Judgment No. 89/2018/DS-PT dated october 5, 2018 on dispute over reclaim of land use right certificate

PEOPLE’S COURT OF BA RIA-VUNG TAU PROVINCE

JUDGMENT NO. 89/2018/DS-PT DATED OCTOBER 5, 2018 ON DISPUTE OVER RECLAIM OF LAND USE RIGHT CERTIFICATE

On October 5, 2018, at the office of People’s Court of Ba Ria - Vung Tau province, the appellate trial was conducted to hear the civil case No. 72/2017/TLPT-DS dated August 15, 2018 on “dispute over reclaim of property”.

As First Instance Civil Judgment No. 28/2018/DS-ST dated July 10, 2018 of the People’s Court of city B, Ba Ria-Vung Tau province was appealed.

According to the Decision to Bring the Case to Appellate Trial No. 102/2018/QD-PT dated September 19, 2018 between litigants:

1. Petitioner:  Mr. Nguyen Nam V, born in 1971; permanent residence: 30/296 Nguyen Van N street, ward 7, district G, city H; residence: group 9, village P, commune T, city B, Ba Ria-Vung Tau province. (Present).

2. Respondent:  Mr. Nguyen Quang K, born in 1959; Address: No. 58N, ward P, B city, Ba Ria-Vung Tau province. (Present).

3. Witnesses:

+ Mrs. Nguyen Thi T, born in 1959; address: village 4, commune T, city B, Ba Ria-Vung Tau province. (Absent).

+ Mr. Nguyen Van H, born in 1959; address: 4060, village P, commune T, city B, Ba Ria-Vung Tau province. (Absent).

+ Mrs. Nguyen Thi T H1, born in 1966; address: 300 street C, ward P, city B, Ba Ria-Vung Tau province. (Absent).

4. Appellant: Mr. Nguyen Nam V is the petitioner in the case.

THE CASE

- Representation of Mr. Nguyen Nam V in the lawsuit petition and during the lawsuit settlement: In 2008, he received transfer of land use right of 172.2m2 of the land plot No. 516, map No. 12, commune T, city B from Mrs. Nguyen Thi T. Believing in his brother, Mr. Nguyen Quang K, he asked Mr. K to enter into the transaction to receive such transfer. After that, Mr. V was granted a land use right certificate. After being granted the land use right certificate, Mr. K notified him of the issuance, he saw it and left it to Mr. K. In 2017, due to the need to transfer such land use right, he asked Mr. K to return the land use right certificate but Mr. K refused. He submitted a lost article report to the People’s Committee of commune T to apply for reissuance of land use right certificate but the People’s Committee of commune T replied not to consider reissuing such land use right certificate because his relative reported that he had been keeping the original of land use right certificate but the People’s Committee of commune T did not reveal who he/she was.

Mr. V confirms that he signed an “affirmation” dated March 5, 2008 confirming that the land area of the land plot No. 516, map No. 12 of commune T, city B is owned by Mrs. D, his sister; he only has his name on the land use right certificate on her behalf.

Now, he files a lawsuit requesting Mr. K to return him the original of land use right certificate No. AG 103849 dated November 3, 2006 granted by the People’s Committee of city B in the name of Mrs. Nguyen Thi T, certifying in page 4 that on May 2, 2008, he received the transfer from Mrs. T.

- Representation of Mr. Nguyen Quang K during the lawsuit settlement: In 2008, in order to enable Mr. V to have a stable place to live, his sister, Mrs. Nguyen Thi D, who was living abroad, sent money to him and asked him to receive the transfer of two pieces of land from Mrs. Nguyen Thi T (including the land plot No. 516, map No. 12, commune T, city B). After reaching mutual agreement, he and Mr. V and Mrs. T came to the People’s Committee of commune T to conclude a land use right transfer agreement; he sat outside and did not witness the conclusion. He did not know who was in charge of the transfer paperwork. When Mr. V and Mrs. Nguyen Thi H1 Nhung (daughter of Mrs. Nguyen Thi T H1 - Mrs. D let her have her name in the land use right certificate of another piece of land) were granted original of the land use right certificate, Mrs. H1 and Mrs. Nhung kept the original of land use right certificate in the name of Mr. V. After that, since Mr. V had continuously demanded it, Mrs. H1 gave the original of land use right certificate in the name of Mr. V to Mrs. D.

