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REPUBLIC OF THE PHILIPPINES

Sixth Judicial Region
Sixth Municipal Circuit Trial Court
Altavas-Balete
Balete, Aklan

ELIZA DE PABLO,
Plaintiff,

-versus- Special Civil Action No. 319-B

For: FORCIBLE ENTRY WITH PRAYER

FOR PRELIMINARY MANDATORY
INJUNCTION AND DAMAGES

MYLENE OBRIQUE BACAYANA,

And all other persons acting under her
Authority.
Defendants.
x-------------------------------------------------x

PRELIMINARY CONFERENCE BRIEF

Defendants, through counsel, to this Honorable Court, respectfully

submits this Preliminary Conference Brief as follows –

A. STATEMENT OF FACTS AND CASE

This is a Complaint for Forcible Entry with Preliminary Mandatory

Injunction and Damages involving a parcel of land located at Barangay
Calizo, Balete, Aklan.

On May 19, 2020, defendant filed a complaint with the Office of the
Barangay, Barangay Calizo, Balete, Aklan against Divina de Pablo and
Michelle de Pablo, the actual possessors of the portion of Lot 279 adjacent
to the boundary of the lot of defendant for determination of boundary
dispute involving their properties

The complaint with the barangay stemmed from the fact that on May
17,2020, defendant, being the co-owner and actual possessor of Lot 88A,
saw Michelle de Pablo, niece of Eliza de Pablo and daughter of Divina de
Pablo with laborers constructing a lay out of the house which was
overlapping the property of defendant with few meters. Thus, she
approached Michelle and Divina to remind them of the existing “mohon”
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thereon as the boundary of their properties. Divina, however, claimed that

her property is bounded by the barangay road. Defendant reminded her
that since time immemorial, she and her family had been planting coconut
trees and harvesting copra from said lot, starting from the long existing
mohon found thereon up to the barangay road. Divina then told defendant
that she had just bought the property from herein plaintiff Eliza, and when
she bought it, Eliza told her that her property was bounded by the
barangay road. So, she was claiming the property. Defendant told her that
in order to avoid further misunderstanding, it would be better to just settle
the boundary dispute before the barangay. Hence, defendant filed a
complaint on May 19, 2020 against Divina de Pablo and Michelle de Pablo
with the barangay office.

During the mediation and conciliation before the Lupon on May 21,
2020, the parties agreed to survey the property to be paid by defendant.
They also agreed that upon the survey and determination of the boundary
of both Lot 279 and Lot 88-A, defendant will fence her boundary.
Defendant then hired Engr. Mary Christine dela Rosa and her surveyors to
conduct the survey. Upon notice to the adjoining owners and with the
active participation and presence of the plaintiff Eliza de Pablo and her
family, and the Barangay Officials, the survey was conducted on May 26,
2020.

Upon completion of the survey and the boundary was marked where
the old and existing mohon placed by cadaster was also located, defendant
and her laborers constructed the fence as agreed in the amicable
settlement. The fencing was witnessed by the plaintiff and the family and
assisted by the police to ensure peace and order.

However, few weeks later, plaintiff and Divina de Pablo told

defendant that they would also cause the relocation survey of their
property. They said they don’t trust the first surveyor as defendant was the
one who paid the surveyor. Defendant agreed. So, on July 11, 2020, after
they finished the survey with Surveyor Dela Cruz of Maglajos Surveying
Office hired by plaintiff, and upon confirming that defendant’s fence was
constructed within her property, plaintiff’s family, who are the actual
possessors of the property adjacent to the boundary, namely Divina de
Pablo, Nerwin de Pablo and Chilma de Pablo, and defendant Mylene
Bacayana, executed a final document stating that they have already
complied with the amicable settlement dated May 21, 2020 and have
already agreed to the boundary of their respective lots.

With the execution and signing of the final document stating that
both parties have already settled the boundary dispute, defendant thought
everything was already all right. She was shocked, however, when the
same complaint for boundary dispute was filed by plaintiff with the
barangay. It is to be noted that plaintiff was actively participating in the
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settlement proceedings and survey of the properties. In fact, she was the
one who hired and paid the Maglajos Surveying Services to survey her
property. Plaintiff just could not accept the truth that upon survey of their
property by Maglajos Surveying Services, it was found that indeed, the
long existing “mohon” and the fence constructed by defendant pursuant to
the amicable settlement were within the property of the defendant. So, she
filed this unnecessary and unwanted suit for forcible entry and did not
attach the survey plan conducted and prepared by their own surveyor,
Surveyor Dela Cruz of Maglajos Surveying Services, as it was unfavorable
to her.

Defendant resists plaintiff’s claims based on the following:

1. Failure to state a cause of action and lack of jurisdiction.

1.1. The complaint and evidence presented by the plaintiff show

that the instant case actually involves a boundary dispute,
which cannot be resolved in a forcible entry case.

1.2. No stealth, force, violence, strategy or intimidation was

employed in constructing the fence in the subject lot.

1.3. The plaintiff is not the actual possessors of the portion of Lot
279 adjacent to Lot 88A but Divina de Pablo and Michelle de
Pablo.

