Republic of the Philippines

SUPREME COURT OF THE PHILIPPINES
REGIONAL TRIAL COURT
10th Judicial Region
BRANCH 8
City of Malaybalay

DR. RUPERTO G. KISTERIA, SPL. CIVIL ACTION CASE
Plaintiff-Appellee, NO. 642-17

-versus- FOR:
FORCIBLE ENTRY WITH
APPLICATION FOR
T.R.O AND
WRIT OF
PRELIMINARY
INJUNCTION

SENDO GACANG, JULIUS BACUS,
CARLITO ORTIZ, ROMEO MONTAJES,
SONNY REPOLIDON, EDDIE BARABAS,
CARLITO DEPAMENTE, SIANO ALIGADO,
WILLY CARBA and SEVERAL JOHN and
JEAN DOES,
Defenants-Appellants.
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MEMORANDUM FOR THE APPELLANTS

Defendants-Appellants, Rosendo Gacang, Julius Bacus,
Carlito Ortiz, Romeo Montajes, Sesinia Repolidon, Eddie Barabas,
Siano Aligado and Wilfredo Carva, assisted by the Public Attorney’s

Page 1 of 10

CIVIL ACTION CASE NO. 2017 which gave them FIFTEEN (15) DAYS to submit this Memorandum. Appellants received the Notice of Appealed Case from this Honorable Court on January 26.R. 2016 and in support hereof alleges that: TIMELINESS Defendants-Appellants received a copy of the DECISION on December 6. The plaintiff prayed that a Temporary Restraining Order be issued upon the filing of the complaint and after due proceedings. 2016.O. THE CASE This appealed case stemmed from a Forcible Entry Case with Application for T. Thereafter. or directing them to cease and desist from further committing acts of dispossession. a Notice of Appeal was timely filed by Defendants-Appellants on December 19. and Writ of Preliminary Injunction filed before the Municipal Trial Courts in Cities of Valencia City on July 5. 2-16. It was docketed therein as SPL. hereby submits their Appeal Memorandum seeking the reversal of the Decision rendered by the Municipal Trial Courts in Cities of Valencia City. He also prayed that a Writ of Ejectment issue directing defendants to immediately vacate the subject land and turn over the peaceful possession thereof to the plaintiff. 2016. Page 2 of 10 .Office and unto this Honorable Court. Appellant is hereby filing this Memorandum within the period given by this Honorable Court and furnished a copy thereof to the Plaintiff-Appellee. Bukidnon dated December 5. a Writ of Preliminary Injunction likewise issue directing defendants to immediately vacate the subject property. 2016.

entered into the subject land. and prevented plaintiff’s workers and employees from entering the same to perform their jobs. particularly the pastureland and rubber tree area. Valencia City containing a total aggregate area of 92. he planted 14. 824. 22-5653. defendants-appellants entered into the subject land suddenly. For the 20-hectare portion. Block No. Valencia City consisting of more than 100 hectares.3 hectares more or less which was found to be within the Unclassified Public Forest under Project No. Plaintiff-Appellee further alleged that on February 6. the defendants-appellants put up tents and temporary shelter made of light materials. without permission from the Plaintiff-Appellee and in a clandestine. About 62 hectares of the area is covered by Tax Declaration No. more or less. 1929 pursuant to a Certification from the Office of the Community Environment and Natural Resources Officer (CENR). STATEMENT OF FACTS The subject matter of this action is a parcel of land situated at Kawasan. stayed and occupied the land. hundreds of gemelina and other hardwood trees. LC Map No. This area was also utilized by the Plaintiff as pastureland. Certified on September 7. 2016. 2016 and stated essentially therein that thirty (30) hectares was awarded to indigenous beneficiaries including Carlito Hilario.000 hills of rubber trees. Plaintiff-Appellee is Dr. Ruperto Kisteria who alleged in his complaint that he is the owner and in possession of the aforesaid public land located at Guinoyuran. Atilina Page 3 of 10 . The Defendants-Appellants filed their Answer on July 25. Guinoyuran. stealthy and surreptitious manner. According to him. 10. 1.

