REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

11TH JUDICIAL REGION
BRANCH 4
PANABO CITY

EDWARD MENDEZ, EDDIE MENDEZ, CIVIL CASE NO. 25-2018

And ROLLY MENDEZ, represented
By: EDWARD MENDEZ,
Plaintiffs,

-versus- -for-

AGAPITO MUCHLACH, SR., NENE ACCION REINVICATORIA

MUCHLACH, AGAPITO MUCHLACH, AND/OR PUBLICIANA
JR., RURAL BANK OF SILAHIS, THE
REGISTER OF DEEDS OF TAGUM
CITY, DEPARTMENT OF AGRARIAN
REFORM (DAR),
Defendants.
x------------------------------------------------x

COMPLAINT

Plaintiff, through counsel, and to this Honorable Court, respectfully

allege:

1. Plaintiffs Edward Mendez for himself, Eddie Mendez and Rolly Mendez
represented by: Edward Mendez, with SPA attached and made integral
part hereof1, are all of legal age, married Filipinos, with capacity to sue
and be sued and resident of Prk. Sunshine, Brgy New Valley, Panabo
City where they may be served with summons and all other processes
of the Honorable Court.

2. Defendants Agapito Muchlach Sr., Nene Muchlach and Agapito

Muchlach Jr., are likewise, all of legal age, Filipinos, with capacity to

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Annex “A”

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 sue and be sued and residents of Prk. Happiness, Dream Subdivision,
Tagum City where they may serve with summons and all other
processes of the Honorable Court.

3. Defendant Rural Bank of Silahis, is a juridical banking personality

organized under the laws of the Republic of the Philippines with
capacity to sue and be sued, with office at Poblacion, Panabo City,
where it may be served with summons and all other processes of the
Honorable Court.

4. Defendant Register of Deeds of the Registry of Property at Tagum City,

is impleaded as nominal party, holding office at Mankilam, Tagum City,
where it may be served with summons and all other processes of the
Honorable Court.

5. Defendant Department of Agrarian Reform (DAR), is likewise,

impleaded as nominal party, holding office at Mankilam, Tagum City,
where it may be served with summons and all other processes of the
Honorable Court.

ANTECEDENT FACTS

1. The plaintiffs through their predecessor-in-interest Diosie Mendez

are the owners in fee simple of a parcel of land consisting of Forty
Three Thousand One Hundred and Ten (43, 110) Square Meters,
covered under an indefeasible Original Certificate of Title No. P-
155432 located in Casig-ang (now Municipality of Dujali), Davao del
Norte, more particularly described:

“Lot No. 3912, Cad. 276

Beginning at a point marked “1” of Lot No. 3912,

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Annex “B”

2
 Cad. 276, Tagum Cadastre, Being N. 50-52 E. ,
224,25 m. from BLLM # 100, Cad. 276, Tagum
Cadastre, thence

S. 89-52 W., 219.21 m. to point 2;

N. 1-12 E., 199.75 m. to point 3;
S. 89-58 E., 213.06 m. to point 4;
S. 00-26 E., 199.13 m. to point 1;

xxxxx xxxxx xx xxxxx xxxxxxxxxx xxxxx xx xxxxx

xxxxx xxxxx xx xxxxx xxxxxxxxxx xxxxx xx xxxxx
xxxxx xxxxx xx xxxxx xxxxxxxxxx xxxxx xx xxxxx

(sgd)
LITO S. BERDEZ
Register of Deeds
July 12, 1979”

2. Sometime, on or about July 20, 1979 the plaintiffs through their said
predecessor-in-interest borrowed and amount of Twenty Five
Thousand Four Hundred Fifty Three (P25,453.00) Pesos from the
defendant Rural Bank of Silahis using their property as security or
collateral for the loan or mortgage, copy of mortgage papers3.

3. Unfortunately, the mortgagor plaintiff, predecessor-in-interest of

herein plaintiffs, failed to pay the mortgage credit and the property
was foreclosed by the mortgagee bank, defendant Rural Bank of
Silahis and the Sheriff issued the Provisional Certificate of Sale4
on September 16, 1988, which was registered only on August 23,
1990 under Entry No. 15543 as annotated.

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Annex “C”
4
Annex “D”

3
 4. Soon after the issuance of the provisional certificate of sale by the
Sheriff, to wit, on September 16, 1988 and INDUBITABLY much
within the redemption period allowed by law to the mortgagor to
redeem his property and in flagrant violation of such legal right of
the mortgagor the defendant bank illegally sold5 the property under
Original Certificate of Title No. P-15543 to defendants Agapito
Muchlach Sr., Nene Muchlach and Agapito Muchlach Jr. on August
23, 1990 and the property has been illegally transferred to the
plaintiffs under Transfer Certificate of Title No. C-15706.

4.1 Among others, the Provisional Certificate of Sale issued by

Deputy Sheriff Mario M. Guzman Jr. on the 16th day of
September 1988 states:

“I FURTHER CERTIFY THAT THE RURAL BANK OF

SILAHIS, HAS NOT TO ME (sic) THE SUM OF
(P35,092.08) PESOS BEING THE MORTGAGE
CONSIDERED ITSELF PAID TO SAID AMOUNT.

