Republic of the Philippines

REGIONAL TRIAL COURT OF NEGROS OCCIDENTAL

6th Judicial Region
Branch--- Bacolod City

Richard Chan,
Plaintiff,

- versus - Civil Case No. ------

Jack Pasaway,
Defendant.
x-----------------------------x

ANSWER WITH COUNTERCLAIMS

COMES NOW the Defendant Jack Pasaway, represented by the

undersigned counsels, before the Honorable Court, most respectfully
submits this Answer with Counterclaims, averring that:

ADMISSIONS AND DENIALS

1. The allegation in paragraph 1 of the Complaint for Accion

Publiciana as to the personal circumstances of the Plaintiff Richard
Chan is ADMITTED but the alleged residence of the latter in so far as
it does not reflect consistency and veracity as stated in paragraph 1
of the complaint to wit: “Plaintiff Richard Chan, is of legal age, Filipino
and a resident of Eroreco Brgy. Mandalagan, Bacolod City…. xxx” in
contrary to the first paragraph of the Verification and Certification of
Non-Forum Shopping which provides “I, Richard Chan, of legal age,
Filipino and a resident of Brgy Villamonte Bacolod City… xxx” is
hereby DENIED;

2. The allegation in paragraph 2 of the Complaint for Accion

Publicciana is ADMITTED.
 3. The allegations in paragraph 3, as regards the ownership
of the Plaintiff on the subject parcel of land situated in Eroreco,
Bacolod City is ADMITTED.

4. However, the Transfer Certificate of Title attached as

Annex A in the complaint for Accion Publiciana is specifically DENIED
for want of genuineness and authenticity. The alleged TCT attached
as Annex A in the complaint for Accion Publiciana, is on its face
tainted with irregularity; the Heading of the Title provides
“REGISTRY of DEEDS for PROVINCE of NEGROS OCCIDENTAL”
where, as alleged in paragraph 3 of the complaint for Accion
Publiciana provides, “Plaintiff is the true and registered owner of a
certain parcel of land situated in Eroreco, Bacolod City identified as
Lot A and covered by Transfer Certificate of Title No. 12345 of the
Registry of Deeds of Bacolod City. ….” Truth of the matter being,
that when the property is located in Bacolod City, the Register of
Deeds of Bacolod City has the sole authority to issue deeds covered
within its territorial jurisdiction.

5. The allegations in paragraph 4 and 5 of the complaint for

Accion Publiciana are ADMITTED;

6. The allegation in paragraph 6 of the complaint for Accion

Publiciana averring that “Plaintiff had the property bought surveyed
sometime around December 2006 and it was discovered that the
defendant knowingly and unlawfully occupied the portion of the lot
owned by the plaintiff, thus depriving the Plaintiff of his right of
possession over the property” is DENIED. Around December 2006,
the Plaintiff was not even the lawful owner of the subject property
since as stated in paragraph 4 of the complaint, the deed of sale was
only executed on December 18, 2008, therefore Plaintiff began his
title to the property On December 18, 2008. He was not the owner
and not a lawful possessor of the subject property on December
2006. He was not deprived his right of possession as there was NO
right to speak of at that time. And even granting arguendo that the
property was bought and surveyed on Decemeber 2006, the
defendant Jack Pasaway would still be the lawful possessor of the
subject property where the kitchen is located, the truth of the matter
being that a Lease Contract was entered into by Angel Lopez and the
Defendant Jack Pasaway on January 5, 2006 covering 2x3 square
meters of lot where the kitchen of Jack Pasaway was situated. The
duration of the lease is for 50 years at one (1) peso per annum. The
full amount of which was paid in cash by Jack Pasaway on the day
the lease contract was executed. Furthermore, such lease contract
was annotated at the back of the title, which served as a notice to the
world that an encumbrance is attached to the subject property.
Attached herewith as “ANNEX A” is the lease contract between Angel
Lopez and Jack Pasaway and “ANNEX B” the Transfer Certificate
Title which shows the annotations at the back of the Title.

7. Further, the averment that “Defendant’s kitchen area

composed of light materials occupying approximately two-by-3 (2x3)
square meters is situated within Plainitiff’s property. Such structure
had been in existence at the time plaintiff acquired the property and
defendant had full knowledge that said structure is on plaintiff’s
property” is ADMITTED for in fact, the ownership of the Plaintiff over
the property, the reckoning point of which is at the time of the
execution of the deed of sale on December 18, 2008, is not disputed.

