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    43 views16 pages

    Complaint

    Uploaded by

    Aika Mariee

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    Republic of the Philippines Supreme Court 7™ MUNICIPAL CIRCUIT TI 8™ Judicial Regie Calbiga, Sa % SH AT, SPOUSES MAR OGD cwibeisenon 3422"! and mamta COSTO, ¢ Plaintiffs, FOR: versus: RECOVERY OF PROPERTY ‘AND DAMAGES & APPLICATION FORTRO & WPI wih Defendant. COMPLAINT YOUR PLAINTIFFS, through the undersigned counsel and unto this Honorable Court, most respectfully allege that: 2 ‘The Parties 1.1. Plaintiffs-spouses Marlon @amfimaag and Natividad mip are Filipinos and residents of Barangay 6, Calbiga, Samar; while defendant Wilma gleam is also a Filipino, of legal age, widow and a resident of Barangay 1 Poblacion, Calbiga, Samar; at which addresses parties can be served with summons, notices and other processes of this Honorable Court. 1 | Complaint, Recovery of Property / Costo vs. Agt igi, 20 Capacity to Sue and be Sued 2.2, Plaintiffs and defendant have the capacity to sue and be sued. 30 Compliance of Conditions Precedent 3.2. Plaintiffs have exerted earnest efforts to amicably settle this case with defendant. However, she adamantly refused, and still refuses, to amicably settle with plaintiffs. Consequently, the Lupon Chairman, through their Lupon Secretary, issued a Certification to File Action, certified copy of which is hereto attached as ANNEX “A”, and made an integral part hereof, 40 The ses of Actic 4.1. The right of the plaintiffs and the correlative duty ‘on the part of the defendant to respect that right: 4a. The plaintiffs are the owners of an unregistered residential land situated in Majaro St, Barangay 2, Poblacion, Calbiga, Samar, and more particularly described as follows: "A parcel of an unregistered land situated in Majaro St. Poblacion, Calbiga, Samar consisting of EIGHTY-EIGHT (88) SQUARE METERS with improvements thereon. Bounded on the North by the Brook; on the East by the land of Basilio Hacbang; on the South by the 2" Transversal Majaro and; on the West by the land of Severina Rafales, with an assessed value of 5, 630.00 per Tax Declaration No. 04001-0098 in the name of spouses Marlon E. Costo and Natividad C. Costo.” 4.2. The plaintiffs acquired the subject residential lot by virtue of sale from the previous owners - Heirs of Rufina Abejo, through an “Extra-Judicial Settlement of Estate With Absolute Sale”, 2 | Complaint, Recovery of Property / Costo vs. Agi dated 5 October 2005, which instrument was duly registered with the Register of Deeds of the Province of Samar on January 16, 2006. A copy of the Extra-Judicial Settlement of Estate With Absolute Sale and Tax Declaration No. 04001-00098 are hereto attached and made parts hereof as ANNEX"B” and “C”. 4.2.3. This residential lot was originally owned by Rufina Abejo- Jacala. She was married to Igmedio Jacala and they had four (4) children, namely: Consorcia J. Cecogo, Pedro Jacala, Sergio Jacala, and Apolonia J. Cabral. The family had an ancestral house constructed on the lot. She (Rufina)died on March 6, 1958 while her afore-named children are now all deceased. 4.1.4. During the lifetime of Consorcia J. Cecogo, she caused Selvina Agbon, the mother-in-law of herein defendant, to be the caretaker of the ancestral house on the subject lot. 4.2.5. Sometime in 1985, a certain Loidaflor Jabonete Balando, ‘a close family friend of the said heirs, leased the said ancestral house. 4.1.8. When Loidaflor Jabonete Balando stopped paying the rentals after about a year, the son of Selvina Agbon named Reynaldo [Agbon, husband of herein defendant, asked permission from one of the heirs named Angeles Cecogo-Santiago to allow him and his family to live on the subject lot. 4.17. His mother having been a caretaker of the same ancestral house, the afore-named heirs agreed and thus allowed defendant's family to stay on the subject property. The permission to 3 | Complaint, Recovery of Property / Costo vs. Agbof] stay was on condition that they will pay the annual realty taxes as a form of rentals on the lot; that they will repair the nipa roofing while the other fixtures and furniture inside the house should be left untouched, 4-2. Violation by defendant of Plaintiff's. tight : 4.2.2. When Reynaldo Agbon subsequently died, his surviving wife, defendant herein, continued to stay on the subject premises and even introduced improvements without the consent of the owners. 