REPUBLIC OF THE PHILIPPINES

FOURTH JUDICIAL REGION

REGIONAL TRIAL COURT
BRANCH 70
RIZAL


RAMON NIETO
Plaintiff-Appellant,


-versus- Civil Case No. 100-2013
For: Forcible Entry
(Ejectment)


KEITH ILAGAN
Defendant-Appellee,

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

APPELLEES MEMURANDUM

Defendant-Appellee KEITH ILAGAN, by undersigned counsel and to
this Honorable Court, in answer to the allegations raised by the Plaintiff-
Appellant in his Memorandum, respectfully states:

PREPARATORY STATEMENT

The appealed case steamed from an ejectment case filed by Plaintiff
Ramon Nieto (Plaintiff-Appellant), which sought to recover the material
possession of a parcel of land against Defendant Keith Santos (Defendant-
Appellees Memorandum
Nieto vs. Ilagan
Civil Case No. 100-2013
Page 2 of 11

Appellee) with the Municipal Trial Court (MTC) of Cainta Rizal therein
docketed as Civil Case No. 100-2013. On February 11, 2014, the Municipal
Trial Court of Cainta rendered the decision dismissing the complaint.
Plaintiff aggrieved with the dismissal of the case filed a Notice of Appeal on
April 15, 2014. Hence, this memorandum in response to the memorandum
filed by the Plaintiff-Appellant.


COUNTER STATEMENTS OF FACTS

1. Plaintiff-Appellant, Ramon Nieto, claims to be the lawful owner of a
parcel of commercial/residential land consisting of 1,200 sq. m., more
or less, that is located in San Andres, Cainta, Rizal. He acquired title
over the said land in 1985, by way of absolute sale from the previous
owner thereof, STEVE ONA, as shown by the Deed of Absolute Sale,
a copy of which is marked as Exhibit A. The said land is not
covered by a Torrens certificate of title.

2. That As a result of the sale, Plaintiff-Appellant was issued Tax
Declaration No. 11111-1985, a copy of which is marked as Exhibit
B, as well as official receipts evidencing the payment of real property
taxes from 1985 up to 2012, copies of which are marked as Exhibit
C and Exhibit C-1 to 27 .

3. Plaintiff-Appellant then planted trees and other plants on the property.
He also erected a perimeter fence around the premises. In January
2009, he also built a 1-room nipa hut, which since then he occupied
from time to time.

4. Sometime in July 2009, Plaintiff-Appellant went to Singapore, Hong
Kong, Malaysia, Japan and Vietnam for an extended vacation. Upon
his return in December 2012, Plaintiff-Appellant went to visit his
Appellees Memorandum
Nieto vs. Ilagan
Civil Case No. 100-2013
Page 3 of 11

property in San Andres, Cainta, Rizal. He then discovered that
Defendant-Appellee was occupying the subject property.

5. Plaintiff-Appellant thereupon demanded from Defendant-Appellee to
vacate the subject premises. The Defendant-Appellee did not heed
said demand. Plaintiff-Appellant again sent another demand in March
2013, as shown by a copy of the letter dated March 3, 2013, a copy of
which is marked as Exhibit D. The Defendant-Appellee also did
not heed this later demand.

6. Due to Defendant-Appellees failure to heed the demand letters sent by
Plaintiff-Appellant, the latter filed the Complaint for Forcible Entry
with prayer to wit:

"x x x that Judgment be rendered ordering the defendant
KEITH ILAGAN to peaceably turn over the physical
possession of the subject property to plaintiff RAMON
NIETO; that defendant be directed to pay plaintiff the sum
of P3,000.00 as reasonable compensation for the use of the
subject property, for every month starting February 2013
until the plaintiff is actually restored to the physical
possession of the property; and that defendant be
commanded to remove any and improvements he erected
on the property."

7. The answer was filed by Keith Ilagan in due time and materially
alleges that he started occupying the subject premises in October
2009, after a storm (Typhoon Ondoy) destroyed his house in San
Isidro, Cainta, Rizal.
Appellees Memorandum
Nieto vs. Ilagan
Civil Case No. 100-2013
Page 4 of 11

8. At that time, the subject premises were not occupied or claimed by any
person, including the plaintiff. In fact, there was nothing in the said
premises that indicated that the plaintiff owns the subject property.
There was no fence to enclose the property. There were no structures
erected thereat, not even those mentioned by the plaintiff in his
complaint.
9. The defendant declared the property for taxation purposes in October
2009, as shown by Tax Declaration No. 2000-2009, a copy of which
is attached and marked as Exhibit 1. Said tax declaration shows that
the property has a market value of P 850,000.00. He also paid real
property taxes in 2009, 2010, 2011 and 2012, as shown by the official
receipts attached and marked as Exhibits 2-5. The defendant
likewise registered with the Municipal Assessor of Cainta, Rizal, and
an Affidavit of Ownership over the subject premises, a copy of which
is attached and marked as Exhibit 6.
10. Defendant contends that plaintiff has no right to claim the property,
much less oust the defendant from the possession thereof.
11. Defendant likewise prayed for the dismissal of the complaint.


