COPY

Republic of the Philippines

COURT OF APPEALS
Manila

IGNACIO BACKONG, et al., and all persons CA G.R. SP No. 125663

claiming title or rights under them,
Petitioners,
- versus -
CIVIL CASE NO. 7185-R
(MTCC Civil Case No. 13367)
GONZALO V. SYQUIA, JR. in his behalf and as for
representative of RAMONA V. SYQUIA, EJECTMENT
Respondents.
x---------------------------------------------------------x
GREGORIO PUAPO, represented by PATRICIA
DANGLI PUAPO et al., and all persons claiming
title or rights under them,
Petitioners,
- versus - CIVIL CASE NO. 7186-R
(MTCC Civil Case No. 13368)
for
GONZALO V. SYQUIA, JR. in his behalf and as EJECTMENT
representative of RAMONA V. SYQUIA,
Respondents.
x---------------------------------------------------------x

WILLIAM AMPAL, et al., and all persons

claiming title or rights under them,
Petitioners,
- versus - CIVIL CASE NO. 7187-R
(MTCC Civil Case No. 13369)
for
GONZALO V. SYQUIA, JR. in his behalf and as EJECTMENT
representative of RAMONA V. SYQUIA,
Respondents.
x---------------------------------------------------------x

JOSEPH BACKONG, et al., and all persons

claiming title or rights under them,
Petitioners, CIVIL CASE NO. 7188-R
- versus - (MTCC Civil Case No. 13370)
for
EJECTMENT
GONZALO V. SYQUIA, JR. in his behalf and as
representative of RAMONA V. SYQUIA,
Respondents.
x---------------------------------------------------------x

Backong, et al., vs. Syquia

MOTION FOR RECONSIDERATION: Page 1 of 10
 MOTION FOR RECONSIDERATION

WITH DUE RESPECT TO THE HONORABLE COURT OF APPEALS

Petitioners, by and through counsel, through this Motion for

Reconsideration of the Judgment promulgated on April 6, 2015, unto the
Honorable Court most respectfully state:

PREFATORY STATEMENT

On May 4, 2015, herein Petitioner Ignacio Backong received a copy of

the Notice of Judgment on the present case rendered by the Ninth Division of
this Honorable Court, the dispositive portion of which reads as follows:

“WHEREFORE, premises considered, the petition is

DISMISSED. The assailed Decision dated September 6, 2011 and
Order dated June 13, 2012 issued by the Regional Trial Court,
Branch 60, Baguio City (RTC) in Civil Case No. 7185-R are
AFFIRMED.

SO ORDERED.”

Under Rule 37 of the Rules of Court, Petitioners allowed to move for

the reconsideration of this judgment within the period for taking an appeal.
They are given fifteen (15) days or until May 19, 2015 to file his Motion for
Reconsideration. This Motion is therefore filed on time.

COMPLIANCE WITH A.M. NO. 11-9-4-SC

This Motion for Reconsideration is filed in accordance with A.M. No. 11-
9-4-SC or the Efficient Use of Paper Rule. Accordingly, one original and two
copies are filed with the Honorable Court.

Backong, et al., vs. Syquia

MOTION FOR RECONSIDERATION: Page 2 of 10
 DISCUSSION

In dismissing the instant Petition, the Honorable Court upheld the

findings of the RTC which affirmed the findings of the MTCC that: (1) the
complaint was for unlawful detainer1; (2) the respondent’s tolerance of the
occupation of the petitioners was established2; and that (3) the action has not
been barred by laches3.
Petitioners come before this Honorable Court to seek reconsideration
of the above pronouncements.

THE OCCUPANCY OF THE PETITIONERS WAS NOT A MATTER OF

TOLERANCE ON THE PART OF THE RESPONDENTS BUT AN EXERCISE OF
THEIR REAL RIGHTS OVER THE SUBJECT LAND SINCE 1934.

