Republic of the Philippines

REGIONAL TRIAL COURT

11th Judicial Region
Branch 30
Davao City
 
REPUBLIC OF THE PHILIPPINES, represented
by
the Department of Public Works and
Highways (DPWH),
Plaintiff, Civil Case No.U-120246
For: Expropriation
– versus – (Kapayapaan Coastal Road
Project)
DIOSDADO D. DIOMA,
represented by
JOSE J. JOKOY,
Defendants.
x—————————x

TO: DIOSDADO D. DIOMA,

Alamo, Texas, USA

SUMMONS (By Publication)

 
WHEREAS, the herein plaintiff filed a verified complaint on January 25,
2020, herein quoted as follows:

COMPLAINT

WITH PRAYER FOR EXTRA-TERRITORIAL SERVICE OF SUMMONS AND

URGENT EX-PARTE MOTION FOR THE ISSUANCE OF A WRIT OF
POSSESSION)

PLAINTIFF, the Republic of the Philippines, represented by the Department

of Public Works and Highways (DPWH), by counsel, respectfully states:

1. Plaintiff, through the DPWH, is a sovereign political entity vested with the
power and authority to condemn and expropriate private property for
public use upon payment of just compensation, pursuant to Section 7 of
Executive Order No. 1035 dated June 25, 1985.  It is represented in this
action by the Office of the Solicitor General (OSG) with address at 134
Amorsolo Street, Legaspi Village, Makati City, where it may be served with
pleadings, motions and other papers, and court processes;

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2. Defendant, DIOSDADO D. DIOMA, is the registered owner of the
property for expropriation. As per Affidavit of Waiver of Rights, Possession
and Ownership dated May 22, 2019, and Special Power of Attorney dated
June 18, 2019, said defendants are residing in Alamo, Texas, U.S.A.
appointing JOSE J. JOKOY as his Attorney-in-fact for certain transactions
involving the subject property;

3. Defendant may be served extraterritorially by publication and registered

mail pursuant to Section 15, Rule 14 of the Rules of Court;

4. Pursuant to its rights under Executive Order No. 1035, the DPWH is
implementing the construction of the KAPAYAPAAN COASTAL ROAD
PROJECT which aims to provide an alternative route for commuters to and
fro the City of Davao and contribute to the development of the Davao
Urban Belt Way Super Region.  (Copies of the Project’s Road Alignment
Plan, Project Profile and Certification of Availability of Fund covering the
amount needed for the acquisition of lots and improvements are hereto
attached as Annexes “A”, “B” and “C”);

5. The property sought to be expropriated would be traversed by the

construction of the KAPAYAPAAN COASTAL ROAD PROJECT (KCRP), a
public purpose authorized by law.  In this regard, an Environmental
Compliance Certificate (ECC) has been secured from the Department of
Environment and Natural Resources (DENR).  (A copy of ECC No. 2201-111-
333 dated August 12, 2019 is hereto attached as Annex “D”);

6.The FOUR HUNDRED (400) and SIX HUNDRED (600) square  meter
property for expropriation, shaded and indicated as Lots 1-A and 1-B in the
parcellary plan hereto attached as Annex “E” and “E-1”, are portions of Lot
58 and 59 covered by Transfer Certificate of Title (TCT) No. 123453 and Tax
Declaration CGFN-8983 and CGFN-01368 in the name of the defendant,
DIOSDADO D. DIOMA, containing an area of ONE THOUSAND THREE
HUNDRED (1, 300) for said Lot 58 and TWO THOUSAND SIX HUNDRED
(2,600) square meters for lot 59, more or less, both located in Purok 10-A,
Brgy. Toril, Davao City;

7.The total valuation of FOUR HUNDRED (400) and SIX HUNDRED (600)
square meters of land at Bureau of Internal Revenue (BIR) zonal valuation
of ONE THOUSAND SIX HUNDRED PESOS (Php 1,600.00) per square meter is
ONE MILLION THREE HUNDRED EIGHTY FOUR THOUSAND PESOS (Php
1,384,000.00).  The foregoing details may be summarized as follows:

Copies of the Transfer Certificate of Title (TCT) No. 123453 and Tax
Declaration Nos. CGFN-8983 and CGFN-01368. (BIR Certification on

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 the relevant zonal valuation are hereto attached as Annexes “F”, “G”,
“G-1” and “H”);

8. The parcel of land referred to above has not been applied to or

expropriated for public use and is indispensable in implementing the
KAPAYAPAAN COASTAL ROAD PROJECT (KCRP).  It was selected by plaintiff
in a manner compatible with the greatest public good and with the least
injury to private property;

9.Under Section 7 of Executive Order No. 1035 dated June 25, 1985,
plaintiff through the DPWH, is authorized to institute expropriation
proceedings through the Office of the Solicitor General;

