Republic of the Philippines

REGIONAL TRIAL COURT

Cainta, Rizal

RAMON NIETO,

Appellant,

-versus- CIVIL CASE NO. 100-2013

For: Ejectment

KEITH ILAGAN,

Appellee.

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MEMORANDUM

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

THE PARTIES

1. Appellant Ramon Nieto is of legal age, single, and residing at 100 McKinley Rd. Forbes Park, Makati City, where he may be served with legal processes and notices issued by this Honorable Court;

2. Appellee Keith Ilagan is of legal age and residing on 123 Binibini Street, San Andres, Cainta, Rizal, and may be served with legal processes and other judicial notices thereto.

I. PROCEDURAL BACKGROUND

1. After a re-scheduling of dates, the preliminary conference was conducted on February 14, 2014. The parties were directed to simultaneously file their respective position papers on March 14, 2014. In his position paper filed on March 14, 2014,RAMON NIETO attached his affidavit (Annex "A" of the position paper) attesting to the material allegations in the complaint. KEITH ILAGAN also attached his affidavit (as Annex "1") to the position paper that was filed also on even date, which supported the allegations in the answer.

2. On April 11, 2014, the MTC of Cainta rendered a decision which dismissed the complaint (page 7, Decision). According to the trial court, RAMON NIETO cannot avail himself of the provisions of Rule 70 of the Rules of Court, because an ejectment case should not involve ownership issues (page 3, Decision); that even assuming RAMON NIETO can raise the issue of ownership, the trial court has no jurisdiction to resolve the same, since the property has a market value of P850,000.00 (page 4, Decision); that even if the trial court has jurisdiction to decide the respective claims of ownership of the parties, it would appear that defendant KEITH ILAGAN is the owner of the subject premises, because he has an affidavit of ownership that was duly registered with the Municipal Assessor of Cainta, Rizal (page 5, Decision); and that, if it were true that RAMON NIETO acquired earlier in 1985 the title to the property, the defendant was still issued tax declaration over the same property, and his real property tax payments thereon were also received by the Municipal Treasurer of Cainta, Rizal, thereby belying RAMON NIETO's claim of title (page 5, Decision).

3. On April 14, 2014, the parties received their copies of the decision.

4. April 15, 2014, RAMON NIETO filed a Notice of Appeal, stating that he is appealing the decision to the Regional Trial Court of Antipolo City, Rizal. After the payment of the appeal fees, the appeal was given due course, on April 17, 2014. On April 28, 2014, the entire records of the case were transmitted to the RTC, which thereupon notified the parties of such fact on May 2, 2014.

Hence, the filing of the instant Memorandum.

II. FACTUAL BACKGROUND

5. Appellant owns a parcel of residential/commercial land consisting of 1,200 sq. m., more or less, that is located in San Andres, Cainta, Rizal. He acquired title over the said land in 1985, by way of absolute sale from the previous owner thereof, STEVE ONA, as shown by the Deed of Absolute Sale. The said land is not covered by a Torrens certificate of title.

6. As a result of the sale, plaintiff was issued Tax Declaration No. 11111-1985, a copy, as well as official receipts evidencing the payment of real property taxes from 1985 up to 2012.

7. Plaintiff then planted trees and other plants on the property. He also erected a perimeter fence around the premises. In January 2009, he also built a 1-room nipa hut, which since then he occupied from time to time.

8. Sometime in July 2009, plaintiff went to Singapore, Hong Kong, Malaysia, Japan and Vietnam for an extended vacation. Upon his return in December 2012, plaintiff went to visit his property in San Andres, Cainta, Rizal. Plaintiff then discovered that defendant KEITH ILAGAN was occupying the subject property.

9. Plaintiff thereupon demanded from defendant to vacate the subject premises. The defendant did not heed said demand. Plaintiff again sent another demand in March 2013, as shown by a copy of the letter dated March 3, 2013. The defendant also did not heed this later demand.

10.He started occupying the subject premises in October 2009, after a storm (Typhoon Ondoy) destroyed his house in San Isidro, Cainta, Rizal.

11.At that time, the subject premises were not occupied or claimed by any person, including the plaintiff. In fact, there was nothing in the said premises that indicated that the plaintiff owns the subject property. There was no fence to enclose the property. There were no structures erected thereat, not even those mentioned by the plaintiff in his complaint.

