REPUBLIC OF THE PHILIPPINES

MUNICIPAL CIRCUIT TRIAL COURT

City of Tacloban
Branch ____

LUIS ALFONSO A. TUPAZ,

Plaintiff,
CIVIL CASE No. SUM-98765
-versus- FOR: Forcible Entry

THEA ANGELICA S. PETILLA,

Defendant.

x-----------------------------------x

MOTION TO DISMISS
Defendant, through the undersigned counsel and unto this
Honorable Court, most respectfully moves for the dismissal of the above-
captioned case on the following grounds:

I.

Grounds

A.

That the pleading asserting the claim states no cause of action

B.

That a condition precedent for the filing of the claim has not been
complied with

II.

Discussion

The pleading asserting the

claim states no cause of action
as plaintiff failed to prove the
elements of forcible entry
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 For forcible entry to be appreciated, plaintiff must allege that (1) he had
prior physical possession of the property and that (2) he was deprived of
possession either by force, intimidation, threat, strategy, or stealth.

a. Defendant has become the owner of the subject premises

when the same were sold to her by the plaintiff as evidenced
by the Deed of Absolute Sale dated November 2, 2016. In fact,
two weeks after the contract, plaintiff had endorsed the keys
to the property to the defendant for the latter to start the
property’s renovation project. Thus, it cannot be said that the
plaintiff was in prior physical possession on February 10,
2017 when the defendant brought with her laborers to start
commence the renovation process.

b. Further, it cannot be said that the defendant deprived the

plaintiff of his possession of the property through force,
intimidation, threat, strategy, or stealth, as the latter was not
in legal possession of the same at the outset.

A condition precedent for the

filing of this claim has not
been complied with

Plaintiff failed to comply with the pre-conditional requirement of

barangay conciliation required in Book 3, Title 1, Chapter 7,
(Katarungang Pambarangay), of R.A. No. 7160, otherwise known as
the Local Government Code of 1991; this warrants the dismissal of the
complaint.

1.1. Sec. 412 of R.A. 7160, otherwise known as the Local

Government Code, established the precondition to filing a
complaint before the court, to wit:

“No complaint, petition, action, or proceeding involving any

matter within the authority of the lupon shall be filed or
instituted directly in court or any other government office
for adjudication, unless there has been a confrontation
between the parties before the lupon chairman or the
pangkat, and that no conciliation or settlement has been
reached as certified by the lupon secretary or pangkat
secretary as attested to by the lupon or pangkat chairman

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 or unless the settlement has been repudiated by the
parties thereto.”

1.2. The Court, in A.C. No. 14-931, emphasized this pre-

condition holding that,
“All disputes are subject to Barangay conciliation2, and
prior recourse thereto is a pre-condition before filing a
complaint in court or any government offices...”

1.3. Thus, the Court in Agbayani v. CA3, citing Morato v. Go, held
that “the compulsory process of arbitration is a pre-
condition for the filing of the complaint in court. Where
the complaint (a) did not state that it is one of excepted
cases, or (b) it did not allege prior availment of said
conciliation process, or (c) did not have a certification that
no conciliation had been reached by the parties, the case
should be dismissed.”

1.4. And lastly, Sec. 12 of Rule 70 (Forcible Entry), calls for the
dismissal of cases which fail to show compliance with
such precondition.
“Sec. 12. Referral for conciliation. Cases requiring referral
for conciliation, where there is no showing of compliance
with such requirement, shall be dismissed without
prejudice, and may be revived only after that requirement
shall have been complied with.”

PRAYER

WHEREFORE, defendants respectfully pray that this Honorable

Court dismiss the herein complaint on the grounds of failure to state
cause of action, and non-compliance with condition precedent for filing
of the claim. Likewise, the defendant respectfully pray for such other
reliefs as may be deemed just and equitable.

RESPECTFULLY SUBMITTED.

1 Administrative Circular NO. 14-93, July 15, 1993

2 Republic Act No. 7160
3 Agbayani v CA, G.R. No. 183623, June 25, 2012

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 City of Tacloban, August 20, 2017.

Rosalie Grace A. Conde

PTR No. 7542531/01-03-12/Pasig City
IBP Lifetime No. 00545
MCLE Compliance No. V-0009710/03-28-18
Roll of Attorney No. 365564

Copy furnished:

Atty. Arnold Aran T. Abril

Romualdez Bldg., Zamora St., Tacloban City

EXPLANATION ON MODE OF SERVICE

(Pursuant to Section 11, Rule 13 of the 1997 Rules of Civil Procedure)

The foregoing Motion to Dismiss is being served to plaintiff by

registered mail, personal service not being practicable due to lack of
messengers at the undersigned’s office.

ROSALIE GRACE A. CONDE

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