8. The allegations in paragraph 7 of the complaint for Accion

Publiciana insofar as the averment which read “Plaintiff, through
undersigned counsel demanded that defendant vacate and return the
possession of said parcel of land to herein plaintiff” and “The last and
final demand letter to vacate was received by the wife of the
defendant on March 23, 2013 as it was personally served at their
residence by John Javier, Law office Staff.” are ADMITTED.

9. However allegation that “Defendant has remained in

illegal possession of said land and up to the present , still retains
such possession” is DENIED. Defendant did not submit to the
demands of the Plaintiff, precisely because the subject portion of land
where the Defendant’s kitchen is situated is under a Lease Contract
lawfully executed between Angel Lopez and the herein defendant.
And by virtue of the Lease Contract, Jack Pasaway is therefore the
lawful possessor of the subject property and not as what the Plaintiff
purports it to be.
 10. The allegation in paragraph 8 of the complaint for Accion
Publiciana is ADMITTED.

11. The allegation in paragraph 9 of the complaint for Accion

Publiciana is DENIED. There was no unjust refusal on the part of the
Defendant, since in the eyes of the law, Jack Pasaway is the lawful
possessor of the subject land where his kitchen is situated by virtue
of the Lease Contract executed as between Angel Lopez and the
defendant. The lease contract being attached as an encumbrance to
the title over the property.

12. The foregoing are subject to the special and affirmative

defenses hereunder presented.

SPECIAL AND AFFIRMATIVE DEFENSES

The Defendant replead and incorporate by way of reference the

allegations from paragraphs 1-11 and further state as follows:

1. The Honorable Court, with all due respect, FAILED TO ACQUIRE

JURISDICTION over the subject matter of the case; the complaint
failed to allege jurisdictional facts required by law to wit:

Under Batas Pambansa Bilang 129, the plenary action

of accion publiciana must be brought before the regional trial courts. With
the modifications introduced by Republic Act No. 769 in 1994, the
jurisdiction of the regional trial courts was limited to real actions where the
assessed value exceeds P20,000.00, and P50,000.00 where the action is
filed in Metro Manila, thus:

SEC. 19. Jurisdiction in civil cases. — Regional Trial Courts shall

exercise exclusive original jurisdiction:
xxxx
(2) In all civil actions which involve the title to, or
possession of, real property, or any interest therein, where the
 assessed value of the property involved exceeds Twenty
thousand pesos (P20,000.00) or, for civil actions in Metro
Manila, where such value exceeds Fifty thousand pesos
(P50,000.00) except actions for forcible entry into and unlawful
detainer of lands or buildings, original jurisdiction over which is
conferred upon the Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts.

Accordingly, the jurisdictional element is the assessed value of

the property. Assessed value is understood to be “the worth or value of
property established by taxing authorities on the basis of which the tax rate
is applied. Commonly, however, it does not represent the true or market
value of the property.1

Under the law as modified, jurisdiction is determined by the assessed

value of the property. A reading of the complaint shows that respondents
failed to state the assessed value of the property.

1. NARS, JES, Im constrained not to put the issue of docket

fees, ky kahapos langgid katama eh rebut, lets not give them
chance to make good of their case… Read bla Sun
Insurance Office, Ltd. v. Asuncion wherein the Court
decreed that where the initiatory pleading is not
accompanied by the payment of the docket fee, the court
may allow payment of the fee within a reasonable period of
time, but in no case beyond the applicable prescriptive or
reglementary period . OR WE CAN STILL PUT THE
DEFENSE HERE IF YOU GUYS WANT, WHAT YA THINK?

2. The Plaintiff has NO CAUSE OF ACTION against the

defendant;

By virtue of the Lease Contract entered into between Angel

Lopez and the defendant Jack Pasaway on January 5, 2006 covering 2x3
square meters of lot, were the kitchen of Jack Pasaway is situated, Jack
Pasaway has therefore a paramount right of possession over the subject lot

1 G.R. No. 174346 Vda. De Barrera vs Heirs of Legaspi

in question insofar as the land where the kitchen of the defendant is
situated . The Lease Contract was to last for 50 years from the date of its
execution, at 1 peso ( Php. 1) per annum, the amount of which having been
paid in full by Jack Pasaway on the same date that the Lease Contract was
executed, attached herewith as “ANNEX A” and “ANNEX B” the Transfer
Certificate Title which shows the annotations at the back of the Title.