THIS SHERIFF’S PROVISIONAL CERTIFICATE OF

SALE WILL EXPIRE TWO (2) YEARS AFTER ITS
REGISTRATION WITH THE REGISTER OF DEEDS FOR
THE PROVINCE OF DAVAO DEL NORTE, WHICH IS
ALSO THE PERIOD EVEN BY LAWS TO THE
MORTGAGOR TO EXERCISE HIS RIGHTS TO
REPURCHASE THE PROPERTY AFTER WHICH A
FINAL CERTIFICATE OF SALE WILL BE ISSUED.”

4.2 Records also show the following:

This is to Certify further that the property is the

subject of the Sheriff’s Certificate of Sale in favor of

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“Annex “E”

4
 Rural Bank of Silahis for the sum of P35,092.08,
per entry no. 343995 dated August 22, 19906”.

5. The defendants claim that they occupied the entire 4.3 hectares of
the plaintiffs property in 1990, signifying their illegal occupation and
worse appropriation of ownership pf the property thereon, a period
of 37 years.

6. Plaintiff’s predecessor-in-interest Diosie Mendez filed Civil Case

No. 91-20 for Redemption, etc., within the redemption period
assigned to Branch 4 of the Regional Trial Court, Panabo City.

7. However, the court dismissed the case for Redemption in Civil Case
No. 91-20, as follows:

“O R D E R
In today’s scheduled pre-trial conference of this case, the
defendant Agapito Muchlach appeared together with his counsel, Atty.
Randy Castro. The other defendant, Rural Bank of Silahis, appeared
through its lawyer and President, Atty. Roel Villamor.
On the other hand, the plaintiff Diosie Mendez, despite the open
court notification given to him to secure the services of a lawyer and
to assign the amount of P120,000.00 failed to appear neither did he
get the services of a counsel.
On motion of the two counsel for the dismissal of this case for
lack of interest to prosecute and failure to obey the lawful order of this
court. The Motion being well taken and in order this case is hereby
ordered dismissed, without pronouncement as to costs.
SO ORDERED.
Given in open Court this 21st day of August, 1992, at Panabo,
Davao, Philippines.

(sgd.)
MARIO C. TORRES

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Annex “F”

5
 Judge”
8. Because of the dismissal the plaintiffs filed a Motion for Reconsideration
as follows:
“MOTION FOR RECONSIDERATION OF
ORDER DISMISSING CASE

COMES NOW the Plaintiff in the above entitled Case by

and through undersigned Attorney, and unto this Honorable
Court, most respectfully state:
That the Counsel for the plaintiff in this case was Atty.
Paul Tenorio; that the undersigned Attorney shortly before
August 13, 1992 xxxxxxx xxxx (sic) was informed by a friend of
Plaintiff who was helping him in the case Leonardo Secuya that
Sais (sic) Counsel, Atty. Paul Tenorio might withdraw as plaintiff’s
Counsel in the case as if this happens, plaintiff would necessarily
Need to employ another Counsel to take over the case from Atty.
Tenorio. I then told plaintiff and his companion that should Atty.
Tenorio’s motion to withdraw as Counsel be granted and
Approved by the Court, plaintiff, in the ordinary course would be
Given by the Court some time to look for another Counsel. I told
them that if they intended to employ me as Counsel in this case,
they have to contact me with the Court Order granting the with-
drawal of Atty. Tenorio as Counsel in the Case from which point,
I would then formally file my appearance. This was not done.

The next time that plaintiff and his companions contacted

me in my office, they brought a note from Atty. Tenorio stating
that the case was already dismissed by the Court, plaintiff had
actually no more counsel as Atty. Tenorio has already withdrawn
as Counsel. And no other Counsel including undersigned
Attorney has made any appearance yet for the plaintiff. Hence,
at the time or moment that the case was dismissed by the
Honorable Court, plaintiff had no more counsel and therefore, he
Was not given the benefit of due process in the proceedings.

PRAYER
WHEREFORE, in view of the foregoing considerations, it is
Most respectfully prayed that the Order dismissing this case be
Reconsidered to the end that it be lifted and/or set aside and the

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 case be restored into its original status for further proceedings in
accordance with law and in the interest of justice.

Davao City for Panabo, Davao, Philippines, August 26, 1992.

(Sgd.)
RALPH ANDRES
Acting for Plaintiff
Fatima St., Davao City”

9. For one reason or another, unfortunately, the said Motion for

Reconsideration lapsed into a long slumber, was neither acted upon
by the Court nor followed up by the movant himself or by their
lawyer, who already died, and when attempted to be revived on May
31, 2016 by the new counsel for the movant-plaintiffs the court on
grounds of technicality denied the motion per Order of 7th day of
November 20167.

10. The denial has been appealed and the appeal has been given
due course by the Court8; hence, as things stand, Civil Case No.
91-20 for Redemption of the property is still alive and consequently
even just the legal right of the plaintiffs to redeem their property is
still unresolved.

