Republic of the Philippines

REGIONAL TRIAL COURT

Ninth Judicial Region
BRANCH 18
Pagadian City

HERMINIGILDO BAJAO SR. CIVIL CASE NO. 5278-2K17

Appellant-Plaintiff, (Orig MTCC CIV. CASE 25941)

-versus- -for-

WILSON ALIÑAB DAMAGES

Appellee-Defendant,
x--------------------------------------/

APPELLEE’S MEMORANDUM

COMES NOW, Appellee-Defendant, through the undersigned counsel and

unto this Honorable Court, most respectfully submits this instant Appelee’s
Memorandum, and in support hereof, further avers, that;

STATEMENT OF THE CASE

This instant Appeal stemmed from an Agreement dated March 23, 2015,
wherein land owners Paulina Tesoro-Sabuero, Jesus Tesoro Ganon, Juvencio
Gemeniano and Ronal Pasilan allowed and authorized Joel P. Curpoz to construct
an access road; felt aggrieved, Appellant then, not being a party to the agreement,
filed a civil action for Damages against the Appellee, also not a party to said
agreement, before 9th Municipal Circuit Trial Court of Labangan-Tukuran, then
docketed as CIVIL CASE NO. 207-L. Not being the owner of the land, the said
court dismissed the case. The dismissal becomes final and executory because the
Appellant never elevated the said case by way of appeal;

Again, despite of the fact that Appellant and Appellee were total strangers
to the agreement and despite also of the fact that the land subject of the agreement
(March 23, 2015) is separate and distinct and not covered by another agreement
entered into by Appellant and another land owners; Appellant then filed another
civil action (MTCC CIV. CASE 25941) and raised the same identical issue with
identical allegations and identical cause of action. However, the court a quo,
without resolving the other affirmative and special defenses of the Appellee,
dismissed the said case, with the same ratio decidendi in Civil Case No. 207-L.
Hence, this Memorandum;

STATEMENT OF THE FACTS

On the onset, from the four (4) corners of the of the AGREEMENT dated
March 31, 2010, nowhere can it be found that Appellee is a privy to said agreement;
neither defendant also a privy to an AGREEMENT dated March 22, 2015.
Likewise, neither the Appellant nor the Appellee have any interest of the land
where the construction of the access road is being undertaken because none of
them owned the same. However, Appellant still pursue this groundless appeal
against Appellee;

STATEMENT OF THE ISSUES

I. WHETHER NOR THE APPELLANT AND THE APPELLEE ARE

REAL PARTY-IN-INTEREST.

II. WHETHER OR NOT THE APPELLANT COMPLY THE CONDITION

PRECEDENT, SPECIFICALLY, PRIOR RESORT TO BARANGAY
CONCILIATION.

PLAINTIFF IS NOT A REAL PARTY-

INTEREST, NEITHER IS THE
DEFENDANT; GROUND FOR
OUTRIGHT DISMISSAL OF THE
INSTANT APPEAL;

Appellant misled the Honorable Court by alleging among others that

“Assuming arguendo, that the plaintiff’s Sand and Gravel Concession Permit is not
expired, but at the time thereon, the same was not yet expired”; However, upon
verification with the Provincial Environmental and Natural Resource Office, the
plaintiff’s sand and gravel concession permit was already revoke and cancelled; as a
matter of fact, the construction of the separate access road started after land
owners Paulina Tesoro-Sabuero, Jesus Tesoro Ganon, Juvencio Gemeniano and
Ronal Pasilan and Joel P. Curpoz, entered into an agreement on March 23, 2015;

Considering that the sand and gravel concession permit of the plaintiff was
not renewed by the Provincial Governor, he lost any legal standing as real party-in-
interest to institute the instant case. Accordingly, a person, to be a real party-
in-interest in whose name an action must be prosecuted, should appear
to be the present real owner of the right sought to be enforced, that is,
his interest must be a present substantial interest, not a mere
expectancy, or a future, contingent, subordinate or consequential
interest. Thus, a person having no material interest to protect cannot
invoke the jurisdiction of the court as the plaintiff in an action. Hence,
plaintiff Herminigildo A. Bajao, having no cause of action, the
Honorable Court is ought not to pass upon questions not derived from
any actual controversy. (emphasis supplied);

Appellant also wrongfully assumed that he acquired either ownership or

vested exclusive right to use the access road when the Agreement was executed;
upon close scrutiny of the agreement,; nowhere can it be gleaned that it provided
an “Exclusivity Clause” and neither did the land owners vested him (plaintiff) an
absolute right to exclusively use the access road. Thus, the terms and conditions of
the agreements, provide that, to wit;

