DY, ANGELICA JOYCE B.

Student No. 5170138

LAW 3B

FINAL EXAMINATION FOR LEGAL COUNSELING

1.) The following are the things to do and consider in becoming a counsel for the
plaintiff after a complaint has been filed by a previous attorney:

a.) The first thing to do is to request for necessary data and documents
from the lawyer who has originally filed the complaint.
b.) As a substituted counsel, you must see to it that your client has already
complied with the requirements for substitution of new counsel in
accordance with the established jurisprudence in the case of Cortez
vs. Court of Appeals, so that you would be the counsel of record who
would receive pleadings.
c.) The lawyer must review the complaint filed by the lawyer who has filed
the complaint. He must make amendments in the complaint before the
other party has served a responsive pleading.
d.) If you become the lawyer for the plaintiff after an answer was filed by
the opposing party, then you might file a reply or move ex parte to set
the case for pre-trial.

2.) After a pre-trial is set, the lawyer for the plaintiff must do and consider the
following, viz:

a.) The lawyer must, beforehand, talk to the client if he would want to
negotiate a settlement or prefer entering into alternative mode of
resolution and his/her desired terms if ever.
b.) The lawyer must see to it that they attend the pre-trial because failure
of the plaintiff to appear therein would be the cause of dismissal of the
case.
c.) The lawyer must bring all the evidences that are opted to be presented
at the trial and provide a copy to be exhibited to the opposing party
d.) Also, the lawyer must prepare the list of witnesses, their names and
addresses, that you will be presenting at the trial.
 Republic of the Philippines
BICOL REGION
MUNICIPAL TRIAL COURT
LEGAZPI CITY
Branch 13

Mr. Al,
Plaintiff,
Civil Case No. 123

(For: Forcible Entry)

-versus-

Ms. Helen,
Defendat

x---------------------------------x

POSITION PAPER FOR THE PLAINTIFF

PLAINTIFF, through counsel, unto the Honorable Court, respectfully submit this
Position Paper and avers:

Factual Antecedents
1. The plaintiff, Mr. Al is the owner is the parcel of land situated in Pawa, Legazpi
City. Photocopy of Tax Declaration is hereto attached and made an integral part of
Annex “A”;
2. Mr. Al inherited the said land from his father who is the registered owner of the
same. Birth Certificate is hereto attached and made an integral part of Annex “B”;
3. On June 12, 2020, Mr. Al allowed a certain Mr. Francis and his family to
occupy the said property;
4. On August 30, 2020, Mr. Al discovered that a certain Ms. Helen and her family
are now occupying the property and has constructed a house thereon. He demanded
for them to vacate but they refused.

Issue
Whether or not the defendant acquired ownership of the land contested.

Discussion
 Mr. Francis is not the owner of the property. He was only allowed to occupy the
same by the plaintiff therefor he cannot execute a valid Deed of Sale. The Deed of Sale
was inexistent and void from the beginning because it is absolutely simulated and
fictitious. Being an absolute nullity, the deed is subject to attack anytime
Nemo Dat Quod Non Habet. Article 1458 of the New Civil Code provides: "By the
contract of sale one of the contracting parties obligates himself to transfer the ownership
of and to deliver a determinate thing, and the other to pay therefor a price certain in
money or its equivalent." It is essential that the vendors be the owners of the property
sold otherwise they cannot dispose that which does not belong to them.  (Felix Gochan
vs. HEIRS OF RAYMUNDO BABA).
The sale of the land to the defendant is null and void insofar as it prejudiced the
interest of the herein plaintiff.
Ms. Helen also failed to make inquiry concerning the rights in those possession.
It was ruled the court of Sandoval vs. CA that the presence of anything which excites or
arouses suspicion should then prompt the vendee to look beyond the certificate and
investigate the title of the vendor appearing on the face of said certificate. One who falls
within the exception can neither be denominated an innocent purchaser for value nor a
purchaser in good faith; and hence does not merit the protection of the law.
The certificate of the title of land was in the hands of the plaintiff. Therefor at the
time of the execution of the Deed of Sale, Ms. Helen holds no evidence that Mr. Francis
is the actual owner of the contested property. The Supreme Court ruled in the case of
Abobon vs. Abobon that A certificate of title serves as evidence of an indefeasible and
incontrovertible title to the property in favor of the person whose names appears therein.
It bears to emphasize that the title holder is entitled to all the attributes of
ownership of the property, including possession. Thus, the Court must uphold the age-
old rule that the person who has a Torrens title over a land is entitled to its possession.
(Manila Electric Company v. Heirs of Deloy)
DeLa Cruz v. Court of Appeals provides that for a forcible entry suit to prosper,
the plaintiffs must allege and prove: (a) that they have prior physical possession of the
property; (b) that they were deprived of possession either by force, intimidation, threat,
strategy or stealth; and, (c) that the action was filed within one (1) year from the time the
owners or legal possessors learned of their deprivation of the physical possession of the
property. However, an exception is that possession can also be acquired by juridical
acts.
Aside from possessing the title to the property, the plaintiff holds ownership over
the property through succession mortis causa which is one of the modes of acquiring
ownership as ruled in the case of Acap vs. CA. As herein attached, the plaintiff has
provided a birth certificate showing that he is a successor of the registered owner of the
contested lot.
It is also held in the case of De la Rosa vs. Carlos that possession in the eyes of
the law does not mean that a man has to have his feet on every square meter of the
ground before he is deemed in possession.
Mr. Al allowed Mr. Francis to use the land without any contract and the latter later
on sold said property to Ms. Helen who subsequently constructed a house thereon. The
SC held in the case of Valdez vs. CA that if the possession of the defendant was illegal
at the inception because the defendant started to occupy the subject lot and then built a
house thereon without the permission and consent of the owner or rightful possessor,
the defendant’s entry into the land was effected clandestinely without the knowledge of
the owners. It is therefore possession by stealth which is forcible entry.
The moment the plaintiff demands for Ms. Helen to vacate her continued
possession is now considered a possessor by tolerance. While in possession by
tolerance is lawful, such possession becomes illegal upon demand to vacate is made by
the owner and the possessor by tolerance refuses to comply with such demand (Prieto
vs. Reyes).
The plaintiff has immediately filed this case for forcible entry upon refusal of Ms.
Helen to vacate where judgement shall prevent further damage in his loss of possession
(Salinas v. Navarro). Forcible entry cases are summary proceedings designed to
provide for an expeditious means of protecting actual possession or the right to
possession of the property involved (Republic vs. Guarin).

PRAYER
Wherefore, premises considered, it is most respectfully prayed that the foregoing
Position Paper be decided favor of the plaintiff and ordering the defendant to:
1. Permanently vacate premises in question and give the immediate right of
possession to the plaintiff
2. Attorney’s Fees in the amount of 30,000; and
3. Pay the cost of this suit.
Other reliefs that are just and equitable under premises are likewise prayed for.
September 06, 2020, Legazpi City, Philippines.

Respectfully Submitted

ANGELICA JOYCE DY
Counsel for the Plaintiff