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REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
VISAYAS STATION
CEBU CITY

CA G.R. CV No. 05436

[Civil Case No. CEB-36749


For: Injunction and Damages, etc.
Regional Trial Court
7TH Judicial Region
Branch 14, Cebu City]

VIOLETA C. NOEL
Plaintiff-Appellant

-versus-

Mr. ENRICO YUTICO, et al.


Defendant-Appellees

APPELLEES BRIEF

ATTY. ELEONOR A. BALATBAT, OIC, Legal Department


ATTY. ELINIO JESUS A. BELTRAN, Attorney IV
Counsels for the Defendant-Appellees
NHA Bldg., Quezon Memorial Elliptical Road
Diliman 1100 Quezon City

MARK ELTON C. GARROTE


Counsel for the Plaintiff-Appellants
Rm. M03 Mezzanine Floor, Aniceta Bldg.
Osmea Blvd., Capitol Site
Cebu City 6000
APPELLEES BRIEF
VIOLETA C. NOEL vs. ENRICO G. YUTICO, et al
CA G.R. CV No. 05436
Page 2 of 14
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Table of Contents

APPELLEES BRIEF...................................................................................3

STATEMENT OF THE CASE.....................................................................3

ASSIGNMENT OF ERRORS......................................................................6

ARGUMENTS...............................................................................................7

THE HONORABLE REGIONAL TRIAL COURT DID NOT


ERR WHEN IT RULED THAT PLAINTIFF-APPELLANT IS
NOT THE RIGHTFUL OWNER OF THAT PORTION OF THE
LOT OF HER HOUSE THAT WAS DISMANTLED.....................7

THE HONORABLE REGIONAL TRIAL COURT DID NOT


ERR WHEN IT RULED THAT NHA HAS THE AUTHORITY
TO DEMOLISH THAT PORTION OF PLAINTIFF-
APPELLANTS HOUSE WITHOUT A COURT ORDER...........11

THE HONORABLE REGIONAL TRIAL COURT DID NOT


ERR WHEN IT RULED THAT 2 OF PRESIDENTIAL
DECREE NO. 1472 IS APPLICABLE IN THE INSTANT
CONTROVERSY..............................................................................11

CONCLUSION AND RECOMMENDATION.........................................13

PRAYER......................................................................................................13

Cases Cited
Caridad Magkalas v. National Housing Authority........................................11

Rules
National Housing Authoritys Memorandum Circular No. 60......................13

Laws Cited
PRESIDENTIAL DECREE No. 772 August 20, 1975.................................12
Section 10, Article13 of the 1987 Constitution.............................................12
APPELLEES BRIEF
VIOLETA C. NOEL vs. ENRICO G. YUTICO, et al
CA G.R. CV No. 05436
Page 3 of 14
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APPELLEES BRIEF

Public defendant-appellees, The NHA Officers and Employees


Namely: NHA Regional Director Gavino D. Figuracion, NHA Director, and
its employees, HERMIS JUDE D. JUNTILO, ELENA G. GALLEON,
HIGINO V. ADILE, GRACE V. SOLIS, HELEN C. AREVALO; JOHN
DOES (i.e., MEMBERS of the NHA Demolition Team) 1 by counsel,
respectfully state:

STATEMENT OF THE CASE

1. This is an appeal of the Decision rendered by the Branch 14 Regional Trial


Court of Cebu City, docketed as Civil Case No. CEB-36749, the dispositive
portion stating:

WHEREFORE, in view of the foregoing disquisition, the


Court is of the view that plaintiff has failed to convince the
Court that she is entitled to the injunction sought for.

Consequently, the case is DISMISSED

No costs.

2. On 26 September 2016, Defendant-Appellees, through its Legal Department


received a NOTICE TO FILE BRIEF wherein which the Defendant-
Appellee NHA were given forty-five (45) days from receipt of the
appellant/s brief.

3. On 29 November 2016, Defendant-Appellees received from the Plaintiff-


Appellant its Appellants Brief. Reckoning the time of receipt, Defendant-
Appellee NHA have until 13 January 2017 wherein which it can file its
Appellees Brief.

