DECISION---------------------------------------------------------------------------------------------------Page 1 of 6

REPUBIC OF THE PHILIPPINES

SUPREME COURT
EIGHT (8th) JUDICIAL REGION
MUNICIPAL TRIAL COURT
_______, ________
XXX, substituted
_______________
by ZZZ,
WITH DAMAGES
Plaintiff,

CIVIL CASE NO.

For: FORCIBLE ENTRY

-versusYYY,
Defendant.
x-----------------------------------------x
XXX, substituted
_______________
by ZZZ,
WITH DAMAGES
Plaintiff,

CIVIL CASE NO.

For: FORCIBLE ENTRY

-versusQQQ,
Defendant.
x-------------------------------------------x

This case was set for hearing on the affirmative

defenses pleaded by the defendant in his answer on
April 18, 2012. Parties, through counsels orally argued
their respective contentions with respect to the
affirmative defenses of jurisdiction and lack of cause of
action.
Counsel for the plaintiff manifested that hearing the
affirmative defenses is not allowed under the rules.
Instead, it is allowed under Rule 16 of the regular rules
particularly Section 6 where at the discretion of the
court, a preliminary hearing may be had thereon as if a
motion to dismiss had been filed; that if we go to the
extent of hearing the affirmative defenses, this would
partake of the nature of the regular procedure which

DECISION---------------------------------------------------------------------------------------------------Page 2 of 6

could defeat the very purpose of the Revised Rule on

Summary Procedure which is to expedite the
proceedings.
Counsel for the plaintiff suggested that instead of
having to continue with the hearing on the affirmative
defenses, both parties should instead be given ample
time within which to prepare for the preliminary
conference so that the case proceed and be decided
with expediency.
Counsel for the defendants countered that under the
Rule on Summary Procedure. There are exception to the
rule regarding the prohibition. One, is jurisdiction and
the other is failure to comply with the Katarungang
Pambarangay Law; that the matter to be treated in
todays hearing are the affirmative defenses pleaded in
the answer with respect to jurisdiction and lack of cause
of action; that if we proceed with the hearing of the
special affirmative defenses, this case will be decided
with more expediency, that if we have to consider
initially on what is in the complaint, the alleged forcible
entry occurred in 1997 but thus case was filed in 2011.
That alone is already a violation of Rule 70, Section 1.
That in forcible entry cases, since it is only a
summary proceeding, a co-owner of a property cannot
be charged of forcible entry in his occupancy because
possession of a co-owner is an attribute of ownership;
that there is no need to treat the actual facts of this
case because on the basis of the legal issue itself, this
case should be dismissed; that in order to expedite the
proceedings , the parties may be required to file
position paper regarding this legal issue because
memorandum is a prohibited pleading.
Counsel for the plaintiff, in rebuttal to the points
raised by counsel for the defendants alleged as follows:
On the allegation that there was no cause of action on
the part of the plaintiff as there was no prior referral of
the matter to the Lupon, pursuant to the provisions of
the old Katarungang Pambarangay Law, mandatory
referral of the matter to the Lupong Tagapamayapa, is
only required when the parties reside in the same
barangay or different barangays belonging to the same
municipality; that is stated in the complaint that the

DECISION---------------------------------------------------------------------------------------------------Page 3 of 6

original plaintiff is not a resident of any barangay in

Carigara, Leyte.
As to the allegation that the alleged intrusion was
done in 1997, it is not true. That what plaintiff would
like to convey, is that was span of time that she and her
husband was in actual possession of the property; that
there is no date mentioned precisely because it was not
in 1997 that defendant entered the property.
Counsel for the defendant quoted in paragraph 5 of
the complaint, viz: Both properties had been openly,
peacefully and continuously possessed by the plaintiff
and her husband since the year 1987 until such time in
1997, while plaintiff and her family were in another
place in the country. When herein defendant had
forcibly entered into the premises of Lot No. 11336 by
means of stealth, strategy, without the consent of the
plaintiff and her husband, and erected thereon a
residential house without the permission of the plaintiff
and her husband.
Counsel for the defendant further stated that in
Forcibly Entry, it required by the Rules that definitely,
the entry of the defendant should be alleged in the
complaint because that is where the one (1) year period
should be counted. This allegation itself in the
complaint which did not even specify the date is
already defective.
Counsel for the defendant begs to differ that under
the Katarungang Pambarangay law, this case shall not
pass through the barangay level. The Katarungang
Pambarangay Law embodied in the Local Government
Code, provides for the proper venue regarding
conciliation involving real property which should be
referred to the barangay where the property is located.
On April18, 2012, parties through counsels were
given ten (10) days from the receipt of the order within
which to file their position paper with respect to the
issues of jurisdiction and lack of cause of action.
The record shows that counsel for the plaintiff
received copy of the order on April 25, 2012 while
counsel for the defendant received copy of the order on
April 24, 2012.

