Republic of the Philippines

COURT OF APPEALS
Visayas Station
Cebu City

LIVINGSTONE CHRISTIAN
ACADEMY, INC.,
Petitioner - Appellant,
CA-G.R. CV No. _______
-versus- RTC Br. 55, Mandaue City
Lower Court Case No. MAN-
DAVID LIVINGSTONE MISSIONARY 6169-A
FOUNDATION INCORPORATED,
Respondent - Appellee. For: Unlawful Detainer

/------------------------------------------------/

PETITION FOR REVIEW

(Rule 42)

PETITIONER, by counsel and to this Honorable Court,

respectfully alleges:

NATURE OF THE CASE

This is a petition for review pursuant to Rule 42 of the Rules of

Court of the 17 December 2009 decision of the Regional Trial Court of
Mandaue City, Branch 55, entitled David Livingstone Missionary Foundation
Philippines vs. Lvingstone Christian Academy Incorporated, in Civil Case No.
MAN-6169-A, which affirmed the 10 June 2009 decision of the Municipal
Circuit Trial Court of Liloan-Compostela, in Civil Case No. 649-R, affirming
respondent’s complaint for unlawful detainer, on the ground that the RTC,
in the exercise of its appellate jurisdiction, committed in its decision, errors
of law and of facts.

THE PARTIES

Petitioner is a non-stock, non-profit corporation, organized and

existing by and under Philippine Laws, and is the defendant in said Civil
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Case No. 649-R, MCTC of Liloan-Compostela AND the appellant in said Civil
Case No. MAN-6169-A, RTC BR. 55, Mandaue City.

Respondent is a non-stock, non-profit organization, existing under

the laws of the Philippines, and is the plaintiff in Civil Case No. 649-R, MCTC
Liloan-Compostela, and the appellee in Civil Case No. MAN-6169-A, RTC Br.
55, Mandaue City. It may be served with legal process through its counsel,
Atty. Joan S. Largo, with office address at Florido & Largo Law Office, Suite
802, Ayala-Life-FGU Center, Cebu Business Park.

TIMELINESS OF PETITION

On 28 January 2010, petitioner received copy of the 17

December 2009 decision of the RTC BR. 55 of Mandaue City in Civil Case
No. MAN-6169-A. Certified true copy of said decision is attached hereto as
ANNEX "A".

On 12 February 2010, petitioner filed its motion for

reconsideration of said decision, copy of which motion for reconsideration
is attached hereto as ANNEX "B".

On 1 February 2020, petitioner received a copy of the order of

the trial court denying said motion for reconsideration. Certified true copy
of said order is attached hereto as ANNEX "C".

Within the 15-day period from receipt of said order marked as

ANNEX "C", petitioner is filing the instant petition for review with the Court
of Appeals, as shown from the face of said petition.

STATEMENT OF FACTS AND MATTERS INVOLVED

The factual background and proceedings are as follows:

1. Petitioner was created pursuant to the Respondent-appellee’s

intention, to provide education or to establish a school for the
Respondent’s resident orphans. The 6 February 1993 “minutes” of
the Board’s annual meeting which contains the said decision is herein
attached as “Annex D;”
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2. Soon after, Petitioner was created and established under existing

Philippine Laws. The petitioner was intended to carry out the
respondent’s intention of establishing an educational institution
within its premises, after respondent found out that it was not in a
position to manage the school directly;

3. Respondent is the owner of a parcel of land with buildings and

facilities (properties) located at Jubay, Liloan Cebu which is the site of
Petitioner’s school. The beneficial use of the said properties was
granted to the Petitioner;

4. It was understood that no lease will be created between the parties.

As reflected in a meeting of the respondent’s board of trustees on 4
February 1995, the Board stated that a “a token amount of rental”
will be given to the Foundation. In fact, no lease was created
between the parties. Copy of the minutes of the said meeting is
herein attached as “Annex E;”

5. Petitioner actually opened the school in 1996 and was called

Livingstone Christian Academy (school;)

6. Since the school was opened up to present, it has consistently

provided quality Christian education to the orphans of Respondent’s
orphanage, consistent with its obligation to provide education.
Respondent was also expected to comply with its reciprocal
obligation to allow Petitioner to occupy and use the properties for
the operation of the school;

