Republic of the Philippines

REGIONAL TRIAL COURT

7TH Judicial Region
Branch 7
Cebu City

FOR
BRANCH 56
CITY OF ____________

SPOUSES _____
Plaintiffs,
Civil Case No: MAN-7592
-versus- FOR: INVERSE
CONDEMNATION &/OR
PAYMENT OF JUST
COMPENSATION

CITY __,
Defendant.
X-------------------------- /

REJOINDER

DEFENDANT, through the undersigned counsel, unto

this Honorable Office, most respectfully states THAT:

1. On March 16, 2017, Plaintiffs filed a motion for partial

summary judgment on the premise that defendants admitted
certain facts during the preliminary conference, which in effect
reduces the primary issue into a pure legal one;

2. Defendants filed an Opposition to Plaintiffs Motion for

Partial Summary Judgment (Opposition) on April 17, 2017,
emphasizing the existence of some genuine issues that bar a
summary judgment based on these four grounds:

a. Whether or not the subject property is and has been

a ROAD LOT contemplated under Sec. 50 of the
Property Registration Decree (P.D 1529) and Sec. 2
of PD 1216 which cannot be disposed of by the
registered owner, including to the Government,
except by way of donation;

b. Whether or not the City of ____________ was indeed

the Expropriating Entity from whom just

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 compensation should be claimed as plaintiffs cannot
prove with certainty that it was the City of
____________ who cemented said road despite its
allegation;

c. Whether or not laches and prescription is present in

this case, considering the fact that plaintiffs slept on
their rights for atleast twenty three (23), hence, they
can be deemed to have waived their right and
considered estopped for the same;

d. Assuming that just compensation is indeed

warranted, and that the basis of the value of just
compensation be reckoned from the time of taking
or atleast before 1994, when plaintiffs were issued a
Subdivision Plan by the Land Management Division
of the DENR (attached as Annex A in the Opposition
to the Motion for Partial Summary Judgment);

3. Plaintiffs filed a Reply to the Opposition which was

received by the Defendant, thru its counsel, on May 11, 2017,
addressing all the grounds mentioned in the Opposition by the
Defendant, except as to par. 9 (d) of the Opposition
(reproduced in par. 2 (d) of this Rejoinder);

4. Defendant respectfully begs to differ;

Whether or not the subject property is and has been a ROAD

LOT contemplated under Sec. 50 of the Property Registration
Decree (P.D 1529) and Sec. 2 of PD 1216 which cannot be
disposed of by the registered owner, including to the
Government, except by way of donation.

5. As to the first ground, the Plaintiffs would like to

impress upon this Honorable Court that the subject property
was not really a ROAD LOT contemplated under Sec. 50 of
P.D. 1529 because it was taken first by the Defendant by
constructing upon it a portion of the Casili-Tawason road prior
to its subdivision. However, it is the position of the
Defendant that no taking had occurred because the
Subject Lot had become a ROAD LOT only after the
subdivision of LOT 1718, which was done in compliance with
Sec. 50 of PD 1529;
6. In any case, the issue on whether the subject lot
became a portion of Casili-Tawason road by way of taking
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by the Defendant or by way of compliance with Sec. 50 of
PD 1529 is a factual issue that needs to be resolved thru
the submission of evidence as to what really happened to the
subject lot;

7. To reiterate, what triggers a summary judgment is the

absence of a genuine factual issue. It is not proper where there
are factual issues to be resolved by the presentation of
evidence, as in this case.1

Whether or not the City of ____________ was indeed the

Expropriating Entity from whom just compensation should be
claimed as plaintiffs cannot prove with certainty that it was the
City of ____________ who cemented said road despite its
allegation.

8. As to the second ground, if indeed there was taking of

the subject lot, the issue of whether or not it was the
Defendant who performed the taking is also a genuine factual
issue that needs presentation of evidence;

9. While it is true that the Defendant was not able to raise

this issue in the Answer, it is respectfully requested that this
issue should be considered also in the interest of substantial
justice;

10. As held in the case of Ginete v. Court of

Appeals 2, the Rules of Procedure should be viewed as
mere tools designed to facilitate the attainment of
justice. Their strict and rigid application, which would
result in technicalities that tend to frustrate rather
than promote substantial justice, must always be
eschewed.

11. It will be very prejudicial on the part of the

Defendant if it is made to pay for just compensation for a lot
that it did not expropriate;

12. Plaintiffs also request from the Court to not

anymore appreciate the Subdivision Plan attached to the
Opposition on the ground that it was not marked as an exhibit
during the pre-trial and should no longer form part as
1 Velasco vs Court of Appeals, 329 SCRA 392
2 357 Phil. 36 (1998)

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evidence. In effect, Plaintiffs are objecting the admissibility of
the Subdivision Plan.

13. Such objection should not be sustained for the

reason that the proper time to object an evidence is when it is
formally offered as such as can be found under Sec. 36 of Rule
132 of the Rules of Court which provides:

Section 36. Objection. Objection to

evidence offered orally must be made
immediately after the offer is made.

Objection to a question propounded in the

course of the oral examination of a witness
shall be made as soon as the grounds therefor
shall become reasonably apparent.