DECISION---------------------------------------------------------------------------------------------------Page 4 of 6

Up to the present or after the lapse of more than one

month, counsels failed to submit their position papers,
hence, this resolution.
Section 1, Rule 70 of the 1997 Rules of Civil
Procedure provides;
Section 1. Who may institute proceedings, and
when. Subject to the provisions 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. (Emphasis supplied)
What determines the cause of action is the nature of
defendants entry into the land. If the entry is illegal,
then the action which may be filed against the intruder
within one (1) year therefrom is forcible entry. If, on the
other hand, the entry is legal but the possession
thereafter became illegal, the case is one of unlawful
detainer which must be filed within one (1) year from
the date of last demand (Sarmiento vs CA, 250 SCRA
108).
To give the court jurisdiction to effect the ejectment
of an occupant or deforciant on the land, it is necessary
that the complaint should embody such a statement of
facts as brings the party clearly within the class of
cases for which the statutes provide a remedy, as these
proceedings are summary in nature. The complaint
must show enough on its face to give the court
jurisdiction without resort to parol testimony.

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The jurisdictional facts must appear on the face of

the complaint. When the complaint falls to aver facts
constitutive of forcible entry or unlawful detainer, as
where it does not state how entry effected or how and
when dispossession started, as in the case at bar, the
remedy should either be an accion publiciana or an
accion reinvidicatoria in the proper regional trial court.
(Sarmiento vs CA, 250 SCRA 108).
To make out a suit for unlawful detainer or forcible
entry, the complaint must contain two (2) mandatory
allegations: (1) prior physical possession of the property
by the plaintiff; and (2) deprivation of said possession,
by another by means of force, intimidation, threat,
strategy or stealth. This latter requirement implies that
the possession of the disputed property by the intruder
has been unlawful from the very start. Then, the action
must be brought within one (1) year from the date of
actual entry to the property, or in case where stealth
was employed, from the date the plaintiff learned about
it. (Bejar v. Caluag, G.R. No. 171277, February 15,
2007} (Emphasis supplied].
As to the allegation that there was no cause of action
as there was no prior referral of the matter to the lupon
for conciliation, plaintiff contended that this case was
not referred to the barangay as the parties are not
residents of the same barangay. The plaintiff herein is
not a resident of any barangay in Carigara, Leyte.
The subject matter of these two (2) cases are real
properties and Sec. 409 (c) of the Local Government
Code (R.A. 7160) provides that All disputes involving
real property or any interest therein shall be brought in
the barangay where the real property or the larger
portion thereof is situated. (emphasis supplied] This
provision of law is mandatory because of the use of the
word shall.
Further, Sec. 412 (a) on Conciliation provides:
Pre-condition to Filing of Complaint in Court.
- No complaint, petition, action, or proceeding
involving any matter within the authority of the
lupon shall be filed or instituted directly in court or
any other government office for adjudication,
unless there has been a confrontation between the

DECISION---------------------------------------------------------------------------------------------------Page 6 of 6

parties before the lupon chairman or the pangkat,

and that no conciliation or settlement has been
reached as certified by the lupon secretary or
pangkat secretary as attested to by the lupon or
pangkat chairman or unless the settlement has
been repudiated by the parties thereto.

A case filed in court without compliance with prior

barangay conciliation, which is a precondition for formal
adjudication (Rule VII (a) of the Katarungang
Pambarangay Rules) may be dismissed upon motion of
defendants not for lack of jurisdiction of the court but
for failure to state a cause of action or prematurity
(Royales vs. IAC, 127 SCRA 470; Gonzales vs CA, 151
SCRA 289).

From the foregoing, the court finds that this court

has no jurisdiction to hear the cases for forcible entry
considering that these cases were filed beyond the one
year period provided under Sec. 1, Rile 70 of the 1997
Rules of Civil Procedure. There is also failure of referral
to the Lupon of these two (2) cases which is a precondition to filing of these complaints in Court.

WHEREFORE, on the ground of lack of jurisdiction

and failure to state a cause of action, these cases are
hereby ordered DISMISSED. No pronouncement as to
costs.

SO ORDERED.

_______, ________, May 31, 2012