Republic of the Philippines SUPREME COURT Manila City

AISA SARMIENTO, Defendant-Petitioner, -versusCIVIL CASE NO. L-19345 For: Ejectment

FERNANDO MARTIN, Plaintiff-Respondent. x-------------------------------------------------------------------------x MEMORANDUM

COME NOW PLAINTIFF-RESPONDENT, through the undersigned counsel, unto this Honorable Supreme Court most respectfully submit and present this Memorandum in the abovetitled case and aver that:

THE PARTIES
1. Plaintiff-Respondent Dr. Aisa Sarmiento is the sole proprietor of Med Central Inc. located

at Level 2 of Robinsons Galleria in Ortigas.

2. Defendant-Petitioner Dr. Fernando Martin, Director/President of Health Care Inc.

I. STATEMENT OF FACTS

Facts: Dra. Aisa Sarmiento is the sole proprietor of Med Central Inc. (MCI) located at Level 2 of Robinsons Galleria in Ortigas. However, due to unfortunate events such as not having enough number of customers, increase in price of supply of equipments needed for the clinic, and increase in level of competition especially in Robinsons Galleria. Because of these reasons, MCI did not meet its targets for the year leading to its bankruptcy. Dra. Aisa decided to sell the clinic to Dr. Fernando Martin, Director/President of Health Care Inc. Both had several meetings where Dra. Aisa supplied Dr. Martin with financial statements of Med Central. It turned out that Med Central had a net loss for 2 years as evidenced by the Income statements, Inventory of Equipments and Statement of assets and Liabilities. An offer sheet was given by Dra. Aisa to Dr. Martin where the list of equipment in the clinic and the clinic itself was offered for sale. On Feb 13, 2009 Dr. Aisa and Dr. Martin entered into a Memorandum of agreement, where Aisa sells everything

(enumeration needed) for 15 M. It stipulated in the agreement that the amount shall be paid in 4 installment payments: 1st payment - 500,000 received during the date of signing (August 26, 2009) 2nd payment 3,500,000 3rd payment 5,500,000 4th payment 5,500,000 on November 30, 2009 Upon the signing of Memorandum, Dra. Aisa immediately transferred the clinic to Dr. Martin. The transfer of ownership and deed of absolute sale however would be made upon the last payment, this being a Contract to Sell. Any failure of the buyer/seller would result to: 1. 30% of liquidated damages plus other damages 2. contract becomes null and void 3. zero liability clause - free and harmless from any liability On Feb 14 2009, Dr. Martin paid 3M which includes 500k. No subsequent payments were made until June 9 of the same year. Dr. Martin entered into an agreement with suppliers which was paid by Dra. Aisa. On Oct 12, 2010, the Lease Contract with Rob Galleria and Dra. Aisa has expired ordering the demolition of the if the premises would not be vacated and that, the equipments will be confiscated). Premises were vacated by Dra. Aisa at her own expense. Some equipments were Dr. Martin's. Others are unknown. Dra. Aisa made demands for specific performance of obligation but Martin refused On Oct. 15, 2010, a letter was sent by Dra. Aisa to Dr. Martin regarding the claim of some equipment and demand and mutual restitution. Dr. Martin filed a complaint for robbery and a civil case of confirmation of unilateral rescission and damages against Dra. Aisa before the Office of the City Prosecutor of QC.

II. EVALUATION 1. Will the robbery case prosper? Elements of Robbery

1) there is a taking of personal property; 2) the personal property belongs to another; 3) the taking is with animus lucrandi; and 4) the taking is with violence against or intimidation of persons or with force upon things.

2 kinds of robbery
1. armed robbery involving use of a weapon and aggravated robbery involving use of a deadly weapon or something that appears to be a deadly weapon. 2. Actual or threatened force against a person;

Technical Grounds: No specifiied kind of crime - violation of due process on the merits, bereft of legal basis due to incomplete elements Article 11 exercise of lawful right, bound by contract therefore no dolo

2. Will the civil case prosper?

Contract to Sell No breach. the one who did not comply is Dr. Martin Prayer for rescission will not prosper because condition was prevented to happen? (Art. 1186 ata ito)

3. Will Aisa have a cause of action?

Contract is null and void Aisa should return equipment expenses incurred shall be reimbursed from Dr. Martin (suppliers) apply Art. 1191 Zero liability provision - Demolition, Martin should be liable 30% of purchase price will be the penalty. therefor the amoun paid by martin should not be returned