1.4. Plaintiff is not entitled to actual damages, rental and

attorney’s fees.

1.5. The judicial affidavits of the witnesses do not contain jurats.

Defendant reiterates, repleads and incorporates by reference all the

foregoing insofar as they are material and additionally submit that he is
entitled to relief arising from the filing of this malicious and baseless suit,
as follows:

Due to this unwanted suit, defendants were constrained to litigate

and secure the services of counsel for a fee of FIFTY THOUSAND PESOS
(PHP50,000.00) as acceptance fee and Three Thousand (PHP3,000.00) per
appearance in court.

Due to this baseless and malicious suit, defendants suffered mental

anguish, fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury, for which the plaintiff
must be made to pay defendants moral damages in the amount of FIFTY
THOUSAND PESOS (Php50, 000.00).
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B. PROPOSED STIPULATIONS OF FACTS

Defendant requests plaintiff to admit the genuineness and due

execution of the documents marked as exhibits of the defendant.

Defendant also proposed to stipulate on the following facts:

1. That plaintiff does not actually occupy the portion of Lot 279
adjacent to Lot 88A but Divina de Pablo and Michelle de Pablo.

2. That plaintiff disputes only the location where the fence was
constructed by defendant.

3. That Lot 88A is bounded by Lot 279.

4. That there is an existing Amicable Settlement dated May 21, 2020.

5. That there was mediation and conciliation proceeding conducted

before the Lupon on May 21, 2020 between the parties regarding
the survey of the property.

C. PROPOSED ISSUES TO BE RESOLVED

Whether or not the Honorable Court has jurisdiction over the subject
matter of the complaint.

Whether or not plaintiff failed to state cause of action.

Whether or not defendant is entitled to her counterclaims.

D. NAMES OF WITNESSES

62. MYLENE BACAYANA. The testimony of the witness is being

offered to prove the following:

1) That she and her family have been in actual and prior
possession in the concept of an owner of the property in
question since 1945.
2) That Lot 88A is bounded by Lot 279.
3) That before she fenced the subject property, there was already
an old and existing marking stone or mohon by cadaster in the
same location of the fence to show the boundary between Lot
279 and Lot 88A.
4) That the fence she constructed is within her lot, Lot 88A.
5) That she fenced the property pursuant to the amicable
settlement dated May 21, 2020.
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6) She did not fence the property by force, intimidation, stealth,

violence or strategy but in compliance with the amicable
settlement.
7) That the dispute between plaintiff and defendant is a boundary
dispute over their two (2) lots, Lot 279 and Lot 88A.
8) That the amicable settlement on the boundary dispute has
already been implemented with the assistance of the barangay
office of Barangay Calizo, Balete, Aklan.
9) To prove other allegations in the Answer with Counterclaim.
10) To identify documents relevant to the Answer with
Counterclaim.

63. FELOMINA R. PASTOLERO. The testimony of the witness is

being offered to prove the following:
1) That she is the witness in the execution and signing of the final
document dated July 11, 2020 stating that the boundary
dispute of Lot 279 and Lot 88A has already been settled and
the amicable settlement dated May 21, 2020 has been
implemented by plaintiff and her family and defendant on July
11, 2020.
2) That being the co-owner of Lot 88 previously owned by their
grandfather, Ildefonso Jimera, she has personal knowledge
that Lot 88A is bounded by Lot 279.
3) That defendant and her family have been in actual and prior
possession of the subject lot having planted coconut trees
thereon and harvested copra from the coconut trees since
1945.
4) That the subject lot is vacant and only coconut trees and other
trees are planted thereon by defendant.
5) That she was present during the fencing of the property and it
was constructed with the assistance of the barangay office and
Balete police, hence, not effected by violence, force,
intimidation, stealth or strategy.
6) To prove other matters in the Answer with Counterclaim.

64. MARY CHRISTINE DELA ROSA. The testimony of the witness

is being offered to prove the following:
1) That she was the geodetic engineer together with her
surveyors that conducted and prepared the surveys of Lot 88A
in May 2020 and April 2021.
2) That Lot88A is bounded by Lot 279.
3) That the area from the Lot 279 boundary and the barangay
road is more or less 314 sq. meters.
4) That the fence is within the property of Lot 88A.
5) To prove other matters in the Answer with Counterclaim.
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65. EMER JIMERA. (Reserved for EXHIBIT “18”). The testimony

of the witness is being offered to prove the following:
1) That he is a tenant of defendant’s family.
2) That he was the one who planted some of the coconut trees
thereon and the one who harvested copra in said portion of
land for the defendant’s family.
3) That aside from coconut trees and other kinds of trees, no
other improvements or any house can be found on said land.

