law on Housing 2014; Articles 26, 37, Clause 4 Article 147, Article 165 of the Civil Procedure Code; Article 48 of the Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly on court fees and charge, exemption, reduction, collection, transfer, management and use thereof.

Hereby judges: 

Accept partial lawsuit request of the petitioner; accept total independent claim of person with relevant rights and obligations, BIDV Ninh Thuan branch:

+ Recognize the voluntary consent of this Circular to gift Mrs. Nguyen Thi Nhu M all property on the land area of 50,005.6m2 of the land plot No. 6 and 53 of the map No. 49 in PH commune, NP district, Ninh Thuan province.

+ Compel Mrs. Nguyen Thi Nhu M to pay Mr. Truong Thai Ngh the original price of VND 12,000,000 regarding the land area of 1,439.7m2 (1,448.7m2 after measurement) of land plot No. 25, of map No. 02, MH ward, PR-TC city and VND 885,268,400 which is 50% of the increased difference compared to the original price; in total, Mrs. M is obliged to pay Mr. Ngh VND 897,268,400 (Eight hundred ninety seven million, two hundred sixty eight thousand four hundred dong).

+ Compel Mrs. Nguyen Thi Nhu M to pay Mr. Truong Thai Ngh the original price of VND 20,000,000 regarding the land area of 50,005.6m2, of land plot 6 and 53, map no. 49, in PH commune, NP district, Ninh Thuan province and VND 490,056,000 which is 50% of the increased difference compared to the original price; in total, Mrs. M is obliged to pay Mr. Ngh VND 510,056,000 (Five hundred ten million fifty six thousand dong).

In total, Mrs. Nguyen Thi Nhu M is obliged to pay Mr. Truong Thai Ngh VND 1,407,324,400 (One billion four hundred seven million three hundred twenty four thousand four hundred dong).

+ Compel Mr. Ngh to dismantle all facilities built on the land area of 941.4m2 (LH coffee shop) of the land plot No. 25 of the map No. 02, MH ward, PR-TC city. including: A level-3B house of 18.8m2; a level-3A tea house of 92.9m2; a level-3C house of 158.2m2; a level-3B bar of 133.6m2; a level-3B warehouse + WC of 17.2m2; a level-4C glass washing place of 21.6m2, a level-3 WC of 40m2; a level-3A house of 90m2; a water tank of 1,000 litter and other structures and auxiliary works; iron net roof of 208m2; Bat Trang brick floor of 40.6m2; cement yard of 432.3m2; iron roof with iron frame of 163,6m2; brick wall of 2.4m high; 02 pillar gates of bricks and coated with schist of 2.2m2; iron gate with rail of 14,6m2; brick block coated with stone of 6.9m3; brick flower bed of 1.6m3; ornamental bridge of 0.6m3; 03 Vietnamese penjings.+ Keep maintaining 2 mortgage agreements No. 04/2016/8216808/HDTC dated October 17, 2016 and No. 02/2016/8216808/HDTC dated January 27, 2016 between Mrs. Nguyen Thi Nhu M and BIDV Ninh Thuan branch.

Since the judgment creditor has an application to enforce the judgment until the execution of the sentence, all the money amounts must be paid every month, the judgment enforcement party shall also have to bear the interest of the remaining amount of money still subject to the judgment execution. Interest rates are stipulated in Clause 357, Article 468 of the 2015 Civil Code.

+ First instance civil court fee:

Mr. Truong Thai Ngh is obliged to pay VND 57,760,602, which is deducted from VND 50,000,000 (fifty million dong) of the paid advance according to the receipt No. 0003439 dated June 30, 2014 of Department of Civil Judgment Enforcement of Ninh Thuan province (paid by Mr. Tran Ngoc Hai); so, Mr. Ngh is also obliged to pay VND 7,760,602 (seven million seven hundred sixty thousand six hundred two dong).

Mrs. Nguyen Thi Nhu M is obliged to pay VND 54,519,732 (fifty four million five hundred nineteen thousand seven hundred thirty two dong).

BIDV Ninh Thuan branch is not obliged to pay first instance court fee. Refund BIDV Ninh Thuan branch VND 36,000,000 (thirty six million dong) of the paid advance according to the receipt No. 0013818 dated September 7, 2017 of Department of Civil Judgment Enforcement of Ninh Thuan province (paid by Mr. Tran Khai Tinh).

- Appellate civil court fee:

Mr. Truong Thai Ngh is not obliged to pay appellate court fee; refund him VND 300,000 of the paid advance according to the receipt No. 0013843 dated October 5, 2017 of Department of Civil Judgment Enforcement of Ninh Thuan province.

Mrs. Nguyen Thi Nhu M is not obliged to pay appellate court fee; refund her VND 300,000 of the paid advance (paid by Mr. Phan Hoang Nh) according to the receipt No. 0013846 dated October 10, 2017 of Department of Civil Judgment Enforcement of Ninh Thuan province.

In case the judgment or court decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments in Viet Nam, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Article 6, 7 and 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.

The Appellate Judgment takes effect from the date of pronouncement (June 12, 2019).