Republic of the Philippines

MUNICIPAL TRIAL COURT IN CITIES

11th Judicial Region
Branch 4
Davao City

MIKA BUCOD SHIRATO, CIVIL CASE NO. M-

Plaintiff, DVO-19-02120-SC

-versus-

VICITACION BUCOD AND FOR: UNLAWFUL

FERDINAND BUCOD, DETAINER
Defendants.
x------------------------------------x

ANSWER
COMES NOW, the Defendants VISITACION BUCOD and
FERDINAND BUCOD, through the undersigned counsel, unto this
Honorable Court, most respectfully avers THAT:

PREFATORY STATEMENT

“Greed is a bottomless pit which exhausts the person in an endless

effort to satisfy the need without ever reaching satisfaction.”
- Erich Fromm

The instant case is a basic tale of a harmonious relationship between

a grandmother and a granddaughter that turned sour by greed. The
Plaintiff, herein, despite living a luxurious life in Japan and the love
and affection given by her grandmother, herein Defendant
Visitacion Bucod, had sought to take the last remaining property of
the latter and leave her in the streets without a roof above her head.
Greed in its highest form should not be countenanced.

ADMISSIONS AND DENIALS

1. Defendants ADMIT the allegations in paragraphs 1 to 5 of the

Complaint.

2. Defendants DENY the allegations in paragraph 6 of the Complaint

because the truth of the matter is that the alleged Deed of

Page 1 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
 Assignment and Transfer of Rights1 dated April 11, 2011 between
Rogelio T. Torreon and the Plaintiff was only executed to
accommodate the wishes of Defendant Visitacion Bucod to grant her
granddaughter, whom she raised since infancy until her teenage
years, a place to come home whenever she decides to reside back in
the Philippines from Japan. Furthermore, as will be explained
hereunder, the said Deed of Assignment and Transfer of Rights is a
mere simulated contract between Rogelio T. Torreon and the Plaintiff
which can simply be gleaned from the consideration thereof for a
mere amount of Fifteen Thousand Pesos for the entire Thirty Seven
(37) square meters including the three-storey house erected thereon.

3. Defendants DENY the allegations in paragraph 7 of the Complaint

because similar to the reasons for paragraph 5, the truth of the matter
was that the said Extrajudicial Settlement with Deed of Absolute Sale2
dated August 9, 2018 is again a simulated document which sought to
immediately transfer the said property to the Plaintiff from the heirs
of Eulalio Bucod including herein Defendants by virtue again of the
wishes of Defendant Visitacion Bucod whom the other heirs have
already waived their share of the estate. As will be explained
hereunder, the other heirs of Eulalio Bucod, including the mother of
herein Plaintiff, previously executed a document denominated as
Extrajudicial Settlement of Estate with Waiver of Rights3 dated
December 16, 2016 which effectively transferred the ownership of the
subject property to herein Defendant Visitacion Bucod.

4. Thus, as can be initially gleaned from the dates of the two documents
– the Extrajudicial Settlement of Estate with Deed of Absolute Sale
(August 9, 2018) and the Extrajudicial Settlement of Estate with
Waiver of Rights (December 16, 2016), it is clear that the former
document was an afterthought by the parties therein to do away with
the cost and hassle of multiple transfers of the property and to
execute such document in order to facilitate the wishes of their
mother, herein Defendant Visitacion Bucod.

5. In fact, the Extra-Judicial Settlement with Deed of Absolute Sale was

executed merely to comply with the government documentary
requirements for the titling of the property in the name of the
Plaintiff pursuant to the wishes of Defendant Visitacion Bucod.

6. The real agreement of the parties was that the Plaintiff and Defendant
Visitacion Bucod agreed that the Agdao Property would be
1
A copy is herein attached as Annex “A”.
2
A copy is herein attached as Annex “B”.
3
A copy is herein attached as Annex “C”.
Page 2 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
 purchased by the former from the latter for a total consideration of
Two Million Pesos (P2,000,000.00) which is broken down as follows:

Amount Details
P1,600,000.00 For buying the house and lot at Wellspring
Highland in Catalunan Pequeno where
Defendant Visitacion Bucod will transfer so
that the Agdao Property can be renovated to
the wishes of Plaintiff Mika Bucod
200,000.00 Cash to be received by Defendant Visitacion
Bucod
100,000.00 Budget for the processing of the transfer of
titles
100,000.00 Renovation and appliances for the Wellspring
Property