Romeo Montajes bought two (2) hectares of land from Carlito Hilario as well. Atilina Pansacala.5 hectares of the land sometime in April 24. sold five (5) hectares of the land to Trinidad Gabule. Carlito Ortiz also purchased a portion of the land awarded to Carlito Hilario through a Deed of Sale sometime in 1987. Trinidad Gabule. Rosendo Gacang acquired the two (2) hectares of the land from Carlito Hilario sometime in 1978.Pansacala. also a beneficiary. 1988. 1977. Julius Bacus derived his rights to the land he occupies now from his aunt. From then on. Lazanas of the Presidential Action Committee on Land Problems (PACLAP) under the Department of Natural Resources of Malaybalay City. The latter transferred her rights on the subject land to Julius Bacus. Bukidnon on March 2. one of the beneficiaries of the subject land. Lazanas. he has no right to eject them. Irenea C. Defendants-appellants prayed for the dismissal of the complaint. Rogelio Dumayaca and Irenea C. DECISION OF THE MUNICIPAL TRIAL COURT Page 4 of 10 . Sesinia Repolidon and her husband.25 hectares to Trinidad Gabule. Teofilo Repolidon acquired 1. Willy Carva acquired two (2) hectares of land from Carlito Hilario when it was sold to him by the latter sometime in January 29. Defendants-appellants allege that they have been in possession of the subject area for more than thirty (30) years. Ponciano Aligado acquired a portion of the thirty (30) hectares awarded to Carlito Hilario sometime in 1985. he has been cultivating the land. Edesio Barabas acquired more or less one (1) hectare from Tarsirico Hilario. Defendants-appellants contend that the Plaintiff-Appellee has no claim over the area they are occupying now and therefore. also sold 2. a beneficiary. 1985. sometime in December 1987.

Decision 2 Page 11. The Municipal Trial Court in Cities erred in ruling that the Plaintiff-Appellee has prior physical possession over the subject area of the land. II. 2016 and that he was able to prove by preponderance of evidence that he is entitled to the possession over the subject parcel of land. 2016. ASSIGNMENT OF ERRORS The MTCC committed the following errors: I. The Municipal Trial Courts in Cities (MTCC) of Valencia City rendered a decision in favor of Plaintiff-Appellee on December 5.2 The MTCC also ruled that the plaintiff has planted the subject area with rubber trees since 2013 and up to the time that the fire broke out on February 6. The Municipal Trial Court in Cities erred in ruling that defendants used strategy and stealth in occupying the subject land. III. DISCUSSIONS AND ARGUMENTS 1 Page 12.1 In deciding in favor of the Plaintiff-Appellee. the MTCC found that plaintiff has clearly proven that he has prior possession of the subject land. The Municipal Trial Court in Cities erred in ruling that Plaintiff-Appellee was able to prove by preponderance of evidence that he is entitled to the possession over the subject parcel of land. Decision Page 5 of 10 .

Kisteria usurped the area that the Defendants-Appellants occupied. the Defendants-Appellants in this case have different claims 3 Spouses Gaza vs. The Defendants-Appellants however presented documents showing when they started occupying the subject area through deeds of conveyance. 4 Furthermore. They are now reiterating their stand that the plaintiff in an ejectment case cannot succeed where it appears that as between himself and the defendant. Lim. it is proper to look at the situation as it existed before the first act of spoliation occurred. I. To ascertain this. a defense witness who admitted during the summary hearing for the issuance of a writ of preliminary injunction that it was sometime in 2013 when Dr. 443 Phil 337. the latter had a possession antedating his own. A party who can prove prior possession can recover such possession even against the owner himself. The evidence submitted during the hearing on the application for a writ of preliminary injunction is not conclusive or complete for only a “sampling” is needed to give the trial court an idea of the justification for the preliminary injunction pending the decision of the case on the merits. In the case at hand. the plaintiff must allege and prove prior physical possession of the property involved. the Plaintiff-Appellee alleged that he inherited the subject land from his parents without presenting any evidence as to when he started to occupy the property in his parents’ stead.3 The MTCC based its ruling on the testimony given by Sesinia Repolidon. The Municipal Trial Court in Cities erred in ruling that Plaintiff-Appellee has prior physical possession over the subject land In a forcible entry case. 349 (2003) Page 6 of 10 .

March 5. Sesinia Repolidon cannot be deemed to be an admission on the part of all the Defendants-Appellants that Plaintiff-Appellee has been in peaceable. G. 2016. and the defendant undoubtedly then had a perfect right to maintain an action of unlawful detainer against the plaintiff to regain possession. In a similar case5 where the defendant is shown to have had the prior peaceful possession of the disputed parcel of ground for an indefinite period of time in their part and the plaintiff. Hence. as the defendant was well entitled to do. so to speak. Fil-Estate Land. 667 SCRA 440. quiet possession of the subject parcel of land for the period of almost four (4) years prior to the alleged occupation of the defendants on February 6. after acquiring a deed to the land from a third person. the plaintiff now seeks to turn the tables. over the subject area. upon the original possessor. No. and violence. the testimony of Ms. entered upon the premises with his laborers and began plowing the land. or as he would have us believe. 2012 5 Masallo vs Cesar. Availing himself of the situation thus created. intimidation. Instead of instituting such an action. Inc. This confusion of the remedy cannot be permitted. it was he who was guilty of the wrongful seizure of the property. she warned the plaintiff off. L-12449 Page 7 of 10 . Where a dispute over possession arises between two 4 Juana Complex I Homeowners Association Inc vs. he would not employ against the defendant the same remedy which might properly have been used against himself if he had not vacated the premises.R. ejected him by force. and founding his right upon the transitory possession which he had wrongfully acquired.

