Republic of the Philippines

6th Municipal Circuit Trial Court

Ubay- Pres. Carlos P. Garcia

DOMINGO G. ALIMOCON
Plaintiff,

Civil Case No. 2591

-versus- FOR: EJECTMENT

APOLINARIO K. CAMPOS
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 April 26, 2011, plaintiff filed a Complaint for Ejectment against

herein defendant.

On May 10, 2011, defendant received the summons issued by the

Honorable Court to file an answer.

On May 16, 2011, defendant filed his answer against the plaintiff.

On June 1, 2011, preliminary conference was held in the presence

of the plaintiff, defendant, and their respective counsels.

Accordingly, after the presentation of evidence, the Honorable

Court ordered the parties to submit their respective Memoranda fifteen
days (15) from notice, otherwise, the case is deemed submitted for
decision.
 STATEMENT OF THE FACTS

The Plaintiff owned a two-storey apartment located at Poblacion,

Ubay, Bohol covered by TCT No. 29036. On March 20, 2003, plaintiff
leased the first storey of the apartment to defendant for five years (5) with
a monthly rental of P 5, 000.00 payable within the first ten (10) days of
each month as shown in the lease contract (Annex A).

Allegedly, the lease contract had expired on March 20, 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
20, 2003 to March 20, 2013. It was supported by an affidavit executed by
HermanoTangcawan (Annex 2) who was the witness thereof.

Moreover, the defendant raised the issue on prescription of action

wherein the plaintiff instituted the complaint after the prescriptive period
for an ejectment case. Also, the complaint was fictitious the ground that
it was not verified. 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 THE 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 cause of 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 the 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 the plaintiff. Rule 70 of the Rules of Court deals
with the unlawful detainer which provides:

“…a lessor, vendor, vendee, or 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, 2006, 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 the 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 ten (10) years contrary to what the
latter posited that the lease contract is only for five (5) years from March
20, 2005 to March 20, 2010.

2. The second argument is related to the first since the lease contract
presented by plaintiff is fictitious and simulated. Under Article 1409 of
the New Civil Code:
 “The following contracts are inexistent and void from the beginning:
x xxxxxxxxxxxxx
2. Those which are absolutely simulated or fictitious;
x xxxxxxxxxxxxx
These 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. No.
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 commence on March 20, 2003 while
in the contract on March 20, 2005. The complaint and the lease contract
are inconsistent. It is indubitable that the lease contract presented by
the 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 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) was dated
August 26, 1998 and was received by the petitioners on August 31,
1998; the complaint was filed on April 5, 2000 or more than one (1) after
August 31,1998.

The last demand of plaintiff was on March 30, 2010 as shown in

“Annex B-3”. Granting that the lease was for five (5) years, an action for
unlawful detainer had already prescribed. The complaint was filed on
April 26, 2011 and summon was received on May 10, 2011 which shows
that it was 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

pleading shall be verified.” The reason thereof is for 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 vs. Republic, 19 SCRA
700 [1967]). The defect was merely formal it did not affect the validity
and efficacy of the pleading, much less the jurisdiction of the court
(Gadit vs. 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 the same issues. Failure to comply with the requirement is a
ground for 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 (5) years, the plaintiff’s action is barred by
prescription, ant 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 inexistent;

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 relied and remedies as may be deemed just and

equitable under the premises are likewise prayed for.

Poblacion, Ubay, Bohol, June 11, 2011.

JOAQUIN R. PARAS
Counsel for the Defendant
Roll of Attorney No. 109298
IBP No. 67890/2-9-16/ Tagbilaran City
PTR No. 992374/1-2-16/ Ubay, Bohol
MCLE Compliance No. VII-0020788/10-15-16

EXPLANATION

In the 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.

JOAQUIN R. PARAS

Copy Furnished: (By Registered Mail)

ATTY. LUIS A. HERRERA

Counsel for the Plaintiff
Poblacion, Talibon Bohol