7. Out of the total consideration of Two Million Pesos (P2,000,000.00)

for the sale of the Agdao Property, only Three Hundred Thousand
Pesos (P300,000.00) was received by Defendant Visitacion Bucod. The
other One Hundred Thousand Pesos (P100,000.00) was given by the
Plaintiff directly to her agent, Sonny Bucod, for the processing of the
transfer of titles. Thus, in actuality, only Two Hundred Thousand
Pesos (P200,000.00) was received by the Defendant Visitacion Bucod
considering that the other One Hundred Thousand Pesos
(P100,000.00) was used to pay for the renovations as well as
appliances in the Wellspring Property.

8. The bulk of the consideration would ultimately fall on the exchange

of the Agdao Property for the Wellspring Property. However,
sometime in January 2019, Defendant Visitacion Bucod came to the
know that the Plaintiff had sold the Wellspring Property as well as
the improvements, furnitures, and appliances therein without the
knowledge and consent of the former.

9. Thus, the act of the Plaintiff in selling the Wellspring Property

effectively violates the Deed of Absolute Sale executed by the parties.
That is because part of the consideration for the sale of the Agdao
Property is that the Plaintiff would purchase the Wellspring property
for the Defendant Visitacion Bucod.

10.Thus, by virtue of the acts of the Plaintiff, herein Defendant

Visitacion Bucodd was forced to Revoke the Extra-judicial Settlment
with Deed of Absolute Sale of the Agdao Property through a letter
addressed to the Plaintiff dated January 29, 2019, a copy of which is
herein attached as Annex “D”.

Page 3 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
11.Defendants ADMITS paragraph 8.

12.Defendants DENY the allegations in paragraph 9. The truth of the

matter is that the Wellspring Property that is claimed by the Plaintiff
to be her own, was in fact part of the consideration for the purchase
of the Agdao Propert from the Defendant Visitacion Bucod. Thus, as
will be further explained hereunder, Defendant’s stay in the
Wellspring Property was not by virtue of consideration and liberality
of the Plaintiff but rather due to the real agreement of the parties to
exchange the Agdao Property for another property to be bought by
the Plaintiff, which ultimately became the Wellspring Property.

13.Defendants DENY the allegations in paragraph 10. The truth of the

matter is that the Defendants transferred to the Wellspring Property
by virtue of the agreement of the parties to exchange the Agdao
Property with the Wellspring Property. Defendants indeed lived
harmoniously in the Wellspring Property for some time. However,
Defendants discovered that the Plaintiff had sold the Wellspring
Property to another person. This shocked the Defendants since it was
clearly agreed upon that the Wellspring Property would be the
exchange for the Agdao Property. Thus, when Defendant Visitacion
Bucod confronted the Plaintiff, this was denied by the Plaintiff but
the former had proof since she personally know the buyer of the
Wellspring Property. This has caused the irreconcilable differences
between Defendant Visitacion Bucod and the Plaintiff since both the
Wellspring Property as well as the Agdao Property are all now gone,
thus making herein Defendant Visitacion Bucod effectively homeless.

14.Defendants partially ADMITS the allegations in paragraph 11 as to

the fact that Sonny Bucod was tasked to manage the affairs of the
Plaintiff while she is out of the country. Defendants however DENY
the other allegations in paragraph 11. The truth of the matter is that
the Defendants were still in possession of the keys to the Agdao
Property considering that they had to gather the furnitures and
fixtures therein as well as all their personal effects. In fact, the
Plaintiff is not even in the country when the Defendants moved out
from the Agdao Property into the Wellspring Property.

15.Defendants partially ADMITS paragraph 12 as to the fact that they

obtained the key to the Agdao Property from Sonny Bucod.
However, as to the other allegations in paragraph 12, the Defendants
DENY the same for the truth of the matter is that Sonny Bucod
voluntarily gave the keys to herein Defendants.

Page 4 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
16.Defendants DENY the allegations in paragraph 13 for lack of
sufficient basis to form a belief as to the truth or falsity thereof.

