Republic of the Philippines REGIONAL TRIAL COURT 11th Judicial Region Branch 11, Davao City MANUEL C.

SECRETARIA, Plaintiff-Appellee, Civil Case No. 31,059-05 - versus For: EJECTMENT, etc. DOMINGA BETITA, et. al, Defendants-Appellants. X===================/

APPELEES MEMORANDUM
COMES NOW Plaintiff-Appellee, through the

undersigned counsel and unto this Honorable Court, most respectfully submits this Appeal Memorandum, by alleging that:

STATEMENT OF THE CASE

On

09

November

2004,

Plaintiff-Appellee

filed

Complaint for Unlawful Detainer, Damages and Attorneys Fees (Rollo, pp. 1-19) against herein Defendants-Appellants with the Municipal Trial Court in Cities, 11 th Judicial Region, Branch 7, Davao City, docketed as Special Civil Action No. 17,825-7-2004, and which pertinent portions are quoted as follows:

13. Consequently, the plaintiff, through counsel, sent to defendants a demand to vacate the subject parcel of
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land. Hereto attached and marked as Annex D is the copy of the demand letter dated 09 December 2003. XXX XXX XXX

15. Likewise, plaintiff had sought the conciliation process before the Office of the Barangay Captain, Barangay Talomo, Davao City, but to no avail. Hereto attached and marked as Annex F is the copy of the Certification for File Action dated 25 February 2004.

Summons (Rollo, p. 21) was served upon herein spouses Defendants-Appellants, and thereafter, they filed their Answer dated 21 January 2005 (Rollo, pp. 23-32). The case proceeded under the Rules on Summary Procedure. On 18 July 2005, the Court a quo rendered its Decision (Rollo, pp. 140-149) against herein DefendantsAppellants. The dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered in favor of plaintiff and against all defendants ordering them, their heirs, assigns, successors-ininterest, and all persons acting in their behalf as follows: a. To vacate the lot subject matter of this case and surrender its possession in favor of plaintiff. b. To pay attorneys fees in the amount of Twenty Thousand Pesos (P20,000.00). c. To pay rentals in the amount of Ten Thousand Pesos (P10,000.00) per month to be reckoned from December 2003 until
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the possession of the land subject matter of this case is delivered to plaintiff. d. To pay litigation expenses amounting to Five Thousand Pesos (P5,000.00). e. To pay the cost of the suit.

SO ORDERED.

Upon receipt of the said Decision, herein plaintiffappellee filed his Motion for Execution dated 28 July 2005 (Rollo, pp. 150-153), contending, If judgment is rendered against the defendant, execution shall issue immediately upon motion (citing Section 19, Rule 70 of the Rules of Court). Hence, on 16 August 2005, Defendants-Appellants filed their Joint Notice of Appeal (Rollo, p. 155) of the Court a quos Decision dated 18 July 2005.

STATEMENT OF FACTS

The salient facts of the case are as follows: The father of the plaintiff, Carmelo Secretaria, bought from the Board of Liquidators representing the Republic of the Philippines, a parcel of land designated as Lot. No. 307, Cad. 102 of Davao, situated at Talomo Proper, Talomo District, Davao City, consisting of Three Thousand Nine Hundred Thirty Six (3,936) square meters (see the Deed of

Sale dated 29 July 1974 attached and marked as Annex A of the Joint Position Paper 22 June 2005, Rollo pp. 57-82).

The late spouses Carmelo and Felisa Secretaria were occupants of the aforesaid parcel of land even prior to its purchase from the government. Following the execution of the said deed of sale , they continued their possession of the land in the concept of an owner. When the parents of the plaintiff died, the siblings of the plaintiff waived, in favor of the latter, their rights and interests over the real property (see the Joint-Affidavit dated 08 September 1997 attached and marked as Annex B of the said Joint Position Paper, supra).

In their lifetime, spouses Carmelo and Felisa Secretaria initiated the processing for the transfer of title of the aforesaid property in their favor. In fact, they were able to secure a certification attesting that the purchase price of the land had been fully paid by them (see Certification dated 27 October 1997 attached and marked as Annex C of the Joint Position Paper, supra).

The lawful possession and occupation of the late spouses over the parcel land commenced in 1974 and was continued by the plaintiff after the death of his parents.

