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REGIONAL TRIAL COURT
7th Judicial Region
BRANCH 11
Cebu City
HIERS OF SPS. ATTY. IGNACIO &
JOSEFA C. VILLAGONZALO
namely: Josefina VillagonzaloRuiz
Flordeliza VillagonzaloOperario,
Victorioso C. Villagonzalo &
Elizabeth VillagonzaloGabiana,
PlaintiffsAppellee,
CIVIL CASE NO. CEB35131
versus For: Forcible Entry
SIBLINGS RENATO “RicRic”
CABALQUINTO and MARIBETH
CABALQUINTO,
DefendantsAppellant.
X/
APPELLANT'S MEMORANDUM OF APPEAL
COME NOW, DEFENDANTSAPPELLANTS, through the undersigned counsel, unto
this Honorable Court, most respectfully allege by way of memorandum the following, to wit:
That through the undersigned, defendantsappellants received the “notice of appealed
cases” on January 30, 2009. Under the Rules of Court, it is the duty of the appellant to file
their memorandum of appeal within 15 days from receipt of the said order, hence, this
memorandum.
STATEMENT OF FACTS
The parties in this case are all residents of Cebu City. Plaintiffs are from Brgy. Basak,
while defendants are from Brgy. Sinsin. Plaintiffs filed an ejectment case for forcibly entry
against the defendants claiming that they owned and are entitled to possess the parcel of land
situated in Sitio Sipak, Sudlon I, Cebu City. The said lot was allegedly acquired by their
parents from Petra Gabisan as proved by the Deed of Absolute Sale dated April 23, 1949 and
plaintiffs presented a copy of Tax Declaration No. GRC60705700463.1 Plaintiffs further
alleged that they have referred the matter first to the Barangay court but were not issued a
corresponding Certificate to File Action.2 Finally, plaintiff also alleged that the defendants
forcibly entered into the lot they owned by building therein their respective houses.3
That the defendants were not able to file their answer because they are financially
challenged and the lot they occupied is owned by their parents by virtue of tax declarations
under their parents name and is situated in Brgy. Sinsin, Cebu City. Moreover, the said lot is
part of the Central Cebu Protected Landscape (CCPL) as determined by the Department of
Environment and Natural Resources (DENR) and defendant Mr. Renato Cabalquinto is a
tenured migrant of the Central Cebu Protected Landscape (CCPL) pursuant to Republic Act
No. 7586 otherwise known as the National Integrated Protected Area System (NIPAS) Act of
1992. Certification to this effect issued by the DENR is hereto attached as annex “A”.
That pursuant to Sec. 7 of Rule 70 of the Rules of Court, the trial court rendered
judgment based on the facts alleged in the complaint dated October 17, 2008. The dispositive
portion of which reads as follows:
“WHEREFORE, premises considered, decision is hereby rendered
in favor of the plaintiffs and against the defendants and anyone
acting under them or upon their authority, who are hereby ordered to
vacate the subject premises and turn over the possession thereof to
the plaintiffs. They are also ordered to pay the plaintiffs attorney's
fee in the amount of P3,000.00 and litigation expenses in the sum of
P5,000.00.
SO ORDERED.”
That it is only when they received the above order that they consulted the undersigned
for appropriate legal action. That in order to protect their rights and for the interest of justice,
defendantsappellant filed this instant appeal by assigning the following errors committed by
the lower court:
ASSIGNMENT OF ERRORS
THE TRIAL COURT ERRED IN TAKING COGNIZANCE OF THE CASE AND ERRED IN
NOT DISMISSING THE COMPLAINT AS THE COMPLAINANT FAILS TO COMPLY
THE CONDITION PRECEDENT.
THE TRIAL COURT ERRED IN RULING THAT THE PLAINTIFF IS ENTITLED TO THE
POSSESSION THEREOF AS THE LOT OCCUPIED BY THE DEFENDANTS IS OWNED
BY DEFENDANT'S PARENTS AND IS NOT COVERED BY THE ALLEGED
OWNERSHIP OF THE PLAINTIFFS AND THE SAID LOT IS PART OF THE CENTRAL
CEBU PROTECTED LANDSCAPE (CCPL) PURSUANT TO REPUBLIC ACT NO. 7586
OTHERWISE KNOWN AS THE NATIONAL INTEGRATED PROTECTED AREA
SYSTEM ACT OF 1992.
DISCUSSION and ARGUMENTS
As to the first error, the lower court erred in taking cognizance of the case and in not
dismissing the complaint filed by the plaintiffs. The plaintiffs should referred the matter first
to the barangay level before seeking the aid of our court as the controversy between the parties
requires prior conciliation. It is very evident from the facts enumerated in the complaint that
they have not issued a certification to file action against the defendants. Thus, their complaint
was prematurely filed. Moreover, the parties did not meet before the Barangay chairman and
the “Lupon ng Tagapamayapa” for amicable settlement contrary to what has been claimed by
the plaintiffs. A certification to this effect issued by the Brgy. Chairman is hereto attached as
annex “B”. The lower court should dismissed the case for the plaintiff's failure to comply the
condition precedent as required by law, or should at least, remanded the case to the Barangay to
amicably settle their dispute, otherwise there is no compliance with the requirements of P.D.