TERMS AND CONDITIONS

1. That the Party of the First Part will construct a

road that will traverse the agricultural lands of
 the Party of the Second Part and agreed their
hauling trucks of the sand and gravel that will
pass the said road will pay a toll free in the
amount of thirty pesos (P30.00) per trip
2. That the Party of the Second Part will donate a
six (6) meters wide of their land so that it could
be utilized as private road of both parties.
3. That the party of the Second Part shares among
themselves the income of the road;

The aforesaid terms and conditions will actually show that the plaintiff and
the land owners merely agreed as to the toll fee in using the access road and the
proceeds thereof will be shared and divided among the land owners themselves.
Thus, plaintiff, granting without admitting that the defendant intruded into the
land, has no right to institute whatsoever the instant action because he is not the
real party-in-interest in the instant case. Thus, if there be anyone who should feel
aggrieved by the intrusion and the construction of the road, it should be the land
owners themselves and not herein plaintiff. The plaintiff therefore failed to state a
cause of action because plaintiff is not the real party-in-interest and hence, the
instant complaint should be dismissed;

Moreover, under Section 4, Rule 8 of the Rules of Court “the facts

showing the capacity of a party to sue or be sued or the authority of the
party to sue or be sued in a representative capacity or the legal
existence of an organized association of persons that is made a party,
must be averred”. (underling supplied). In the case on Appeal, Appellant failed
to show in what capacity he is bringing the instant appeal. Neither has Appellant
presented a real, material and direct interest aside from being a grantee of a sand
and gravel concession, whose permit had been cancelled and revoked and a party
to an agreement to use the road of the land owners;

Appellee, on the other hand, is also not the real party-in-interest in the
instant case because he is not the owner of the land where the construction of the
access road is being undertaken. Neither likewise is the Appelle himself who
constructed the access road. In an Agreement dated March 23, 2015, the owners of
the land namely, PAULINA TESORO-SABUERO, JESUS TESORO GANON,
JUVENCIO GEMENIANO and RONALD PASILAND, where the road is
constructed, entered into an agreement with JOEL P. CURPOZ. In said
agreement, the land owners, consented, allowed and authorized Joel P. Curpoz to
construct an access road on the land and not the Appellee”;

Finally, upon perusal of the Agreement dated March 31, 2010, nowhere can
it be found that the name of the defendant WILSON ALINAB, appeared in said
document nor is he a party to said agreement. Neither is the Appellee also a party
to the Agreement dated March 23, 2015. Thus, defendant is a total stranger to said
agreements. Further, the access road in question where the construction of the
road was undertaken is a separate and distinct access road as stipulated in the
Agreement dated March 31, 2010;

Appellant relied ownership solely of the land pursuant to an agreement

dated March 31, 2010, specifically Paragraph 2, of the terms and conditions of said
agreement to wit. “That the Party of the Second Part will donate a six (6)
meters wide of their land so that it could be utilized as private road of
both parties.” Legally then, while Donation is one of the modes of acquiring
requirements, certain mandatory requirements must be complied with under the
law, because donation is an act of pure liberality. Thus, failure to comply the
essential requites renders the donation ineffective;

Going then to one of the terms and conditions of the agreement dated
March 31, 2010, the Appellant is required to pay a toll fee per trip based on the
amount agreed upon, the implication of such payment, the Appellant did not
acquire dominion of the land. Neither did it diminish the patrimony of the land
owners who allegedly donated a portion of the land subject of the agreement.
Hence, the agreement cannot be interpreted as Donation because it did not comply
with the essential requisites of inter vivos donation, to wit;

1. Consent, subject matter, cause (as in other contracts);

2. The necessary form (including the delivery in some cases));
3. Consent or acceptance of done during donor’s lifetime;
4. Irrevocability (except for legal causes);
5. Intent to benefit the done (animus donandi)-“liberality”
being emphasized more than “gratuitousness” and
6. Resultant decrease in the assets or patrimony of the donor;

In fine, just because everyone may have an interest, then it does not mean
that interest automatically belongs to him; the grant of standing is not a choice that
is lightly made by the courts; the Philippine Supreme Court has made a choice
expressed in its decisions to recognize the standing of private persons who are in
possession of certain interests. And when the relief is sought merely for the
protection of rights, the party must show some personal or special interest in the
subject-matter, since he is regarded as the real party in interest and his right must
clearly appear. Hence, both Appellant and Appelle are not the real parties-in-
interest;

APPELLANT FAILED TO COMPLY

WITH A CONDITION PRECEDENT,
SPECIFICALLY, PRIOR RESORT TO
BARANGAY CONCILIATION, AND
THUS HE HAS NO CAUSE OF
ACTION AGAINST THE APPELLEE.