The absolute and full ownership thereof was vested with the plaintiff when his siblings waived their rights thereon in his favor following the death of Carmelo Secretaria and Felisa Secretaria.
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Defendants entered and occupied the aforesaid lot and built their house with the understanding that they will pay the plaintiff the value of the lot the moment the latter can show his proof of ownership of the land. Plaintiff was able to show to defendants his proof of ownership to the plaintiff as agreed (see proofs of ownership attached and marked as Annexes A to C of Joint Position Paper, supra).

Despite having seen plaintiffs proof of ownership of the land, defendants refused to pay the lot on which they constructed their house.

In view of this, plaintiff vacated from his arrangement with the defendants to sell that portion of the land where the latter occupied. Thus, plaintiff decided to utilize for his personal enjoyment and to make full exercise of his ownership rights over that lot unlawfully occupied by defendants, which forms part and parcel of the subject land inherited from plaintiffs deceased parents.

Consequently,

plaintiff,

through

counsel,

sent

defendants a demand letter (see demand letter attached and marked as Annex D of the Joint Position Paper, supra). Defendant received a copy of the said demand letter as evidenced by the return card (see return card attached and marked as Annex E of the Joint Position Paper, supra).

Likewise, plaintiff had sought the conciliation process before the Office of the Barangay Captain in Barangay Talomo, Davao City, but to no avail (see Certification to File
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Action dated 25 February 2004 attached and marked as Annex F of the Joint Position Paper, supra).

Hence, plaintiff filed a special civil action for ejectment on 27 July 2004 with the Court a quo.

ISSUES

I
WHETHER PLAINTIFF OR DEFENDANTS ARE ENTITLED TO THE POSSESSION OF THE SUBJECT PROPERTY.

II
WHETHER THE DECISION DATED 26 JANUARY 1998 BY THE DENR-XI BARRED PLAINTIFF FROM FILING THIS CASE.

III
WHETHER DEFENDANTS ARE LIABLE FOR DAMAGES, ATTORNEYS FEES AND THE COSTS OF LITIGATION.

ARGUMENTS/DISCUSSION

I.

Plaintiff is entitled to the possession of his property, which as a consequence, defendants must have to be ejected therefrom. ------------------------------

Defendants-Appellants claimed that they cannot be ejected from the subject land considering that plaintiffappellee was not able to present proof of ownership over the subject land. The claim is futile. Possession of the subject land does not depend upon defendants-appellants appelees tolerance to condition, allow but upon plaintiffto defendants-appellants

continue in possession of the subject land. Defendants-appellants possession of the subject land was lawful at the beginning upon their promise to buy the same at the moment that plaintiff-appellee would be able to show proof of ownership. Though defendants-appellants were not paying rentals thereon, plaintiff-appellee tolerated their possession upon that commitment to buy the property. Based on the agreement, it is understood that

defendants-appellants know that the land in question was bought by plaintiff-appellees parents from the Board of Liquidators. Since plaintiff-appellee has co-heirs, defendantsappellants would only agree to buy the land from plaintiff-

appellee if the latter would become the exclusive owner of the subject land, thus, requiring for his proof of ownership. To enforce the agreement, plaintiff-appellee presented the following to defendants, to wit: (a) Deed of Absolute Sale dated 29 July 1974 (Annex A of the Joint Position Paper, supra) between plaintiff-appellees parents and the Board of Liquidators, the latter selling to the former the subject property; (b) Certification dated 27 October 1977 (Annex C, supra) issued by the Board of Liquidators that the parents of herein plaintiff-appellee had paid the purchase price of the subject property; (c) Joint Affidavit dated 08 September 1997 (Annex B, supra) executed by plaintiffappellees co-heirs, namely, Mr. Sebastian C. Secretaria, Mr. Lorenzo C. Secretaria, Mr. Nicolas C. Secretaria, and Ms. Exaltacion C. Secretaria, attesting that they have waived their rights and interest over Lot 307, Cad. 102, the subject property herein, in favor of Mr. Manuel C. Secretaria, herein plaintiff-appellee. Despite such proof, defendants-appellants refused to buy the property. Consequently, supra). After fifteen (15) days following the demand to vacate, defendants-appellants possession of the subject property became unlawful. It is clear on the evidence that plaintiffappellee did not demand from defendants-appellants for them to buy the subject property or to pay the purchase price, but to vacate the same upon failure to fulfill the said plaintiff-appellee demanded from

defendants-appellants to vacate the subject lot (Annex D,

promise. The case of Canaynay v. Sarmiento, 79 Phil. 36, is illustrative:

. . . That consent, no matter how long it may last, makes lawful tenants possession. Only when that consent is withdrawn and the owner demands the tenant to leave the property is the owners right of possession asserted and the tenants refusal or failure to move out makes this possession unlawful, because it is violative of the owners preferential right of possession (see also Robles v. San Jose, 52 O.G. 6193; Rickards v. Gonzales, 109 Phil. 423). Emphasis supplied.