17.Defendants DENY the allegations in paragraph 14. The truth of the

matter is that when herein Plaintiff effectively reneged on the
agreement to exchange the Agdao Property for the Wellspring
Property, the Defendants intends to revoke the Extrajudicial
Settlement with Deed of Absolute Sale and to rightfully return to the
Agdao Property.

18.Defendants ADMITS the allegations in paragraph 15 and 16 of the

Complaint.

19.Defendants partially ADMITS the allegations in paragraph 17 as to

the fact that a Demand Letter was received by herein Defendant
Visitacion Bucod. However, the other allegations are DENIED for
lack of sufficient basis to form a belief as to the truth or falsity
thereof.

20. Defendants DENY the allegations in paragraphs 18 to 25 for lack of

sufficient basis to form a belief as to the truth or falsity thereof.

21.Defendants DENY the allegations in paragraph 26 to 35 of the

Complaint. Such allegations in the aforementioned paragraph are
capable of pecuniary estimation and thus, cannot amount to grave
and irreparable injury to the Petitioner.

ARGUMENTS AND DISCUSSION

ON THE CAUSE OF ACTION

22.Section 1, Rule 70 of the Rules of Court provides when an action for

forcible entry, and unlawful detainer, is proper:

SECTION 1. Who may institute proceedings, and when.

— Subject to the provisions of the next succeeding
section, 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 may
at any time within one (1) year after such unlawful

Page 5 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
 deprivation or withholding of possession, bring 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.

23.Under this provision, for a forcible entry suit to prosper, the plaintiff
must allege and prove: (1) prior physical possession of the property.
and (2) unlawful deprivation of it by the defendant through force,
intimidation, strategy, threat or stealth.4

24.In the instant case, herein Plaintiff failed to allege as to how and
when she was able to acquire possession over the Agdao Property.
Thus, absent any proof as to prior physical possession, an action for
forcible entry must fail.

25.Although ownership, as claimed by the Plaintiff, carries the right of

possession, but the possession contemplated by the concept of
ownership is not exactly the same as the possession in issue in a
forcible entry case. Possession in forcible entry suits refers only to
possession de facto, or actual or material possession, and not
possession flowing out of ownership. these are different legal
concepts5 for which the law provides different remedies for recovery
of possession.6

26.Thus, in a forcible entry case, "a party who can prove prior
possession can recover such possession even against the owner
himself. Whatever may be the character of his possession, if he has in
his favor prior possession in time, he has the security that entitles
him to remain on the property until a person with a better right
lawfully ejects him."46 He cannot be ejected by force, violence or
terror -- not even by its owners.

27.In the instant case, herein Defendants have been in actual possession
over the Agdao Property and remained in actual possession of the
same even when they temporarily lived in Wellspring Property. In
fact, herein Plaintiff had never stayed at the subject property and in
fact, is most of the time out of the country.

4
Gonzaga v. Court of Appeals, supra note 36, at 540, citing Bejar v. Caluag, G.R. No. 171277, February 15, 2007,
516 SCRA 84, 91.
5
Gonzaga v. Court of Appeals, G.R. No. 130841, February 26, 2008, 546 SCRA 532, 542.
6
Ibid.
Page 6 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
28.Plaintiff’s mere allegation that she allegedly entrusted one Sonny
Bucod as her right hand to manage the Agdao Property and handed
him the key, such mere allegation does not in any way prove actual
possession by herein Plaintiff.

29.The truth of the matter is that herein Defendants did not entirely
abandon the Agdao Property when the temporarily stayed at the
Wellspring Property. In fact, when the Extrajudicial Settlement with
Deed of Absolute Sale was executed last August 9, 2018, the Agdao
Property was still under the full possession of herein Defendant
Visitacion Bucod. After the signing of such Extrajudicial Settlement
with Deed of Absolute Sale, herein Plaintiff immediately went back
to Japan considering that she needs to return to her work
immediately.

30.Thus, when herein Defendants were preparing to transfer to the

Wellspring Property, the same cannot be done immediately
considering the numerous furnitures and fixtures sought to be
transferred, not to mention the personal effects of the Defendants.

31.Thus, from the time that herein Defendants were still transferring to
the Wellspring Property, the alleged key that herein Plaintiff claimed
that she entrusted to Sonny Bucod is still with the Defendants. Thus,
when the Defendants was forced to return to the Agdao Property,
they did so freely and without the alleged stealth and strategy that
herein Plaintiff is incessantly trying to prove.