7. Respondent demanded that Petitioner enter into a contract of lease

over the properties which has been occupied by petitioner since
1996. Respondent used the words “terminated” and “renew”, saying
that Petitioner should “renew” the contract of lease in 1999 because
it has “terminated;”

8. Petitioner refused because executing a lease contract would change

the true nature of its relationship, which is one based on a reciprocal
obligation. This kind of obligation cannot be unilaterally terminated
by either party, only by judicial rescission or a
fundamental/substantial breach that would defeat the very object of
the execution of the contract;
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9. Petitioner has not committed any breach. And there is no other basis
for a unilateral rescission;

10.Respondent filed a complaint for unlawful detainer against the

respondent before the MCTC of Liloan-Compostela and was docketed
as Civil Case No. 649-R, herein attached as ANNEX "F";

11. On 10 June 2009, the MCTC released a judgment ruling in favor of

respondent, which decision is herein attached as ANNEX "G";

12.On 31 July 2009, the petitioner filed an appeal of the decision of the
MCTC to the RTC Br.55 of Mandaue City;

13. On 17 December 2009, the RTC rendered a decision affirming the

decision of the MCTC;

14. On 12 February 2010, the petitioner filed a motion for

reconsideration of the decision of the RTC. The motion is herein
attached as “ANNEX B;”

15. On 4 June 2010, the RTC rendered an order which found no reason
to disturb their previous ruling. The order is herein attached as
“ANNEX C;”

16. On _______, the herein petitioner filed this instant petition for
review under Rule 42 of the 1997 Rules of Civil Procedure.

ISSUES RAISED

I.
WHETHER OR NOT THE RESPONDENT-APPELLEE HAS THE RIGHT TO EJECT THE
PETITIONER-APPELLANT BASED ON A LEASE AGREEMENT WHICH DOES NOT EXPRESS THE
TRUE INTENT OF THE PARTIES AND WHICH WAS NEVER THE PRIME CONSIDERATION WHY
THE RESPONDENT-APPELLEE UNDER ITS FORMER OFFICERS, AGREED WITH THE
DEFENDANT-APPELLANT FOR THE OPERATION OF THE SCHOOL.

II.
WHETHER OR NOT, BASED ON THE PLEADINGS AND EVIDENCES, THE CASE IS ONE FOR
ACCION PUBLICIANA WHICH IS COGNIZABLE BY THE PROPER REGIONAL TRIAL COURT.
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ERRORS COMMITTED BY TRIAL COURT

I.
WITH ALL DUE RESPECT, THE HONORABLE COURT ERRED IN HOLDING
THAT THE CONTRACT OF LEASE EXPRESSED THE TRUE INTENTION OF THE
PARTIES, WHICH WAS FOR THEM TO RENDER RECIPRICAL OBLIGATIONS
TO EACH OTHER, AND IN FAILING OR REFUSING TO HOLD THAT IT WAS
NEVER INTENDED TO TAKE EFFECT AS SUCH.

II.
THE TRIAL COURT ERRED THAT THE CASE IS ONE FOR ACCION PUBLICIANA
AND FOR THAT, THE COMPLAINT SHOULD HAVE BEEN FILED WITH THE
PROPER TRIBUNAL WITH JURISDICTION OVER SUCH CASE.

GROUNDS OR REASONS FOR ALLOWANCE OF APPEAL

1. The appeal should be granted as it was filed within the

reglementary period of 15 days.

2. The appeal should be granted as there is no plain, speedy and

adequate remedy available to the petitioner.

3. The appeal should be granted as substantial injustice was

committed against the rights of the petitioner, which rights were ignored by
the trial court.

4. The appeal should be granted as manifest violation of petitioner's

right to property were not protected.