STATEMENT OF THE FACTS

1 Defendant-Appellee NHA for brevity.


APPELLEES BRIEF
VIOLETA C. NOEL vs. ENRICO G. YUTICO, et al
CA G.R. CV No. 05436
Page 4 of 14
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4. Plaintiff-appellant is an awardee of NHA for Lot 1, Block 7 of TIPUN Phase


II of the Tisa Punta Housing Project, under the administration of the
National Housing Authority, having an area of ONE HUNDRED NINETY
FIVE (195) SQUARE METERS, more or less.

5. As the owner-administrator of the property, NHA supervised the re-blocking


survey to determine the areas actually occupied by the beneficiaries as well
as the preparation of a subdivision plan corresponding to the actual lot
occupied by them.

6. As land survey was conducted in the Tisa Punta Housing Project by NHA
sometime in 1995. Plaintiff-appellant was immediately informed through a
letter dated 14 July 1995, that a portion of her structure encroaches a 1.50
meter right-of-way allotted to her neighbor, defendant-appellee Enrico G.
Yutico.

7. Several visits and attempts for dialogue to settle the dispute on the right of
way was conducted as early as July 1995, but no settlement was reached.
However, in compliance with the mandate set forth by law, the application of
plaintiff-appellant for the purchase of Lot 1, Block 7 of TIPUN Phase II was
approved despite her adamant refusal to recognize the right-of-way allotted
to defendant-appellee Enrico G. Yutico.

8. A Notice of Award was issued to her on 7 January 1997, wherein the


purchase price of the lot was set to ONE HUNDRED ELEVEN
THOUSAND THREE HUNDRED FORTY FIVE PESOS (Ph 111,345.00).
With the issuance of the Notice of Award, a Conditional Contract to Sell was
executed between plaintiff-appellant and NHA.

9. The Conditional Contract to Sell carried with it conditions that plaintiff-


appellant agreed to abide with the occupancy rules and regulations printed
on the back of the said contract. It also included that the title to the property
subject of the contract remains with defendant-appellee NHA, and shall pass
to and be transferred to the plaintiff-appellant only upon the execution of a
Final Deed of Sale.

10. Despite the execution of the said contract, defendant-appellee Enrico G.


Yutico is still unable to use the right of way allotted to him, which
constrained him to seek assistance from NHA.

11. The parties were invited to appear before the Barangay Captain of Punta
Princesa on 28 January 2009 to hear the matter between them. This was
docketed as Case No. 1182 where plaintiff-appellant and defendant-appellee
agreed to the following terms and conditions:
APPELLEES BRIEF
VIOLETA C. NOEL vs. ENRICO G. YUTICO, et al
CA G.R. CV No. 05436
Page 5 of 14
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The following are the amicable settlements:

1. That NHA will resurvey and relocate the lot where the
Road Right-of-Way is located leading thru Lot 2
Block 7 with the consent of the parties of the case;

2. Engr. Hermes Jude Juntilo, NHA representative is


asking ample time to implement the work, as well as
submission of the result of the survey;

3. During the survey all the parties should be present or


attend until finish(sic).

4. The scheduled hearing survey is set on 06 February


2009, 9:00 AM

12. Parties convened on 19 February 2009 before the Barangay where


defendant-appellee Yutico presented the resurvey result conducted by NHA.
Plaintiff-appellant refused to acknowledge the result, per her lawyers
advice.

13. Defendant-appelle NHA wrote a letter to the plaintiff-appellant regarding her


encroachment through a letter dated 29 July 2009. Plaintiff-appellant was
informed that she had illegally constructed and extended her structure which
was allocated as Road Right-of-Way for the use of Lot 2, Block 7, Phase 2
which was awarded to defendant-appellee Yutico.

14. Plaintiff-appellant responded through her counsel, Atty. Elpidio Benjamin


Noel on 20 August 2009 which states her refusal to dismantle the structure
constructed in the lot intended for the ingress and egress of defendant-
appellant Yutico due to the latters unruly and oppressive behavior.

15. Defendant-appellee NHA responded through a letter informing plaintiff-


appellant that she has violated the Occupancy Rules and Regulations of the
Project as incorporated in the Conditional Contract to Sell, which plaintiff-
appellant signed and executed on 19 March 1997.

