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Republic of the Philippines


City of Bago

CASE NO.: M-BGO-14-007-CV

For: Ejectment with Damages



Comes now, Defendants GLORIA TAMPOS, RENATO

through the undersigned counsel, before this Honorable Court, most
respectfully submits this Position Paper and states that:
Plaintiffs Action for Ejectment in the Instant Case is Not the
Proper Remedy
1.1. For an ejectment case to prosper, it must be alleged in
the Complaint that the cause of action must be either one of Forcible
Entry or Unlawful Detainer;
1.2. As such, it is a well- settled jurisprudence that the nature
of defendants entry into the land should be averred in the Complaint
in order to determine the cause of action, whether for forcible entry or
unlawful detainer. If the entry is illegal, then the action which may be
filed against the intruder is forcible entry. If, however, the entry is legal
but the possession thereafter becomes illegal, the case is unlawful

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1.3. In the case of Dr. Dioscoro Carbonilla vs. Marcelo

Abiera, et. Al., GR No. 177637, July 26, 2010, the Supreme Court
ruled that to recover possession, one must resort to the proper
judicial remedy and, once he chooses what action to file, he is
required to satisfy the conditions necessary for such action to
prosper. Thus,
Ejectment cases for forcible entry and unlawful
detainer are summary proceedings designed to
provide expeditious means to protect actual
possession or the right to possession of the property
involved. The only question that the courts resolve in
ejectment proceedings is: who is entitled to the
physical possession of the premises, that is, to the
possession de facto and not to the possession de
jure. It does not even matter if a partys title to the
property is questionable. For this reason, an
ejectment case will not necessarily be decided in
favor of one who has presented proof of ownership of
the subject property. Key jurisdictional facts
constitutive of the particular ejectment case filed
must be averred in the complaint and sufficiently
1.4. As ruled in the above-cited case, it is required that the
jurisdictional facts must appear on the face of the complaint. This is
also even true even though ownership is not in question, still the
owner of the property cannot wrest possession from whoever is in
physical or material possession of the same for more than one (1)
year by resorting to a summary action for ejectment. This is
especially true where his possession thereof was not obtained
through the means or held under the circumstances contemplated by
the rules on summary ejectment;
1.5. In the instant case, the Complaint did not categorized
defendants alleged entry into the land whether it is lawful or illegal. It
does not state how Defendants entered into the land and build their
houses therein. Neither did it alleged that the subject parcel of land
was acquired by Defendants through force, intimidation, threat,
strategy or stealth in order to be one of forcible entry nor state that
there was an existing contract, express or implied, between the
Plaintiff and Defendants as would qualify as case for Unlawful

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1.6. From the foregoing, it can be clearly gleaned from the

facts that the proper remedy should either be the plenary action for
the real right of possession (accion publiciana) when the
dispossession has lasted for more than one (1) year or when the
action was filed more than one (1) year from the date of the last
demand received by the lessee or defendant or an action for the
recovery of ownership (accion reivindicatoria) which includes the
recovery of possession to be filed in the proper Regional Trial Court.

The Court has NO JURISDICTION to Take Cognizance over the
Alleged Complaint of herein Plaintiff considering that it is
neither one of Forcible Entry or an Unlawful Detainer Case
2.1. Jurisdiction is the power or capacity given by the law to a
court or tribunal to entertain, hear and determine certain
controversies. Jurisdiction over the subject matter is conferred by law.
Section 33 of Chapter III - on Metropolitan Trial Courts, Municipal
Trial Courts, and Municipal Circuit Trial Courts of B. P. No. 129
Section 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:
(2) 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 possession
cannot be resolved without deciding the issue
of ownership, the issue of ownership shall be
resolved only to determine the issue of
possession. (Emphasis Supplied)
2.2. On the other hand, Section 19, of Chapter II of B.P. No.
129 on Regional Trial Courts provides:
Section 19. Jurisdiction in civil cases. Regional
Trial Courts shall exercise exclusive original
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(2) In all civil actions which involve the title to,
or possession of, real property, or any interest
therein, except actions for forcible entry into and
unlawful detainer of lands or buildings, original
jurisdiction over which is conferred upon
Metropolitan Trial Courts, Municipal Trial Courts
and Municipal Circuit Trial Courts.