DISCUSSION

I. WITH ALL DUE RESPECT, THE HONORABLE

COURT ERRED IN HOLDING THAT THE CONTRACT
OF LEASE EXPRESSED THE TRUE INTENTION OF
THE PARTIES, WHICH WAS FOR THEM TO RENDER
RECIPRICAL OBLIGATIONS TO EACH OTHER, AND
IN FAILING OR REFUSING TO HOLD THAT IT WAS
NEVER INTENDED TO TAKE EFFECT AS SUCH.
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At first glance, the facts and issues of this case seem simple - even
academic to a point. However, casual perusal of the records of this case on
appeal ought to show the complexity of the case at hand. The respondent-
Appellee argues that it has the right to summarily eject the Petitioner-
Appellant by virtue of the expiration and non-renewal of the contract of
lease while the former argues that the contract of lease relied upon does
not express the true intent of the parties. Unfortunately, the honorable
MCTC decided in favour of respondent-Appellee. This was affirmed in toto
by the RTC.

We come now appearing before this Honourable Appellate Court to

ask it to right this wrong and decide in favour of law and equity. Unlawful
detainer is the action that must be brought when possession by a landlord,
vendor, vendee or other person of any land or building is being unlawfully
withheld after the expiration or termination of the right to hold possession,
by virtue of any contract, express or implied. In such a case, prior physical
possession is not required.1 To make out a case of unlawful detainer, the
complaint must show that the withholding of possession, or the refusal to
vacate, is unlawful. The respondent-Appellee adduced as evidence a
notarized Lease Agreement contract signed between the parties. Such
document is considered as a public document and serves as evidence of the
facts in clear, unequivocal manner therein expressed. 2 To this the lower
court seems to be cognizant and adept in the application of law. However,
its ineptitude in the appreciation of facts are shown by its casual sweeping
aside of the important issue raised by the Petitioner-Appellant in this case -
that the contract relied upon by the respondont-Appellee for its right to
eject does not represent the true intention of the parties. The LCA does not
question the validity of the Lease Agreement in fact it acknowledges its
existence. It merely aims to correct the form in order to reflect the true
intentions of the parties.

Art. 1359 of the New Civil Code provides:

Art. 1359. When, there having been a meeting of the minds of the
parties to a contract, their true intention is not expressed in the
instrument purporting to embody the agreement, by reason of
mistake, fraud, inequitable conduct or accident, one of the parties
may ask for the reformation of the instrument to the end that such
true intention may be expressed.

1 Sps. Benitez v. CA, 77 SCAD 793 [1997].

2 Gonzales v. CA, 90 SCRA 185 [1979]

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If mistake, fraud, inequitable conduct, or accident has prevented a

meeting of the minds of the parties, the proper remedy is not
reformation of the instrument but annulment of the contract.

When the true intention of the parties to a perfected and valid

contract are not expressed in the instrument purporting to embody their
agreement by reason of mistake, fraud, inequitable conduct or accident,
one of the parties may ask for the reformation of the instrument so that
such true intention may be expressed. In order that there can be a
reformation of the instrument, the following requisites must, there- fore,
concur:

(1) There must be a meeting of the minds of the contracting parties;

(2) Their true intention is not expressed in the instrument; and

(3) Such failure to express their true intention is due to mistake,
fraud, inequitable conduct or accident.

To materialize the true intent of the parties, a reformation of the

document is thus proper as cited in the case of Rosella-Bentir v Leanda,
G.R. No. 128991, April 12, 2000, it reads:

“Reformation of an instrument is that remedy in equity by means of

which a written instrument is made or construed so as to express or
conform to the real intention of the parties when some error or
mistake has been committed.It is predicated on the equitable maxim
that equity treats as done that which ought to be done.The rationale
of the doctrine is that it would be unjust and inequitable to allow the
enforcement of a written instrument which does not reflect or
disclose the real meeting of the minds of the parties."

The Petitioner-Appellant has continuously raised the fact that the

lease agreement between the parties did not express the true intent of the
contract hence should have been ruled on not based on the mere
document alone. In the construction or interpretation of an instrument, the
intention of the parties is primordial and is to be pursued. The
denomination or title given by the parties in their contract is not
conclusive of the nature of its contents. 3 As cited in the case Tanguilig v
Court of Appeals, G.R. No. 117190, January 2, 1997:

3 Ayala Life Assurance, Inc. v. Ray Burton Development Corporation, G.R. No. 163075, January 23, 2006,
479 SCRA 462, 467-468.
 P a g e | 8 of 12

“It is a cardinal rule in the interpretation of contracts that the

intention of the parties shall be accorded primordial consideration
and, in case of doubt, their contemporaneous and subsequent acts
shall be principally considered.”