An offer of evidence in writing shall be

objected to within three (3) days after
notice of the unless a different period is
allowed by the court.

In any case, the grounds for the objections

must be specified. (36a)

14. At any rate, if during trial, Plaintiff decides to object

the admission of the Subdivision Plan, the same should be
overruled for the reason that this scenario falls squarely under
Sec. 5 of Rule 10 of the Rules of Court which reads:

Section 5. Amendment to conform to or

authorize presentation of evidence. When
issues not raised by the pleadings are tried
with the express or implied consent of the
parties, they shall be treated in all respects as
if they had been raised in the pleadings. Such
amendment of the pleadings as may be
necessary to cause them to conform to the
evidence and to raise these issues may be made
upon motion of any party at any time, even
after judgment; but failure to amend does not
affect the result of the trial of these issues. If
evidence is objected to at the trial on the
ground that it is not within the issues made
by the pleadings, the court may allow the
pleadings to be amended and shall do so

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 with liberality if the presentation of the
merits of the action ends of substantial
justice will be subserved thereby. The court
may grant a continuance to enable the
amendment to be made.;

15. The case of Sps. Dela Cruz v. Concepcion3 is

instructive on this rule, which states:

The foregoing provision envisions two

scenarios, namely, when evidence is
introduced in an issue not alleged in the
pleadings and no objection was interjected;
and when evidence is offered on an issue not
alleged in the pleadings but this time an
objection was raised. When the issue is tried
without the objection of the parties, it should
be treated in all respects as if it had been
raised in the pleadings. On the other hand,
when there is an objection, the evidence
may be admitted where its admission will
not prejudice him.

16. In any case, the court has pronounced that

the emerging trend in the rulings of this Court is to
afford every party litigant the amplest opportunity for
the proper and just determination of his cause, free
from the constraints of technicalities. Time and again,
this Court has consistently held that rules must not
be applied rigidly so as not to override substantial
justice 4;

Whether or not laches and prescription is present in this case,

considering the fact that plaintiffs slept on their rights for
atleast twenty three (23), hence, they can be deemed to have
waived their right and considered estopped for the same.

17. As to the third ground, Plaintiffs invoke the ruling

in National Power Corporation vs. Spouses Bernardo and
Mindaluz Saludares (NPC case) which provides that the right
to recover just compensation cannot be defeated by the
statutory right of prescription.5 However, this presupposes
that taking indeed happened.

3 G.R. No. 172825 , October 11, 2012

4 G in e t e v . C o u r t o f A p p e a l s , 3 5 7 P h i l . 3 6 ( 1 9 9 8 )
5 G.R. No. 189127, April 25, 2012

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 18. As reiterated, the determination of whether or not
there was indeed taking is a factual issue that can only be
resolved thru the presentation of evidence. If the Plaintiffs
would insist that the rule in the NPC case be applied, with
more reason that there should be a trial held in order to
determine whether or not there was indeed taking which is a
pre-condition before such rule can be applied;

Assuming that just compensation is indeed warranted, and that

the basis of the value of just compensation be reckoned from the
time of taking or atleast before 1994, when plaintiffs were
issued a Subdivision Plan by the Land Management Division of
the DENR (attached as Annex A in the Opposition to the Motion
for Partial Summary Judgment

19. The fourth ground was not addressed by the

Plaintiffs in their Reply, but the Defendant would like to
expound on this ground;

20. The Defendant would only want to emphasize under

this ground that if indeed, after presentation of evidence, there
was taking, it is also important to determine when the
actual time of taking was. This is very important in order to
determine the reckoning point of just compensation, if indeed
it is warranted;

21. As such, the time of taking, if it indeed occurred,

is another genuine factual issue that needs to be resolved by
the court by presentation of evidence. With this, there is more
reason that the Motion for Partial Summary should be denied;

22. To summarize, the factual issue of whether or not

there was taking is central to this inverse condemnation case.
If indeed there was taking, that is the time when just
compensation is warranted. This can only be resolved through
presentation of evidence that would show the presence or
absence of such. Thus, it is impossible to obtain a Partial
Summary Judgment in this case due to the presence of this
genuine factual issue.

PRAYER

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 WHEREFORE, premises considered, it is most
respectfully prayed that the Honorable Court DENY the Motion
for Partial Summary Judgment.

Other reliefs just and equitable under the premises are

likewise prayed for.
May ______, 2016, ____________ City, Philippines

____________ CITY LEGAL OFFICE

By:

zzzzzzzzzzz
Roll of Attorney No. 122345
IBP Member No. 1014763 01/04/16 Cebu City
PTR No. 0561424 01/04/2016 ____________ City
MCLE Compliance No.: Exempt-passed the Bar 2015

Copy furnished:

Atty. xxxxxxxxxxx
Counsel for the plaintiffs
Walaa Walaa Cezar & xxxxx Law Office
Rm. 206, xxxxx., Tipolo, ____________ City

EXPLANATION

Service and filing of this Reply was made through

registered mail/courier due to distance and lack of personnel
to effect personal service.

xxxxxx