4.2.2. Defendant's attention was called but apparently this was ignored. 4.2.3. In 2003, defendant went to Manila for the purpose of inquiring from one of the heirs named Angeles Cecogo-Santiago on whether or not the subject property is for sale, because she was interested in buying the same for a price at P 150,000.00 as soon as their lot in Barangay Tabok, Calbiga, Samar is sold within the same year. 4.2.4. It was verbally agreed that by December 2003, defendant, will be able to pay the total price of the subject lot. However, for two (2) years and notwithstanding having obtained the proceeds of the sale of defendant's lot in Barangay Tabok, the latter did not comply with their agreement to buy the subject residential lot. 4| Complaint, Recovery of Property /Costo vs. Agbo} 4.2.5. This made the heirs conclude that defendant is no longer interested in buying the subject lot. Consequently, they sent a telegram to defendant advising her to vacate the premises. But she remained adamant and refused, and still refuses to vacate the subject property, this time claiming adverse interest over the subject property. 4.2.6. In 2005, the same heirs sold the subject lot to spouses Marlon Costo and Natividad Costo, plaintiffs herein. 43 The Ejectment Case - 4.31. Plaintiffs-spouses, as new owners of the subject property, caused the eviction of defendant by filing Civil Case No. 05- 2006. On October 20, 2006, the Honorable Court rendered its Decision, the dispositive portion of which is hereto quoted as follows: “WHEREFORE, premises considered, judgment is hereby rendered, in favor of the plaintiffs and against the defendant, ) Ordering defendant Wilma A. Agbon and all persons claiming rights under her, to immediately vacate the subject premises described in par. 2 of the complaint, and surrender material possession of the premises to the plaintiff's; ) Ordering the defendant, Wilma A. Agbon, to pay the cost of the suit; Let copies hereof be furnished to the plaintiffs and defendant as well as their respective counsels on record. ‘SO RESOLVED.” 4:3.2-A copy of the Decision dated October 20, 2006 is hereto attached and made part hereof as ANNEX "D”. 5 | Complaint, Recovery of Property / Costo vs. Agbavy 43-3, However, defendant appealed the said Decision to the Regional Trial Court, Branch 33, Calbiga, Samar, docketed as Civil Case No. C-2004-1208. Unfortunately, said Decision was reversed and Set-aside and the case dismissed by the appellate Court per its Resolution dated 12 February 2007. The dispositive portion thereof is hereto quoted; "WHEREFORE AND IN VIEW OF ALL THE FOREGOING, the Decision appealed from is REVERSED and SET ASIDE, and the herein petition is declared DISMISSED. Costs de officio. Furnish counsels and parties copies of this Resolution. ‘SO RESOLVED.” 4.3.4. A copy of the said Resolution dated 22 February 2007 is hereto attached and made part hereofas ANNEX “E”, 4.3.5. Plaintiffs sought further review of the appellate court's Resolution. On December 20, 20320, the Court of Appeals, Eighteenth (28) Division, Cebu City promulgated its Decision, in CA-G.R. SP No. 22686, the dispositive portion thereof is hereto quoted, thus: “WHEREFORE, premises considered, the petition is DENIED for lack of merit. The Resolution dated February 12, 2007 of the Regional Trial Court of Calbiga, Samar, Branch 33, in Civil Case No, C-2004- 3208, and its subsequent Order dated March 26, 2007, are AFFIRMED. SO ORDERED.” 