16. A notice was issued to plaintiff-appellant on 20 November 2009 which


requested her to voluntary dismantle the excess portion which was not part
of the area awarded to her within ten (10) days from notice. Her failure to
comply will compel defendant-appellee NHA to dismantle the structures
blocking the designated Road Right-of-Way.

17. With plaintiff-appellants refusal, defendant-appellee NHA dismantled the


excess structure of plaintiff-appellant on 8 December 2009 pursuant to 2 of
APPELLEES BRIEF
VIOLETA C. NOEL vs. ENRICO G. YUTICO, et al
CA G.R. CV No. 05436
Page 6 of 14
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Presidential Decree No. 1472. In retaliation, plaintiff-appellant filed two (2)


complaints against defendant-appellees for Serious Illegal Detention,
Malicious Mischief, Grave Threat, Grave Coercion, Violation of Domicile,
Unlawful Trespass to Dwelling and Physical Injuries.

18. The other case in the one being appealed before this Honorable Court of
Appeals which aimed to prevent defendant-appellee NHA from dismantling
the improvements that plaintiff-appellant built on the portion of the land she
encroached.

ASSIGNMENT OF ERRORS

THE HONORABLE REGIONAL TRIAL


COURT DID NOT ERR WHEN IT RULED
THAT PLAINTIFF-APPELLANT IS NOT
THE RIGHTFUL OWNER OF THAT
PORTION OF THE LOT OF HER HOUSE
THAT WAS DISMANTLED.

THE HONORABLE REGIONAL TRIAL


COURT DID NOT ERR WHEN IT RULED
THAT NHA HAS THE AUTHORITY TO
DEMOLISH THAT PORTION OF
PLAINTIFF-APPELLANTS HOUSE
WITHOUT A COURT ORDER.

THE HONORABLE REGIONAL TRIAL


COURT DID NOT ERR WHEN IT RULED
THAT 2 OF PRESIDENTIAL DECREE NO.
1472 IS APPLICABLE IN THE INSTANT
CONTROVERSY.
APPELLEES BRIEF
VIOLETA C. NOEL vs. ENRICO G. YUTICO, et al
CA G.R. CV No. 05436
Page 7 of 14
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ARGUMENTS

THE HONORABLE REGIONAL


TRIAL COURT DID NOT ERR
WHEN IT RULED THAT
PLAINTIFF-APPELLANT IS NOT
THE RIGHTFUL OWNER OF
THAT PORTION OF THE LOT
OF HER HOUSE THAT WAS
DISMANTLED.

19. The Lower Court is correct when it arrived with the conclusion that plaintiff-
appellant encroached beyond the 195 sq. meter. Its conclusion was based on
the three (3) surveys conducted which showed that the portion subject matter
of the case is beyond the awarded area of the plaintiff-appellant.

20. Plaintiff-appellant cannot claim the 26 sq. meter strip of lot as the same was
intended to be an alley outside the area of her lot.

21. The area awarded to the plaintiff-appellant has been determined to at 195 sq.
meters. In fact, it was admitted by no less that her counsel and was
contained in the Pre-Trial Order issued by the Court.

22. As the plaintiff-appellant stated, the area was designated by defendant-


appellee NHA for Slum Upgrading Project. It means that after the
acquisition of the property, on site development will be made, introducing
roads and alleys to provide access for ambulance and firetrucks in case of
emergencies and giving access to landlocked beneficiaries like defendant-
appellee Yutico.

23. The NHAs Slum Upgrading Project takes into consideration the existing
area wherein the awardees are situated. Thus, an awardees structure may be
retained if there will be no provision for alleys and streets needed by another
awardee. In the case of the plaintiff-appellant, a 26 sq. meter strip of lot was
earmarked beside her lot for defendant-appellee Yuticos usage.

24. The determination of the lot area is the ACTUAL usage of the awardee, thus,
when it was awarded, 195 sq. meters was allocated to plaintiff-appellant
being the actual lot used by her (which is bounded by a street up north and
defendant-appellee Yuticos lot at the south).

