MOTION FOR LEAVE OF COURT TO FILE A DEMURRER TO EVIDENCE

The Defendant, through counsel unto this Honorable Court, most respectfully pray to

permit the Defendant to file a Demurrer to Evidence hereto attached in this Motion.

Wherefore, it is respectfully prayed unto this Honorable Court to permit the filing of,

and admit, with leave of court, the Demurrer to Evidence.

Other just and equitable reliefs blah blah

DEMURRER TO EVIDENCE

The Plaintiff has already presented evidence and has formally rested its case. In accordance

with the present Rules on Civil Procedure, herein Defendants now respectfully file this present

Demurrer to Evidence which is which is anchored on the following grounds:

1. The Board Resolution dated ----- certifying the existence of a quorum during the ------

General Membership Meeting and Election, marked and duly identified, remains

unrebutted by any proof to the contrary.

2. There was insufficient evidence to prove that the Deed of Assignment was, in fact,

revoked or rendered null and void.

I.

The Minutes of the Meeting duly presented by Plaintiff does not prove, either directly or

indirectly, that there was no quorum as Plaintiff has consistently asserted. There is nothing in

the said Minutes of the Meeting which unequivocally proves the absence of quorum. At most,

the minutes of the Meeting proves on its face that twenty-nine (29) unit owners were present

during the meeting and that a quorum was present either in person or by proxy.
 Significantly, neither the totality of the evidence of the Plaintiff, nor the Minutes in

question, proves that the same number was inadequate to establish a quorum, there being no

evidence presented in court of the actual number of all the members/unit-owners who are

entitled to vote, or that twenty-nine (29) is less than the required number of votes in a

corporate election under the Corporation Code. The only evidence presented by Plaintiff as to

the actual number of all members was his own testimony and the testimony of one other

member, stating that the number of members present was “29 out of 108”, and both

unsupported by any further evidence as to how the same figures were arrived upon.

Moreover, the Minutes of the Meeting also unequivocally states that, to wit, “the meeting

was called to order x x x”; “x x x it was determined that a quorum was present either in person

or by proxy”; and “the meeting could conduct business.” It also states that, “x x x upon motion

made, seconded, and unanimously carried, it was RESOLVED that all the items and documents

have been examined, are approved and adopted, and that all actions taken thus far have been

ratified and approved by the members.”

Jurisprudence is replete with the saying that the corporate secretary, being the proper

custodian of the books, minutes and official records of a corporation, has the duty to record and

prepare the minutes of the meeting. The signature of the corporate secretary gives the minutes

of the meeting probative value and credibility.

Plaintiff failed to overturn the rebuttable presumption accorded by law to the Minutes. In

fact, Plaintiff presented no such evidence at all. Thus, in the absence of sufficient evidence

which would affect the validity, genuineness, and due execution of the document or the

Minutes, the same must enjoy the legal presumption accorded to it under Rule 130, Sec. 44 of

the Rules of Evidence which states that:

“Entries in official records made x x x by a person in the

performance of a duty specially enjoined by law, are prima

facie evidence of the facts stated therein.”

 Withal, the burden to prove the absence of quorum is upon the Plaintiff who alleges

such absence. No less than the Supreme Court has held in MOF Company Inc. vs Shin Yang

Brokerage Corporation, G.R. No. 172822 that he who alleges a fact has the burden of proving it

and a mere allegation is not evidence.

Moreover, the Supreme Court has reiterated in the 2012 case of Sps. Guidangen vs Devota

B. Wooden, G.R. No. 174445, that the plaintiff must rely on the strength of his own evidence

and not upon the weakness of that of his opponent.

With this, the claim of Plaintiff must fail.

II.

The Plaintiff himself, as well as his assignee Juan Sacubo, competently identified the

assailed Deed of Assignment of the Condominium Unit in open court as the same Deed of

Assignment executed by and between them. However, Plaintiff asserts that the same had

subsequently been revoked by reason of the payment of the debt allegedly secured by such

Deed with no other evidence of revocation or extinguishment other than his own naked

assertions. He also asserts that he is still the owner of the subject condominium unit, implying

that he has a cause of action against the Defendants.

The alleged Deed of Assignment explicitly states in its second whereas clause the

following, to wit:

“The ASSIGNOR has offered to assign all his rights, title, and

interest over the above unit, and the ASSIGNEE hereby

accepts the assignment in accordance with the terms herein

set forth.”

Jurisprudence is clear to the effect that it is not the title of the contract, but its

express terms or stipulations, that determine the kind of contract entered into by the

parties. Indeed, while a deed of assignment does not seek to convey ownership absolutely,

this particular Deed of Assignment executed by Plaintiff contains language which suggests
that the parties intended to effect a complete alienation of title to and rights over the

property subject thereof. In effect, the transaction was in the form of a sale of property, with

all the requisites of a sale contract being present: consent, object, and consideration (in the

form of the money allegedly “loaned” by the assignee in favor of the assignor).

Plaintiff asserts that there was no delivery of the unit and that he never used,

possessed, or appropriated the same for his own benefit. It is immaterial that there was no

actual delivery of the unit to the assignee Juan Sacubo. Under Article 1498 of the Civil Code,

when the sale is made through a public instrument, the execution thereof shall be

equivalent to the delivery of the thing which is the object of the contract. In this particular

agreement which partakes of the nature of a sale, delivery was deemed constructively made

when the conveyance was made in a document notarized by a notary public, which effectively

transforms the same into a public instrument.

Plaintiff cannot now collaterally assail the stipulations in the Deed of Assignment in

this action for Annulment of General Membership Meeting and Election of Board of Trustees

by the simple expedient of asserting that there was no transfer of ownership, when the

alleged Deed of Assignment clearly shows otherwise. The same, being in the nature of a

contract, is the law between the parties.

Again, Plaintiff failed to prove by sufficient evidence that the Deed of Assignment,

as it now stands, has been effectively revoked or — properly -- rescinded. Extrajudicial

rescission, under the Civil Code, is granted to a party only where the contract expressly

grants it to him. There being no rebutting evidence thereto, the contract improperly entitled

Deed of Assignment is deemed binding and effective between the parties. This implies that,

as stated in the affirmative defenses of Defendants in their Answer to the complaint, the

assignor Juan Sacubo is no longer the owner of the condominium unit at the time of filing of

this complaint. He, therefore, has no cause of action against the Defendants.

By these grounds, the Petitioner’s Complaint must necessarily fail.