Republic of the Philippines

National Capital Judicial Region

METROPOLITAN TRIAL COURT
Branch 47, Pasay City

RAINIER IBARROLA, HEIR AND

AUTHORIZED REPRESENTATIVE
OF THE HEIRS OF ELISEO CHING,
Plaintiff, CIVIL CASE NO. M-PSY-08-06442
FOR: EJECTMENT WITH DAMAGES
-versus-

MARIO BOY CUNETA,

Defendant.
x---------------------------------------------x

RAINIER IBARROLA, HEIR AND

AUTHORIZED REPRESENTATIVE
OF THE HEIRS OF ELISEO CHING,
Plaintiff, CIVIL CASE NO. M-PSY-08-06443
FOR: EJECTMENT WITH DAMAGES
-versus-

MARTHA CUNETA,
Defendant.
x---------------------------------------------x

JOINT ORDER

For resolution is the dismissal of the instant cases for lack of cause of action
and lack of jurisdiction pleaded in the Answer with counterclaim filed by defendants
counsel Atty. Ramel Aguinaldo on July 10, 2008. It was argued that the plaintiffs
Certificate to File Action was issued almost two (2) years from the filing of this case
which is more than the one (1) year prescriptive period for filing an ejectment suit.

Plaintiffs counsel Atty. Florencio Anchuvas filed his comment and/or opposition
thereto on June 15, 2010. He stated, inter alia, that there was no factual and legal
bases with the defendants counsel argument that this Court has no jurisdiction. He
contended that the basis for filing an ejectment is the last extrajudicial demand to vacate
the premises which was made on May 31, 2007 while the case was filed on May 30,
2008, which is within the one (1) year period for filing an ejectment under the Rules.
He reasoned out that the referral of this case before a barangay for which plaintiff was
issued a Certificate to File Action dated July 21, 2006 cannot be considered as last
extrajudicial demand to vacate as contemplated under Sections 1 and 2, Rule 70 of the
1997 Revised rules of Civil procedure. The referral of the case to the barangay is purely
a requirement under PD No. 1508 to avoid indiscriminate filing of cases in the courts.

Defendants counsel, Atty. Sancho Ferancullo, Jr. filed his reply on June 25,
2010. He alleged that plaintiffs complaint dated April 28, 2008 stated therein that the
date of the demand letter is May 31, 2007 while the date of the Certificate to File Action
is July 21, 2006. He disagreed with the arguments raised by Plaintiffs counsel Atty.

1
Florencio Anchuvas. He cited the case of Cruz et al. vs. Atencio, G.R. No. L-11276,
February 28, 1959, where the Supreme Court held that where despite lessees failure to
pay the rent after the first demand, the lessor did not choose to bring an action in court,
but suffered the lessee to continue occupying the lands for nearly two years, the lessors
inaction was construed as waiver of his right to file a case, and his tolerance of the
lessees possession of the property, considered to have legalized the said otherwise
unlawful possession. Consequently, the cause of action for illegal detainer was therein
declared to have occurred only when the second demand for rents and to surrender of
possession was not complied with. Also, in Adoldo Racaza vs. Susana Realty, Inc. No.
L-20330, December 22, 1966, it was ruled by the Supreme Court, Moreover, even if the
action were based on non-payment of rent, the one year period should be reckoned from
the second notice, on the theory that respondent has the right to waive his action based
on the first demand and to let the lessee remain in the premises. Another case cited is
Calubayan et al. vs. Pascual, L-22645, September 18, 1967, that plaintiffs failure to file
an action in court after the defendant ignored previous notices is a waiver on their part
to eject defendant in the meantime. Because defendant ignored the plaintiffs repeated
demands, the efficacy of the certification to file action on July 21, 2006 was waived.

This Court resolves to grant the dismissal of the action on the ground of lack of
cause of action or prematurity.

The issue of non-recourse to barangay mediation proceedings was properly

impleaded in each of the defendants Answer.

As provided under Section 1, Rule 9 of the 1997 Rules of Civil Procedure:

Sec. 1. Defenses and objections not pleaded. Defenses and

objections not pleaded either in a motion to dismiss or in the answer are
deemed waived. However, when it appears from the pleadings or the
evidence on record that the court has no jurisdiction over the subject
matter, that there is another action pending between the same parties for
the same cause, or that the action is barred by a prior judgment or by
statute of limitations, the court shall dismiss the claim.