32.Lastly, other than the bare allegation of stealth and strategy on the
entry of the herein Defendants in the Agdao Property, Plaintiff failed
to state the facts and circumstances on the alleged stealth and
strategy that the Defendants employed in entering the subject
property.

33.Plaintiff, in trying to bring the instant case within the ambit of the
elements of stealth and strategy for a forcible entry case to prosper,
simply alleged the Defendants, “without the knowledge, consent and
authority of Plaintiff, obtained the key of the Agdao Property from
Sonny Bucod and immediately entered, encroached and took
possession of the abovementioned property through stealth and
strategy.”

34.However, nowhere in the instant Complaint does it show how and

when did the alleged stealth and strategy was employed by herein
Defendants. Plaintiff tried to allege stealth and strategy to support

Page 7 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
 the instant complaint, but what can be derived from the allegations in
the Complaint, at most, is that the alleged entry by herein
Defendants, was simply without “the knowledge, consent and
authority of the Plaintiff.”

ARGUMENTS AND DISCUSSION

ON THE PRAYER FOR INJUNCTION

35.The Plaintiff in the instant case prays for the issuance of a writ of
preliminary injunction. However, it is respectfully submitted that the
Plaintiff failed to allege sufficient facts to comply with the requisites
to be entitled to the same.

36.The Supreme Court explained in a number of cases the requisites

before a court of competent jurisdiction may issue a writ of
preliminary injunction, one of which is the case of Yujuico vs.
Quiambao7, to wit:

“The duty of the court taking cognizance of an

application for a writ of preliminary injunction is to
determine whether the requisites necessary for the grant
of such writ are present. The requisites for the issuance of
a writ of preliminary injunction are: (1) the applicant for
such writ must show that he has a clear and
unmistakable right that must be protected; and (2) there
exists an urgent and paramount necessity for the writ to
prevent serious damage.

37.The duty of the court taking cognizance of a prayer for a writ of

preliminary injunction is to determine whether the requisites
necessary for the grant of an injunction are present in the case before
it.8 Thus, one of the primary requisites for the grant of a preliminary
injunction is that there should be a right in esse. A right in esse means
a clear and unmistakable right.9 A party seeking to avail of an
injunctive relief must prove that he or she possesses a right in esse or
one that is actual or existing.10 It should not be contingent, abstract, or
future rights, or one which may never arise.

38.However, in the instant case, as discussed in the affirmative defenses,

would show that the right of the Plaintiff over the Agdao Property is
a contested issue which is properly the object of an action for Nullity
7
G.R. No. 168639, January 29, 2007.
8
MIAA vs. CA, February 14, 2003.
9
Philippine Leisure and Retirement Authority v. Court of Appeals, G.R. No. 156303, December 19, 2007, 541 SCRA
85, 100.
10
Duvaz Corporation v. Export and Industry Bank, G.R. No. 163011, June 7, 2007, 523 SCRA 405, 413.
Page 8 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
 of Deed of Sale as well as Rescission for the Extrajudicial Settlement
with Deed of Absolute Sale. Such proper actions is being prepared as
of the filing of the instant Answer. Thus, it only shows that Plaintiff’s
right that is sought to be protected is not yet clear and unmistakable
so as to warrant an injunctive relief.

39.Here, there is no urgent and paramount necessity to prevent serious

damage. Indeed, an injunctive remedy may only be resorted to when
there is a pressing necessity to avoid injurious consequences which
cannot be remedied under any standard compensation. 11 To be sure,
this court has declared that the term irreparable injury has a definite
meaning in law. It does not have reference to the amount of damages
that may be caused but rather to the difficulty of measuring the
damages inflicted.12 If full compensation can be obtained by way of
damages, equity will not apply the remedy of injunction.13

40.In the instant case, the amount of damages, if there be any, can be
easily determined and quantifiable in terms of monetary value. The
alleged cost of disposition as well as the cost of despoliation and
destruction that the Plaintiff grounded her prayer for injunctive relief
are well within quantifiable terms.

AFFIRMATIVE DEFENSES

41.As and by way of Affirmative Defenses, Defendants replead and

incorporate the foregoing averments.