Section 2, Rule 4 of the Rules of Court provides that, to wit “Venue of

personal action. - All other actions may be commenced and tried where
the plaintiff or any of the principal plaintiffs resides, or where the
defendant or any of the principal defendants resides, or in the case of a
non-resident defendant where he may be found, at the election of the
plaintiff.” In the instant case, Appellant’s action is one for Damages, which is a
personal action and therefore, the rule on venue of actions should be followed;

In the instant case, granting without admitting that Appellant is a real

party-in-interest, still there is no cause of action against the Appellee because the
Certificate to File Action is defective, it was issued by Barangay Tawagan Norte,
Labangan, Zamboanga del Sur, where none of the parties actually reside nor a bona
fide resident thereof. This is fatal to the cause of the Appellant. It must be noted
that both the Appellant and the Appellee are residents of Pagadian City. Thus, in
effect the case was prematurely filed as there was no referral to the barangay lupon
or there was no prior barangay conciliation in the barangay of the Appellee, which
is Santiago District, Pagadian City, which under the law is a mandatory
requirement. In cases collection of sum of money or in an action for
purely damages, regardless of the amount involved, prior barangay
conciliation is mandatory. Therefore, non-compliance of the same is
fatal to the cause of action of the plaintiff and is dismissible for lack of
cause of action or prematurity;

The fact that the Appellee attached a Certificate to File Action does not
suffice that he faithfully complied with the mandatory requirement (prior barangay
conciliation) because neither of them are actual residents of Barangay Tawagan
Norte, Labangan, Zamboanga Sur; this is evident from the Appellant’s
complaint itself wherein he admitted Santa Lucia District, Pagadian
City as his home address and he also alleged that defendant is a
resident of Barangay Santiago, Pagadian City, (underlining supplied).
Emphasis should be made that under R.A. 7160, otherwise known as the Local
Government Code of 1991, it provides that “All disputes are subject to
Barangay conciliation and prior recourse thereto is a condition pre-
condition before filing a complaint in court or any government offices.”
(citation supplied for emphasis)

While the Local Government Unit of Labangan, Zmboagna del Sur and
Pagadian City are adjacent to each other, nonetheless, the Barangay Captain of
Barangay Tawagan Norte , Labangan, has no authority to invite, call and summon
the Appellee because neither of them (Appellant and Appellee) actually reside in
said barangay. Thus, the Barangay Captain exceeded his authority when he issued
the alleged Certificate to File Action because by express provision of law, the
Lupon shall have no jurisdiction over disputes where  the parties are
not actual residents of the same city or municipality.”(underling supplied).
Hence, for failure to comply with this condition precedent (prior barangay
conciliation), the Appellant lacks the cause of action to file the case against the
defendant;

In addition, the Appellant actually instituted a similar action against

defendant in the Municipal Circuit Trial Court of Labangan and Tukuran, which
that court dismissed with finality for lack of merit. The institution of this suit
against the Appellee with substantially the same allegations but lacking the same
cause of action and mandatory jurisdictional requirements is suggestive that the
same is frivolous and meant only to harass and vex the Appellee;
 PRAYER

WHEREFORE PREMISES CONSIDERED, Appellee respectfully

prays that after due deliberation and consideration of the facts of the
case, an ORDER be issued dismissing the instant appeal for lack of merit
and

Defendant further prays that a judgment be rendered in its favor

on the following;

Respectfully submitted this 10th day of August 2017 at Pagadian,

Zamboanga del Sur, Philippines.

ATTY. FELIX M. ESCALANTE, JR.

Counsel for the Appellee-Defendant
Attorney’s Roll No. 57655
IBP No. 1039460, 01/03/17
Issued at Pagadian City
PTR No. 0166655, 01/03/17
Issued at Pagadian City
MCLE Compliance No. IV-0014312
Issued on March 21, 2013
MCLE Compliance V: 0005045
Issued on December 18, 2014 and
Valid until April 14, 2019
Email ad: pgochief@yahoo.com
0917-623-0775

COPY FURNISHED: Via registered card with return card due to

distance from Pagadian City to Molave, Zamboanga del Sur and due to lack of
personnel to effectuate personal service

ATTY. ROBERTO P. PAGARA

Counsel for the Plaintiff
Magsaysay Street
Molave, Zamboanga del Sur