10. Plaintiff exerted efforts to acquire the above-described property by

negotiated sale pursuant to Section 6 of R.A. 8974, but the same failed for
which reason expropriation is sought herein;

11. The determination of just compensation in expropriation cases is a

judicial function, which should be discharged at the trial on the merits with
the assistance of not more than three (3) commissioners pursuant to
Sections 5 to 8, Rule 67 of the Rules of Court.  However, upon the filing of
the complaint, or at anytime thereafter, and after due notice to defendant,
plaintiff is authorized to take possession and enter into the property
involved, upon payment of the amount equivalent to “one hundred percent
(100%) of the zonal value” of the land to be taken based on the current
zonal valuation of the BIR, conformably with Republic Act No. 8974;

12. Plaintiff is able and ready to pay defendant owner DIOSDADO D. DIOMA
the amount of ONE MILLION THREE HUNDRED EIGHTY FOUR THOUSAND
PESOS (Php 1,384,000.00), which is equivalent to one hundred percent
(100%) of the zonal value of the property sought to be expropriated, and to
make the necessary deposit with this Honorable Court of such amount in
compliance with the required payment under R.A. 8974.  The
corresponding check, payable in the name of said defendant owner, is
available and will be deposited with this Honorable Court prior to the
issuance of the writ of possession.

ALLEGATIONS IN SUPPORT OF THE URGENT PRAYER

FOR THE ISSUANCE OF A WRIT OF POSSESSION

13. Section 4 of R.A. No. 8974 lays down the guidelines in expropriation
proceedings as follows:

“Sec. 4. Guidelines for Expropriation Proceedings. – Whenever it is

necessary to acquire real property for the right-of-way, site or location

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 for any national government infrastructure project through
expropriation, the appropriate implementing agency shall initiate the
expropriation proceedings before the proper court under the following
guidelines:

(a) Upon the filing of the complaint, and after due notice to the
defendant, the implementing agency shall immediately pay the
owner of the property the amount equivalent to the sum of (1) one
hundred percent (100%) of the value of the property based on the
current relevant zonal valuation of the Bureau of Internal Revenue
(BIR); and (2) the value of the improvements and/or structures as
determined under Section 7 hereof;

(b) xxx Upon compliance with the guidelines above-mentioned, the

court shall immediately issue to the implementing agency an order
to take possession of the property and start the implementation of
the project. Before the court can issue a Writ of Possession, the
implementing agency shall present to the court a certificate of
availability of funds from the proper official concerned. xxx”;

14. In Capitol Steel Corporation vs. Phividec Industrial Authority declares

that the issuance of a writ of possession is a ministerial duty of this
Honorable Court upon plaintiff’s compliance with the guidelines set forth in
Section 4 of R.A. No. 8974, supra:

Under R.A. 8974, the requirements for authorizing immediate entry

in expropriation proceedings involving real property are: (1) the
filing of a complaint for expropriation sufficient in form and
substance; (2) due notice to the defendant; (3) payment of an
amount equivalent to 100% of the value of the property based on the
current relevant zonal valuation of the BIR including payment of the
value of improvements and/or structures if any, or if no such
valuation is available and in cases of utmost urgency, the payment of
the proffered value of the property to be seized; and (4) presentation
to the court of a certificate of availability of funds from the proper
officials;
Upon compliance with the requirements, a petitioner in an
expropriation case, in this case respondent, is entitled to a writ of
possession as a matter of right and it becomes the ministerial duty of
the trial court to forthwith issue the writ of possession. No hearing is
required and the court neither exercises its discretion or judgment in
determining the amount of the provisional value of the properties to
be expropriated as the legislature has fixed the amount under
Section 4 of R.A. 8974;

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15. Upon service of summons to the defendants, due notice on the herein
motion is deemed served pursuant to the above-quoted section.  After
deposit of the check corresponding to 100% of the value of the property
based on the current relevant zonal valuation of the BIR, plaintiff is thus
entitled to the issuance of a writ of possession, which is urgently needed in
order for plaintiff to implement the KAPAYAPAAN COASTAL ROAD PROJECT
(KCRP);

16. It is imperative for the protection of the interest of the government vis-
a-vis its real rights over the subject property that the corresponding writ of
possession issued in the above-entitled case be entered in the Primary
Entry Book of the Register of Deeds of Davao and thereafter, annotated in
the space provided in its Registration Book pursuant to Section 69 of
Presidential Decree No. 1529, otherwise known as the Property
Registration Decree:

“Section 69. – Attachments. An attachment, or a copy of any writ,

order or process issued by a  court of record, intended to create or
preserve any lien, status, right, or attachment upon registered land,
shall be filed and registered in the Registry of Deeds for the province
or city in which the land lies, and, in addition to the particulars
required in such papers for registration, shall contain a reference to
the number of the certificate of title to be effected and the
registered owner or owners thereof, and also if the attachment,
order, process or lien is not claimed on all land in any certificate of
title a description sufficiently accurate for identification of the land or
interest to be affected. A restraining order, injunction, or mandamus
issued by the court shall be entered and registered on the certificate
of title affected, free of charge.”