Besides,

defendants-appellants

cannot

assert

the

enforcement of the agreement to purchase the subject property because the same is not demandable under Article 1479 of the Civil Code, since the promise to buy is not supported by a special consideration distinct from the price. For the sake of argument, plaintiff-appellee, as the owner of the subject property, has the right to choose a buyer of the same. Hence, plaintiff-appellee simply chose the option not to sell anymore the property to defendants-appellants after the latter maliciously refused to purchase the same when it was offered for sale by plaintiff-appellee in good faith. To put elsewise, defendants-appellants possession over the subject property, being not supported by any valid and enforceable contract, is by mere tolerance of plaintiffappellee. In Roxas v. Court of Appeals, 391 SCRA 351, the Supreme Court held:

A person who occupies the land of another at the latters tolerance or permission, without any contract between them, is necessarily bound by an implied promise that he will vacate upon demand failing which, a summary action for ejectment is the proper remedy against him.

This tolerance was withdrawn by plaintiff-appellee through his letter (Annex D, supra), which unequivocally demanded from defendants-appellants to vacate the subject property. All told, defendants-appellants possession of the property sans the consent of the plaintiff-owner is indubitably unlawful, and for which reason, defendantsappellants must be ejected therefrom.

II.

The Decision dated 26 January 1998 rendered by the DENR-XI has no bearing in the case at bar. ------------------------------

Defendants-appellants argued that plaintiff-appellee is estopped from filing this case inasmuch as the Department of Environment and Natural Resources, Region XI, Davao City (DENR-XI for brevity) rendered judgment as follows:

WHEREFORE, in view of the foregoing, it is hereby ordered that the Free Patent Application No. (XI-I) 21385, dated November 11, 1982, as
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well as the Unnumbered Free Patent Application dated November 20, 1990, both filed by Manuel C. Secretaria covering Lot 307, Cad. 102, formerly belonging to OHTA DEVELOPMENT CO. Residential Subdivision, situated in Talomo, Davao City, be, as hereby they are rejected and dropped from the records. All actual occupants including Manuel Secretaria are hereby advised to hire anew a competent Geodetic Engineer to relocate and subdivide Lot No. 307, Cad. 102 of the OHTA DEVELOPMENT CO. Residential Subdivision, after the approval of said subdivision survey, they shall filed appropriate land application covering their respective occupied lots in accordance with the provisions of Republic Act No. 477, as amended, and implemented by Joint Circular No. 1, dated September 30, 1989 of the Department of Budget and Management, Department of Public Works and Highways and Department of Environment and Natural Resources. (Italics supplied)

The argument is devoid of merit. The above Decision dated 26 January 1998 was mooted by the fact that the title over the subject property was earlier vested in plaintiff-appellee on 08 September 1997 (see Annex B, supra). It must be taken into account that the said free patent application was filed by plaintiff-appellee on 11 November 1982. Plaintiff-appellee might have filed this application in the hope that he could acquire the subject property ahead of his parents not knowing that a Deed of Absolute Sale (see Annex A, supra) has already been executed by the Board of Liquidators since 1974 in favor of plaintiff-appellees parents.

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During the pendency of his free patent application with the DENR, supervening events took placethe death of his parents and the waiver of rights by his co-heirs over the subject propertywhich made herein plaintiff-appellee the exclusive owner of the entire Lot 307, Cad. 102. In fact, the DENR-XI rendered the said Decision without having been informed of the previous sale of the subject property by the Board of Liquidators in favor of plaintiffappellees parents, in accordance with the provisions of Republic Act No. 477, as amended. Though the DENR-XI rendered judgment against plaintiff-appellee, however, it also made suggestion to resort instead to the provisions of Republic Act No. 477, as amended, and not through free patent application because the subject land has already been segregated from the mass of agricultural land of the public domain. To sum up, plaintiff-appellees parents acquired Lot 307, Cad 102 through negotiated sale under Republic Act No. 477, as amended (Annex A, supra), which law was referred to by the DENR Resolution as the proper recourse . Plaintiff-Appellee, on the other hand, inherited a portion of such land by succession upon the death of his parents; and acquired exclusive ownership over the entire subject property upon the waiver of rights over the same by his co-heirs (Annex B, supra). In other words, the Decision dated 28 January 1998 does not operate against plaintiff-appellee, but rather affirmed his ownership over the land as the same was acquired from the Board of Liquidators pursuant to the provisions of Republic Act No. 477, as amended, since 1974.