KAYO NA PO BAHALA SA RECOMMENDATION :))))) III. ISSUES OF THE CASE A.) WHETHER OR NOT THE HONORABLE TRIAL COURT ACTED CORRECTLY IN DECIDING THIS UNLAWFUL DETAINER ACTION ON THE BASIS OF THE EVIDENCE OF OWNERSHIP AFTER DEFENDANT HAD RAISED IN DEFENSE THE LESSEES RIGHTS UNDER P.D. 1517, P.D. 2016, APD 1-12 PASAY CITY; B.) WHETHER OR NOT AN UNLAWFUL DETAINER ACTION BARS THE BONA FIDE LESSEES RIGHT TO AVAIL THE PRIVILEGES AND BENEFITS PROVIDED BY SECTION 6 OF P.D. 1517; C.) WHETHER OR NOT IN DETERMINING THE COVERAGE OF AREAS FOR PRIORITY DEVELOPMENT (APD), REFERENCE MUST BE HAD TO THE LIST OF THE STREETS SUBJECT TO THE ZONAL DEVELOPMENT AND NOT TO THE AREAS INCLUDED IN THE DELINEATION BY METES AND BOUNDS AS INDICATED IN THE PROCLAMATION ITSELF.

IV. ARGUMENTS
A.) The court committed no error in deciding that an unlawful detainer action be

enforced upon herein Defendant-Petitioner despite the assailed contention of the former under P.D. 1517 and P.D. 2016. B.) There is no bar in this instant case for an unlawful detainer to avail the benefits and privileges provided by Section 6 P.D. 1517 provided it is applicable.
C.) The determination of the scope and limitation of Areas for Priority Development shall

be based on the list of specific areas prescribed by the proclamation.

V. DISCUSSION
A.) It is necessary to emphasize that the Plaintiff-Respondent is the bona fide owner of the parcel of land located at 123 Binibini Street, Pasay City under TCT No, 12345 of the Register of

Deeds of Pasay City. In the Philippines, the presentation of a valid certificate of title of the real property is a conclusive evidence of ownership of the person whose name the certificate of title is entitled to. Under Section 47 of the Land Registration Act, or Act No. 496, it provides that the original certificates in the registration book, any copy thereof duly certified under the signature of the clerk, or of the register of deeds of the province or city where the land is situated, and the seal of the court, and also the owners duplicate certificate, shall be received as evidence in all the courts of the Philippine Islands and shall be conclusive as to all matters contained therein except so far as otherwise provided in this Act. Recognized jurisprudence also uphold the significance of a certificate of title in proving valid ownership of a land. In the decision of the case of Spouses Pascual v. Spouses Coronel, the ponente cited two cases which highlight the significance of a valid certificate of title in claiming ownership over a land. It was held that in the recent case of Umpoc v. Mercado, the Court declared that the trial court did not err in giving more probative weight to the TCT in the name of the decedent vis--vis the contested unregistered Deed of Sale. Later in Arambulo v. Gungab, the Court held that the registered owner is preferred to possess the property subject of the unlawful detainer case. The age-old rule is that the person who has a Torrens Title over a land is entitled to possession thereof. The ruling of Dizon v. Court of Appeals was also used as basis for this argument. It was stated that a certificate of title is conclusive evidence of ownership and the questionability of the title is immaterial in an ejectment suit. Futhermore, Article 428 of the New Civil Code enumerates the rights of an owner. The owner has the right to enjoy and dispose of a thing, without other limitations other than those established by law. The owner has right of action against the holder and possessor of the thing in order to recover it. It is indubitable that the certificate of title of 123 Binibini Street, Pasay City under TCT No. 12345 which is registered in the Register of Deeds of Pasay City entitles Petitioner-Respondent the right to exercise the aforementioned rights, specifically, in this instant case, the right of action against the holder and possessor of the thing in order to recover the land. The contention of the Defendant-Petitioner that the verbal lease agreement they had made with the now deceased original owners Marcelo and Marcela Del Pilar for over 50 years shall entitle them to the privileges under P.D. 1517 and P.D. 2016 (Annex A and B, respectively) is untenable. It is expressly stated that Section 6 of P.D. 1517 grants lessees the right of first refusal before they may be ejected from a land, but this is only feasible under certain conditions. It is an indispensable qualification that the land is included in the list of Areas for Priority Development (APD) before an owner can be granted of the right of first refusal. The land subject of this case is clearly not included in the specific areas enumerated in the list of APD. To reiterate the Court of Appeals decision in CA-G.R. No. CV 12345: Insofar as the property in litigation, appellant Jane Doe is, consequently, correct in objecting to appellees exercise of the right of first refusal granted under Section 6 of Presidential Decree No. 1517. The fact that it is not included in the areas for priority development specifically identified under Proclamation No. 1967 indicates that appellee have no cause of action for annulment of sale, reconveyance, and preliminary injunction against appellants.
B.) The Plaintiff-Respondents argument in this issue is intimately connected with the preceding argument. Defendant-Petitioner vigorously assails that there is no bar to the availability of the privileges and benefits conferred to bona fide lessee whenever there is an unlawful detainer action. It is however true. But this is subject to circumstances that may qualify a lessee to the privileges and benefits under Section 6 of P.D. No. 1516 such as the right of first refusal. Unfortunately, the land possessed by the Defendant-Petitioner does not fall under the ambit of Section 6 of P.D. No. 1517. Therefore, the Defendant-Petitioner has no cause of action in this issue.