The Court upholds the finding of the RTC that this action is one of
unlawful detainer because the Respondents are deemed to have tolerated the
possession of the Petitioners.
Petitioners have resided in the subject land for a period exceeding fifty
(50) years, having been in peaceful possession of the land which they trace
from their ancestors, sole heirs of Taggart. It was only in 1993 when the
Respondents appeared and sought the Petitioners' eviction and demolition of
their homes. This was not implemented and the Respondents chose to file the
present action.
In the case of Sps. Valdez vs. CA and Sps. Fabella4, the Court dismissed
the petition involving a similar ejectment case, because “the complaint
contains only bare allegations that respondents without any color of title
whatsoever occupies the land in question by building their house in the said
land thereby depriving petitioners the possession thereof. Nothing has been
said on how respondents’ entry was effected or how and when dispossession
started. Admittedly, no express contract existed between the parties. This
failure of petitioners to allege the key jurisdictional facts constitutive of

1 Decision dated April 6, 2015, page 7.

2 Ibid.
3 Ibid, page 8 par.2.
4 G.R. No. 132424, May 2, 2006.

Backong, et al., vs. Syquia

MOTION FOR RECONSIDERATION: Page 3 of 10
unlawful detainer is fatal. Since the complaint did not satisfy the jurisdictional
requirement of a valid cause for unlawful detainer, the municipal trial court
had no jurisdiction over the case.” The same is true in this instant
controversy.

TOLERANCE ON THE PART OF THE RESPONDENTS MUST BE

DETERMINED FROM THE ALLEGATIONS OF THE COMPLAINT, NOT
MERELY INFERRED NOR FORMULATED AS A LEGAL CONCLUSION.

Respondents now seek reconsideration of the dismissal of their

petition on the ground that the alleged tolerance on their part must be
determined from the allegations in their complaint.
The Court ruled that there was tolerance on the part of the
Respondents which would characterize the present as one of unlawful
detainer. Petitioners respectfully submit that the element of tolerance was
not established with sufficiency.
In a complaint for unlawful detainer, the following key jurisdictional
facts must be alleged and sufficiently established:
1. Initially, possession of property by the defendant was by contract
with or by tolerance of the plaintiff;
2. Eventually, such possession became illegal upon notice by plaintiff
to defendant of the termination of the latter’s right of possession;
3. Thereafter, the defendant remained in possession of the property
and deprived the plaintiff of the enjoyment thereof; and
4. Within one year from the last demand on defendant to vacate the
property, the plaintiff instituted the complaint for ejectment.5
To reiterate, the Complaints filed by the Respondents merely alleged
that (1) the disputed land was bought by the Respondents' decedent from the
estate of Taggart; (2) they have paid the taxes for the period of 1982-2005;
and (3) the Petitioners constructed, without the knowledge and consent of
the registered owners of the lands, a residential house and occupied a portion
of the subject parcel of land and continues to occupy the same. These

5 Delos Reyes v. Odones, G.R. No. 178096, March 23, 2011, 646 SCRA 328, 334–335.

Backong, et al., vs. Syquia

MOTION FOR RECONSIDERATION: Page 4 of 10
allegations do not establish a cause of action for unlawful detainer; they do
not state how Petitioners entered upon the land and improved thereon.

TO JUSTIFY AN ACTION FOR UNLAWFUL DETAINER, THE PERMISSION

OR TOLERANCE MUST HAVE BEEN PRESENT AT THE BEGINNING OF THE
POSSESSION.

Unlawful detainer requires the significant element of tolerance.

Tolerance of the occupation of the property must be present right from the
start of the defendants’ possession. The phrase "from the start of defendants’
possession" is significant. When there is no "tolerance" right from the start of
the possession sought to be recovered, the case of unlawful detainer will not
prosper.
In the present case, the alleged tolerance is based on the act of the
Respondents in not seeking enforcement of the demolition order they
secured from the City of Baguio in the year 1993. It was however proven
before the Court that herein Petitioners were in prior possession of the
property even before 1993, or as early as 1934 through their possessors-in-
interest. In the case of Go, Jr., et al vs. Court of Appeals6, the Court ruled that It
is essential in unlawful detainer cases, the plaintiffs’ supposed acts of
tolerance must have been present right from the start of the possession
which is later sought to be recovered. This is where the cause of action of
the Respondents must fail, for it was not proven in the MTC level that the
possession of the Petitioners since 1934 or even from the time of the sale to
the Syquias was already with the tolerance of the latter.
As explained in Sarona vs. Villegas, cited in Muoz vs. Court of Appeals7
tolerance must be present right from the start of possession sought to be
recovered, to categorize a cause of action as one of unlawful detainer not of
forcible entry, to wit:
“But will this rule as to tolerance hold true in a case where
there was forcible entry at the start, but the lawful possessor did

6 G.R. No. 142276. August 14, 2001.

7 224 SCRA 216 (1992).