4.3.6. A copy of the said Decision dated 10 December 2010 is hereto-attached and made part hereof as ANNEX “F”, 6 | Complaint, Recovery of Property / Casto vs. A 4.37. Plaintiffs were totally dismayed of the adjudication made by the Honorable Court of Appeals because apparently, it disregarded procedure and settled jurisprudence when it declared, among others, that the "Extra-Judicial Settlement of Estate with Absolute Sale” is void where, at the trial court, no evidence — testimonial or otherwise, was ever introduced by parties regarding this document, except the bare allegations of defendant in her affidavit and/or memorandum. Self-serving claim cannot defeat the due execution and authenticity of a public document duly registered with the Register of Deeds. 43.8. However, plaintiffs decided not to pursue the further review of the Court of Appeals’ decision because the matter involved in that case was mere possession, hence, the filing of the instant case on the issue of whether or not defendant is a co-owner of the subject property. 4-4. The Co-Ownership Issue 4-4-2. AS adverted, the subject property is originally owned by Rufina Abejo, married to Igmedio Jacala, The late spouses have four (4) children, now all deceased, namely: 3) Consorcia J. Cecogo; 2) Pedro Jacala; 3) Sergio Jacala; and 4) Apolonia J. Cabral. 4.4.2. Co-plaintiff Natividad Cabral-Costo is the granddaughter of Apolonia J. Cabral, her Father Vicente Cabral being the son of Apolonia. ‘4.4.3. Herein plaintiffs bought the subject lot from the said heirs, namely: Ida J. Velarde, representing Pedro Jacala; Angeles C. Santiago, representing Consorcia J. Cecogo; Lourdes C. Fajardo, 7 | Complaint, Recovery of Property / Casto vs. representing Sergio Jacala; and Vicente J, Cabral, representing Apolonia J. Cabral 4-4-4 Consequently, plaintiffs were able to secure a Tax Clearance Certificate. A copy of which is hereto attached and made an part hereof as ANNEX "G”. 4.4.5. Meanwhile, as new owners, the receipts of realty taxes paid on the subject lot by vendors were turned-over by the latter to the former. Attached and made parts hereof are the following: Official Receipt No. A 648335 — ANNEX “H"; Official Receipt No. D 737862 -— ANNEX “H-2"; Official Receipt No. E 840758 — ANNEX "H-2"; Official Receipt No. C 6422919 — ANNEX “H-3"; Official Receipt No. C 6422922 ~ ANNEX “H-4" Official Receipt No. A 7014163 - ANNEX “H-5” Official Receipt No. A 7090875 — ANNEX “H-6"; Official Receipt No. B 250940 - ANNEX “H-7" Official Receipt No. B 6329832 - ANNEX “H-8"; Official Receipt No. C 2604213 - ANNEX “H-9" Official Receipt No. € 1015321 ANNEX "H-10"% Official Receipt No. E 1033859 - ANNEX “H-23"; while the payments made by new owners is hereto evidenced by a Record of Tax Payments and Official Receipt No. 0018734, April 18, 2006; copies are hereto attached and made parts hereof as ANNEX “H-a2” and “H-a3", respectively. 4.4.6. Against the foregoing documentary evidence and lawful mode of ownership by herein plaintiffs, defendant is claiming that she is a co-owner of the lot because of an allege private note made by the late Consorcia J. Cecogo on August 2, 1982, making Silvina ‘Agbon a caretaker of the subject house and lot; a xerox copy of which is hereto attached and made part hereof as ANNEX 8 | Complaint, Recovery of Property / Costo vs. Ag} 4n4-7. Interestingly, this private note was never presented by defendant during the settlement proceedings of the parties before the Barangay officials, and it came out only when parties were made to file their respective position Papers in the above-mentioned ejectment case, 4.4.8. The said private note is a product of forgery because it is Not the real signature of Consorcia J. Cecogo made during her lifetime. The person that is very familiar and credible to declare that indeed that signature is not that of Consorcia Cecogo is her own daughter Angeles C. Santiago. A copy of her Affidavit dated 16 August 2006 is hereto attached and made part hereof as ANNEX “I”, 4-4-9. The fictitious signature of Corsorcia J. Secogo appearing in Annex “H" above is evidently shown in her own signature subsequently made sometime in 1986 when she executed a Letter to all concerned that Bernabe and Silvina Agbon are her caretakers of the lot and its house. A copy of which is hereto attached and made an part hereof as ANNEX “K”. 