THE COMPLAINT FAILS TO STATE

A CAUSE OF ACTION

42.Under Rule 16 of the Rules of Court enumerates the grounds for a

motion to dismiss. The pertinent ground is found under Section 1(g),
which reads as follows:

“ xxxx
(g) That the pleading asserting the claim states no cause
of action; xxxx”

43.The test for determining the existence of a cause of action was amply
discussed in Insular Investment and Trust Corporation v. Capital One
Equities Corporation,14 citing Perpetual Savings Bank v. Fajardo,15 to wit:
11
Almeida v. Court of Appeals, G.R. No. 159124, 17 January 2005, 448 SCRA 681, 703.
12
PNB v. RJ Ventures, G.R. No. 164548, September 27, 2006.
13
Social Security Com. v. Hon. Bayona, 115 Phil. 106, 111 (1962), citing 28 Am. Jur., 244 and 43 C.J.S., 427, 446.
14
G.R. No. 183308, April 25, 2012, 671 SCRA 112.
15
G.R. No. 79760, June 28, 1993, 223 SCRA 720.
Page 9 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
 “The familiar test for determining whether a complaint
did or did not state a cause of action against the
defendants is whether or not, admitting hypothetically
the truth of the allegations of fact made in the complaint,
a judge may validly grant the relief demanded in the
complaint. In Rava Development Corporation v. Court of
Appeals, the Court elaborated on this established
standard in the following manner:

"The rule is that a defendant moving to

dismiss a complaint on the ground of lack of
cause of action is regarded as having
hypothetically admitted all the averments
thereof. The test of the sufficiency of the facts
found in a petition as constituting a cause of
action is whether or not, admitting the facts
alleged, the court can render a valid judgment
upon the same in accordance with the prayer
thereof (Consolidated Bank and Trust Corp. v.
Court of Appeals, 197 SCRA 663 [1991]).”

44.It is well to point out that the plaintiff’s cause of action should not
merely be "stated" but, importantly, the statement thereof should be
"sufficient." This is why the elementary test in a motion to dismiss on
such ground is whether or not the complaint alleges facts which if
true would justify the relief demanded.16 As a corollary, it has been
held that only ultimate facts and not legal conclusions or evidentiary
facts are considered for purposes of applying the test. 17 This is
consistent with Section 1, Rule 8 of the Rules of Court which states
that the complaint need only allege the ultimate facts or the essential
facts constituting the plaintiff’s cause of action. A fact is essential if
they cannot be stricken out without leaving the statement of the
cause of action inadequate.18 Since the inquiry is into the sufficiency,
not the veracity, of the material allegations, it follows that the
analysis should be confined to the four corners of the complaint, and
no other.19

45.In the instant case, an examination of the Complaint readily shows its
failure to state a cause of action. In fact, the allegations there does not
proffer ultimate facts which warrant an action for forcible entry.
16
See Unicapital, Inc. v. Consing, Jr., G.R. Nos. 175277 and 175285, September 11, 2013, 705 SCRA 511, 526;
citations omitted.
17
See Abacan, Jr. v. Northwestern University, Inc., 495 Phil. 123, 133 (2005).
18
Cañete v. Genuino Ice Company, Inc., 566 Phil. 204, 218 (2008).
19
Santos v. Gran, G.R. No. 197380, October 8, 2014.
Page 10 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
 Considering that for a forcible entry suit to prosper, the plaintiff must
allege and prove both prior physical possession of the property and
unlawful deprivation of it by the defendant through force,
intimidation, strategy, threat or stealth.

46.To prove prior possession, Plaintiff merely alleged that she allegedly
handed the key to Sonny Bucod. As the alleged entry, Plaintiff merely
alleged that the entry of the Defendants was made through stealth
and strategy without any supporting fact of circumstance as to the
alleged stealth and strategy employed by herein Defendants.

47.Clearly, the foregoing allegations partakes to mere conclusions of law

that is not supported by any averment of circumstances that will
show why or how such conclusion was arrived at.

48.In Abad v. Court of First Instance of Pangasinan,20 the Court pronounced

that:

“A pleading should state the ultimate facts essential to

the rights of action or defense asserted, as distinguished
from mere conclusions of fact, or conclusions of law.
General allegations that a contract is valid or legal, or is
just, fair, and reasonable, are mere conclusions of law.
Likewise, allegations that a contract is void, voidable,
invalid, illegal, ultra vires, or against public policy,
without stating facts showing its invalidity, are mere
conclusions of law.”