25. Plaintiff-appellant cannot now raise the lack of approved plan to question the
dismantling of her structure on the encroached property, because as early as
APPELLEES BRIEF
VIOLETA C. NOEL vs. ENRICO G. YUTICO, et al
CA G.R. CV No. 05436
Page 8 of 14
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1997, she knew that her award was only 195 sq. meters. Had she any
qualms about the said award, she could have raised that up at the earliest
possible time, and protested the award given to her by defendant-appellee
NHA.

26. The area actually fenced by the plaintiff-appellant is 212 sq. meters, the
combined area of plaintiff-appellants structure and the 28 sq. meters open
space within her awarded area. However, in page 6 of the Transcript of
Stenographic Notes dated 21 September 2010, Atty. R. Pintor, when asked
the following questions, answered:

Q-Now, previously you indicated in your commissioners report that the


area actually occupied by the plaintiff in this case is 212
sq. meters.
Now, my question is: Please tell us what is the area of this
portion indicated in yellow?

A. The area indicated in yellow is 156 square meters.

Q. Just to clarify you mentioned that there are two areas in


yellow. Would you be kind enough to clarify to us whether
or not that 156 square meters include both, the upper
house and the lower house?

A. Both houses, because the total area occupied by the


plaintiff based on our report dated February 15, 2010 is
212 less 26 square meters which is the portion demolished
so thats 186 square meters. 186 square meters less 28
square meters, which is the red portion, so the yellow has
an area is(sic) 156 square meters.

27. If we would follow the answers propounded by the witness, we could


simplify and derive the following equation:

212 sq. meters (pertains to the total


area occupied by
plaintiff-appellant
based on 15 February
2010 report)

less 26 sq. meters (portion encroached by


plaintiff-appellant)

SUB-TOTAL 186 sq. meters

less 28 sq. meters (open space within


plaintiff-appellants
APPELLEES BRIEF
VIOLETA C. NOEL vs. ENRICO G. YUTICO, et al
CA G.R. CV No. 05436
Page 9 of 14
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portion [shaded red])

TOTAL 156 sq. meters2 (portion where


plaintiff-appellant and
her sons structure are
erected [shaded yellow]

28. However, based on the equation, THE MATH IS WRONG. 186 sq. meters
less 28 sq. meters is equal to 158 sq. meters, NOT 156 sq. meters.

29. Granting that the issue of the lot area of the structures built in plaintiff-
appellants award is settled, 212 sq. meters is still 9 square meters less of the
total area of the awarded lot and the encroached lot (i.e. 195 sq. meters plus
26 sq. meters) as the latter would total to 221 sq. meters.

30. Where did the missing 9 sq. meters go, pray tell? The answer lies in the
same testimony of Atty. R. Pintor when he was cross-examined 3 on even
date, to wit:

Q-No, my question is: How about if you add the yellow portions and the
red portion. How much would it sum up?

A. As I have said a while ago it would be 186 square meters


the yellow and the red.

Q. Now, Mr. Witness, in your sketch plan which you brought to


this court there is annotation of 6 square meters on the
upper portion which is facing the northern right of way.
What is the area(SIC) of this?

A. That is correct based from the plan of the whole lot, which
is not yet subdivided the technical description would be
based from the technical description. There is an area of 6
square meters fronting the road which is not being
fence(SIC) by the plaintiff. (Emphasis ours.)

Xxx

Q. Likewise, in your record in the lower portion which is the


southern portion. What is this area square meter?

2 Page 6, TSN dated 21 September 2010.

3 Page 12, TSN dated 21 September 2010.


APPELLEES BRIEF
VIOLETA C. NOEL vs. ENRICO G. YUTICO, et al
CA G.R. CV No. 05436
Page 10 of 14
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A. On the southern portion there is that portion which is


beyond the fence of the plaintiff, it has an area of 3 square
meters. (Emphasis ours.)

31. Follow-up questions4 made by NHAs counsel Atty. John Anthony Lim
further revealed:

Q-If you add the portions colored by yellow and the red portion plus the
area marked as 1-A and 1-B, correct me if that would add
up to 195 square meters?

A. The 195 square meters would be from the 6 square meters


and then the yellow and the red and the 3 square meters
below. (Emphasis ours.)

Q. That would exclude the 26 square meters portion


demolished by NHA?