11. To give the defendants ample time to voluntarily vacate the

subject property and restore ownership, juridical as well as actual
possession of the subject property to the plaintiffs they were
demanded9 to do accordingly.

CAUSE OF ACTION

1. The presents, absent the long controversy between and among the
parties, solely impacts principally on the right of ownership and

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Annex “G”
8
Annex “H”
9
Annex “I”

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 secondarily on the possession of the subject property which has been
held since 1990 by the defendants.

2. When the mortgagee bank, as detailed, supra, sold the p.roperty to the
defendants, the sale, being clearly within the redemption period by the
plaintiffs and/or their predecessor-in-interest Diosie Mendez, was
clearly ILLEGAL, NULL and VOID, simply because ownership of the
property has not yet passed on the mortgagee foreclosing bank,
additionally under the principle of “nemo dat quobod habet”, nobody
can give what he does not have.

3. Hence, the transfer of the property to the defendants, stands to reason

and simple logic, was also ILLEGAL, NULL and VOID and confers no
right whatsoever and forever on the defendants.

4. Hence, likewise, all incidents and acts after the illegal, null and void
sale by the mortgagee bank to the defendants such as the registration
of the property as well as the proceedings in the DAR, which already
acted on the subject property resulting in the issuance of Original
Certificate of Title No. P-15543 to Diosie Mendez, the predecessor-in-
interest of the plaintiffs are also illegal, null and void

5. Because of the long possession, occupation and enjoyment of fruits on

the property by the defendants since 1990, the defendants ought to
recompense the plaintiffs in the actual amount of no less than
P200,000.00.

6. The anomalous and illegal state of affairs long suffered by the plaintiffs
because of the unjust and illegal depravation of their ownership,
possession and enjoyment of their property caused them moral shock
and wounded feelings, a quantification of which cannot be less than
P200,000.00.

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 7. Because of the presents the plaintiffs were compelled to engage the
services of counsel for a minimum attorney’s fees and litigation
expenses in the amount of P100,000.00.

PRAYER

IN VIEW OF ALL THE FOREGOING, it is respectfully prayed of the

Honorable Court that after due notice and hearing, judgment be rendered
against the defendants and in favor of the plaintiffs, ordering the:

1. Ordering the Register of Deeds and the DAR to cancel TCT No. C-
15706 the registration in the name of the defendants and restore
Original Certificate of Title No. P-15543.

2. The defendants to immediately vacate the subject property and restore

ownership, juridical, and actual possession of the same to the plaintiffs.

3. The defendants to pay the plaintiffs for illegal occupation and

enjoyment of the property the sum of P200,000.00 in the concept of
the fruits illegally derived from the property.

4. The defendants to pay the plaintiffs the amount of no less than

P200,000.00 for moral damages.

5. The defendants to reimburse the plaintiffs the amount of no less than

P100,000.00 as attorney’s fees and litigation expenses.

The plaintiffs pray for such other remedies just and equitable in the
premises.

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Panabo City, Davao del Norte, Philippines, April 20, 2018.

ATTY. GIGI R. TICAR

Counsel for the Plaintiffs
Roll No. 60567
IBP No. 1020042-01/30/2017
PTR No. 8269877-01/28/2017
MCLE 230485-06/04/2018

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 VERIFICATION AND CERTIFICATION OF
NON-FORUM SHOPPING

REPUBLIC OF THE PHILIPPINES)

CITY OF PANABO ) SS
X---------------------------------------------------/
I, EDWARD MENDEZ, of legal age, married, Filipino and a resident of
Prk. Sunshine, Brgy New Valley, Panabo City, Philippines, with capacity to
sue and be sued, hereby, under oath, depose and say:
1. I am the complainant and my siblings, I represent in the above
complaint (Annex “A”, Complaint).

2. I have caused in my own capacity and as representative of my siblings

the preparation of the complaint, read the allegations therein contained
and they are true and correct of my own personal knowledge.

3. There is no other action except Special Civil No. 238-14 for Forcible
Entry, Damages, Attorney’s Fees with Preliminary Injunction with
Prayer for Temporary Restraining Order in 1st Municipal Circuit Trial
Court and Civil Case No. 91-, 20 for Redemption, etc. appealed in the
Court of Appeals pending between the defendants and the
undersigned; and if I should learn that there is similar or identical action
pending in any tribunal, quasi-judicial agency or court, I undertake to
report the same to this Honorable Court within five (5) days from notice
thereof.

IN WITNESS WHEREOF, I have hereunto set my hand this 20th

day April, 2018 at Panabo City, Davao del Norte.
EDWARD MENDEZ
Affiant
VIN:2323-0098A-L3162HNM10003-6

SUBSCRIBED AND SWORN to before me this 20th day of April,

2018 at Panabo City, Davao del Norte, Philippines.

WITNESS MY HAND and SEAL on the date and place above

written.

ATTY. GIGI R. TICAR

Doc. No. 01; Counsel for the Plaintiffs
Page No. 01; Roll No. 60567
Book No. VII; IBP No. 1020042-01/30/2017
Series of 2018. PTR No. 8269877-01/28/2017
MCLE 230485-06/04/2018

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