49.Hence, by merely stating a legal conclusion, the Complaint of the

Plaintiff presented no sufficient allegation upon which the Court
could grant relief Plaintiff prayed for or for the defendant to meet it
with an intelligent answer. Thus, the Complaint should be dismissed
on the ground of failure to state a cause of action.

THE DEED OF SALE AND

TRANSFER OF RIGHTS IS VOILD
FOR LACK OF CONSIDERATION BY
THE CONTRACTING PARTIES

50.It must be noted that Defendant Mika was only 19 years old at the
time the “Deed of Assignment and Transfer of Rights” was executed
on 11 April 2011 and had no independent source of livelihood. This
obviously demonstrates that fact she had no financial capacity to

20
G.R. Nos. 58507-08, February 26, 1992, 206 SCRA 567.
Page 11 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
 make any payment as the consideration over the Lot 1 of the Agdao
Property.

51.Consideration and consent are essential elements in a contract of

sale. Where a party’s consent to a contract of sale is vitiated or where
there is lack of consideration due to a simulated price, the contract is
null and void ab initio.21

52.In absolute simulation, there is a colorable contract but it has no

substance as the parties have no intention to be bound by it. The
main characteristic of an absolute simulation is that the apparent
contract is not really desired or intended to produce legal effect or in
any way alter the juridical situation of the parties.22

53.As can be gleaned from the provisions stipulated in the “Extrajudicial

Settlement with Waiver of Rights” dated 30 December 2016, the heirs
of Eulalio waived their rights over the Agdao Property, including Lot
1 of the Agdao Property, in favor of Defendant Visitacion Bucod.

54.The aforestated document is a recognition among the heirs of Eulalio

that the rights over Lot 1 of the Agdao Property was gratuitously
transferred by Rogelio Bucod to Visitacion and Eulalio Bucod and
therefore is inconsistent to the supposed assignment and transfer of
rights over the same property from Rogelio Bucod to the Plaintiff.

55.More importantly, the Eulalio and Visitacion Bucod continued to be

in physical possession of Lot 1 of the Agdao Property even after the
execution of the “Deed of Assignment and Transfer of Rights”.

56.Assuming, but not admitting, that Plaintiff really purchased Lot 1 of

the Agdao Property on 11 April 2011 and claimed to be its true
owner, her failure to assert ownership immediately after the alleged
assignment and transfer of rights over Lot 1 of the Agdao Property
took place contradicts her claim of ownership over the same.

57.In the case of Valerio vs. Refresca, the Supreme Court held that one of
the most striking badges of absolute simulation is the complete
absence of any attempt on the part of a vendee to assert his right of
dominion over the property.

58.The foregoing circumstances therefore show that the parties in the

“Deed of Assignment and Transfer of Rights” over Lot 1 of the
21
Ibid at 7., Emphasis and underscoring supplied.
22
Loyola v. Court of Appeals, G.R. No. 115734, February 23, 2000. Emphasis and underscoring
supplied.
Page 12 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
 Agdao Property did not really desire or had no intention to produce
its legal effect and hence belie the truthfulness of the terms set forth
in the same deed.

59.Based on the foregoing, Defendants respectfully submit before this

Honorable Court that the “Deed of Assignment and Transfer of
Rights” dated 11 April 2011 is null and void as there was no cause or
consideration, and the parties therein had no intention to be bound
by it.

THE EXTRAJUDICIAL SETTLEMENT

WITH DEED OF ABSOLUTE SALE is
RELATIVELY SIMULATED and the
contracting parties therein are bound
by their real agreement – the exchange
of the Agdao Property and Well Spring
Property between Plaintiff Visitacion
and Defendant Mika.

60.In the case at bar, the “Extrajudicial Settlement with Deed of

Absolute Sale” dated 9 August 2018 was relatively simulated by the
parties therein, wherein it would appear that the heirs of Eulalio sold
Lot 2 Agdao and Lot 3 Agdao to Defendant Mika. The terms set out
in the said document did not reflect the true intention of the parties.

