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Republic of the Philippines

National Capital Judicial Region


REGIONAL TRIAL COURT
Manila, Branch _____

RIZAL
TEACHERS
KILUSANG
BAYAN FOR CREDIT, INC., represented
by MR. WILLIAM G. HERNANDEZ,
Plaintiff,

-versus-

Civil Case No. 177886


FOR: Sum of Money

LUCITA G. CONGZON, OSCAR O.


TUMAQUE,
ELLENITA
L.
GABIONZA, THELMA B. ROSTATA,
CLEOFE R. NABOR and MYRLA C.
PEREZ,
Defendants.
x-----------------------------------------x

MEMORANDUM OF APPEAL

COMES NOW DEFENDANT-APPELLANT, OSCAR O. TUMAQUE,


for and by himself and unto this Honorable Court most respectfully
states:

PREFATORY STATEMENT

This is a collection case wherein judgment by default was rendered


by the lower court (MTC, Branch 17, Manila) and the principal debtor
and her two (2) co-worker including defendant OSCAR O. TUMAQUE
were ordered to pay jointly and severally plaintiff its monetary claim
against the former.

TIMELINESS OF THE FILING OF APPEAL

Defendant-Appellant Oscar O. Tumaque received a copy of the


Decision dated August 20, 2004 of the Honorable Court, MTC,
Branch 17, Manila on September 10, 2004 in the above-entitled case, the
dispositive portion of which states:

xxx

xxx

xxx

WHEREFORE,
PREMISES
CONSIDERED,
judgment is hereby rendered in favor of the plaintiff
and against the defendants Lucita G. Congzon, Oscar
O. Tumaque and Ellenita L. Gabionza. Said defendants
are herby ordered to jointly and severally PAY plaintiff
the following:
1. Twenty thousand, three hundred thirty-six pesos (P20,
336.00);
2. Two thousand, thirty-three pesos and sixty centavos (P2,
033.60) as attorneys fees; and
3. Cost of suit.
Defendant Lucila G. Congzon is further ordered
to PAY plaintiff the amount of sixty thousand, eight
hundred sixty-three pesos (P60, 863.00).
For lack of jurisdiction over defendants Thelma
D. Rostata, Cleofe r. Nabor and Myrla C. Perez, the
instant case as to said defendant is hereby
DISMISSED.
SO ORDERED.
xxx

xxx

xxx

(A copy of the Decision is hereto attached and marked as


Annex A).

The defendant-appellant is filing the foregoing pleading today,


September 24, 2004 or within fifteen (15) day reglementary period to file
the same.

GROUNDS OF APPEAL

The Honorable Court gravely erred in holding defendant-appellant


Oscar O. Tumaque likewise monetarily liable to the plaintiff for the loan
obtained by the principal debtor.

DISCUSSION/ARGUMENTS

Defendant-Appellant not liable


to plaintiff-appellee applying the
principle of relativity of contract

In the assailed Decision dated August 20, 2004, the Honorable


Court held, to wit:

xxx

xxx

xxx

After a thorough review of the complaint and its


annexes, the Court finds plaintiffs claim to be wellgrounded. The facts alleged in the complaint sufficiency
establish an action for the payment of money in favor of
plaintiff and such allegations remain uncontroverted.
Defendants are bound to fulfill the express stipulations
of the Promissory Note, which they signed. Under Article
1159 of the New Civil Code, obligations arising from
contracts have the force of law between the contracting
parties and should be complied with in good faith. Article
1953 of the same law provides that a person who receives a
loan of money is bound to pay his creditor. Defendants are
also liable for attorneys fees pursuant to Article 2208 of the
same law.
xx x

xxx

xxx

The defendant-appellant respectfully submits that the Honorable


Court seriously erred in holding that the former jointly and severally
monetarily liable to plaintiff because he was not a real party nor a
signatory to the aforesaid promissory note marked as Annex B by the
plaintiff. The signature of defendant-appellant as appearing in the comaker portion was not the signature of Oscar O. Tumaque but instead of
that of the principal debtor-Lucita G. Congzon, which was placed by the
principal debtor without his consent or knowledge. That is precisely the
reason why he was not bothered at all he came to know of the instant
case since the principal debtor assured him that she will take care of
everything and he will be absolved of any responsibility whatsoever. This
pronouncement is supported by the verified affidavit dated September
13, 2004 executed by the principal debtor herself-Lucita G. Congzon and
which were noted by her co-teacher and superior at Judge Juan Luna
High School stating inter alia, to wit:

