Republic of the Philippines

Regional Trial Court

Branch III
Iloilo City

RACHELLE B. ISRAEL
Plaintiff,

Civil Case No. 12345

- versus- FOR: EJECTMENT

ENRIQUE G. GIL
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 Memorandum in the
above-titled case and aver that:
THE PARTIES

1. Plaintiff-Petitioner Rachelle B. Israel is of legal age, single, and residing on 75

Jalandoni St. Iloilo City, where she may be served with legal processes and notices
issued by this Honorable Court;

2. Defendant-Respondent Enrique G. Gil is of legal age, single, and residing on 123

Delgado Street, Iloilo City, and may be served with legal processes and other
judicial notices thereto.

STATEMENT OF THE CASE

On March 12, 2015, plaintiff filed a Complaint for Ejectment against herein
defendant.
On August 22 2015, defendant received summons issued by the Honorable Court to
file an answer.
On September 13, 2015, defendant filed his answer against the plaintiff.
On September 27, 2015, preliminary conference was held in the presence of the
plaintiff, defendant, and their respective counsels.
 Accordingly, after presentation of evidences, the Honorable Court ordered the parties
to submit their respective Memoranda fifteen days (15) days from notice, otherwise, the case
is deemed submitted for decision.

STATEMENT OF FACTS

The Plaintiff owned a three-storey apartment located at 75 Jalandoni St. Iloilo City,
covered by TCT No. 12345. On March 03, 2005, plaintiff leased the first storey of the
apartment to defendant for five (5) years with a monthly rental of P 3,500.00 payable within
the first seven (7) days of each month as shown in the lease contract (Annex A).

Allegedly, the lease contract had already expired on March 03, 2010. Plaintiff started
making judicial demands from April 1, 2010 however, defendant, after repeated demands
still refused to vacate the premises and continued to occupy the same. Hence, plaintiff
resulted to seek judicial relief.
On the other hand, the defendant denies the said allegations of the contents of the
lease contract presented by plaintiff. Defendant argues that plaintiff has no cause of action
against him and that the lease contract was fictitious and simulated for it was not properly
subscribed.
Defendant presented a lease contract which is attached herein as Annex 1, wherein it
was stipulated that the lease was for a period of ten (10) years from March 03, 2005 to March
03, 2010. It was supported by an affidavit executed by James Reid (Annex 2) who was the
witness thereof.
Also, the defendant raised the issue on prescription of action wherein the 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 ISSUE

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.
2. The lease contract provided by plaintiff is fictitious as provided by Article 1409 of
the New Civil Code.
3. Plaintiffs action is barred by prescription since it was filed after one year from the
last demand.
4. Unverified complaint is a formal requisite which can be cured by amendment.
Unsubscribed certificate of non-forum shopping shall be dismissed for not complying with
SC Admin. Circular 04-94.

DISCUSSION

1. It is imperative to emphasize the fact that the defendant leased the first storey
apartment owned by plaintiff. Rule 70 of the Rules of Court which deals with unlawful
detainer case provides:
...a lessor, vendor, vendee, of other person against whom the possession of
any land or building is unlawfully withheld after the expiration of 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 year after such unlawful
deprivation or withholding of possession, bring an action in the proper MTC
against the person or persons unlawfully withholding or depriving of
possession, or any person or persons claiming them, for the reconstitution of
such possession, together with damages and cost.

In the case of Ocampo vs Tirona, April 6, 2005, unlawful detainer cases are summary
in nature. The elements to be proved and resolved are the facts of lease and expiration or
violation of its terms. The main issue of unlawful detainer is possession de facto.

The contention of plaintiff that there is unlawful withholding of the leased property
by the defendant justifies the ejectment case. The phrase unlawful withholding has been
held to imply possession on the part of the defendant, which was legal in the beginning,
having no other source than a contract, express or implied, and which later expired as a right
and is being withheld by defendant. (Barba vs. Court of Appeals, G.R. No. 126638)

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 ten years contrary to what
the latter posited that the lease contract is only for 10 years from March 03, 2005 to March
03, 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:

Art. 1409. The following contracts are inexistent and void from the beginning:
(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public order or
public policy;
(2) Those which are absolutely simulated or fictitious;
(3) Those whose cause or object did not exist at the time of the transaction;
(4) Those whose object is outside the commerce of men;
(5) Those which contemplate an impossible service;
(6) Those where the intention of the parties relative to the principal object of the contract cannot
be ascertained;
(7) Those expressly prohibited or declared void by law.
These 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.

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 in this case was on April 01, 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 12, 2015 and summon was received on August
22, 2015 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 in the 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.

CONCLUSION

With the laws and jurisprudence presented, the defendant, through his counsel
believes that the plaintiff has no cause of action in filing the suit based on fictitious lease
contract; that assuming arguendo the lease contract is for five years, the plaintiffs action is
already barred by prescription; and that the Certification of Non-Forum Shopping did not
comply with the prescribed form.
 PRAYER

WHEREFORE, premises considered, defendant respectfully prays to the honorable

court that a judgment be rendered in his favor as follows:
1. An order be issued by this Honorable Court dismissing the Complaint for
lack of cause of action;
2. Judgment be rendered upholding the validity of defendants copy of the
Contract of Lease;
3. Judgment be rendered ordering the Contract of Lease presented by plaintiff
as void and existent;
Some other relief and remedies as may be deemed just and equitable under the
premises are likewise prayed for.
Respectfully submitted.
Iloilo City, Philippines, October 15, 2015

ISRAEL & ISRAEL LAW OFFICE

Counsel for Defendant
5TH Floor, INJAP Building,
Iloilo City

By:
:
Atty. John Patrick A. Israel
Counsel of the Defendant
Roll No. 12345
IBP O.R. No. 123456
Iloilo CityChapter
PTR No. 1457908E

Copy Furnished:(By Registered Mail)

ATTY. Rodrigo Duterte

Counsel of the Plaintiff
4th Floor, Suarez Building,
Iloilo City