Appellee's Memorandum

REPUBLIC OF THE PHILIPPINES FOURTH JUDICIAL REGION REGIONAL TRIAL COURT BRANCH 70 RIZAL

RAMON NIETO Plaintiff-Appellant,

-versus-

Civil Case No. 100-2013 For: Forcible Entry (Ejectment)

KEITH ILAGAN Defendant-Appellee,

x----------------------------------------------------------x

APPELLEE’S MEMURANDUM

Defendant-Appellee Defendant-Appellee KEITH ILAGAN, by undersigned counsel and to this Honorable Court, in answer to the allegations raised by the PlaintiffAppellant in his Memorandum, respectfully states:

PREPARATORY PREPARATORY STATEMENT

The appealed case steamed from an ejectment case filed by Plaintiff Ramon Nieto (Plaintiff-Appellant), which sought to recover the material  possession  possession of a parcel of land against Defendant Keith Santos (Defendant-

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Civil Case No. 100-2013 Page 2 of 11

Appellee) with the Municipal Trial Court (MTC) of Cainta Rizal therein docketed as Civil Case No. 100-2013. On February 11, 2014, the Municipal Trial Court of Cainta rendered the decision dismissing the complaint. Plaintiff aggrieved with the dismissal of the case filed a Notice of Appeal on April 15, 2014. Hence, this memorandum in response to the memorandum filed by the Plaintiff-Appellant.

COUNTER STATEMENTS OF FACTS

1.

Plaintiff-Appellant, Ramon Nieto, claims to be the lawful owner of a  parcel of commercial/residential land consisting of 1,200 sq. m., more or less, that is located in San Andres, Cainta, Rizal. He acquired title over the said land in 1985, by way of absolute sale from the previous owner thereof, STEVE ONA, as shown by the Deed of Absolute Sale, a copy of which is marked as “Exhibit A.”

The said land is not

covered by a Torrens certificate of title.

2.

That As a result of the sale, Plaintiff-Appellant was issued Tax Declaration No. 11111-1985, a copy of which is marked as “Exhibit B,” as well as official receipts evidencing the payment of real property taxes from 1985 up to 2012, copies of which are mark ed as “Exhibit C” and “Exhibit C-1 to 27 .”

3.

Plaintiff-Appellant then planted trees and other plants on the property. He also erected a perimeter fence around the premises. In January 2009, he also built a 1-room nipa hut, which since then he occupied from time to time.

4.

Sometime in July 2009, Plaintiff-Appellant went to Singapore, Hong Kong, Malaysia, Japan and Vietnam for an extended vacation. Upon his return in December 2012, Plaintiff-Appellant went to visit his

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Civil Case No. 100-2013 Page 3 of 11

 property in San Andres, Cainta, Rizal.

He then discovered that

Defendant-Appellee was occupying the subject property.

5.

Plaintiff-Appellant thereupon demanded from Defendant-Appellee to vacate the subject premises. The Defendant-Appellee did not heed said demand. Plaintiff-Appellant again sent another demand in March 2013, as shown by a copy of the letter dated March 3, 2013, a copy of which is marked as “Exhibit D.”

The Defendant-Appellee also did

not heed this later demand.

6.

Due to Defendant-Appellee’s failure to heed the demand letters sent by Plaintiff-Appellant, the latter filed the Complaint for Forcible Entry with prayer to wit:

"x x x that Judgment be rendered ordering the defendant KEITH ILAGAN to peaceably turn over the physical  possession of the subject property to plaintiff RAMON  NIETO; that defendant be directed to pay plaintiff the sum of P3,000.00 as reasonable compensation for the use of the subject property, for every month starting February 2013 until the plaintiff is actually restored to the physical  possession of the property; and that defendant be commanded to remove any and improvements he erected on the property."

7.

The answer was filed by Keith Ilagan in due time and materially alleges that he started occupying the subject premises in October 2009, after a storm (Typhoon Ondoy) destroyed his house in San Isidro, Cainta, Rizal.

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Civil Case No. 100-2013 Page 4 of 11

8.

At that time, the subject premises were not occupied or claimed by any  person, including the plaintiff. In fact, there was nothing in the said  premises that indicated that the plaintiff owns the subject property. There was no fence to enclose the property. There were no structures erected thereat, not even those mentioned by the plaintiff in his complaint.

9.