In June 2017, upon receiving the news that Mr. V put up the house and land for sale and was applying for reissuance of land use right certificate to the People’s Committee of commune T. Mrs. D brought the original land use right certificate of the land plot No. 516, map 12, commune T in the name of Mr. V and relevant documents (including the “affirmation” dated March 5, 2008 stating that Mr. V confirms the land ownership of Mrs. D) and returned to Vietnam. Then she, Mrs. H1 and he came to the People’s Committee of commune T to report the case and prevented Mr. V from being reissued with the land use right certificate. After that, Mrs. D kept all documents and returned to Australia since then.

Mr. K states that he does not keep the original land use right certificate of the land plot No. 516, map No. 12, commune T in the name of Mr. V. Thus, he does not accept the lawsuit request of Mr. V requesting him to return the land use right certificate to Mr. V.

- Representation of witnesses:

- Representation of Mrs. Nguyen Thi T: She and Mr. Nguyen Nam V and Mr. Nguyen Quang K have no relationship. In 2008, Mr. K received transfer of her two pieces of land (including the land plot No. 516, map No. 12, commune T, city B). On the transfer of land, Mr. K said that the transfer amount was sent by his sister living abroad. Upon receipt of the transfer amount, she handed over the land documents to Mr. K to complete the transfer paperwork. After that, she signed a land transfer agreement with either Mr. V or Mr. K (she could not remember) concerning the land plot No. 516, map No. 12, commune T. She does not know further related information since then, and she does not relate to the transferred piece of land.

- Representation of Mr. Nguyen Van H: He is a friend of Mr. Nguyen Quang K. Previously, he introduced Mr. K to receive 2 pieces of land (including the land plot No. 516, map No. 12, commune T, city B) from Mrs. Nguyen Thi T. Before receiving the transfer, Mr. K told him that the transfer amount was sent by his sister living abroad. He witnessed the process when Mr. K and Mrs. T entered into the transfer, but he did not know the transfer price and how the payment was made. When the transfer agreement was notarized, he did not know who was in charge of the transfer paperwork.

- Representation of Mrs. Nguyen Thi T H1: She and Mr. Nguyen Nam V and Mr. Nguyen Quang K are full siblings. In 2008, Mr. V is the youngest brother in the family and single, as her sister Mrs. Nguyen Thi D living abroad was ineligible for having her name on the land title in Vietnam. She sent money to Mr. K and asked him to receive 2 pieces of land from Mrs. Nguyen Thi T (including the land plot No. 516, map No. 12, commune T, city B) and let Mr. V have his name on the land use right certificate on her behalf concerning the land plot No. 516 and then build the house thereon for Mr. V to live.  After reaching mutual agreement, Mr. K, Mrs. H1, Mr. V and Mrs. T came to the People’s Committee of commune T to conclude a land use right transfer agreement. However, Mr. K sat outside and did not witness the conclusion.

Mr. V received the land use right certificate in person. After that, at the request of Mrs. D, Mr. V handed over the original of land use right certificate to Mrs. Nguyen Thi T H1. Then, Mrs. Nguyen Thi T H1 sent the original land use right certificate and the “affirmation” dated March 5, 2008 to Mrs. D.

In August 2017, when Mr. V put up the house and land for sale and made a report on lost original of land use right certificate to the People’s Committee of commune T to apply for reissuance, Mrs. Nguyen Thi T H1 reported it to Mrs. D. Mrs. D brought the original land use right certificate concerning the land plot No. 516 as other relevant documents (including the “affirmation” dated March 5, 2008 signed by Mr. V) returned to Vietnam and came to the People’s Committee of commune T with Mrs. H1 to report the case and prevented Mr. V from applying for reissuance of land use right certificate.

She confirms that Mrs. D has kept the original land use right certificate in the name of Mr. V. Mr. K does not keep it.

In the First Instance Civil Judgment No. 28/2018/DS-ST dated July 10, 2018, the People’s Court of city B, Ba Ria-Vung Tau province judged:

Do not accept the lawsuit request of Mr. Nguyen Nam V against Mr. Nguyen Quang K.

In addition, the first instance court decided the court fee and announced the appeal right to litigants as per the law.

- On July 17, 2018, Mr. V appealed the First Instance Judgment. Request the Court of Appeal to compel Mr. K to return land use right certificate to Mr. V.

At the appellate court hearing: The petitioner upholds the lawsuit request and appeal. The litigants fail to agree on lawsuit settlement and provide further documents or evidence.