Although the Lease Agreement provides the term for the contract,
the subsequent act of DLMF in its Board meeting in February 6, 1993
discloses a different tenure and sheds light into the agreement:

“6. Opening of an Elementary School

There is a plan to establish an elementary school principally to cater
to the Foundation’s beneficiaries and the immediate communities.
The Foundation believes that quality Christian education would be
ensured if it enrolls the kids in its own school. This project is inspired
by the feat of the school established in Thailand.”

Further, the Lease Agreement provides for the payment of rental.

The pertinent provision reads:
“4. RENTAL. For and in consideration of this Agreement, LESSEE shall
pay to the LESSOR annual rental in the amount of One Peso (P1.00),
Philippine Currency, payable within the first ten (10) calendar days of
the contract year when this Lease subsists.”

Even more revealing, is the statement made by the Board on

February 04, 1995:
“6. Opening of a School
The proposed name of the school is “Livingstone Christian
Academy”. The construction of the two classrooms is on-going. The
primary school will start its classes in June 1995.

A TOKEN AMOUNT OF RENTAL WILL BE GIVEN THE FOUNDATION.”

A contract of lease is a consensual, bilateral, onerous and commutative

contract by which the owner temporarily grants the use of his property to
another, who undertakes to pay the rent therefore. 4|||Therefore, the form
of the Lease Agreement betrays the real intention of parties when it is
denominated as such when the amount of the rent is neither onerous nor
commutative. For such use of the property an amount of ONE PESO (P1.00)
is patently not equivalent to the use of such valuable property. Dare we
say, this nominal amount is not at all onerous but gratuitous.

4 Aguilar v. Court of Appeals, supra note 56, at 640.|||

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According to Article 1946 of the Civil Code as cited in the case of

Pajuyo v Court of Appeals, G.R. No. 146364, June 3, 2004:

“In a contract of Commodatum, one of the parties delivers to

another something not consumable so that the latter may use the
same for a certain time and return it. A feature of commodatum is
that the use of the thing belonging to another is for a certain period.
Thus, the bailor cannot demand the return of the thing loaned until
after expiration of the period stipulated, or after accomplishment of
the use for which the commodatum is constituted.”
(Emphasis Supplied)

A contract of commodatum is essentially gratuitous and for a temporary

use. The Bailor in commodatum cannot demand the return of the thing
loaned till after the expiration of the period stipulated, or after the
accomplishment of the use for which the commodatum has been
constituted.5 The contract of commodatum on the land was constituted for
the purpose of the Petitioner-Appellant to provide quality education for the
orphans of the respondent-Appellee and the immediate communitinies.
This was and is the true intent of the parties as to why the contract was
created. Thus, the respondent-Appellee is without legal right to order the
ejectment of the petitioner-Appellant when it is still diligently providing and
observing the obligation incumbent upon which is to provide quality
education. In conclusion, the lower court was remiss in its appreciation of
facts and law with its short sighted valuing of the important issue raised by
LCA.

II. THE TRIAL COURT ERRED THAT THE CASE IS

ONE FOR ACCION PUBLICIANA AND FOR THAT,
THE COMPLAINT SHOULD HAVE BEEN FILED WITH
THE PROPER TRIBUNAL WITH JURISDICTION
OVER SUCH CASE.

In a terse discussion on the matter of accion publiciana, the RTC held:

“As to the second issue re: accion publiciana, the

same is without merit for as shown in the records of
this case, plaintiff-appellee sent her demand letter to
vacate and pay rent to defendant-appellant which
letter was acknowledged/received by the latter in
February 2008 and the instant case was filed in June of
the same year.”

5 Art. 1946 of the New Civil Code.

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While the RTC made no mistake in lifting the facts concerning the
respondent-appellee’s demand letter, it must be emphasized that neither
the date of sending nor the receipt or acknowledgement thereof is the
reckoning point of determining the nature of the action brought before the
court.