DECISION OF THE MTC

On April 11, 2014, the Municipal Trial Court of Cainta rendered a
decision which dismissed the complaint (page 7, Decision). In dismissing
the complaint, the MTC found that plaintiff cannot avail himself of the
provisions of Rule 70 of the Rules of Court, because an ejectment case
should not involve ownership issues. (page 3, Decision); that even assuming
that the plaintiff can raise the issue of ownership, the trial court has no
jurisdiction to resolve the same, since the property has a market value of P
850,000.00 ( page 4 Decision); that even if the trial court has jurisdiction to
decide the respective claims of ownership of the parties, it would appear that
defendant Keith Ilagan is the owner of the subject premises, because he has
Appellees Memorandum
Nieto vs. Ilagan
Civil Case No. 100-2013
Page 5 of 11

an affidavit of ownership that was duly registered with the Municipal
Assessor of Cainta, Rizal ( page 4, Decision).


COUNTER-ARGUMENTS

Defendant-appellee raises the following counter-arguments to the
assignment of errors raised by the Plaintiff-appellant:

I. The Plaintiff-Appellant
cannot avail of the
provisions of Rule 70 of
the Rules of Court.
Thus, the lower court
has no Jurisdiction to
hear and decide the
case on the merits.

There is forcible entry or desahucio when one is deprived of physical
possession of land or building by means of force, intimidation, threat,
strategy or stealth. In such cases, the possession is illegal from the
beginning and the basic inquiry centers on who has the prior possession de
facto; any of the parties who can prove prior possession de facto may
recover such possession even from the owner himself since such cases
proceed independently of any claim of ownership and the plaintiff needs
merely to prove prior possession de facto and undue deprivation thereof.
1

Section 1 of Rule 70 of the Rules of Court tells us the two mandatory
allegations in filling forcible entry cases for the municipal trial court to
acquire jurisdiction, to wit:


1
Munoz v. Yabut, G. R. No. 142676, June 6, 2011
Appellees Memorandum
Nieto vs. Ilagan
Civil Case No. 100-2013
Page 6 of 11

Sec. 1. Who may institute proceedings, and when. Subject to
the provision of the next succeeding section, a person deprived of the
possession of any land or building by force, intimidation, threat,
strategy, or stealth, or a lessor, vendor, vendee, or other person
against whom the possession of any land or building is unlawfully
withheld after the expiration 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 (1) year after such unlawful
deprivation or withholding of possession, bring an action in the proper
Municipal Trial Court against the person or persons unlawfully
withholding or depriving of possession, or any person or persons
claiming under them, for the restitution of such possession, together
with damages and costs.

In the case of Abad v Farrales,
2
the Supreme Court explained the two
mandatory allegations required in filing forcible entry cases, that:
Two allegations are mandatory for the municipal court to
acquire jurisdiction: First, the plaintiff has prior physical possession
of the property. Second, the defendant deprived him of such
possession by force, intimidation, threats, strategy, and stealth.

As alleged in the Complaint, Plaintiff-Appellant had prior physical
possession of the property as evidenced by the fact of planting trees and
other plants and erecting a perimeter fence on the premises. Further,
sometime in January 2009, he also built a 1-room nipa hut, which since then
he occupied from time to time.

However the second requirement that the defendant deprived him of
such possession by force, intimidation, threats, strategy, and stealth was
missing. The plaintiff-appellant failed to allege that defendant Keith Ilagan
deprived him of such possession under the circumstances required by the
law.

2
Abad v. Farrales, G.R. No. 178635, April 11 : 2011
Appellees Memorandum
Nieto vs. Ilagan
Civil Case No. 100-2013
Page 7 of 11

Further, it is not enough of course that the allegations of the complaint
make out a case of forcible-entry. The plaintiff must also able to prove his
allegation that he had prior physical possession that gives him the security
that entitles him to remain in the property until a person with a better right
lawfully ejects him.
3


Here, the Plaintiff-appellant failed to prove that he had prior physical
possession over the disputed property. The alleged prior physical possession
of plaintiff is a self-serving claim because it was not supported by any
evidences. Whereas the defendant sufficiently prove that he has prior
physical possession over the disputed property as shown by the Tax
Declaration No. 2000-2009, the official receipts of the real property taxes in
2009,2010, 2011 and 2012 paid by the defendant, and the duly registered
Affidavit of Ownership.

Accordingly, the Municipal Trial Court of Cainta did not erred in
dismissing the complaint of the plaintiff because of his failure to allege the
two mandatory required allegations in forcible entry cases so that the MTC
acquired jurisdiction over the case.

II. Even assuming that the
MTC has Jurisdiction
over the complaint still
there was necessity to
determine the
ownership of the
subject property.