- * Opinions of the representative of People's Procuracy of Ba Ria-Vung Tau province who participates in the trial: The Official Dispatch No. 476/VP dated December 18, 2017 of the People’s Committee of city B confirms that Mr. V signed the acknowledgement of submission of transfer documents on April 11, 2008 and receipt of processing result on May 16, 2008; Mrs. Nguyen Thi T H1 confirms that Mr. V kept land use right certificate. After that, at the request of Mrs. D. The verification report dated June 14, 2017 of the People’s Committee of commune T states that Mrs. D presented the original land use right certificate concerning the land plot No. 516 in the name of Mr. V at the People’s Committee of commune T on August 28, 2017. Mr. K does not confirm that he has kept the original land use right certificate and Mr. V has failed to prove that Mr. K has kept such original land use right certificate. So, there is no justifiable grounds for accepting the lawsuit request of Mr. V.

Proposing the Appellate Trial Panel not to accept the appeal of Mr. V. 

Uphold First Instance Judgment.

JUDGMENT OF THE COURT

After considering the case files assessed and the adversarial process at the court hearing, and opinions of the People’s Procuracy, the Trial Panel judges as follows:

[1] Mr. Nguyen Nam V requests Mr. Nguyen Quang K to return Mr. V land use right certificate No. AG 103849 dated November 3, 2006 granted by the People’s Committee of city B in the name of Mrs. Nguyen Thi T, certifying that in page 4, on May 2, 2008, Mr. V received transfer of land use right from Mrs. T. And Mr. V claims that Mr. K has kept the said land use right certificate. Mr. K does not admit that he has kept land use right certificate of Mr. V. The witness, Mrs. Nguyen Thi T H1, confirms that the land use right certificate in the name of Mr. V was previously kept by her at the request of Mr. V. After that, because Mr. V only had his name on the land use right certificate on behalf of his sister, Mrs. Nguyen Thi D, she returned such land use right certificate to Mrs. D at her request. Mrs. Nguyen Thi T confirms that she transferred such piece of land but she could not remember if she signed the agreement with Mr. V or Mr. K. After signing the agreement, she gave the land use right certificate to the transferee to complete the transfer paperwork and did not know further information. The People’s Committee of city B, in the Official Dispatch No. 476/VP dated December 18, 2017, confirms that Mr. V signed the acknowledgement of submission of transfer documents on April 11, 2008 and receipt of processing result on May 16, 2008. The verification report dated June 14, 2017 of the People’s Committee of commune T states that Mrs. D presented the original land use right certificate concerning the land plot No. 516 in the name of Mr. V at the People’s Committee of commune T on August 28, 2017.

Mr. V has failed to provide evidence that Mr. K has kept the land use right certificate of Mr. V, so there is no justifiable grounds for accepting Mr. V’s reclaim of land use right certificate from Mr. V. The First Instance Judgment has valid grounds for not accepting the lawsuit request of Mr. V. Do not accept the appeal of Mr. V. Uphold the First Instance Judgment.

[2] Mr. V is obliged to pay the cost of copying documents of VND 210,000 and he paid it in full.

[3] First instance civil court fee: As the lawsuit request of Mr. V is rejected, Mr. V is obliged to pay the first instance civil court fee.

[4] Regarding appellate civil court fee: As the appeal of Mr. V is rejected, Mr. V is obliged to pay the appellate court fee.

Based on the above-mentioned facts and matters,

HEREBY DECIDES

Do not accept the appeal of Mr. Nguyen Nam V. Uphold the First Instance Civil Judgment No. 28/2018/DS-ST dated July 10, 2018 of the People’s Court of city B, Ba Ria-Vung Tau province as follows:

Pursuant to Clause 1 Article 308 of the Civil Procedure Code in Viet Nam; Articles 105, 115, 166 of the Civil Code in Viet Nam, Clause 1 Article 26, Clause 1 Article 27, Article 29 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.

 Hereby judges:

1. Do not accept the lawsuit request of Mr. Nguyen Nam V against Mr. Nguyen Quang K reclaiming the land use right certificate.

2. Mr. V is obliged to pay the cost of copying documents of VND 210,000 and he paid it in full.

3. First instance civil court fee: Mr. Nguyen Nam V is obliged to pay VND 300,000 (Three hundred thousand dong) which is deducted from the paid court advance according to the receipt No. 0009231 dated October 20, 2017 of Sub-Department of Civil Judgment Enforcement of city B, Ba Ria-Vung Tau province. Mr. V has paid it in full.

4. Appellate civil court fee: Mr. Nguyen Nam V is obliged to pay VND 300,000 (Three hundred thousand dong) which is deducted from the paid court advance according to the receipt No. 0003660 dated July 24, 2018 of Sub-Department of Civil Judgment Enforcement of city B, Ba Ria-Vung Tau province. Mr. V has paid it in full.

5. “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, 7a 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”. 

6. The Judgment shall take legal effect from the date of pronouncement October 5, 2018.