1508, now Sec. 412 of 1991 Local Government Code. The plaintiffs instead of referring the
matter to the barangay, took advantage of their prowess by going directly to the court and
depriving the defendants their day in barangay court. Had the defendants were given the
chance to present what they had in the barangay level, the plaintiffs would not bother to elevate
the case to the proper court. Evidently, plaintiffs failed to exert enough effort required by law
to conciliate and to settle the case before the Barangay court. They even not mentioned when
they went to the Barangay and until when they waited for the Barangay to issue the required
Certification to File Action if indeed the Barangay had to refer the matter before the
Department of Environment and Natural Resources (DENR). The trial court should promote
the objectives of barangay conciliation and taking to heart the provisions of Supreme Court
Circular No. 1493. Prior referral to the Lupon for conciliation proceedings, therefore, was
indubitably called for.
As to the second assigned error, the lower court erred in ordering the defendants to
vacate from the lot where their respective houses are located. Art. 434 of the New Civil Code
states that “In an action to recover, the property must be identified, and the plaintiff must rely
on the strength of his title and not on the weakness of the defendant's claim.” Settled is the rule
that in every case of recovery of possession, the lot should be properly identified and the
plaintiff should proved that the defendants who they wish to be wrested possession thereof are
occupying in the lot they are claiming. Before awarding possession of the lot to any claimant,
the court must see to it that the persons to be evicted therefrom are occupying the lot claimed
by the plaintiffs. Plaintiffs alleged that the lot occupied by the defendants belongs to what
they claimed and referred as “Gabisan Lot” which was acquired by their parents from Petra
Gabisan by virtue of a deed of absolute sale executed on April 23, 1949. Going through the
attached “deed of absolute sale” of the plaintiff's complaint, it is very clear that the lot they
acquired from Petra Gabisan is an agricultural lot situated in Brgy. Sudlon, Municipality of
Toledo, Province of Cebu. The defendants are presently occupying the lot different from what
has been allegedly owned by the plaintiff. The lot occupied by the defendants is owned by
their mother Angelina Cabalquinto situated in Brgy. Sinsin, Cebu City and is particularly
described as follows:
North : Lot No. 18549pt.Nestoriano Camilo
South : Lot No. 18549pt.Basilio Cabusas
East : Lot No. 18549pt.Teodoro Cabeda
West : Lot No. 18549pt.Juan Gabisan
Thus, from the above description the lot occupied by the defendants is different from
what the plaintiffs are claiming for. The lot occupied by the defendants was acquired by their
mother from Mr. Sergio Gallardo, a grantee of a Forest Occupancy Management Permit from
Ministry of Natural Resources now Department of Environment and Natural Resources. Aside
from being a grantee of such permit, defendants' mother Angelina Cabalquinto paid realty taxes
of the said lot as evidenced by the latest Tax Declaration of Real Property No. GRC607056
00001 hereto attached as annex “C”. Thus, the plaintiff has no right to evict the defendants
from the land they occupied and the defendants are likewise cannot be evicted from their own
lot. The trial court should conduct an occular inspection in order to ascertain the lot as to the
extent of the ownership of the plaintiffs. The plaintiff should introduce in evidence his
muniments of title to show that the lot occupied by the defendants is embraced within his
ownership, as his purpose is merely to show the extent of his possession consequent to his
ownership. The plaintiffs might overlooked the metes and bound of their lands considering
that the lot occupied by the defendants and their “Gabisan Lot” are adjacent lots, located in
different Barangays.
WHEREFORE, it is most respectfully prayed that the order of the lower court be set
aside and this instant case be remanded to the trial court for determination of metes and bounds
of allegedly owned by the plaintiffs and for the subsequent determination of who is entitled for
the possession thereof.
OTHER RELIEF AND REMEDIES ARE LIKEWISE PRAYED.
Done this 12th day of February 2009, at Cebu City, Philippines.
CARILLO LAW CENTRUM
Carillo Bertulfo Ty and Associates
WDC Building, Room 306
Corner Osmeña Blvd. and P. Burgos Sts.
Cebu City
Tel. # 2556245
By:
ATTY. GERARDO A. CARILLO
IBP Lifetime Member # 01194
PTR No. 3613830, 1/14/08, Cebu City
Roll No. 39940
Copy furnished through registered mail due to distance and lack of manpower:
Atty. Rameses Victorius Gatchalian Villagonzalo
476 Gorordo Avenue, Lahug
6000 Cebu City