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2.3. Thus, exclusive, original jurisdiction over ejectment is

lodged with the first level courts. This is clarified in Section 1, Rule 70
of the 1997 Rules of Civil Procedure that embraces an action for (1)
forcible entry, where the plaintiffs must allege their prior physical
possession of the property. They must also assert that they were
deprived of possession either by force, intimidation, threat, strategy,
or stealth and the action must be filed within one (1) year from the
time the owners or legal possessors learned of their deprivation of
physical possession of the land or building and (2) in Unlawful
Detainer Cases where this action may be filed by a lessor, vendor,
vendee, or other person against whom the possession of any land or
building is unlawfully withheld after the expiration or termination of the
right to hold possession by virtue of any contract, express or implied.
The possession of the defendant was originally legal, as his
possession was permitted by the plaintiff on account of an express or
implied contract between them. However, the defendants possession
became illegal when the plaintiff demanded that the defendant vacate
the subject property due to the expiration or termination of the right to
possess under the contract, and the defendant refused to heed such
demand which must be instituted one year from the unlawful
withholding of possession.
2.4. From the foregoing, it can be readily viewed that this
Honorable Court has no jurisdiction over the instant case as the
complaint did not satisfy the jurisdictional requirement of a valid
cause for unlawful detainer nor for forcible entry. What Plaintiff
alleged in its complaint was Defendants were able to take hold and
continue to be in position of the subject portions of land only by mere
tolerance of his ascendants and now by Plaintiff itself as heir and coowner thereof;
2.5. The court also had the occasion to rule in the case of
Amada C. Zacarias vs. Victoria Anacay, et. al.,G.R. No. 202354,
September 24, 2014, why the instant case should not be allowed
before the Municipal Trial Courts, thus,

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First. Forcible entry into the land is an open

challenge to the right of the possessor. Violation of
that right authorizes the speedy redress in the
inferior court - provided for in the rules. If one year
from the forcible entry is allowed to lapse before suit
is filed, then the remedy ceases to be speedy; and the
possessor is deemed to have waived his right to seek
relief in the inferior court. Second, if a forcible entry
action in the inferior court is allowed after the lapse
of a number of years, then the result may well be that
no action of forcible entry can really prescribe. No
matter how long such defendant is in physical
possession, plaintiff will merely make a demand,
bring suit in the inferior court upon a plea of
tolerance to prevent prescription to set in - and
summarily throw him out of the land. Such a
conclusion is unreasonable. Especially if we bear in
mind the postulates that proceedings of forcible entry
and unlawful detainer are summary in nature, and
that the one year time-bar to suit is but in pursuance
of the summary nature of the action. (Italics and
underscoring supplied)
2.6. Indeed, to vest this Honorable Court jurisdiction to effect
the ejectment of herein Defendants would be fatal since it is
necessary that the complaint should embody such a statement of
facts that would bring the party clearly within the class of cases for
which the statutes provide a remedy, as these proceedings are
summary in nature;
2.7. Moreover, contrary to the allegation of the Plaintiff, no
demand letters were sent to herein Defendants, or at least no
demand letter was received by herein Defendants. A careful scrutiny
of the alleged final demand to vacate shows, among other things, that
the same were sent via registered mail. However, in support of
defendants defense, there was no proof that the demand letters were
received by herein defendants that would prove that they have
indicated their signatures thereon or at least have personally received
the same as would properly apprise or notify them of Plaintiffs
demand to vacate the subject property. Even the registry return card
at the back of the respective demand letters failed to show any proof
of receipt on the part of defendants;

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2.8. It has been settled in jurisprudence that a written and final

demand to vacate, properly received by the defendants, is an
essential requirement for an ejectment case to prosper. Considering
that the same is lacking in the instant case, it only follows that the
case could not prosper, and thus, should be dismissed for lack of
Plaintiff failed to comply with the Condition Sine Qua Non before
filing this Complaint: (1) Make Settlement/Agreement with the
Barangay Conciliation/Mediation Proceedings or the Lupong
Tagapamayapa (2) Show proof that Plaintiff has been diligently
paying the Real Property Tax Due to the Government
3.1. Plaintiffs action in filing herein Complaint without passing
the mediation proceedings before the Lupong Tagapamayapa under
the Katarungang Pmabarangay Law in its designated Barangay
which is in Barangay Poblacion, Bago City is clearly a premature act.
Considering that the property is located in Bago City and herein
Defendants also reside in Bago City, it is a condition Sine Qua Non
that the same must passed through the Lupon before elevated to the
3.2. In the same manner, if the Plaintiff is the real and valid
owner of the subject party, he should have presented proofs that he is
diligently paying the Real Property Taxes due to the government as
Condition Sine Qua non before filing this case;
Respectfully submitted.
22 November 2015, Bacolod City for Bago City, Negros Occidental.


Counsel for DEfendants
Roll No. 55995
IBP O.R. No. 0984137 March 6, 2015 - IBP-Bacolod
PTR No. 6374566 February 3, 2016 Binalbagan, Negros
MCLE Compliance No. V-000-1463, 16 January 2014.

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1 Montinola Apartment, Santan Street

Villa Georgina Subdivision, Barangay Mandalagan
Bacolod City
Email address:
Mobile Number: (63)939-927-7763

Copy Furnished:

Atty. Elias A. Gatanela, JR.

Counsel for Plaintiff
Suite No. 4, 2nd floor, LD Center
7th Lacson Street
Bacolod City
The foregoing Position Paper was filed via mail due to the
distance of the undersigned office which renders filing by personal
service impracticable.


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