 In a fairly recent case involving an ejectment complaint where a

piece of property was rightfully inherited in 1977 but the demand for the
occupant by tolerance to vacate the same was made only on 04 July 2007,
the Supreme Court declared:

Accordingly, what determines the proper action

to be filed for the recovery of the possession of the
property is the length of time of dispossession. If the
dispossession has not lasted for more than a year, an
ejectment proceeding is proper and the MTC acquires
jurisdiction. On the other hand, if the dispossession
lasted for more than a year, the proper action to be
filed is an accion publiciana which should be brought
to the proper RTC. Here, the CA correctly held that the
proper action should have been accion publiciana and
not an action for ejectment since the dispossession has
lasted for more than one year. (Mendoza v.
Municipality of Pulilan, G.R. No. 200244 (Notice),
[September 15, 2014])

(Emphasis supplied)

In another earlier case, the court held:

In this jurisdiction, the three kinds of actions for

the recovery of possession of real property are:

1. Accion interdictal, or an ejectment proceeding which may

be either that for forcible entry (detentacion) or unlawful
detainer (desahucio), which is a summary action for
recovery of physical possession where the dispossession
has not lasted for more than one year, and should be
brought in the proper inferior court;
 P a g e | 11 of 12

2. Accion publiciana or the plenary action for the recovery of

the real right of possession, which should be brought in the
proper Regional Trial Court when the dispossession has
lasted for more than one year; and

3. Accion reinvindicatoria or accion de reivindicacion, which is

an action for the recovery of ownership which must be
brought in the proper Regional Trial Court.

Based on the foregoing distinctions, the material

element that determines the proper action to be filed
for the recovery of the possession of the property in
this case is the length of time of dispossession. Under
the Rules of Court, the remedies of forcible entry and
unlawful detainer are granted to a person deprived of
the possession of any land or building by force,
intimidation, threat, strategy, or stealth, or 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, or the legal representatives or
assigns of any such lessor, vendor, vendee, or other
person. These remedies afford the person deprived of
the possession to file at any time within one year
after such unlawful deprivation or withholding of
possession, an action in the proper Municipal Trial
Court against the person or persons unlawfully
withholding or depriving of possession, or any person
or persons claiming under them, for the restitution of
such possession, together with damages and costs.
Thus, if the dispossession has not lasted for more
than one year, an ejectment proceeding is proper and
the inferior court acquires jurisdiction. On the other
hand, if the dispossession lasted for more than one
year, the proper action to be filed is an accion
publiciana which should be brought to the proper
Regional Trial Court. (Encarnacion v. Amigo, G.R. No.
169793, [September 15, 2006], 533 PHIL 466-476)

(Emphasis supplied)
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In this case, the contract of lease -- which has been repeatedly

claimed to not contain the real intentions of the parties -- ended on 31 May
2000. Assuming arguendo that the same truly involved payment of rent
amounting to one peso (Php 1.00) and not a mere token for agreed
reciprocal obligations, unlawful possession would have started immediately
after the termination of the lease contract. Even if the duration of the
revisiting of the terms for contract renewal is factored in, the fact that the
occupation by the petitioner-appellant of the subject real property by
tolerance still began on 01 June 2000. There being no showing of any piece
of evidence lawfully extending the appellant school’s occupation until at
most a year before the ejectment suit was filed in 2008, the action for
ejectment resorted to by the complainant has prescribed, making this case
one on accion publiciana.   

Thus, it is respectfully submitted that the jurisdictional issue -- which

law and jurisprudence hold can be raised at any time and even on appeal --
must be resolved in favor of the petitioner-appellant.

PRAYER

WHEREFORE, premises considered, it is most respectfully

prayed of the Honorable Court that judgment be rendered in favor of the
petitioner and for the grant of the following:

1. That the petition be given due course;

2. That after due proceedings, judgment be rendered setting

aside the questioned decision and ordering annexes "A"
and "G" hereof be set aside and another one be rendered,
holding respondent-appellee liable as follows:

a. Copy reliefs made in the appeal to the RTC;

b. Adjudging respondent-appellee liable for damages

and attorney's fees in the total amount of one-hundred
thousand pesos (PHP 100,000.00), PLUS costs.

4. Petitioner likewise prays for other reliefs deemed just and

equitable in the premises are similarly prayed for.
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Cebu City, Philippines. _________.

