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- versusTIFFANY R. LIMSACA
Defendant
x --------------------------------------x
MEMORANDUM
For the Defendant
COMES NOW THE DEFENDANT, through the undersigned counsel, unto
this
Honorable
Court
most
respectfully
submits
and
presents
this
a monthly rental of P 2,500.00 payable within the first seven (7) days of each month as
shown in the lease contract (Annex A).
Allegedly, the lease contract had expired on March 25, 2010. Defendant, after
repeated demands, refused to vacate the premises and continued to occupy the same.
Hence, plaintiff resulted to seek judicial relief.
On the other hand, defendant denies the allegations of the contents of the lease
contract presented by plaintiff. Defendant argues that plaintiff has no cause of action
against him. The lease contract was fictitious and simulated for it was not properly
subscribed.
Defendant presented a lease contract (Annex 1) wherein it was stipulated that
the lease was for a period of ten (10) years from March 24, 2003 to March 25, 2013. It
was supported by an affidavit executed by Alfonso Macaraig (Annex 2) who was the
witness thereof.
Moreover, defendant raised the issue on prescription of action wherein plaintiff
instituted the complaint after the prescriptive period for an ejectment case. Also, the
compliant was fictitious on the ground that it was unverified. The certification against
forum shopping was not acknowledged and subscribed by a notary public and was not
entered into the Notarial registry of the notary public.
STATEMENT OF ISSUES
1. Whether or not the plaintiff has cause of action to eject the defendant on the
premises.
2. Whether or not the lease contract presented by plaintiff is fictitious and
simulated.
3. Whether or not plaintiffs action is barred by prescription.
4. Whether or not the filing of unverified complaint and unsubscribed certification
of non-forum shopping is a ground for dismissal.
ARGUMENTS
1. The plaintiff has no cause of action in commencing the ejectment case against
the defendant.
The defendants argument in the action for ejectment has no cause of action
since the facts set forth by the plaintiff is not sufficient to justify a right to bring action.
Defendant does not deny that he leased the property of the plaintiff for period of 10
years contrary to what the latter posited that the lease contract is only for 5 years from
March 24, 2005 to March 25, 2010.
2. The second argument is related to the first since the lease contract presented
by plaintiff is fictitious and simulated. Article 1409 of the New Civil Code states:
The following contracts are inexistent and void from the beginning:
x
The contracts cannot be ratified. Neither can the right to set up the
defense of illegality be waived.
Simulation of a contract may be absolute or relative. The former takes place
when the parties do not intend to be bound at all; the latter, when the parties conceal
their true agreement. An absolutely simulated or fictitious contract is void. A relative
simulation, when it does not prejudice a third person and is not intended for any
purpose contrary to law, morals, good customs, public order or public policy binds the
parties to their real agreement. There is a need to look into the true intent or agreement
of the parties. (J.R. Blanco vs. Quasha, G.R. 133148, November 17, 1999)
Plaintiff presented a contract of lease not signed by the parties and the witnesses
as well. It is fictitious because the true intent of the parties is not made known. The
period of the lease contract is doubtful. In the complaint, it is stated that the lease
commenced on March 24, 2003 while in the contract on March 24, 2005. The complaint
and the lease contract are inconsistent. It is indubitable that the lease contract
presented by defendant, signed by the parties and the witnesses, shows the true
agreement and intent of the parties.
Relating to the first argument, the plaintiff has no cause of action due to a
fictitious contract of lease, hence, void from the beginning.
3. An action for unlawful detainer must be brought within one year from the date
of last demand. Section 1, Rule 70 of the Rules of Court allows a plaintiff to bring an
action in the proper inferior court for unlawful detainer within one year, after such
unlawful withholding of possession, counted from the date of the last demand. (Canlas
vs. Tubil, G.R. No. 184285, September 29, 2009).
In the case of Sps Barnachea vs. Court of Appeals, July 23, 2008 it was held that
the petitioners argue that the respondents' cause of action - whether for forcible entry or
for unlawful detainer - had prescribed when the ejectment complaint was filed on April 5,
2000. They point out that the last demand letter (the reckoning date for unlawful
detainer) was dated Aug. 26, 1998 and was received by the petitioners on August 31,
1998; the complaint was only filed on April 5, 2000 or more than 1 year after August 31,
1998.
The last demand of plaintiff was on March 21, 2010 as shown in Annex B-3.
Granting that the lease was for five years, an action for unlawful detainer had already
prescribed. The complaint was filed on March 26, 2011 and summon was received on
August 29, 2012 which shows that it was done after the prescribed period to bring an
action for ejectment. Hence, plaintiff is barred from instituting such action.
4. Section 4, Rule 70 of the Rules of Court provides that: ...All pleadings shall be
verified. The reason thereof is for the court to acquire jurisdiction over the case. But
unverified complaint can be cured by amendment upon order of the court.
It is settled that the requirement regarding verification of a pleading is a formal
not a jurisdictional requisite. It is simply intended to secure an assurance that what are
alleged in the pleading are true and correct and not the product of the imagination or a
matter of speculation, and that the pleading is filed in good faith. Thus, the court may
order the correction of the pleading if not verified, (Oshita v. Republic, 19 SCRA 700
[1967]). The defect was merely format It did not affect the validity and efficacy of the
pleading, much less the jurisdiction of the court (Gadit v. Feliciano, Sr., 69 SCRA 388,
389 [1976]).
With regard to the Certification of Non-Forum Shopping, the Supreme Court
issued Administrative Circular No. 04-94 requiring the plaintiff, petitioner, applicant or
principal party seeking relief to certify under oath that he did not file any complaint with
other tribunal involving same issues. Failure to comply with the requirement is a ground
for the dismissal of the action.
By:
EULOGIO ARSIGA
Roll No. 11111
IBP O.R. No. 123456
Legazpi Chapter
PTR No. 1457908E
EXPLANATION
In compliance with Section 11, Rule 13 of the Revised Rules of Court, personal
service of copy of Trial Memorandum could not be effected except by service through
registered mail due to distance and personnel constraints.
EULOGIO ARSIGA