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Furthermore, plaintiff-appellee has already acquired vested rights over the subject property even before the DENR-XI could have rendered the said decision.

"A right is vested when the right to enjoyment has become the property of some particular person or persons as a present interest" (16 C.J.S. 1173). It is "the privilege to enjoy property legally vested, to enforce contracts, and enjoy the rights of property conferred by the existing law" (12 C.J.S. 955, Note 46, No. 6) or "some right or interest in property which has become fixed and established and is no longer open to doubt or controversy" (Downs vs. Blount, 170 Fed. 15,20, cited in Balboa vs. Farrales, 51 Phil. 498, 502). (Ayog v. Cusi, G.R. No. L-46729, 19 November 1982, 204 Phil. 126).

Thus, such decision cannot affect the rights of herein plaintiff-appellee over the property as it was held:

A vested right is one whose existence, effectivity and extent does not depend upon events foreign to the will of the holder. The term expresses the concept of present fixed interest which in right reason and natural justice should be protected against arbitrary State action, or an innately just and imperative right which enlightened free society, sensitive to inherent and irrefragable individual rights, cannot deny. Vested rights include not only legal or equitable title to the enforcement of a demand, but also an exemption from new obligations created after the right has vested
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(Republic of the Philippines v. Court of Appeals, G.R. No. 92326, 24 January 1992; citing Ayog, et al., vs. Cusi, etc., et al., 118 SCRA 492, 499 [1982], and 16A Am Jur 2d, Constitutional Law, 651). Underscoring and Italics supplied. Defendants-appellants argument on the basis of the Decision dated 28 January 1998 rendered by the DENR-XI must be treated with the least respect.

III.

Defendant is liable for damages, attorneys fees and the cost of litigation. -----------------------------Jurisprudence dictates that defendants-appellants are

bound by an implied promise to vacate the property upon demand fulfillment by plaintiff-appellee. of such However, to evade the promise, defendants-appellants

contended instead that plaintiff-appellee has not shown his proof of ownership over the lot which defendants-appellants committed to buy. Although, so much proof have been presented by plaintiff-appellee of his title over the subject property, yet defendants-appellants are still adamant in fulfilling their part of the deal. Defendants-appellants act of refusing to buy the lot shows that they have no intention to buy it. What is however apparent is defendants-appellants continued and unlawful possession of the lot, by the mere tolerance of the plaintiff-appellee. Defendants-appellants were able to

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acquire possession of the subject land by means of pretense and deceit. Considering the malevolent actuations of the

defendants-appellants, plaintiff-appellee was deprived of possession over his property which entitles him for the award of compensatory damages comprising of the monthly rentals for the use of the property by the defendantsappellants. Also, plaintiff-appellee suffered serious anxiety, mental anguish and sleepless nights which entitles him to the award of moral damages. Plaintiff-appellee was likewise constrained to hire the services of his lawyer and to incur litigation expenses.

PRAYER
WHEREFORE, premises considered, it is most

respectfully prayed of the Honorable Court that defendantsappellants appeal be DISMISSED, and that appealed Decision dated 18 July 2005 of the Court a quo be AFFIRMED IN TOTO. Plaintiffs-appellants pray for such other relief just and equitable under the premises. RESPECTFULLY SUBMITTED. In the City of Davao, Philippines, 05 October 2005.

INTO PANTOJAN FELICIANOBRACEROS AND DONASCO LAW OFFICES 2/F Jose A. Pantojan Commercial Bldg.,
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99-2A Juan Luna Street, Davao City By: ATTY. PHILIP S. PANTOJAN IBP No. 629309/01-03-05/D.C. PTR No. 2214783/01-03-05/D.C. Roll No. 36732

Copy furnished: Atty. Jose Rongkales Bandalan 317 Lark Street, Ecoland 2-A Matina, Davao City Received by: _______________ Date: _____________ The Honorable Judge Municipal Trial Court in Cities Branch 7, Davao City Received by: _______________ Date: _____________

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