The defendant declared the property for taxation purposes in October 2009, as shown by Tax Declaration No. 2000-2009, a copy of which is attached and marked as “Exhibit 1”. Said tax declaration shows that the property has a market value of P 850,000.00. He also paid real  property taxes in 2009, 2010, 2011 and 2012, as shown by the official receipts attached and marked as “Exhibits 2-5”. The defendant likewise registered with the Municipal Assessor of Cainta, Rizal, and an Affidavit of Ownership over the subject premises, a copy of which is attached and marked as “Exhibit 6’.

10.

Defendant contends that plaintiff has no right to claim the property, much less oust the defendant from the possession thereof.

11.

Defendant likewise prayed for the dismissal of the complaint.

DECISION OF THE MTC

On April 11, 2014, the Municipal Trial Court of Cainta rendered a decision which dismissed the complaint (page 7, Decision). In dismissing the complaint, the MTC found that plaintiff cannot avail himself of the  provisions of Rule 70 of the Rules of Court, because an ejectment case should not involve ownership issues. (page 3, Decision); that even assuming that the plaintiff can raise the issue of ownership, the trial court has no  jurisdiction to resolve the same, since the property has a market value of P 850,000.00 ( page 4 Decision); that even if the trial court has jurisdiction to decide the respective claims of ownership of the parties, it would appear that defendant Keith Ilagan is the owner of the subject premises, because he has

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Civil Case No. 100-2013 Page 5 of 11

an affidavit of ownership that was duly registered with the Municipal Assessor of Cainta, Rizal ( page 4, Decision).

COUNTER-ARGUMENTS

Defendant-appellee raises the following counter-arguments to the assignment of errors raised by the Plaintiff-appellant:

I.

The Plaintiff-Appellant cannot

avail

of

the

provisions of Rule 70 of the

Rules

of

Court.

Thus, the lower court has no Jurisdiction to hear and decide the case on the merits.

There is forcible entry or desahucio when one is deprived of physical  possession of land or building by means of force, intimidation, threat, strategy or stealth.

In such cases, the possession is illegal from the

 beginning and the basic inquiry centers on who has the prior possession de facto; any of the parties who can prove prior possession de facto may recover such possession even from the owner himself since such cases  proceed independently of any claim of ownership and the plaintiff needs merely to prove prior possession de facto and undue deprivation thereof.

1

Section 1 of Rule 70 of the Rules of Court tells us the two mandatory allegations in filling forcible entry cases for the municipal trial court to acquire jurisdiction, to wit:

1 Munoz

v. Yabut, G. R. No. 142676, June 6, 2011

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Civil Case No. 100-2013 Page 6 of 11 “Sec. 1. Who may institute proceedings, and when. –  Subject to the provision of the next succeeding section, a person deprived of the  possession of any land or building by force, intimidation, threat,  strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold  possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other  person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper  Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs.”

2

In the case of Abad v Farrales,  the Supreme Court explained the two mandatory allegations required in filing forcible entry cases, that: “Two allegations are mandatory for the municipal court to acquire jurisdiction: First, the plaintiff has prior physical possession of the property. Second, the defendant deprived him of such possession by force, intimidation, threats, strategy, and stealth.

As alleged in the Complaint, Plaintiff-Appellant had prior physical  possession of the property as evidenced by the fact of planting trees and other plants and erecting a perimeter fence on the premises. Further, sometime in January 2009, he also built a 1-room nipa hut, which since then he occupied from time to time.

However the second requirement that the defendant deprived him of such possession by force, intimidation, threats, strategy, and stealth was missing. The plaintiff-appellant failed to allege that defendant Keith Ilagan deprived him of such possession under the circumstances required by the law. 2 Abad

v. Farrales, G.R. No. 178635, April 11 : 2011

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Civil Case No. 100-2013 Page 7 of 11

Further, it is not enough of course that the allegations of the complaint make out a case of forcible-entry. The plaintiff must also able to prove his allegation that he had prior physical possession that gives him the security that entitles him to remain in the property until a person with a better right lawfully ejects him.

3

Here, the Plaintiff-appellant failed to prove that he had prior physical  possession over the disputed property. The alleged prior physical possession of plaintiff is a self-serving claim because it was not supported by any evidences.

Whereas the defendant sufficiently prove that he has prior

 physical possession over the disputed property as shown by the Tax Declaration No. 2000-2009, the official receipts of the real property taxes in 2009,2010, 2011 and 2012 paid by the defendant, and the duly registered Affidavit of Ownership.

