Trial Memorandum sample

Republic of the Philippines Municipal Trial Court Branch II Legazpi City DONGHAE S. JAVELLANA Plaintiff, Civil Case No. 24711 FOR: EJECTMENT

- versusTIFFANY R. LIMSACA Defendant x --------------------------------------x

MEMORANDUM For the Defendant COMES NOW THE DEFENDANT, through the undersigned counsel, unto this

Honorable

Court

most

respectfully

submits

and

presents

this

Memorandum in the above-titled case and aver that: STATEMENT OF THE CASE On March 26, 2011, plaintiff filed a Complaint for Ejectment against herein defendant. On August 29, 2012, defendant received summons issued by the Honorable Court to file an answer. On September 10, 2012, defendant filed his answer against the plaintiff. On September 17, 2012, preliminary conference was held in the presence of the plaintiff, defendant, and their respective counsels. Accordingly, after presentation of evidences, the Honorable Court ordered the parties to submit their respective Memoranda fifteen days (15) days from notice, otherwise, the case is deemed submitted for decision. STATEMENT OF FACTS The Plaintiff owned a two-storey apartment located at Block 7, SiWon Subdivision, Wellington Drive, Legazpi City covered by TCT No. 48102. On March 24, 2003, plaintiff leased the first storey of the apartment to defendant for five (5) years with

a monthly rental of P 2,500.00 payable within the first seven (7) days of each month as shown in the lease contract (Annex A). Allegedly, the lease contract had expired on March 25, 2010. Defendant, after repeated demands, refused to vacate the premises and continued to occupy the same. Hence, plaintiff resulted to seek judicial relief. On the other hand, defendant denies the allegations of the contents of the lease contract presented by plaintiff. Defendant argues that plaintiff has no cause of action against him. The lease contract was fictitious and simulated for it was not properly subscribed. Defendant presented a lease contract (Annex 1) wherein it was stipulated that the lease was for a period of ten (10) years from March 24, 2003 to March 25, 2013. It was supported by an affidavit executed by Alfonso Macaraig (Annex 2) who was the witness thereof. Moreover, defendant raised the issue on prescription of action wherein plaintiff instituted the complaint after the prescriptive period for an ejectment case. Also, the compliant was fictitious on the ground that it was unverified. The certification against forum shopping was not acknowledged and subscribed by a notary public and was not entered into the Notarial registry of the notary public. STATEMENT OF ISSUES 1. Whether or not the plaintiff has cause of action to eject the defendant on the premises. 2. Whether or not the lease contract presented by plaintiff is fictitious and simulated. 3. Whether or not plaintiff’s action is barred by prescription. 4. Whether or not the filing of unverified complaint and unsubscribed certification of non-forum shopping is a ground for dismissal. ARGUMENTS 1. The plaintiff has no cause of action in commencing the ejectment case against the defendant.

2. The lease contract provided by plaintiff is fictitious as provided by Article 1409 of the New Civil Code. 3. Plaintiff’s action is barred by prescription since it was filed after one year from the last demand. 4. Unverified complaint is a formal requisite and can be cured by amendment. Unsubscribed certificate of non-forum shopping shall be dismissed for not complying with SC Admin. Circular 04-94. DISCUSSION 1. It is necessary to emphasize that defendant leased the first storey apartment owned by plaintiff. Rule 70 of the Rules of Court deals with unlawful detainer which provides: “...a lessor, vendor, vendee, ot other person against whom the possession of any land or building is unlawfully withheld after the expiration of 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 year after such unlawful deprivation or withholding of possession, bring an action in the proper MTC against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming them, for the reconstitution of such possession, together with damages and cost.” In the case of Ocampo vs Tirona, April 6, 2005, unlawful detainer cases are summary in nature. The elements to be proved and resolved are the facts of lease and expiration or violation of its terms. The main issue of unlawful detainer is possession de facto. The contention of plaintiff that there is unlawful withholding of the leased property by the defendant justifies the ejectment case. The phrase “unlawful withholding” has been held to imply possession on the part of the defendant, which was legal in the beginning, having no other source than a contract, express or implied, and which later expired as a right and is being withheld by defendant. (Barba vs. Court of Appeals, G.R. No. 126638)