Rule 2 of the Rules of Court defines a cause of action as:

Sec. 2. Cause of action, defined. – A cause of action is

the act or omission by which a party violates a right of another.

The essential elements of a cause of action are (1) a right in favor of

the plaintiff by whatever means and under whatever law it arises or is
created; (2) an obligation on the part of the named defendant to respect or
not to violate such right; and (3) an act or omission on the part of such
defendant in violation of the right of the plaintiff or constituting a breach of
the obligation of the defendant to the plaintiff for which the latter may
maintain an action for recovery of damages or other appropriate relief.

The right of possession over the subject property has always

remained with the herein Defendant, even before the Plaintiff acquired such
property from Angel Lopez. The Lease Contract served as an
encumbrance over the property regardless of its subsequent alienation to
the Plaintiff. If there is anyone who has a cause of action, it would be the
defendant Jack Pasaway, for the latter has all the right to be respected of
his possession over the property. Stated otherwise, if there is anyone who
is at fault here, it would be the defendant for not respecting such
encumbrance attached in the property. Plaintiff was well aware of the
encumbrance from the time of his previous demands to the defendant
including during the Barangay Conciliation proceedings, yet he maliciously
caused the filing of the instant case.

Even, granting for the sake of argument that he was not aware of
the encumbrance, still under the law he is deemed to be constructively
notified ( I don’t know if this is the correct term)of such encumbrance
annotated at the back of the title ( insert pertinent law or jurisprudence here
guys).

3. The Title attached as “Annex A” in the complaint for Accion

Publiciana shows signs which cast doubt on the genuiness
of the Title.

While we do not dispute the ownership of one Richard Chan in

the subject property, the title submitted as Annex A of the complaint
showed signs of irregularity and anomalous circumstances to wit:

a. As above mentioned, the Transfer Certificate Title presented as

“ANNEX A” shows on its heading that the Registry of Deeds of
Negros Occidental issued said TCT. However, the subject property is
located inside Bacolod City. Common practice dictates that if the
property is located within Bacolod City, the Register of Deeds of
Bacolod City is the one authorized to issue Titles within its territorial
jurisdiction and not the Register of Deeds of the Province of Negros
Occidental.

b. The Plaintiff did not include in the TCT No.12345 the back portion
which will show the list of liens and encumbrances attached to the
property. One of which is the encumbrance of the lease contract
executed by Angle Lopez and Jack Pasaway.

4. The Plaintiffs complaint for Accion Publiciana is not properly

verified.

Rule 7, Section 4 of the Revised Rules of Court as amended by A.M No.

00-2-10, provides:
Section 4. Verification. — Except when otherwise specifically required by
law or rule, pleadings need not be under oath, verified or accompanied by
affidavit .

A pleading is verified by an affidavit that the affiant has read the

pleading and that the allegations therein are true and correct of his
knowledge and belief.

A pleading required to be verified which contains a verification based on

"information and belief", or upon "knowledge, information and belief", or
lacks a proper verification, shall be treated as an unsigned pleading.

A perusal of the VERIFICATION/ CERTIFICATION OF NON-

FORUM SHOPPING of the complaint for Accion Publiciana which the
affiant-complainant Richard Chan signed will show that he is a resident of
Brgy. Villamonte, Bacolod City, however, as above mentioned, a closer
look at the complaint under paragraph 1, the complainant’s alleged
residence is Eroroeco, Brgy. Mandalagan, Bacolod City.

Had the affiant-complainant Richard Chan read the verification

and attested to the allegations as true and correct to the best of his
personal knowledge and/or based on authentic records, Richard Chan
would have corrected or at the least noticed the inconsistency as between
his Verification and the complaint.

In addition, albeit the jurat states that RICHARD CHAN

presented his Passport with ID No. EB-0123456, the validity or expiration
date was omitted. It cannot therefore be determined if the same is a valid
competent evidence of identity, hence, bogus.

As stated above, a complaint is deemed verified when the

affiant executes an affidavit that he has read the pleading and the
allegations contained thereat. However, the mere fact that the affiant failed
to even notice an inconsistency of his own residence in his complaint and
verification, cannot be considered as proper verification. Lack of proper
verification shall be deemed as an unsigned pleading. Being an
unsigned pleading, it is a mere scrap of paper.