Accordingly, the Municipal Trial Court of Cainta did not erred in dismissing the complaint of the plaintiff because of his failure to allege the two mandatory required allegations in forcible entry cases so that the MTC acquired jurisdiction over the case.

II.

Even assuming that the MTC has Jurisdiction over the complaint still there was necessity to determine ownership

the of

the

subject property.

The defendant-Appellee agree with the Plaintiff-Appellant that in ejectment suits the only issue for resolution is the physical or material  possession of property involved independent of any claim of ownership by 3 Abad

v. Farrales, G.R. No. 178635, April 11 : 2011

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Civil Case No. 100-2013 Page 8 of 11

any of the party litigants. However, this recognized rule is not absolute  because when the defendant raises in his pleadings the issue of ownership as defense and the question of who has the prior physical possession cannot  be determined without deciding the issue of ownership the court of first level may determine the issue of ownership. Rule 70 of the Rules of Court Section 16 specifically provides:

“Sec. 16. Resolving defense of ownership. When the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession”.

Also, the Supreme Court in Gustilo v. Gustilo ruled that:

“The Court has ruled in the past that an action to recover possession is a plenary action in an ordinary civil proceeding to determine the better and legal right to possess, independently of title. But where the parties raise the issue of ownership, as in this case, the courts may pass upon such issue to determine who between the parties has the right to possess the property. This adjudication, however, is not final and binding as regards the issue of ownership; it is merely for the purpose of resolving the issue of possession when it is inseparably connected to the issue of ownership.

The

adjudication on the issue of ownership, being provisional, is not a bar to an 4

action between the same parties involving title to the property”.

From the above-quoted rule and the jurisprudence decided by the Supreme Court that there is necessity in determining the issue of ownership of the subject property when the defendant raises the issue of ownership as defense in his pleadings. In defendant’s Answer he raised the issue of ownership over the disputed property.

4 Gustilov

Gustilo, G.R. No 175497, October 19, 2011

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Hence, the MTC is still allowed assuming that it has jurisdiction to determine the issue of who between the party litigants is the owner of the  property but only for the purpose of determining the issue of who has the  prior possession over the subject property.

III.

Assuming that the MTC has

jurisdiction

to

resolve the Complaint. The

amount

property

of

the is

P850,000.00

As previously discussed from the preceding paragraph the MTC did not erred in dismissing the case for lack of jurisdiction. Even assuming that it has jurisdiction the cause of action of plaintiff is not for forcible entry cases but an ordinary civil action involving possession over the disputed  property. The MTC has still without jurisdiction to the complaint  because Section 33 of Batas Pambansa Blg. 129, as amended by Republic Act No. 7691, states:

(1) x x x x

(2) x x x x

(3)

Exclusive original jurisdiction in all civil actions which

involve title to, or possession of, real property, or any interest therein where the assessed value of the property or interest therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro  Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's  fees, litigation expenses and costs: Provided, That in cases of land not

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Civil Case No. 100-2013 Page 10 of 11 declared for taxation purposes, the value of such property shall be determined by the assessed value of the adjacent lots."

Consequently, the MTC has jurisdiction over the claim of  possession if the jurisdictional amount required by the law is not  beyond the limit allowed. However, plaintiff-appellant’s claim does not fall within the jurisdictional amount required by the law. Therefore, the complaint must be dismissed.

PRAYER

WHEREFORE, premises considered, it is humbly prayed of this Honorable Court that the Decision dated 11 April 2014 of the court a quo be affirmed and that this appeal be dismissed.

Other reliefs just and equitable under the premises are likewise prayed for.

Quezon City for Rizal, 16 May 2014.

ATTY. MAESHACH M. SOMBILON Counsel for Defendant-Appellee Atty. Roll. No. 52284 IBP Lifetime No. 11087/Quezon City PRT No. 1102584/01-05-14-Quezon City MCLE Exemption No. 111-042386

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Civil Case No. 100-2013 Page 11 of 11

Copy Furnished: Atty. Marie Dianne V. Espiritu Jhocson Espiritu Karim Law Counsel for Petitioner th

27  Floor Trafalgar Bldg. 888 HV Dela Costa St., Makati city

WRITTEN EXPLANATION

(Pursuant to Section 11, Rule 13 1997 Rules of Civil Procedure)

Filing and service of this  Memorandum of Appeal   to the abovementioned parties was accomplished through registered mail since personal service could not be effected due to the distance between the parties, and the heavy volume of deliveries of the messengers of the law firm of the undersigned counsel.

ATTY. M AESH ACH M . SOMBI LON