It seems at first brush with the complaints allegations, basing from the
certificate to file action, that the complaint for ejectment was ripe for judicial action on
July 21, 2006. This is because there was a final demand made to the defendants prior to
barangay conciliation on said date. The counting of the one year limit period started
on or before July 21, 2006. As such, the dispossession of the subject property on the
part of the plaintiff lasted for more than two years already. Considering the certificate
to file action dated July 21, 2006, the first opportunity to file the complaint had lapsed
more than one year when defendants have turned plaintiff out of possession or when
the defendants possession have become illegal, thus the action will not be an
ejectment but an accion publiciana, a plenary action to recover the right of possession.

2
 In Peran vs. Presiding Judge,1 the issue was the counting of one-year period
within which to file the action for ejectment . Our Supreme Court said that the one
year limitation period in ejectment case commences from the time of the demand to
vacate, and when several demands are made, the same is counted from the last demand
letter. The reason for this is that the lessor has the right to waive his right of action
based on previous demands and let the lessee remain meanwhile in the premises.2

Indubitably from the Peran case, the plaintiffs failure to file an action in court
shortly after the defendants ignored the previous repeated demand prior to July 21,
2006 as evidenced by the barangay certificate to file action is to consider as a waiver to
file an ejectment case against the defendants in the meantime. This meantime is
sometime on or before July 21, 2006 until on or before July 21, 2007, the one year
period in filing an ejectment case. The certificate to file action is effective within the said
period.

It can be argued that the last demand letter was dated May 31, 2007 which is
within the July 21, 2006 to July 21, 2007 one year limitation to file an ejectment case
thus there is no necessity to secure another certificate to file action in this case. This
Court does not buy the argument because of the unreasonable length of time that
existed between the date of the last demand letter to the defendants which is on May 31,
2007 and the date of the actual demand to vacate made which is on March 3, 2008.

Elucidating further, while the demand to vacate was alleged to be made on May
31, 2007 which is also the date of the demand letter, this is not so and this is not
intended to be. The demand letter appears to be more of antedated to fit the theory of
filing the case within one year period from May 31, 2007, the supposed date of demand
to May 30, 2008, the date of filing this ejectment. This period is crucial to determine
the validity of the barangay certificate to file action.

It is this Courts position that because the service of the demand to vacate dated
May 31, 2007, was caused to be served personally upon the defendants on March 3,
2008 only, the demand to vacate is to be counted starting on March 3, 2008 not on the
date of the demand letter. The plaintiff has a fresh new one year period to file an
ejectment suit, that is, on or before March 3, 2008 to on or before March 3, 2009.
Within this period, a requirement to undergo barangay conciliation proceedings must be
complied with before a subsequent ejectment case is filed. The barangay certificate to
file action dated July 21, 2006 cannot be made to apply to an ejectment case with a one
year prescriptive period from on or before March 3, 2008 to on or before March 3,
2009, referring now to these cases filed on May 30, 2008, otherwise, the basis of filing
these cases is the last demand made prior to the said barangay conciliation. This will
affect the nature of the plaintiffs cause of action.

Proceeding from this point, what should the plaintiff do prior to the filing of this
ejectment case on May 29, 2008?

Presidential Decree No. 1508 is now incorporated in Republic Act No. 7160, (The
Local Government Code) provides the answer.

1 125 SCRA 78 citing Racaza vs. Susana Realty Inc., 18 SCRA 1172 (1966); Calubayan vs Pascual, 21 SCRA 146
(1967); Sy Oh vs. Garcia, 28 SCRA 735 (1969); DBP vs. Canonoy. 35 SCRA 197 (1970).
2 See Calubayan et al. vs. Pascual,G.R. No. L-22645, September 18, 1967.

3
 The pertinent provision of the Local Government Code making conciliation a
precondition to filing of complaints in court and is compulsory in nature, reads:

Section 412. Conciliation.- (a) Pre-condition to filing of complaint

in court. No complaint, petition, action, or proceeding involving any
matter within the authority of the lupon shall be filed or instituted
directly in court or any other government office for adjudication, unless
there has been a confrontation between the parties before the lupon
chairman or the pangkat, and that no conciliation or settlement has been
reached as certified by the lupon secretary or pangkat secretary as
attested to by the lupon chairman or pangkat chairman or unless the
settlement has been repudiated by the parties thereto.