The defendant’s argument in the action for ejectment has no cause of action since the facts set forth by the plaintiff is not sufficient to justify a right to bring action. Defendant does not deny that he leased the property of the plaintiff for period of 10 years contrary to what the latter posited that the lease contract is only for 5 years from March 24, 2005 to March 25, 2010. 2. The second argument is related to the first since the lease contract presented by plaintiff is fictitious and simulated. Article 1409 of the New Civil Code states: “The following contracts are inexistent and void from the beginning: x

x

x

x

x

x

x

x

x

x

2. Those which are absolutely simulated or fictitious; x

x

x

x

x

x

x

x

x

x

The contracts cannot be ratified. Neither can the right to set up the defense of illegality be waived. Simulation of a contract may be absolute or relative. The former takes place when the parties do not intend to be bound at all; the latter, when the parties conceal their true agreement. An absolutely simulated or fictitious contract is void. A relative simulation, when it does not prejudice a third person and is not intended for any purpose contrary to law, morals, good customs, public order or public policy binds the parties to their real agreement. There is a need to look into the true intent or agreement of the parties. (J.R. Blanco vs. Quasha, G.R. 133148, November 17, 1999) Plaintiff presented a contract of lease not signed by the parties and the witnesses as well. It is fictitious because the true intent of the parties is not made known. The period of the lease contract is doubtful. In the complaint, it is stated that the lease commenced on March 24, 2003 while in the contract on March 24, 2005. The complaint and the lease contract are inconsistent. It is indubitable that the lease contract presented by defendant, signed by the parties and the witnesses, shows the true agreement and intent of the parties. Relating to the first argument, the plaintiff has no cause of action due to a fictitious contract of lease, hence, void from the beginning. 3. An action for unlawful detainer must be brought within one year from the date of last demand. Section 1, Rule 70 of the Rules of Court allows a plaintiff to bring an action in the proper inferior court for unlawful detainer within one year, after such

unlawful withholding of possession, counted from the date of the last demand. (Canlas vs. Tubil, G.R. No. 184285, September 29, 2009). In the case of Sps Barnachea vs. Court of Appeals, July 23, 2008 it was held that the petitioners argue that the respondents' cause of action - whether for forcible entry or for unlawful detainer - had prescribed when the ejectment complaint was filed on April 5, 2000. They point out that the last demand letter (the reckoning date for unlawful detainer) was dated Aug. 26, 1998 and was received by the petitioners on August 31, 1998; the complaint was only filed on April 5, 2000 or more than 1 year after August 31, 1998. The last demand of plaintiff was on March 21, 2010 as shown in “Annex B-3”. Granting that the lease was for five years, an action for unlawful detainer had already prescribed. The complaint was filed on March 26, 2011 and summon was received on August 29, 2012 which shows that it was done after the prescribed period to bring an action for ejectment. Hence, plaintiff is barred from instituting such action. 4. Section 4, Rule 70 of the Rules of Court provides that: “...All pleadings shall be verified.” The reason thereof is for the court to acquire jurisdiction over the case. But unverified complaint can be cured by amendment upon order of the court. It is settled that the requirement regarding verification of a pleading is a formal not a jurisdictional requisite. It is simply intended to secure an assurance that what are alleged in the pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. Thus, the court may order the correction of the pleading if not verified, (Oshita v. Republic, 19 SCRA 700 [1967]). The defect was merely format It did not affect the validity and efficacy of the pleading, much less the jurisdiction of the court (Gadit v. Feliciano, Sr., 69 SCRA 388, 389 [1976]). With regard to the Certification of Non-Forum Shopping, the Supreme Court issued Administrative Circular No. 04-94 requiring the plaintiff, petitioner, applicant or principal party seeking relief to certify under oath that he did not file any complaint with other tribunal involving same issues. Failure to comply with the requirement is a ground for the dismissal of the action.

Herein plaintiff attached the Certification of Non-Forum Shopping. However, he failed to affix his signature thereon. Likewise, the signature and notarial seal of the notary public was not manifested. With this, the complaint should be dismissed. CONCLUSION With the laws and jurisprudence presented, the defendant, through his counsel believes that the plaintiff has no cause of action in filing the suit based on fictitious lease contract; that assuming arguendo the lease contract is for five years, the plaintiff’s action is barred by prescription; and that the Certification of Non-Forum Shopping did not comply with the prescribed form. PRAYER WHEREFORE, premises considered, defendant respectfully prays to the honorable court that judgment be rendered in his favor as follows: 1. An order be issued by this Honorable Court dismissing the Complaint for lack of cause of action; 2. Judgment be rendered upholding the validity of defendant’s copy of the Contract of Lease; 3. Judgment be rendered ordering the Contract of Lease presented by plaintiff as void and existent; 4. Ordering the plaintiff to pay the defendant the amount of P30,000.00 as Attorney’s Fees and to pay cost suit. Some other relief and remedies as may be deemed just and equitable under the premises are likewise prayed for. Legazpi City, 1st day of October, 2012. ARSIGA-MALABANAN LAW OFFICE Counsel of the Defendant Deped Bldg, Lignon Hill Site Legazpi City

By: EULOGIO ARSIGA Roll No. 11111 IBP O.R. No. 123456 Legazpi Chapter PTR No. 1457908E

EXPLANATION In compliance with Section 11, Rule 13 of the Revised Rules of Court, personal service of copy of Trial Memorandum could not be effected except by service through registered mail due to distance and personnel constraints.

EULOGIO ARSIGA

Copy Furnished:(By Registered Mail)

ATTY. KIMBERLY H. WANG Counsel of the Plaintiff 4th Floor, Bigbang Building, Legazpi City