The defendant-Appellee agree with the Plaintiff-Appellant that in
ejectment suits the only issue for resolution is the physical or material
possession of property involved independent of any claim of ownership by

3
Abad v. Farrales, G.R. No. 178635, April 11 : 2011
Appellees Memorandum
Nieto vs. Ilagan
Civil Case No. 100-2013
Page 8 of 11

any of the party litigants. However, this recognized rule is not absolute
because when the defendant raises in his pleadings the issue of ownership
as defense and the question of who has the prior physical possession cannot
be determined without deciding the issue of ownership the court of first
level may determine the issue of ownership. Rule 70 of the Rules of Court
Section 16 specifically provides:

Sec. 16. Resolving defense of ownership. When the defendant raises the defense
of ownership in his pleadings and the question of possession cannot be resolved without
deciding the issue of ownership, the issue of ownership shall be resolved only to
determine the issue of possession.

Also, the Supreme Court in Gustilo v. Gustilo ruled that:

The Court has ruled in the past that an action to recover possession
is a plenary action in an ordinary civil proceeding to determine the better
and legal right to possess, independently of title. But where the parties raise
the issue of ownership, as in this case, the courts may pass upon such issue
to determine who between the parties has the right to possess the property.
This adjudication, however, is not final and binding as regards the issue of
ownership; it is merely for the purpose of resolving the issue of possession
when it is inseparably connected to the issue of ownership. The
adjudication on the issue of ownership, being provisional, is not a bar to an
action between the same parties involving title to the property.
4


From the above-quoted rule and the jurisprudence decided by the
Supreme Court that there is necessity in determining the issue of ownership
of the subject property when the defendant raises the issue of ownership as
defense in his pleadings. In defendants Answer he raised the issue of
ownership over the disputed property.


4
Gustilov Gustilo, G.R. No 175497, October 19, 2011
Appellees Memorandum
Nieto vs. Ilagan
Civil Case No. 100-2013
Page 9 of 11

Hence, the MTC is still allowed assuming that it has jurisdiction to
determine the issue of who between the party litigants is the owner of the
property but only for the purpose of determining the issue of who has the
prior possession over the subject property.


III. Assuming that the MTC
has jurisdiction to
resolve the Complaint.
The amount of the
property is
P850,000.00

As previously discussed from the preceding paragraph the MTC did
not erred in dismissing the case for lack of jurisdiction. Even assuming that
it has jurisdiction the cause of action of plaintiff is not for forcible entry
cases but an ordinary civil action involving possession over the disputed
property. The MTC has still without jurisdiction to the complaint
because Section 33 of Batas Pambansa Blg. 129, as amended by Republic
Act No. 7691, states:

(1) x x x x

(2) x x x x

(3) Exclusive original jurisdiction in all civil actions which
involve title to, or possession of, real property, or any interest therein
where the assessed value of the property or interest therein does not
exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro
Manila, where such assessed value does not exceed Fifty thousand pesos
(P50,000.00) exclusive of interest, damages of whatever kind, attorney's
fees, litigation expenses and costs: Provided, That in cases of land not
Appellees Memorandum
Nieto vs. Ilagan
Civil Case No. 100-2013
Page 10 of 11

declared for taxation purposes, the value of such property shall be
determined by the assessed value of the adjacent lots."

Consequently, the MTC has jurisdiction over the claim of
possession if the jurisdictional amount required by the law is not
beyond the limit allowed. However, plaintiff-appellants claim does
not fall within the jurisdictional amount required by the law.
Therefore, the complaint must be dismissed.


PRAYER

WHEREFORE, premises considered, it is humbly prayed of this
Honorable Court that the Decision dated 11 April 2014 of the court a quo be
affirmed and that this appeal be dismissed.

Other reliefs just and equitable under the premises are likewise prayed
for.

Quezon City for Rizal, 16 May 2014.




ATTY. MAESHACH M. SOMBILON
Counsel for Defendant-Appellee
Atty. Roll. No. 52284
IBP Lifetime No. 11087/Quezon City
PRT No. 1102584/01-05-14-Quezon City
MCLE Exemption No. 111-042386

Appellees Memorandum
Nieto vs. Ilagan
Civil Case No. 100-2013
Page 11 of 11


Copy Furnished:
Atty. Marie Dianne V. Espiritu
Jhocson Espiritu Karim Law
Counsel for Petitioner
27
th
Floor Trafalgar Bldg.
888 HV Dela Costa St., Makati city




WRITTEN EXPLANATION
(Pursuant to Section 11, Rule 13
1997 Rules of Civil Procedure)

Filing and service of this Memorandum of Appeal to the above-
mentioned parties was accomplished through registered mail since personal
service could not be effected due to the distance between the parties, and the
heavy volume of deliveries of the messengers of the law firm of the
undersigned counsel.


ATTY. MAESHACH M. SOMBI LON