61.The real agreement of the parties was that the Plaintiff and Defendant
Visitacion Bucod agreed that the Agdao Property would be
purchased by the former from the latter for a total consideration of
Two Million Pesos (P2,000,000.00) which is broken down as follows:

Amount Details
P1,600,000.00 For buying the house and lot at Wellspring
Highland in Catalunan Pequeno where
Defendant Visitacion Bucod will transfer so
that the Agdao Property can be renovated to
the wishes of Plaintiff Mika Bucod
200,000.00 Cash to be received by Defendant Visitacion
Bucod
100,000.00 Budget for the processing of the transfer of
titles
100,000.00 Renovation and appliances for the Wellspring
Property

62.As explained above, out of the total consideration of Two Million

Pesos (P2,000,000.00) for the sale of the Agdao Property, only Three
Hundred Thousand Pesos (P300,000.00) was received by Defendant
Page 13 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
 Visitacion Bucod. The other One Hundred Thousand Pesos
(P100,000.00) was given by the Plaintiff directly to her agent, Sonny
Bucod, for the processing of the transfer of titles. Thus, in actuality,
only Two Hundred Thousand Pesos (P200,000.00) was received by
the Defendant Visitacion Bucod considering that the other One
Hundred Thousand Pesos (P100,000.00) was used to pay for the
renovations as well as appliances in the Wellspring Property.

63.The bulk of the consideration would ultimately fall on the exchange

of the Agdao Property for the Wellspring Property. However,
sometime in January 2019, Defendant Visitacion Bucod came to the
knowledge that the Plaintiff had sold the Wellspring Property as well
as the improvements, furnitures, and appliances therein without the
knowledge and consent of the former.

64.Thus, the act of the Plaintiff in selling the Wellspring Property

effectively violates the Deed of Absolute Sale executed by the parties.
That is because part of the consideration for the sale of the Agdao
Property is that the Plaintiff would purchase the Wellspring property
for the Defendant Visitacion Bucod.

65.On account of the above-stated circumstances, the real intention of

the parties in executing the “Extrajudicial Settlement with Deed of
Absolute Sale” was to be bound by their respective reciprocal
obligations – the transfer of rights over the Agdao Property by the
heirs of Eulalio to the Plaintiff, on the one hand, and the purchase of
the Well Spring Property by the Plaintiff for the benefit of Defendant
Visitacion Bucod which served as the consideration for the Agdao
Property, on the other hand.

66.However, the Plaintiff’s act of selling the Wellspring Property, the

supposed new permanent residence of Plaintiff Visitacion which
thereby makes it the consideration for the Agdao Property, to a third
person and her failure to give the amount of Php 200,000.00 to
Plaintiff Visitacion violated the impelling cause of the execution of
the “Extrajudicial Settlement with Deed of Sale”.

67.The Court defined in Cannu v. Galang23 that substantial, unlike slight

or casual breaches of contract, are fundamental breaches that defeat
the object of the parties in entering into an agreement, since the law is
not concerned with trifles.14

23
498 Phil 128 (2205) cited in the case of Maglasang vs. Northwestern Inc., G.R. No. 188986, 20 March 2013.
Page 14 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
 68.It is a settled principle of law that rescission will not be permitted for
a slight or casual breach of the contract but only for such breaches as
are so substantial and fundamental so as to warrant the exercise of
the right to rescind the contract under Article 1191 of the Civil Code.24

69.More accurately referred to as resolution, the right of rescission

under Article 1191 is predicated on a breach of faith that violates the
reciprocity between parties to the contract. This retaliatory remedy is
given to the contracting party who suffers the injurious breach on the
premise that it is "unjust that a party be held bound to fulfill his
promises when the other violates his.25

70.In the case of Gotesco Properties, Inc., et.al. vs. Spouses Fajardo 26, the
Supreme Court underscored effect of rescission under Article 1191:

“It is noteworty to point out that rescission does not

merely terminate the contract and release the parties from
further obligations to each other, but abrogates the
contract from its inception and restores the parties to their
original positions as if no contract has been made.
Consequently, mutual restitution, which entails the
return of the benefits that each party may have received
as a result of the contract, is thus required.”

71.Of similar import is the case of Spouses Lam, et. al. vs. Kodak
Philippines27, where the Supreme Court held that:

“Rescission abrogates the contract from its inception and

requires a mutual restitution of benefits received.

