Republic of the Philippines

Second Judicial Region

REGIONAL TRIAL COURT
Branch 34
Banaue, Ifugao

MUNICIPALITY OF MAYOYAO, IFUGAO CIVIL CASE NO. 179

As represented by the Municipal Mayor,
HON. RONNIE LUMAYNA FOR:EMINENT DOMAIN
Plaintiff,

-versus-

JOSE A. BOGWANA
Defendant.
X--------------------------------------------------------X

REPLY WITH MOTION TO SET PRE-TRIAL

Plaintiff, by undersigned counsel, unto the Honorable Court, most

respectfully manifest that on July 11, 2018, the undersigned received a
copy of the ANSWER WITH MOTION TO DISMISS of Defendant in the
above-entitled case and, by way of a REPLY to new matters alleged
therein, hereby state THAT:

1. The allegation in Paragraph 2 of the Answer with Motion to

Dismiss is specifically denied, the truth being that alleged in the
complaint;

2. Plaintiff makes a qualified admission on Paragraph 4 of the

Answer as far as the taking of the property sometime in the year
1978 but specifically denies the rest of the allegations the truth
of the matter being that in a long span of time from the
introduction of the fish hatchery project to its official
inauguration and its official operation by the plaintiff
Municipality, defendant did never interpose any objection. In
fact, defendant, as the then Municipal Planning and Development
Officer, was among those who inaugurated the fish hatchery
project under the mayorship of Mario Chilagan.
 It can be gathered from the records that defendant accepted the
fact of the taking of its land when he negotiated with plaintiff
Municipality for just compensation, knowing fully well that there
was no expropriation case filed at all. Defendant inaction for
almost twenty-six (26) years to question the absence of
expropriation proceedings and its discussions with the
Municipality as to how much he shall be paid for its land preclude
it from questioning the Municipality of Mayoyao to expropriate
or the public purpose for which the power was exercised;

3. Paragraphs 7.a – 7.c are specifically denied for lack of knowledge

sufficient to form a belief as to the truth or falsity thereof;

4. The allegations in 7.d – 7.f are specifically denied the truth being
that defendant, being then the Municipal Planning and
Development Officer of plaintiff Municipality, could not have
taken an active role or participation in the construction of the fish
hatchery project until its inauguration and operation as such.
Defendant is the one who supervised the realization of the fish
hatchery project of the plaintiff. If he honestly believes that he
has a claim over the subject land, he should have not taken an
active role in the construction of the fish hatchery project or at
least refrain himself in participating in the said project.

Further, it is well settled rule that the owner of land, who stands
by, without objection, and sees a public construction over it,
cannot, after the construction is completed, or large
expenditures have been made thereon upon the faith of his
apparent acquiescence, reclaim the land, or enjoin its use by the
constructor. Defendant acquiescence in the Municipality taking
possession and constructing its works under the circumstances
which made imperative his resistance, if he ever intended to set
up illegality, will be considered a waiver.

If there had been verbal request made to the previous mayors

who succeeded mayor Homecgoy, only them knows what they
have talked about and the plaintiff Municipality may not be made
officially bound by that closed-door negotiations and personal
understanding. More so that many years have already passed
since the then mayor Homecgoy;
5. Paragraphs 7.g – 7.h are specifically denied the truth being that
plaintiff Municipality of Mayoyao, Ifugao has been in possession
of the land sometime in the year 1978, which is the subject
matter of the controversy, for a long period of time and the entry
of the plaintiff on said land was with the conformity of the
defendant. The land was originally and uncultivated hill. Over the
years, the Municipality had been openly, adversely and
continuously possessing the same and kept on introducing
improvements therein so that much of the public funds have
been invested on it. Defendant has last made the payment of real
property tax on said land was on the year ___ , and from there he
never paid real property taxes for that property he claims to be
his.