Backong, et al., vs. Syquia

MOTION FOR RECONSIDERATION: Page 5 of 10
 not attempt to oust the intruder for over one year, and only
thereafter filed forcible entry suit following demand to vacate?
xxx
A close assessment of the law and the concept of the word
`tolerance’ confirms our view heretofore expressed that such
tolerance must be present right from the start of possession
sought to be recovered, to categorize a cause of action as
one of unlawful detainer not of forcible entry. Indeed, to
hold otherwise would espouse a dangerous doctrine. And
for two reasons. First. Forcible entry into the land is an open
challenge to the right of the possessor. Violation of that
right authorizes the speedy redress in the inferior court
provided for in the rules. If one year from the forcible entry
is allowed to lapse before suit is filed, then the remedy
ceases to be speedy; and the possessor is deemed to have
waived his right to seek relief in the inferior court. Second,
if a forcible entry action in the inferior court is allowed after
the lapse of a number of years, then the result may well be
that no action for forcible entry can really prescribe. No
matter how long such defendant is in physical possession,
plaintiff will merely make a demand, bring suit in the
inferior court upon a plea of tolerance to prevent
prescription to set in and summarily throw him out of the
land. Such a conclusion is unreasonable. Especially if we
bear in mind the postulates that proceedings of forcible
entry and unlawful detainer are summary in nature, and
that the one year time bar to suit is but in pursuance of the
summary nature of the action.” (Emphasis supplied)

Thus, without even touching on the right of the Petitioners to possess

the subject land, the complaint should have been dismissed for lacking the
element of tolerance WHICH MUST SHOWN TO HAVE BEEN PRESENT FROM
THE START OF THE POSSESSION of the Petitioners. Here, the tolerance is

Backong, et al., vs. Syquia

MOTION FOR RECONSIDERATION: Page 6 of 10
reckoned from the point in time when the Respondents did not seek
enforcement of the demolition order, as stated in the RTC Decision, to wit:
“Upon scrutiny of the complaint, the following allegations
stand out: xxx that in 1993, a demolition order was issued by the
City Mayor’s Office for the demolition of the illegal structures
build by the defendants in the above-mentioned property; that
the demolition order was not enforced by the plaintiffs,
instead, they tolerated the defendant’s occupation and use
of the subject property; that plaintiffs withdrew their
tolerance of defendants’ occupation of the premises by
sending them notice to vacate xxx”8 (Emphasis supplied)
What is present then in this instant controversy is a case where the
complaint alleges that there was forcible entry at the start, but the lawful
possessor did not attempt to oust the intruder for over one year, and only
thereafter filed forcible entry suit following demand to vacate.

SINCE THE ALLEGED TOLERANCE OF THE RESPONDENTS WAS NOT

PROVEN TO BE PRESENT AT THE BEGINNING OF THE POSSESSION OF
THE PETITIONERS, THIS FAILS AS A CASE OF UNLAWFUL DETAINER AND
THE ACTION IS BARRED BY LACHES.

In Corpuz v. Agustin9 the Court held that “Without a doubt, the

registered owner of real property is entitled to its possession. However, the
owner cannot simply wrest possession thereof from whoever is in actual
occupation of the property. To recover possession, he must resort to the
proper judicial remedy and, once he chooses what action to file, he is required
to satisfy the conditions necessary for such action to prosper.”
To give the court jurisdiction to effect the ejectment of an occupant or
deforciant on the land, it is necessary that the complaint must sufficiently
show such a statement of facts as to bring the party clearly within the class of
cases for which the statutes provide a remedy, without resort to parol
testimony, as these proceedings are summary in nature. In short, the
8 Records, p.404.
9 G.R. No. 183822, January 18, 2012, 663 SCRA 350, 361, citing Carbonilla v. Abiera, G.R. No. 177637,
July 26, 2010, 625 SCRA 461.

Backong, et al., vs. Syquia

MOTION FOR RECONSIDERATION: Page 7 of 10
jurisdictional facts must appear on the face of the complaint. When the
complaint fails to aver facts constitutive of forcible entry or unlawful
detainer, as where it does not state how entry was effected or how and when
dispossession started, the remedy should either be an accion publiciana or
accion reivindicatoria.10
If Respondents are indeed the owners of the subject lot and were
unlawfully deprived of the real right of possession, they should present their
claim before the regional trial court in an accion publiciana or an accion
reivindicatoria, and not before the metropolitan trial court in a summary
proceeding of unlawful detainer or forcible entry.