12.The defendant declared the property for taxation purposes in October 2009, as shown by Tax Declaration No. 2000-2009. Said tax declaration shows that the property has a market value of P850,000.00. He also paid real property taxes in 2009, 2010, 2011 and 2012, as shown by the official receipts issued to him by the Municipal Treasurer of Cainta. The defendant likewise registered with the Municipal Assessor of Cainta, Rizal, an Affidavit of Ownership over the subject premises.

13.Plaintiff, therefore, has no right to claim the property, much less oust the defendant from the possession thereof.

III. ISSUES OF THE CASE

A.) WHETHER OR NOT THE HONORABLE TRIAL COURT ACTED CORRECTLY IN DISMISSING THE EJECTMENT CASE ON THE BASIS THAT THE APPELLANT CANNOT AVAIL HIMSELF OF THE PROVISIONS OF RULE 70 OF THE RULES OF COURT BECAUSE AN EJECTMENT CASE SHOULD NOT INVOLVE OWNERSHIP ISSUES AND THAT IT HAD NO JURISDICTION TO RESOLVE THE SAME, SINCE THE PROPERTY HAS A MARKET VALUE OF P850,000.00 WHICH IS OUTSIDE THE JURISDICTIONAL LIMT SET BY LAW;

B.)WHETHER OR NOT THE COURT WAS JUSTIFIED IN DETERMINING THAT APPELLEE IS THE OWNER OF THE SUBJECT PREMISES, BECAUSE HE WAS ISSUED A TAX DECLARATION ON THE BASIS OF AN AFFIDAVIT OF OWNERSHIP DULY REGISTERED WITH THE MUNICIPAL ASSESSOR OF CAINTA RIZAL

IV. ARGUMENTS

A.) The Court committed an error in dismissing the ejectment case because the issue of ownership was raised in the proceeding and in ruling it had no jurisdiction to resolve the case, since the property has a market value of P850,000.00.

B.)The Court committed an error in stating that the appellee has the right to possession due to his apparent ownership because of a tax declaration that was issued by the Municipal Assessor of Cainta, Rizal on the basis of a duly registered affidavit of ownership.

V. DISCUSSION

A.) In ejectment cases the, the sole question to be determined is the physical possession of the property in question. A claim of juridical possession or ownership cannot deprive the court from taking cognizance of the case. Even if the issue of ownership was raised in the pleadings, the court may pass on the issue only to determine possession, especially if they are inextricably linked. The trial court may make an initial determination on ownership so it can resolve the issue of possession absent any other evidence to support this. Such determination of ownership is not final. It will not affect the actual ownership of the property nor be considered an adjudication on the merits as to ownership.

Section 33(2) of Batas Pambansa Blg. 129, prescribes the jurisdiction of inferior courts in ejectment cases as follows:

Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Civil Cases - Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall exercise:

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Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided, that when in such cases, the defendant raises the question of ownership in his pleadings and the question of ownership cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession.

In this case, the appellant's cause of action for ejectment is grounded on his ownership of the land based on a deed of absolute sale with Steve Ona, the previous owner and Tax Declaration No. 11111-1985, along with official receipts for the payment of real property taxes from 1985 up to 2012. The fact that the appellee asserts that his right to possess the property based on a Tax Declaration from 2009 to 2012 without any other form of title other than his affidavit of ownership cannot be enough to defeat appellant's claim and confer upon him possession of the property based on his flimsy claim of ownership. The fact that the appellant has paid taxes for twenty-seven (27) years constitutes a deliberate intention to possess the property.

In Gesmundo v CA, 117 SCAD 919, 321 SCRA 487 (1999), the Supreme Court stated that:

While tax declarations and receipts are not conclusive evidence of ownership, yet when coupled with proof of actual possession, tax declarations and receipts are STRONG evidence of OWNERSHIP. (Emphasis supplied)

Appellant in this case has also exercised possession over the property by planting trees and other plants, building a perimeter fence and a erecting a one (1) room nipa hut, which he occupied from time to time. This is clear indication of his control and possession over the property as exercised by an owner. His dispossession without his knowledge does not affect his right to possess the property as it was an act of secrecy that necessitated and action for ejectment.

Article 537 of the Civil Code, states:

Art. 357. Acts merely tolerated, and those executed clandestinely and without the knowledge of the possessor of a thing, or by violence, do not affect possession.

It is also clear that the appellant possesses the property by virtue of his own right as the owner as evidenced by a deed of absolute sale between him and the previous owner. Ever since the sale in 1985 he has continued to exercise possession in his own name, in the concept of an owner who purchased the property in good faith and for value.