With the foregoing premises, the defendants respectfully submit that

the Complaint should be dismissed for any or all of the grounds cited
above.

COUNTERCLAIMS

In the rare event that the Honorable Court shall resolve to proceed with the
trial of the case despite the above special and affirmative defenses, the
Defendant submit the following compulsory counterclaims and for this
purpose, hereby restate and repleads all the allegations in the preceding
paragraphs by way of reference and incorporation:

1. Due to the plaintiff’s willful and patent disregard of the

defendants’ rights, the defendants suffered inconvenience,
embarrassment and humiliation thereby causing them
mental anguish, serious anxiety, wounded feelings and
social humiliation, resulting in moral damages for which the
plaintiff should be held liable in the amount of One Hundred
Fifty Thousand Pesos (P150,000.00), Philippine currency;

2. To deter others from following after the plaintiff’s wanton acts

and evident bad faith, she should be held liable to pay the
plaintiff exemplary damages in the amount of Fifty Thousand
Pesos (P50,000.00), Philippine currency, by way of example
or correction for the public good;
 PRAYER

WHEREFORE, PREMISES CONSIDERED, it is most respectfully

prayed that –

1. The Special and Affirmative Defenses shall be immediately set

for preliminary hearing;

2. After the said preliminary hearing, to issue an Order dismissing

the plaintiff’s complaint for Accion Publiciana, with prejudice;

3. In the remote event that the Honorable Court shall proceed with
the trial, the defendant pray for a judgment denying the reliefs prayed for by
the plaintiff for lack of merit;

4. On the compulsory counterclaims- to order the plaintiff to pay

the defendants -

a. Moral damages in the amount of One Hundred Fifty

Thousand Pesos (P150,000.00), Philippine currency;
b. Exemplary damages in the amount of Fifty Thousand
Pesos (P50,000.00), Philippine currency;
c. Attorney's fees in the amount of Five Hundred Thousand
Pesos (P500,000.00), Philippine currency;
d. Appearance fee of Two Thousand Pesos (P2,000.00),
Philippine currency, per court appearance;
e. Other litigation expenses as may be proved during trial.

Other reliefs just and equitable under the premises are likewise
prayed for.

Bacolod City, Philippines this --- day of --- 2013.

COUNSELS FOR THE DEFENDANT

Narciso Javelosa Jr.
IBP No. 12345/1-6-2012/Bacolod City
PTR No. 12345/1-6-2012/Bacolod City
Roll No. 3456
MCLE Compliance No. III-12345/1-25-2011

Zenith Magandan
IBP No. 12345/1-1-1111/Bacolod City
PTR No. 12345/1-1-111/Bacolod City
Roll No. 12345
MCLE Compliance No. III-12345-11

JESA BAYONETA
IBP No. 12345/1-6-3444/Bacolod City
PTR No. 123456/1-6-4455/Bacolod City
Roll No. 532233
MCLE Compliance No. III-012334/1-25-2011
 VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING

I, JACK PASAWAY, Filipino, of legal age, married and a resident of

Bacolod City, Negros Occidental, Philippines, under oath, depose and say
that:

1. I am the defendant in the above-entitled case;

2. I caused the preparation of the foregoing Answer with

Counterclaims;

3. I read all the allegations thereof and that the same are true and
correct based on my own personal knowledge and authentic
records;

4. I have not heretofore commenced any other action or proceeding

involving the same issue in the Supreme Court, Court of Appeals,
or any other tribunal or agency;

5. To the best of my knowledge, no such action or proceeding is

pending in the Supreme Court, Court of Appeals, or any other
tribunal or agency.

6. If I should hereafter learn that of any other similar action or

proceeding has been filed or is pending before the Supreme
Court, Court of Appeals, or any other tribunal or agency, I
undertake to report that fact within five (5) days therefrom to the
Honorable Court.

SIGNED this ____________ at Bacolod City, Philippines.

Jack Pasaway
Republic of the Philippines)
CITY OF BACOLOD )s.s.
x - - - - - - - - - - - - - - - - - - - -x

SUBSCRIBED AND SWORN to before me on _________________

at Bacolod City by Jack Pasaway who is personally known to me, hence,
no need to present a competent evidence of identity.

Doc. No._____;
Page No._____;
Book No._____;
Series of 2012.

Copy furnished to:

ATTY. NOVE C. ABANADO

Counsel for the Plaintiff
1st Lacson St., Bacolod City