To rescind is to declare a contract void in its inception

and to put an end to it as though it never were. It is not
merely to terminate it and to release parties from further
obligations to each other but abrogate it from the
beginning and restore parties to relative positions
which they would have occupied had no contract been
made.”28

24
Tan vs. Court of Appeals, et.al, G.R. No. 80479, 28 July 1989
25
G.R. No. 190080, 11 June 2014.
26
G.R. No. 167615, 11 January 2016 citing the case of Velarde vs. Court of Appeals, 413 Phil
360 (2001).
27
G.R. No. 167615, 11 January 2016 citing the case of Velarde vs. Court of Appeals, 413 Phil
360 (2001).
28
Emphasis and underscoring supplied.
Page 15 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
 72.In view of the foregoing circumstances and doctrinal
pronouncements rendered by the Supreme Court, Plaintiff’s act of
selling the Well Spring Property is tantamount to a substantial and
material breach of her reciprocal obligation towards the heirs of
Eulalio, including Defendants herein. As a consequence thereof, the
exercise of the right to rescind the “Extrajudicial Settlement with
Deed of Absolute Sale” under Article 1191 of the Civil Code by the
heirs of Eulalio is warranted.

73.Thus, based on the foregoing, the Extrajudicial Settlement with Deed

of Absolute Sale should be rescinded due to the violation by herein
Plaintiff on the real agreement by the parties. Thus, as early as
January 29, 2019, a letter was sent to the Plaintiff through counsel
stating therein Defendant Visitacion;s intention to revoke the
Extrajudicial Settlement with Deed of Absolute Sale.

COMPULSORY COUNTERCLAIM

74.Defendants re-plead the foregoing allegations insofar as they are

applicable herein.

75.Plaintiff maliciously caused the filing of the present baseless case

knowing fully well that he has no cause of action against Defendants
thereby causing the latter to suffer besmirched reputation and social
humiliation. As such, Plaintiff should be ordered to pay the
Defendants a total sum of no less than Fifty Thousand Pesos
(P50,000.00) by way of moral damages.

76.Plaintiff further acted in a wanton, fraudulent, reckless, oppressive

and malevolent manner when they filed the present frivolous action.
As such, to serve as an example and a deterrent to others who may be
similarly minded, the Plaintiff should be ordered to pay the
Defendants another Fifty Thousand Pesos (P50,000.00) by way of
exemplary damages.

77.As a consequence hereof, Defendants were compelled to engage the

services of the undersigned counsel with an agreed acceptance fee of
Fifty Thousand Pesos (P50,000) and an appearance fee of three
thousand pesos (P3,000.00) per hearing.

PRAYER

WHEREFORE, in view of the foregoing, it is most respectfully

prayed before this Honorable Court THAT:

Page 16 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
 1. An Order be granted to set the case for preliminary hearing on the
affirmative defenses or otherwise, to immediately dismiss the case
based on the following affirmative defenses;

2. Denying the Plaintiff’s prayer for injunctive relief;

3. Ordering the Plaintiff to pay the Defendants by way of

compulsory counterclaim, Moral Damages of not less than
P50,000.00, Exemplary Damages of no less than P50,000.00 as well
as Attorney’s Fees of P50,000.00, appearance fee of P3,000 per
hearing and costs of suit.

Other reliefs that are just and equitable are likewise prayed for.

RESPECTFULLY SUBMITTED this 19th of July, 2019 in Davao City,

Philippines.

Counsel for the Defendants:

ATTY. LADY JADE Q. CANADA

Roll No. 67167
IBP Lifetime Roll No. 007296/05-18-2017/Davao City
PTR No. 1731786/01-09—2019/Davao City
MCLE Compliance No. VI-0010426/07-18-2018
JMC Bldg., G/F Phil-Japan Friendship
Highway, Sasa, Davao City
Davao City 8000
Tel No. (082) 224-7899

EXPLANATION OF FILING AND SERVICE

Copies of the foregoing were served through registered mail due to

the distance and lack of personnel to effectuate personal service. Please
disregard if personally served.

ATTY. LADY JADE Q. CANADA

Copy furnished:

Atty. Sherryl Joy N. Castillo, CPA

Carpio Duterte Lawyers
Door 27, Paseo de Roxas Complex
Roxas Avenue, Davao City
Page 17 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC
_______________________________

Page 18 of 18
ANSWER
Shirato vs. Bucod
Civil Case No. M-DVO-19-02120-SC