4.4.10. The claim of co-ownership by defendant is clearly misplaced because even assuming her Annex “H" is true, the meaning of the letter does not make her mother-in-law a co-owner of the lot, but a mere caretaker thereof. 44422. Proof that indeed Silvina Agbon is not a co-owner but merely a caretaker of the lot and house is further evidenced by @ Letter of Silvina to Consorcia J. Cecogo made sometime in March Gg) and was sent through Angeles Santiago, with enclosed Payment of rentals on the use of the house by Loidaflor J. Balundo. A 9] Complaint, Recovery of Property /Costo vs. Agl copy of said Letter and its mailing envelope are hereto attached and made parts hereof as ANNEXES "L” and “L-2", 4-412. Plaintiffs sought confirmation from Loidaflor J. Balundo of her lease of the subject property sometime in 1985 to 1986 and, her payment of rentals to Consorcia J. Cecogo through her daughter Angeles Santiago. A copy of her Affidavit dated 7 February 2022 is hereto attached and made part hereof as ANNEX "M”. 4-613. The continued stay of defendant on the subject premises claiming as a co-owner is therefore unlawful and malicious. Her having secured a reversal of the decision in the ejectment case was rather a clear error on the part of the appellate courts given the foregoing facts and documentary evidence. 44-14. Plaintiffs absolute ownership over the subject property must be upheld and respected by defendant and, the latter must be ordered to vacate the same and deliver its possession in favor of plaintiffs. 4.4.15. Defendant's unlawful acts in refusing to vacate the subject premises constrained herein plaintiffs to file this suit and incur expenses in the form of attomey's fees consisting of an acceptance fee of One Hundred Thousand Pesos (100,000.00) and appearance fee of Ten Thousand Pesos (10,000.00), and litigation expenses of Twenty Thousand Pesos (20,000.00). 44:36. Defendant's malice and bad faith, and misplaced claim of co-ownership, caused plaintiffs to suffer mental anguish, anxiety, worry, sleepless nights and humiliation, plaintiff Marlon Costo being the Deputy Chief of Police of the same municipality. Such injury on 10 | Complaint, Recovery of Property / Costo vs. Ag plaintiffs! reputation and integrity should be compensated by way of moral damages assessable in the amount of Fifty Thousand Pesos (50,000.00). 44:27. In order to serve as warning and prevent other similarly minded individuals from grabbing the properties of others, and with the clear malice and bad faith by defendant, exemplary damages in the amount of Fifty Thousand Pesos (50,000.00) should be assessed against the latter. 4.4.18. Considering that per Tax Declaration No. 04001-00098 (Annex "C" hereof), the assessed value of the subject lot is 5,630.00, plaintiffs! most respectfully and humbly submit that this Honorable Court has the jurisdiction over the cause of action of the Complaint. In the case of Concha vs. Lumocso, G.R. No. 158121, December 12, 2007, the Honorable Supreme Court said: “in a number of cases, we have held that actions for reconveyance of or for cancellation of title to or to quiet title over real property are actions that fall under the classification of cases that involve “title to, or possession of, real property, or any interest therein.” “The original text of Section 19(2) of 8.P.129 as well as its forerunner, Section 44 (b) of R.A. 296, as amended, gave the RTCs (formerly the courts of first instance) exclusive original jurisdiction “tijn all civil actions which involve the title to, or possession of, real property, or any interest therein, except actions for forcible entry and unlawful detainer of lands or buildings, original jurisdiction ‘of which is conferred upon Metropolitan Trial Courts, IMTCs}, and Municipal Circuit Trial Courts (conferred upon the city and municipal courts under R.A. 