On the other hand, the 1991 Revised Rule on Summary Procedure reads:

Section 18. Referral to Lupon. Cases requiring referral to the

Lupon for conciliation under the provisions of Presidential Decree No.
1508 where there is no showing of compliance with such requirement,
shall be dismissed without prejudice and may be revived only after such
requirement shall have been complied with. This provision shall not
apply to criminal cases where the accused was arrested without a
warrant.

In Garces vs. Court of Appeals3, our Supreme Court ruled, Where, however,
the fact of non-compliance with and non-observance of such procedure has been
seasonably raised as an issue before the court first taking cognizance of the complaint,
dismissal of the action is proper. The precise technical effect of failure to comply with
the requirement of P.D. 1508 where applicable is much the same effect produced by
non-exhaustion of administrative remedies; the complaint becomes afflicted with the
vice of pre-maturity; the controversy there alleged is not ripe for judicial determination.
The complaint becomes vulnerable to a motion to dismiss.

There is no showing that a certificate to file action was obtained by the plaintiff
after the last demand letter dated May 31, 2007 was made on March 3, 2008 to the
defendants for the purpose of filing these cases against them. There was no referral of
these cases to the barangay, after the personal service of the demand letter was made
on March 3, 2008, to the defendants. The conciliation and mediation proceedings in
the barangay shall be mandatory because the plaintiff and defendants are residing in
the same barangay. Failure to do so, this case is pre-mature and susceptible for
dismissal on the ground of lack of cause of action or prematurity.

In Heirs of Vinzons vs. CA,4 our Supreme Court held that the challenged decision
correctly dismissed the case for failure of the plaintiffs, the petitioners herein, to avail of
the barangay conciliation process under PD 1508, preliminary to judicial recourse.
Paraphrasing Peaflor vs. Panis (117 SCRA 953 [1982]), "the Lupong Barangay is with
jurisdiction under PD 1508 to pass upon an ejectment controversy where the parties are
residents in the same barangay or in barangays within the same city or in barangays

3 162 SCRA 504, 511(1988).

4 G.R. No. 111915, September 30, 1999.

4
adjoining each other." It is clearly averred in the Complaint that herein petitioners, then
represented by the widow of the late Fernando Vinzons, resided in the same barangay,
hence, covered by the said law. In Royales vs. Intermediate Appellate Court (127 SCRA
470), this Court ruled that "non-compliance with the condition precedent prescribed by
PD 1508 could affect the sufficiency of the plaintiffs cause of action and make his
complaint vulnerable to dismissal on the ground of lack of cause of action or
prematurity." Referral to the Lupon Chairman or the Pangkat should be made prior to
the filing of the ejectment case under PD 1508. Legal action for ejectment is barred
when there is non-recourse to barangay court (Ledesma vs. Court of Appeals, 211 SCRA
753 [1992]). This allegation in petitioners Complaint that efforts to settle the
controversy at the barangay level had failed in Civil Cases Nos.1908, 1923 and 2061,
does not constitute compliance with the requirements of PD 1508 for purposes of filing
the Complaint in Civil Case No. 2137. The Complaint for unlawful detainer, docketed as
Civil Case No. 2137, should have been coursed first to the barangay court. Petitioners
cannot rely on the barangay conciliation proceedings held in the other cases and
consider the same as compliance with the law.

In the same vein by conclusion, this Court reiterates that the plaintiff cannot
rely on the barangay conciliation proceedings docketed as Barangay Case No. 10-S2006
that happened on July 21, 2006 when this instant complaint was filed more than two
years after. If it is to be treated as a sufficient compliance of RA No. 7160, Section 412
and Section 18 of the 1991 Revised Rule on Summary Procedure, then the final demand
was made prior to July 21, 2006 not on March 3, 2008 to the defendants to be in
consonance with the date of its certificate to file action dated July 21, 2006 in order to
file a case for ejectment well within the prescribed one year period. Consequently, this
would change the nature of cause of action from ejectment to recovery of possession
considering the length of dispossession of the subject property which is more than a
year counted on or before July 21, 2006 if such certificate to file action is to be followed.

Now, clearly these present cases are not in consonance with the certificate to file
action dated July 21, 2006 attached to the complaints.

IN VIEW OF THE FOREGOING, let these cases be dismissed without

prejudice.

SO ORDERED.

Pasay City, June 29, 2010.

ELIZA B. YU
Judge
Copy furnished:
All parties concerned.