C.) The third issue questions the coverage of the APD prescribed by the proclamation, whether or not it refers to the list of streets subject to the Zonal Development or to the areas included in the delineation of the metes and bounds indicated.

Reiteration is therefore necessary to lay emphasis on the decision of the Court of Appeals that in the List of Areas for Priority Development (APDs), labeled as the South Sector of Pasay City, the area for priority development was defined as Tramo Lines along Barangays San Isidro, San Roque, and Santa Clara. It was thereafter specifically enumerated the list of covered sub-areas (please refer to Annex C for diagram) which are the following: 1) F. Victor, 2) Ventanilla Street, c) Juan Luna Street, d) D. Jorge Street, e) Viscarra Street, f) Conchita Street, g) Dolores Street, h) Leonardo Street, i) Alvarez Street, j) Basilio Street, k) Rodriguez Street, and i) Villa Barbara. There is consequently no gainsaying the fact that with its Binibini Street location, the property in litigation is not included among the sites identified as Areas for Priority Development in Pasay City.The mere fact that the list does not include Binibini Street necessarily implies that it is deemed excluded from it. Citing Solanada Enterprises v. Court of Appeals, it made a profound analysis of Section 6 of P.D. 1517 (as found in Annex A of this Memorandum) based on statutory construction: We agree. A close reading of Proclamation No. 1967 reveals that, before a preemptive right can be exercised, the disputed land should be situated in an area declared to be both an APD and a ULRZ. An urban tenant's right of first refusal is set forth in Section 6, PD 1517, as follows: Sec. 6. Land Tenancy in Urban Land Reform Areas. Within the Urban Zones[,] legitimate tenants who have resided on the land for ten years or more [,] who have built their homes on the land[,] and residents who have legally occupied the lands by contract, continuously for the last ten years shall not be dispossessed of the land and shall be allowed the right of first refusal to purchase the same within a reasonable time and at reasonable prices, under terms and conditions to be determined by the Urban Zone Expropriation and Land Management Committee created by Section 8 of this Decree. Proclamation No. 1967 further delimited the areas or zones wherein this preemptive right could be availed of viz.: WHEREAS, Proclamation No. 1893 was issued on 11 September 1979, pursuant to Section 4 of P.D. No. 1517, declaring the entire Metropolitan Manila area as Urban Land Reform Zone. WHEREAS, It is now necessary and appropriate to identify specific sites covered by urban land reform in Metropolitan Manila for purposes of making specific the applicability of P.D. Nos. 1517, 1640 and 1642 and of LOI No. 935. NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution and existing laws, and in relation to Proclamation No. 1893 declaring the entire Metropolitan Manila area as an Urban Land Reform Zone, and LOI 935, hereby amend Proclamation No. 1893 by declaring 244 sites in Metropolitan Manila as Areas for Priority Development and Urban Land Reform Zones as described in the attached annex. The provisions of P.D. Nos. 1517, 1640 and 1642 and of LOI No. 935 shall apply only to the above[-]mentioned Areas of Priority Development and Urban Land Reform Zones. xxx xxx xxx The aforecited whereas clauses express a clear intent to limit the operation of PD 1517 to specific areas declared to be located in both an APD and a ULRZ. The conjunctive and in the last sentence of the quoted provision confirms this intention. And in statutory construction implies conjunction, joinder or union. As understood from the common and usual meaning of the conjunction and, the provisions of PD 1517 apply only to areas declared to be located within both an APD and a ULRZ.

With the foregoing recognized jurisprudence said, the Defendant-Petitioners action would necessarily lead to futility for no cause of action.

PRAYER WHEREFORE, premise considered, it respectfully prayed for that this Honorable Supreme Court that Defendant-Petitioners prayer for writ of injunction be DENIED for having no cause of action and the petition DISMISSED for being clearly unmeritorious. Other just and equitable relief under the foregoing are likewise being prayed for. Respectfully submitted. Makati City for Manila City, Philippines. April 8, 2011.

AZURIN BUHAIN BONTUYAN AND ARICAYOS LAW OFFICES Counsel for Plaintiff-Respondent 10th Floor, New Building, Makati Avenue, Makati City

By: ATTY. PAOLO COELHO IBP Lifetime No. 67891; 5/10/2005 PTR No. 44568; 1/10/2011 Roll of Attorney No. 2005-001023 MCLE Compliance No. III 000899

Copy Furnished: ATTY. JEFFREY A. ARCHER Counsel for Petitioner Unit 1200, Tall Building Condominium, Espana, Manila