296, as amended.” Thus, under the old law, there was no substantial effect on jurisdiction whether a case is one, the subject matter of which was incapable of pecuniary estimation, under Section 19(2) of B.P. 129 or one involving title to property under Section 1g(2). The distinction between the two classes became crucial with the amendment introduced by 11 | Complaint, Recovery of Property / Costo vs. Aghg R.A. 7692 in 199% which expanded the exclusive original Jurisdiction of the first level courts to include “all civil actions which involve title to, or possession of, real Property, or any interest therein where the assessed value of the property or interest therein does not exceed Twenty Thousand Pesos(z0,000.00) or, in civil action sin Metro Manila, where such assessed value does not exceed Fifty Thousand Pesos (50,000.00) exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and costs.” Thus, under the present law, original jurisdiction over cases the subject matter of which involves “title to, Possession of, real property or any interest therein” under Section 19(2) of 8.P., 129 is divided between the first and second level courts, with the assessed value of the real property involved as the benchmark. This amendment was introduced to “unclog the overloaded dockets of the RTCs which would result in the speedier administration of justice.” 4.5. Allegations in Support of the Application for a Writ of Preliminary Injunction and Tempor Restraining Order: 4.5.1. Plaintiffs replead the foregoing allegations in so far as they are material hereto. 4.5.2. The indubitable ownership of plaintiffs over the subject premises is clearly established. Being the real owners, they have the right to possess and enjoy its fruits, to the exclusion of strangers, including defendant. 4.5.3. Unless restrained, defendant is determined, as she now does, to continue staying on the premises for she is emboldened by the reversal on appeal of the decision in the ejectment case. 4.5:4. Should defendant be allowed to continue possessing on the property, it might lend semblance of legality on her otherwise unlawful possession and claim of co-ownership; and thereby greatly 12 | Complaint, Recovery of Property / Costo vs. Agby prejudice plaintiffs and render ineffectual any judgment that this Honorable Court may thereafter issue. Consequently, plaintiffs are entitled to the reliefs demanded, and the whole or part of such reliefs consist in directing, commanding, and/or restraining defendant from "continuance of the act” of unlawfully possessing the subject lot (Sec.3 (a), Rule 58, of The 1997 Revised Rules of Civil Procedure). 4.5.5. Defendant's continued possession of the lot, despite not being a co-owner, during the pendency of the litigation would certainly work injustice to herein applicant (Sec. 3 (b), Rule 58, as above-cited). Thus, an order to refrain the “continuance of the act” pending litigation hereof is warranted. 4.5.6. Plaintiffs, therefore, most respectfully and humbly apply for a writ of injunction to prevent the defendant from further unlawfully possessing the subject property. For this purpose, plaintiffs expressly manifest that they are willing, ready and financially capable to post a bond in such amount as may be equitable and reasonably fixed by this Honorable Court. 4.57. In view of the urgency of the matter, the grave and irreparable damage that may be caused to plaintiffs, and in order not to render moot and academic the relief prayed for from this Honorable Court, plaintiffs are entitled to the issuance of an Order temporarily restraining defendant from continuously possessing the subject lot and from further performing any act therein. 4.5.8. Serious and irreparable damage will result and will be suffered by herein plaintiffs unless a TEMPORARY RESTRAINING 13 | Complaint, Recovery of Property /Costo vs. Ag! 4 ORDER is issued, before the matter can be heard on notice, to restrain defendant from performing andjor committing the acts complained of, Attached and made part hereof is the Joint-Affidavit of plaintiffs in support of this application for temporary restraining order and writ of preliminary injunction. 