E. DOCUMENTARY EVIDENCE

Plaintiffs request the marking as exhibits of the following documents:

1. Exhibit “1” Copy of Sketch Plan conducted and prepared by

Reynaldo Lopez, geodetic Engineer, R.L Lopez
surveying and Realty network sometime in 2002.
2. Exhibit “2” Exhibit “2”- Copy of Relocation Sketch Plan conducted
and Prepared by MARY CHRISTINE R. DELA ROSA,
Geodetic Engineer, DELA ROSA SURVEYING SERVICES
on May 26, 2020.
3. Exhibit “3” Copy of Relocation Sketch Plan conducted and
Prepared by MARY CHRISTINE R. DELA ROSA,
Geodetic Engineer, DELA ROSA SURVEYING SERVICES
on April 20, 2021.
4. Exhibit “4” Copy of CERTIFICATION dated April 26, 2021, issued
by the Punong Barangay MODESTO R. AMANCIO JR.
5. Exhibit “5” Copy of Amicable Settlement dated May 21, 2020.

6. Exhibit “5-1” Signature of Complainant Mylene O. Bacayana in the

Amicable Settlement dated May 21, 2020
7. Exhibit “5-2” Signature of Divina L. De Pablo in the Amicable
Settlement.
8. Exhibit “5-3” Signature of Michelle L. De Pablo in the Amicable
Settlement.
9. Exhibit “6” Copy of the Final Document dated July 11, 2020

10. Exhibit “7” Copy of the Letter sent by Mylene Bacayana to the
office of Barangay Calizo, Balete, Aklan.
11. Exhibit “8” Copy of the picture posted on Facebook by Mary Grace
de Pablo, daughter of witness Divina de Pablo and
niece of Plaintiff Eliza de Pablo.
12. Exhibit “9” Copy of Tax Declaration No. 1154 covering Lot 88-A in
the name of Ildefonso Jimera.
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13. Exhibit “10” Copy of Tax Declaration No. 17-03-0004-00401 in the

name of Josue S. Obrique.

14. Exhibit “11” Copy of the picture of “muhon” or boundary marker

stone.
15. Exhibit “12” Judicial Affidavit of witness FELOMINA R. PASTOLERO.
16. Exhibit “13” Copy of Certification of Amicable Settlement on May
21, 2020 issued by the Office of Barangay, Barangay
Calizo, Balete, Aklan dated April 26, 2021.

17. Exhibit “14” Copy of Certification of Final Agreement on July 11,

2020 issued by the Office of Barangay, Barangay
Calizo, Balete, Aklan dated April 26, 2021.
18. Exhibit “15” Copy of Retainer Contract dated April 26, 2021.

19. Exhibit “16” Judicial Affidavit of Mylene O. Bacayana.

20. Exhibit “17” Judicial Affidavit of Mary Christine Dela Rosa
21. Exhibit “18” Emer Jimera.

F. AVAILMENT OF MODES OF DISCOVERY

Defendants reserve the right to avail of the modes of discovery in

addition to the aforementioned request for stipulation.

G. APPLICABLE LAWS AND JURISPRUDENCE

33. In Sarmiento v. Court of Appeals, 320 Phil. 146, 156 (1995), the
Supreme Court held that, “Opposing possessory rights over certain
areas of adjacent lots, arising from claims of ownership thereof,
cannot be resolved in a summary action such as an ejectment suit.
The issues involved in such a controversy should be fully threshed
out in an action like accion reivindicatoria, especially when
plaintiff fails to establish actual prior possession. In a much
earlier ruling of this Court, it was already held therein that "[i]f [a
party] is indeed the owner of the premises subject of this suit and
she was unlawfully deprived of the real right of possession or the
ownership thereof, she should present her claim before the
regional trial court in an accion publiciana or an accion
reivindicatoria, and not before the municipal trial court in a
summary proceeding of unlawful detainer or forcible entry.”
The Defendant grounds its defenses and claims on the provisions of
the New Civil Code and 1991 Revised Rule on Summary Procedure.

H. RESERVATION
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Defendant respectfully reserves the right to present additional oral

and documentary evidence as may become necessary in the course of the
trial.

I. SPECIFIC TRIAL DATES

It is respectfully requested that the trial dates be set during the pre-
trial conference to dates most convenient to this Honorable Court and to all
the parties.

Respectfully submitted.

September 16, 2021, Paranaque City for Altavas-Balete, Balete,

Aklan.

COS GUEVARRA & ASSOCIATES LAW OFFICES

Unit 201 Doña Eusebia Rodriguez Bldg.,
0611 Quirino Avenue, San Dionisio, Parañaque City
Telefax; 02 825 9918; Mobile No. 09989984009
By:

ATTY. MELANIE OBRIQUE-GUEVARRA

IBP No. 121497;01/24/21; Pasig City
PTR No. 2571839; 01/24/21; Parañaque City
Roll No. 56511
MCLE Compliance No. IV-0027774

EXPLANATION

Copies of the foregoing Preliminary Conference Brief were served

to the Honorable Court and plaintiffs’ counsel through LBC/registered mail
considering the distance and lack of manpower effect personal service to
the Honorable Court and plaintiff.

ATTY. MELANIE OBRIQUE-GUEVARRA

Copy furnished:

ATTY. MARIENNE M. IBADLIT

Ibadlit and Ibadlit Law Offices
2nd Floor Apsta Bldg.,
XIX Martyrs St., Kalibo, Aklan
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