A. That is correct.

32. The 186 sq. meters pertains to the area actually fenced by the plaintiff-
appellant. The 9 sq. meters pertains to the part of the lot awarded to
her by is not actually occupied. The 28 sq. meter unoccupied portion
within plaintiff-appellants awarded lot is inclusive of the 195 sq. meter
portion awarded to her. (Emphasis supplied.)

33. Plaintiff-appellant is mistaken when she through her counsel proposed the
following: If indeed the defendants-appellees thought that plaintiff-
appellant was occupying in excess of the award, then defendants-appellees
should have taken such alleged excess area from the 28 square-meter vacant
portion which the Commissioners found out to be vacant and not occupied
by plaintiff-appellant, albeit enclosed by a fence.

34. Before defendant-appellees dissect the statement, the following have been
established by evidence:

Plaintiff-appellant was awarded a 195 sq. meters lot by the NHA;


Plaintiff-appellant encroached a 26 sq. meter lot beside her award
intended by the NHA as defendant-appellee Yuticos ingress and
egress;
There is a 28 sq. meter open space within plaintiff-appellants 195
sq. meter award.

4 Page 13, TSN dated 21 September 2010.


APPELLEES BRIEF
VIOLETA C. NOEL vs. ENRICO G. YUTICO, et al
CA G.R. CV No. 05436
Page 11 of 14
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35. Taking within the 28 sq. meter open space as suggested by the plaintiff-
appellant would be self-defeating. To do that, defendant-appellee NHA
would have to violate the contract executed between plaintiff-appellant.

36. It too, would be of no use to defendant-appellee Yutico as the 26 sq. meter


lot was intended for his ingress and egress. Assuming for the sake of
argument that defendant-appellee NHA can take the 28 sq. meter open space
and give it to defendant-appellee Yutico, he would still be landlocked.

THE HONORABLE REGIONAL


TRIAL COURT DID NOT ERR
WHEN IT RULED THAT NHA
HAS THE AUTHORITY TO
DEMOLISH THAT PORTION OF
PLAINTIFF-APPELLANTS
HOUSE WITHOUT A COURT
ORDER.

THE HONORABLE REGIONAL


TRIAL COURT DID NOT ERR
WHEN IT RULED THAT 2 OF
PRESIDENTIAL DECREE NO.
1472 IS APPLICABLE IN THE
INSTANT CONTROVERSY.

The matters being inter-related shall be discussed jointly, to wit:

37. The matter is answered in the affirmative. In fact, the Honorable Supreme
Court stated in the case of Caridad Magkalas v. National Housing
Authority5, the following:

It is worthy to note that the three laws (P.D. No. 1315, P.D. No. 1472 and
R.A. No. 7279) have a common objective to address the housing
problems of the country by establishing a comprehensive urban
development and housing program for the homeless. For this reason, the
need to harmonize these laws all the more becomes imperative. Hence, in
construing the three laws together, we arrive at a conclusion that
demolition and eviction may be validly carried out even without a
judicial order in certain instances, to wit:

5 G.R. No. 138823, 17 September 2008.


APPELLEES BRIEF
VIOLETA C. NOEL vs. ENRICO G. YUTICO, et al
CA G.R. CV No. 05436
Page 12 of 14
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(1) when the property involved is an expropriated property in Bagong


Barrio, Caloocan City pursuant to Section 1 of P.D. No. 1315,

(2) when there are squatters on government resettlement


projects and illegal occupants in any homelot, apartment or dwelling
unit owned or administered by the NHA pursuant to Section 2 of P.D.
No. 1472,

(3) when persons or entities occupy danger areas such as


esteros, railroad tracks, garbage dumps, riverbanks, shorelines,
waterways and other public places such as sidewalks, roads, parks and
playgrounds, pursuant to Section 28(a) of R.A. No. 7279;

(4) when government infrastructure projects with available


funding are about to be implemented pursuant to Section 28(b) of R.A. No.
7279. (Emphasis supplied.)