It cannot also be said that the appellant had abandoned the property due to being away on vacation for such a long period. He had all the intention of returning to his property as he did when he found the appellee squatting on the land, and he has every intention of recovering the property back by the institution of a case for ejectment. It was only upon his return that he realized that someone had occupied his property.

In US v. Rey, 8 Phil. 500, the Court discusses what constitutes abandonment:

A property owner cannot be held to have abandoned the same until at least he has some knowledge of the loss of its possession or the thing.

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...there must be no more spes recuperandi (expectation to recover) and no more animus revertendi (intention to return).

On the issue of the jurisdictional amount. As cited above, the inferior courts shall have exclusive and original jurisdiction over cases of forcible entry and unlawful detainer. The Court grievously erred in ratiocinating that it may not take cognizance of the case because the property value was P850,000.00.

B.)In addition, the appellee's claim that a the time he occupied the subject premises that it was not occupied or claimed by any person and that there were no plants and structures and there was nothing on the premises to indicate that the appellant owns the property does not ipso facto equate to ownership on the part of the appellee by virtue of mere occupation on his part. The execution of an affidavit of ownership based on his actions which amounted to squatting is an indication of bad faith. Parenthetically, if the appellee claims that typhoon Ondoy destroyed his home at San Isidro, Cainta in 2009, then it is highly likely that the appellant's improvements may have been destroyed by the typhoon as well, his assertion of ownership due to occupation has no legs.

The appellant's title confers ownership upon him as evidenced by a deed of absolute sale. He purchased the property from the owner in good faith and for value, with no notice or indication of any infirmity. As the owner he has the right to recover his property from any possessor who he has not assigned any of his rights of ownership to.

The Civil Code states:

Art. 428. The owner has the right to enjoy and dispose of a thing, without other limitations than those established by law.

The owner has also the right of action against the holder and possessor of the thing in order to recover it.

It can be said that the illegal occupation of the appellee over the subject property is a limitation on the owner's right to possess the property. He therefore has a right of action to recover under this suit for ejectment. The Court's statement that the appellee is the apparent owner based on the a duly registered tax declaration is a double edged sword and amounts to an adjudication on the issue of ownership, which is the very reason the Court itself used to dismiss the present case.

Acquiring a tax declaration over the property in his name and paying the taxes can do nothing to bolster his claim of ownership as he has no legal nor colorable title of ownership. As cited in the case of Ereve v. Escaros, L-26993, Dec, 19, 1980:

A tax declaration cannot generally prevail over adverse possession for a long period of the disputed lot nor over a private deed of sale.

Appellant has ownership based on a public document such as his deed of absolute sale with the previous owner Ona, paired with his long possession of twenty seven (27) years. Appellee's acts of illegally entering a private property he had no right to take possession of and his subsequent acquisition of a Tax Declaration in his name of a property he does not own does not make him a possessor in good faith.

In conclusion, and based on the foregoing facts and law, the Honorable Court erred in its decision dismissing the case for ejectment against the appellee and determining him as the owner of the property on baseless claims unsubstantiated by any form of title or proper possession, and belying the appellant's claim of ownership. The suit for ejectment must prevail.

PRAYER

WHEREFORE, premise considered, it respectfully prayed for that this Honorable Court that that Judgment be overturned ordering the defendant KEITH ILAGAN to peaceably turn over the physical possession of the subject property to plaintiff RAMON NIETO; that defendant be directed to pay plaintiff the sum of P3,000.00 as reasonable compensation for the use of the subject property, for every month starting February 2013 until the plaintiff is actually restored to the physical possession of the property; and that defendant be commanded to remove any and improvements he erected on the property.

Other just and equitable relief under the foregoing are likewise being prayed for.

Respectfully submitted.

Makati City for San Andres, Cainta, Rizal, Philippines. May 13, 2014.

PUYAT AND ASSOCIATES LAW OFFICESCounsel for Appellant

10th Floor, New Building, Makati Avenue, Makati City

By:ATTY. GIL PUYAT IV

IBP Lifetime No. 67891; 5/10/2009PTR No. 44568; 1/10/2015

Roll of Attorney No. 2009-001023MCLE Compliance No. III – 000899

Copy Furnished:ATTY. GENESIS PAUL IRAOCounsel for AppelleeUnit 1200, Tall Building Condominium, Cainta, Rizal