1. That on April 4, 1997 I availed a loan from Rizal


Teachers Kilusang Bayan for Credit, Inc. and signed a
promissory note in the amount of P15, 560.00;
2. That I myself who wrote the name OSCAR O.
TUMAQUE on the said promissory note; and
3. That I will shoulder all the financial obligations I
owe from Rizal Teachers Kilusang Bayan for Credit, Inc. and
MR. OSCAR O. TUMAQUE is free from any liabilities and
obligations that will arise from the loan I availed from said
lending institution.
(A copy of the aforesaid document is hereto attached and marked
as Annex B).

Being not a party or a signatory to the promissory note, defendantappellant Oscar O. Tumaque is therefore free and clean from any liability
whatsoever relative to the money claim of the plaintiff against him. This

is in consonance with the most essential characteristic of contract, which


includes relativity of contract or the principle that the contract takes
effect only between the parties, their assigns and heir. (Article 1311, CC)
The principle of relativity of contracts refers to the principle that a
contract can only bind the parties who had entered it or their successors
who have assumed their personality or their juridical positions, and that,
as a consequence, such contract can neither favor nor prejudice a third
person (in conformity with the axion nes inter aliis acta; aliis neque nocet
prudent. Thus Article 1311, paragraph 1, declare that contract, take
effect only between the parties, their assigns and heir.

(Pre-Week Companion to Civil Law Revenue-Jurado, 1990 Edition


page 264).

It is crystal clear therefore that since defendant-appellant Oscar


O. Tumaque was neither a party nor a signatory to the aforesaid
promissory note hence he should not be prejudice by the enforcement,
implementation or execution of the same.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this


Honorable Court that the assailed Decision of the lower court (MTC,
Branch 17, Manila) dated August 20, 2004, be REVERSED and SET
ASIDE and a new one be rendered DISMISSING the complaint for lack of
merit against defendant-appellant Oscar O. Tumaque.

Other relief and remedies just and equitable in the premises are
likewise prayed for.

September 24, 2004, City of Manila.

OSCAR O. TUMAQUE
Defendant-Appellant

Copy furnished:
RIZAL TEACHERS KILUSANG
BAYAN FOR CREDIT, INC.
1415 Severino Reyes Street,
Sta. Cruz, Manila
MR. WILLIAM G. HERNANDEZ
1415 Severino Reyes Street,
Sta. Cruz, Manila
ATTY. ROMEO V. FULLANTE
Counsel for the Plaintiff
P.C. Nolasco & Associates
1415 Severino Reyes Street,
Sta. Cruz, Manila
Branch Clerk of Court
MTC, Branch 3
Manila

Republic of the Philippines)


City of Manila
)S.S.

VERIFICATION
I, OSCAR O. TUMAQUE, under oath, depose and state :

1.

I am the defendant-appellant in the above-entitled case; I


have caused the preparation and filing of the same; I have

read and understood the content of the Memorandum of


Appeal and all the allegations contained therein are true
and correct to the best of my knowledge;
2.

There is no pending case filed by defendant-appellant


against the plaintiff-appellee before any court or quasijudicial body, or any agency of the government pertaining to
the same subject, cause, issue or facts;

3.

Defendant-Appellant will inform this Honorable Court


promptly of any case filed that may come to his knowledge
pertaining to the same subject, cause, issue or facts for the
courts information;

4.

This Memorandum of Appeal filed in good faith, for valid


grounds stated in the pleading and not for forum shopping.

IN WITNESS WHEREOF, I have hereto set my hands this 24th day


of September 2004 at the City of Manila, Philippines.

OSCAR O. TUMAQUE
Affiant

SUBSCRIBED AND SWORN to before me this ______day of


September 2004 at the City of Manila, Philippines.

Notary Public
Doc. No. ___;
Page No. ___;
Book No. ___;
Series of 2004.