5.0 Relief 5.1, WHEREFORE, premises well considered, plaintiffs most respectfully and humbly pray before this Honorable Court, that: 5.2. Upon the filing of this Complaint, a Temporary Restraining Order (TRO) be immediately issued commanding and directing defendant, her agents, representatives, andjor assigns, to desist and refrain from possessing the subject premises, negating plaintiffs possession and ownership, and/or performing any act without the consent of plaintiffs during the pendency of this action before this Honorable Court; and setting the application for preliminary injunction for hearing. 5,3. After due notice and hearing and upon filing of a bond which this Honorable Court may equitably and reasonably fix, a writ of preliminary injunction be issued commanding and directing defendant, her agents, representatives, and/or assigns, to desist and refrain from the “continuance of the act” of further possessing the subject premises on a misplaced claim of co-ownership, thereby disturbing plaintiffs' possession and lawful ownership thereof; and from performing any act that negates plaintiffs' ownership. 5.4. After deliberation, an adjudication be made making the injunction permanent and find in favor of plaintiffs and against defendant, ‘thus: 14| Complaint, Recovery of Property / Costo vs. A 5.5- Declaring defendant not a co-owner of the subject property. jirecting defendant, including any member of andjor assigns: t° immediately 5,6. Commanding and d tives, + its possession in favor of plaintiffs. her family, her agents, representat vacate the subject property and delive e following sums: 5,7. Ordering defendant to PaY plaintiff's th Pro0,000.00 as attorney's fees plus 10,000.00 ited for every hearing: 574. appearance fee comput 57.2. P20,000.00 as litigation expenses; 57.3. P50,000.00 as moral damagesi 5:74. Ps0,000.00 as exemplary damagesi and 5.8. costs of the suit. 59. Plaintiffs’ ikewise pray for such other reliefs that may be just and equitable under the foregoing circumstances. SO PRAYED. ‘Tacloban City, Province of Leyte (for Calbiga, Province of Samar) September 25, 2022. qa LAW OFFICE 2F J. Pang Bldg., Fatima Village, Nat'l, Highway, Tacloban City, Leyte, Philippines Off. # 323-7977; Cell # 09152253587 e-mail vowngimmmaiang®> vahoo.com 15 | Complaint, Recovery of Property / Costo vs. Agi Roll No. 40336; 05-32-95 PTR No. 7022760; 01-04-13; Tacloban City IBP Life Member No, 08344; 03-03-09; Tacloban City BIR No, 202-088-964 ~ NV; 32-27-02 MCLE Compliance No. V~ 0001234; 01-24-22 Republic of the Philippines) City of Tacloban........ ..)S.S. we VERIFICATION and CERTIFICATE OF NON-FORUM SHOPPING \d NATIVIDAD COSTO, Filipino and residents WE, spouses MARLON COSTO an ‘an oath in accordance with of Barangay 6, Calbiga, Samar, after having been sworn to law, hereby jointly depose and say, that: 4. WE are the complainants in the above captioned complaint against Wilma ‘Agbon; Attached is ouridentification cards; 1e foregoing complaint and we supplied all the 2.We caused the preparation of th and/or from authentic material averments thereof based on our personal knowledge records in our possession; ween us and defendant docketed on appeal as CA-GR SP No. 02686 and is now final and executory, we have not commenced any ‘ther action involving the same issue and parties before the Supreme Court, the Court SF Appeals, or any lower level Cour, or tribunal or agency; and if we learned thereafter that a similar action involving the same parties, issues and property, is pending before any ofthe foregoing forum, we undertake to inform this Honorable Court of such fact within five (5) days from knowledge thereof. tL 43, Except the ejectment case bet IN WITNESS WHEREOF, WE have hereunto signed this instrument this 2 day of STMOAY 2021 atthe City of Taloban, Province of Leyte, Philippines.

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