Kaye & Friends Law

Counsel for Petitioner-Appellant
Suite 001, Ground Flr.,
AAA Building
Rizal St., Poblacion, Cebu City
Tel. No. (053) 321-5180/09399267777
E-mail: kayeandfriendslaw@gmail.com

BY: COUNSELS FOR PETITIONER

ATTY. KAYE C. ARENDAIN

Roll No. 5000
IBP No. 011 – Lifetime
PTR No. 70 - 1/2/2020 Cebu
MCLE Compliance IV No. 001234
Issued on January 12, 2020

ATTY. JOSHUA Z. BAGUIO

Roll No. 5001
IBP No. 012 – Lifetime
PTR No. 71 - 1/2/2020 Cebu
MCLE Compliance IV No. 001235
Issued on January 12, 2020

ATTY. ALYANNA FUEGO

Roll No. 5003
IBP No. 013 – Lifetime
PTR No. 72 - 1/2/2020 Cebu
MCLE Compliance IV No. 001236
Issued on January 12, 2020

ATTY. SHAIRA M. TABORADA

Roll No. 5004
IBP No. 014 – Lifetime
PTR No. 70 - 1/2/2020 Cebu
MCLE Compliance IV No. 001237
Issued on January 12, 2020

ATTY. KIMBERLEY URTIZBEREA

Roll No. 5005
 P a g e | 14 of 12

IBP No. 015 – Lifetime

PTR No. 70 - 1/2/2020 Cebu
MCLE Compliance IV No. 001238
Issued on January 12, 2020

REPUBLIC OF THE PHILIPPINES )

CITY OF CEBU ) S.S.

VERIFICATION AND CERTIFICATION AGAINST NON-FORUM SHOPPING

I, GRACE B. VALDEZ, of legal age, married and a resident of Liloan,

Cebu, Philippines, after having been duly sworn, to and in accordance with
law, do hereby depose and state that:

1. I am the President of the Petitioner corporation in the above

stated case;

2. I have been duly authorized by a Resolution of its Board of

Trustees to represent the corporation in the above-stated case;

3. I have caused the preparation and filing of the foregoing petition

for review;

4. I all the allegations therein are true and correct of my own accord
and based on authentic documents;

5. To the best of my knowledge and belief, that other than Civil Case
No. MAN-5845, with identical parties and similar issues now
pending before RTC Br.55 of Mandaue City, I have not
commenced any other action or case similar to the claim herein
made before the Supreme Court, Court of Appeals or any other
tribunal, agency or body.

6. If I should thereafter learn that a similar action has been filed

before any tribunal, agency or body, I undertake to report that
fact within five (5) days therefrom to this Honorable Court.

Executed this 15 February 2020, in Cebu City, Cebu,

Philippines.
 P a g e | 15 of 12

GARCE B. VALDEZ
Affiant
CTC No. 123456
01-21-2020/Liloan-Cebu

SUBSCRIBED AND SWORN to before me, this 15th day of February

2020, affiant exhibiting to me her Community Tax Certificate as shown
above below her name. Further, I hereby certify that Affiant is personally
known to me and that she has executed the foregoing verification in my
presence.

ATTY. KIMBERLEY URTIZBEREA

Doc No. 1; Notary Public of Cebu City
Page No. 1; Notarial Commission 505-L
Book No. 1; Until December 31, 2020
Series of 2020 PTR # 123456, Cebu City, 1-3-2020
IBP-Life 04719 OR # 553372, Cebu, 1-3-03
TIN-123-456-789, Roll of Attys. # 12345
Rizal St., Poblacion, Cebu City
MCLE Compliance # VI-0016211
Valid until 4/14/22

Copy furnished:

Clerk of Court
RTC BR. 55, Mandaue City
Date of Receipt: ______________________
Signature: __________________________

Clerk of Court
MCTC, Liloan-Compostela
Date of Receipt: ______________________
Signature: __________________________

Atty. JOAN S. LARGO

Counsel for Respondent-Appellee
Florido & Largo Law Office,
Suite 802, Ayala-Life-FGU Center,
Cebu Business Park.
Date of Receipt: ___________________
Signature: _____________________