17. To ensure that the subject property is free from statutory lien, it is
necessary that defendant registered owner be required to present proof of
payment of the corresponding realty taxes before the check is released to
them.

PRAYER

WHEREFORE, plaintiff mostly respectfully prays that:

1. Extraterritorial service of summons to non-resident defendant be

effected by way of publication once in a newspaper of a general circulation
in the City of Davao with a copy of said summons and the accompanying
order of this Honorable Court sent to her last known address via registered
mail pursuant to Section 15, Rule 14 of the Rules of Court;

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2. Plaintiff be authorized, by proper order and writ to take immediate
possession, control and disposition of the subject land sought to be
expropriated, upon plaintiff’s deposit with the Office of the Clerk of Court,
Multiple Sala, Regional Trial Court, Davao City, Davao del Sur, of a check
payment equivalent to one hundred percent (100%) of the BIR current
zonal valuation for the affected property in the name of defendant owner;
and for the office of said Clerk of Court to safe keep and release the same
to said defendant or her SUBJECT TO CLEARANCE from the plaintiff of her
satisfaction or completion of proofs of ownership in accordance with its
Road Right-Of-Way Implementing Rules and Regulations and Commission
on Audit (COA) requirements.

3. An Order be issued directing the Register of Deeds of the place having

territorial jurisdiction over the subject property to enter the Writ of
Possession in the Primary Entry Book and annotate the same in the
Registration Book pursuant to Section 69 of P.D. 1529;

4. After decreeing plaintiff’s right of condemnation and determining the

just compensation therefor, plaintiff be authorized to pay just
compensation to the defendant owner, after deducting the sum due the
government for the unpaid real property taxes, if any, and the amounts
paid/deposited as provisional value as well as any amount necessary to
discharge any lien or encumbrances; and

5. Judgment be rendered condemning the property subject of the present

case, free from all liens and encumbrances whatsoever, for public use and
for the public purpose herein set forth. Directing the same Register of
Deeds to cause the registration and annotation of the decision or judgment
to the instant eminent domain or expropriation case covering the road
right-of-way of the KAPAYAPAAN COASTAL ROAD PROJECT (KCRP).

FINALLY, Plaintiff further prays for such other reliefs and remedies which
this Honorable Court may deem just and equitable under the premises.

DONE. On the 25th day of January 2020. In the City of Davao, Philippines.

(sgd)
GEORGIE G. WUS
Solicitor General
Roll No. 23416
IBP Lifetime No. 00100
MCLE Exemption No. III-0028523

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 (sgd)
FREDERICK F. FATAL
Assistant Solicitor General
Roll No. 24034
Lifetime IBP No. 02444
MCLE Exemption No. IV-000369145

(sgd)
HENRY H. HORNDOVAL
Senior State Solicitor
Roll No. 39011
IBP No. 921188, 5/17/113
MCLE Compliance No. IV-1009176

OFFICE OF THE SOLICITOR GENERAL

134 Amorsolo Street,
Legaspi Village
Makati City
Telephone Nos. 500-009 to 09

WHEREAS, on February 5, 2019, the Honorable Court Branch 30, this

jurisdiction, issued an Order, which read as follows:

“ xxx

Finding the instant complaint to be sufficient in form and substance,

let summons be issued and served upon the person of the defendant.
Considering however, the prayer for extraterritorial service of
summons, let service of summons be effected by publication in a
newspaper of general circulation in the Philippines requiring the
defendant to file his answer or any responsive pleading thereto
within sixty (60) days from date of publication and a copy of the
summons and the Order of this Court be furnished the defendant by
registered mail at his last known address.

SO ORDERED.

xxx”

NOW THEREFORE, you are hereby required to file within sixty (60) days
from date of the last publication of this summons, with the Honorable
Court, Branch 30, this jurisdiction your answer to the complaint filed by
plaintiff through its counsel, Office of the Solicitor General, in the above-
captioned case.

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You are further required to serve a copy of your answer upon the plaintiff
through its counsel at 134 Amorsolo St., Legaspi Village, Makati City.

In the event that you fail to file your answer and/or responsive pleading
within the aforementioned period of time, the Court shall proceed to
render judgment granting the plaintiff such relief as his pleading may
warrant, unless the Court in its discretion requires the plaintiff to submit
evidence.

WITNESS, the Honorable HONESTO H. ONORABLE, Presiding Judge of the

Regional Trial Court, Branch 30, Davao City, this 5th day of February, 2020.

(sgd)
JUSTICE J. JUAMBO
Branch Clerk of Court 
 

Copy furnished:
Office of the Solicitor General
134 Amorsolo St., Legaspi Village, Makati city