38. Squatters is defined as, Any person who, with the use of force,
intimidation or threat, or taking advantage of the absence or tolerance of the
landowner, succeeds in occupying or possessing the property of the latter
against his will for residential commercial or any other purposes.6

39. While the law which penalizes has been decriminalized, the definition in the
same law still holds true. The act of the plaintiff-appellant in encroaching a
lot which was not designated to her by law or by contract without or against
the will of the landowner (herein defendant-appellee NHA) constitutes
squatting and by the very definition of law, plaintiff-appellant is considered
a squatter (insofar as the 26 sq. meter encroached lot is concerned).

40. However, even if the plaintiff-appellant is considered a squatter (insofar as


the 26 sq. meter encroached lot is concerned), due process prevails. Section
10, Article 13 of the 1987 Constitution 7 provides that urban or rural poor
dwellers shall not be evicted nor their dwelling demolished, except in
accordance with law and in a just and humane manner.

41. While 2 of Presidential Decree No. 1472 states that, The National Housing
Authority shall have the power to summarily eject, without the necessity of
judicial order, any and all squatters' colonies or government resettlement
projects, as well as, any illegal occupant in any homelot, apartment or
dwelling unit owned or administered by it., the said provision is not bereft

6 1a, PRESIDENTIAL DECREE No. 772 August 20, 1975 PENALIZING


SQUATTING AND OTHER SIMILAR ACTS.

7 SECTION 10. Urban or rural poor dwellers shall not be evicted nor their dwellings
demolished, except in accordance with law and in a just and humane manner.
No resettlement of urban or rural dwellers shall be undertaken without adequate
consultation with them and the communities where they are to be relocated.
APPELLEES BRIEF
VIOLETA C. NOEL vs. ENRICO G. YUTICO, et al
CA G.R. CV No. 05436
Page 13 of 14
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of any implementing regulation to execute the same. In fact, after the


passage of the said Presidential Decree, National Housing Authoritys
Memorandum Circular No. 608 was issued to be the Standard Operating
Procedures Under P.D. No. 1472 to Evict and (sic) Illegal Occupants in
NHA Properties and Projects. This was the guidelines used by the
defendant-appellee NHA in dismantling the portion encroached by plaintiff-
appellant in the properties owned and administered by NHA.

CONCLUSION AND RECOMMENDATION

42. The Lower Court did not commit any errors in law and in fact when it
arrived with the Decision appealed of by the plaintiff-appellants. Defendant-
appellee NHA were just dutifully exercising their mandate when the
questioned dismantling was effected. Plaintiff-appellant, under the defunct
Anti-Squatting Act of 1975, in relation to 2 of Presidential Decree No.
1472 is considered as a squatter insofar as the area encroached by her is
concerned.

PRAYER

WHEREFORE, PREMISES CONSIDERED, it is respectfully prayed that


the Appeal filed by plaintiff-appellant be DISMISSED for want of legal and
factual basis.

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

Quezon City for Cebu City, 13 January 2017.

RESPECTFULLY SUBMITTED.

8 Page 112, Vol 58, Philippine Presidential Decrees and other Vital Legal
Documents (PDS Nos. 1456-1476), Published and Distributed by Central Book
Supply, Inc.
APPELLEES BRIEF
VIOLETA C. NOEL vs. ENRICO G. YUTICO, et al
CA G.R. CV No. 05436
Page 14 of 14
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BY AUTHORITY OF THE OFFICE OF THE


GOVERNMENT CORPORATE COUNSEL

ELEONOR ARCADIO BALATBAT


OIC, Legal Department
Roll of Attorney's No. 53804
IBP No. 1017711; 01-05-16; Bulacan
PTR No. 2182397; 01-06-16; Quezon City
MCLE Compliance No. V-0016684; 04-15-16

ELINIO JESUS A. BELTRAN


Attorney IV
Roll of Attorneys No. 50776
IBP No. 1060711; 9 January 2017; Manila II
PTR No. 3803626; 4 January 2017, Quezon City
MCLE Compliance No. V-0023852;
Valid until 14 April 2019
NHA Bldg., Quezon Memorial Elliptical Road, Diliman,
Quezon City

EXPLANATION
(In accordance with Rule 13, Section 11 of the 1997 Rules on Civil Procedure)

Due to distance and lack of messengers to effect personal service,


copies of the Appellees Brief was served via registered mail.

ELINIO JESUS A. BELTRAN

Copy furnished:

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