Upon the foregoing, Petitioners pray that the Decision dated April 6,
2015 be reconsidered in their favor.

PRAYER

WHEREFORE, in view of all the foregoing, Petitioners pray of this

Honorable Court of Appeals to RECONSIDER its Judgment dated April 6, 2015
which dismisses the present petition, and RENDER judgment in their favor.
Other reliefs as are just and equitable under the circumstances are
likewise prayed for.

RESPECTFULLY SUBMITTED.

This 19th day of May, 2015 at Baguio City for Manila, Philippines.

CLAVER LAW OFFICE

Counsel for the Petitioners
14A 2/F BBCCC Building
Assumption Road, Baguio City

10Jose v. Alfuerto, G.R. No. 169380, November 26, 2012, 686 SCRA 323, 341, citing Serdoncillo v.
Spouses Benolirao, 358 Phil. 83, 95 (1998).

Backong, et al., vs. Syquia

MOTION FOR RECONSIDERATION: Page 8 of 10
 FRANCISCA MACLIING CLAVER
TIN No. 173-565-173
Mobile No. 09285502067
PTR No. 2011027; 12/23/2014; B.C.
Roll No. 43004; 5/4/98
IBP Lifetime Membership No. 04371
MCLE Compliance No. IV-000676

NOTICE

Michael F. Real
Division Clerk of Court
Court of Appeals 9th Division

Sir:

Please submit the foregoing Motion for Reconsideration to the Court of

Appeals upon receipt hereof. Thank you.

Francisca Macliing Claver

Copy furnished:

ROSCOR LAW OFFICES Registry Receipt No. ___________

Counsel for the Respondents ___________________________________
Unit 1902 Security Bank Centre
6776 Ayala Avenue, Makati City

HON. EDILBERTO T. CLARAVALL Registry Receipt No. ___________

Presiding Judge ___________________________________
Regional Trial Court, Branch 60
Baguio City

Explanation:
A copy of the Motion for Reconsideration was furnished each to the Counsel
of the Respondents and the Presiding Judge of RTC 60 by registered mail as
personal service is impractical due to distance and lack of personnel to effect
the same.

Backong, et al., vs. Syquia

MOTION FOR RECONSIDERATION: Page 9 of 10
Republic of the Philippines )
City of Baguio ) S.S.

AFFIDAVIT OF SERVICE

I, MAAN GRACE A. BAGUIOEN-ELAGO, of legal age, single, Filipino,

and with residence at 4 Interior Rimando Road, Baguio City, after having been
sworn according to law, hereby depose and state:

I served on May 19, 2015 two (2) copies of the foregoing Motion for
Reconsideration in the above-entitled case by registered mail to the ROSCOR
Law Office with office address at Suite Unit 1902 Security Bank Centre 6776
Ayala Avenue, Makati City and the Presiding Judge of RTC Branch 60 of
Baguio City with address at Justice Hall, Baguio City.

In witness whereof, I have set my hand this 19th day of May, 2015 at
Baguio City, Philippines.

MAAN GRACE A. BAGUIOEN-ELAGO

Affiant

SUBSCRIBED AND SWORN to before me this 19th day of May, 2015 at Baguio
City, affiant known to me and known to me to be the same person who
executed the foregoing Affidavit of Service consisting of one (1) page after
presenting to me her TIN I.D. No. 932-674-425 issued on 04/26/04 at Baguio
City which shows her photograph and signature.

Witness my hand and seal on the place and date above-written.

FRANCISCA MACLIING CLAVER

Notary Public
Until December 31, 2016
PTR No. 2011027; 12/23/2014; B.C.
Roll No. 43004; 5/4/98; Manila
IBP Lifetime Membership No. 04371
NA No. 04-NC-15-R
Rm. 14A Second Floor BBCCC Building
Assumption Rd., Baguio City
Doc. No. ;
Page No. ;
Book No. VIII;
Series of 2015.

Backong, et al., vs. Syquia

MOTION FOR RECONSIDERATION: Page 10 of 10