might enter upon the property of another and. and the purpose of the action of forcible entry and detainer is to make the right of possession secure. If this were not so. in conformity with the evident intent of the statute. II. The only way to prevent this is to hold. by allowing himself to be ordered off. This purpose would be totally frustrated. as between them. a mere usurper without any right whatever. The rule thus to be applied may be simply summed up by saying that the plaintiff in an action of forcible entry and detainer cannot succeed where it appears that. could acquire the right to maintain the action of forcible entry and detainer. that the remedy of forcible entry and detainer was intended to be used against the usurper and not against the person wronged. The Municipal Trial Court in Cities erred in ruling that defendants used strategy and stealth in occupying Page 8 of 10 . the latter had a possession antedating his own. as being fraught with danger to the peace of society. as between himself and the defendant. one putting the other out to-day. The law discourages continued wrangling over the possession of property. only to be in turn himself forcibly ejected tomorrow. if a petty warfare could be conducted by two rival claimants who might alternate with each other in possession. however momentary his intrusion might have been. The mere suggestion of such a possibility carries its own refutation on its face. is the one who is entitled to maintain the action granted in section 80 of the Code of Civil Procedure. the person first having actual possession. and to ascertain this it is proper to look to the situation as it existed before the first act of spoliation occurred. persons.

In the Complaint of the Plaintiff-Appellee. the subject land The Defendants-Appellants have been occupying their respective areas for the longest time. 2016 that Defendants-Appellants entered a portion of the land and put up tents and shanties. the Defendants- Appellants entered the area. The Defendants-Appellants has referred this conflict to the Department of Environment and Natural Resources but the Plaintiff-Appellee remained adamant on his wrongful claim. It is the Plaintiff- Appellee who repeatedly harassed the Defendants- Appellants and even resorted to cutting down the trees planted by the latter. the Plaintiff-Appellee’s witnesses alleged that the Defendants-Appellants caused a fire in the area sometime in January 2016 and thereafter. During the preliminary conference as well. he mentioned that it was only on February 6. This was not stated in the Complaint. 2016 that Defendants-Appellants suddenly entered into the area. 2016 that the Defendants- Appellants entered the land in a clandestine. The allegation of the Plaintiff-Appellant as to when exactly the Defendants- Appellants allegedly entered the subject area through strategy and stealth is also not clear. the Plaintiff-Appellee proposed that it was on January 26. In forcible entry. III. the date of actual entry is very important since the case should be filed within one year therefrom. Plaintiff-Appellee initially claimed that it was only on February 6. Subsequently. stealthy and surreptitious manner. The Municipal Trial Court in Cities erred in ruling that Plaintiff-Appellee was able to prove by preponderance of evidence that he is entitled to the possession over the Page 9 of 10 .

Malaybalay City 6 Ganila vs. Court of Appeals. an existing Memorandum of Agreement for a Beef Cattle Multiplier Farm and Tax Declaration No.. it is most respectfully prayed of the Honorable Court to REVERSE the Decision appealed from and a new one be issued: 1. 2003.R. April 9. 150755. Copy furnished: ATTY. ARINO 2/F Ramos Bldg. Tangga-an. Fortich St. No.R. The aforesaid Tax Declaration as well does not prove prior physical possession on the part of the Plaintiff- Appellee. subject parcel of land The Plaintiff-Appellee adduced as his evidence to prove prior physical possession. 401 SCRA 84.6 WHEREFORE. 461 SCRA 43. G. 90-91 Page 10 of 10 . citing Alcaraz vs. The Memorandum of Agreement did not provide any information in relation to the area claimed by Plaintiff- Appellee which was allegedly entered by the Defendants- Appellants. Such other relief and remedies which are legal and deemed proper and equitable under this case. Declaring that the Defendants-Appellants are entitled to the possession of the subject area. 22-5653 allegedly in his name in the year 1975. 2. 128568.. 448. 2005. G. CLAVER C. Tax declarations and realty tax payments are not conclusive proofs of possession. June 28. No.