6. The allegation in paragraph 7.h is denied for lack of knowledge

sufficient to form a belief as to the truth or falsity thereof;

7. Paragraph 7.i of the Answer is admitted;

8. Plaintiff admits Paragraphs 7.j – 7.k with the qualification that the
decision of the National Commission on Indigenous Peoples
(NCIP) - CAR states two (2) options for the plaintiff to choose.
One is the peaceful turn over of possession of the subject
property originally covered by Tax Declaration No. 23027 with an
area of 2,880 square meters, and the second option is the
retention of the subject property for public use and to
compensate herein defendant the fair market value of the said
land.

Despite repeated offer by the plaintiff Municipality to herein

defendant of the compensation, with unknown reasons, Mr. Jose
A. Bogwana refuses to accept such offer insisting that the plaintiff
should return possession of the subject property to him.

9. Plaintiff specifically denies Paragraphs 8 and 9 of the Answer the

truth being that plaintiff Municipality instituted this complaint
because of sympathy and respect towards the defendant
considering his public service in the Municipality, not to forestall
the defendant from taking possession of the subject property.
As stated above and was emphasized in the case of Forfom
Development Corporation v. Philippine National Railways, which
is closely analogous to the present case, the court held that
because the landowner did not act to question the lack of
expropriation proceedings for a very long period of time and even
negotiated with the PNR as to how much it should be paid as just
compensation, said landowner is deemed to have waived its right
and is estopped from questioning the power of the PNR to
expropriate or the public use for which the power was exercised.
It was further declared therein that:

“xxx recovery of possession of the property by the

landowner can no longer be allowed on the grounds of
estoppel and, more importantly, of public policy which
imposes upon the public utility the obligation to continue its
services to the public. The non-filing of the case of
expropriation will not necessarily lead to the return of the
property to the landowner. What is left to the landowner is
the right of compensation.

xxx It is settled that non-payment of just compensation does

not entitle the private landowners to recover possession of
their expropriated lot.”

Just like in the Forfom case, herein defendant also failed to

question the taking of their property for a very long period of time
(from 1978 until 2005). It was admitted by Mr. Jose A. Bogwana
that he only talked and asked the then mayor Homecgoy and his
successors-in-interest for the just payment of his alleged lot
without the necessary action in court. It is likewise undisputed
that what was constructed by the herein Municipality on
defendant’s property was a Municipal Fish Hatchery for public
use. As in Forfom, herein defendant is also estopped from
recovering possession of their land. The non-payment of just
compensation by the Municipality of Mayoyao doses not entitle
the defendant to recover possession of their expropriated lot.
This was the real intention of the decision of the NCIP-CAR why it
issued a decision giving two (2) options to the plaintiff to choose
for the defendant to at least be compensated on said property.
 Defendant claims it was denied due process of laws and that
plaintiff was in gross bad faith when his property was forcibly
taken without due compensation for it. Defendant is not being
denied due process. It has been given its day in court. The fact
that its cause is being heard by the Court is evidence that it is not
being denied due process. In fact, the instant case was filed by
the plaintiff instead of the defendant, long before, for the
payment of just compensation on said property.

10. Paragraph 10 of the Answer is specifically denied the truth

being that plaintiff Municipality has the unexpended portion of
the General Fund of the Municipality or funds from other sources
of the government to answer for the initial deposit of the instant
case. In fact, the plaintiff Municipality would not institute this
proceedings without the necessary amount to be paid for the
expropriated property which shall be determined by the proper
court based on the fair market value at the time of the taking of
the property;

11. Plaintiff specifically denies Paragraph 11 of the Answer the truth

being that defendant admitted in his Answer that a promise of the
payment of just compensation was made between him and the
then Mayor Homecgoy. There was a valid offer to him for the
payment of just compensation. As earlier discussed, he should have
institute the appropriate proceedings to recover the value of the
lands actually taken, or to compel the Municipality to take the
necessary steps to secure the condemnation of the land and to pay
the amount of the just compensation assessed in the condemnation
proceedings.

As admitted by herein defendant that several offers have been

made and rejected by the defendant, it was for the payment of the
just compensation of the expropriated property