Republic of the Philippines

REGIONAL TRIAL COURT

10th Judicial Region
Branch ___
Initao, Misamis Oriental

JOSEPH APUT SACAY CIVIL CASE

Plaintiff, NO._________________

-versus- FOR: ANNULMENT OF

EXTRAJUDICIAL
RODOLFO S. APUT, SETTLEMENT, WITH
ELIODA A. PAGALAN, APPLICATION FOR
MOISES S. APUT, PRELIMINARY INJUNCTION,
Defendants. PARTITION, DAMAGES AND
ATTORNEY’S FEES

__________________________________________________________________

COMPLAINT

The Plaintiff, by counsel, respectfully states:

THE PARTIES

1. Plaintiff Joseph Aput Sacay is of legal age, Filipino, single and a resident of
KM 7, Acasia, Barangay Lumbia, Cagayan de Oro City, Misamis Oriental,
Philippines, where he may be served with court processes.

2. Defendants Rodolfo S. Aput and Elioda A. Pagalan, are of legal ages,

Filipinos and residents of Purok 2, Maki-angayon, Gimangpang, Initao,
Misamis Oriental, Philippines where they may be served with summons and
court processes.

3. Defendant Moises S. Aput, of legal age, Filipino, married, and a resident of

Purok 2, Linabo, Flores Village, Malaybalay City, Bukidnon where he may
be served with summons and court processes.

4. Plaintiff is the son of Patricia Aput who is the daughter of Iglecerio Aput
who in turn is among the siblings namely, Constancio Aput, Simplicio Aput,
Luiz Aput, and Gregoria Aput Makabigsa.

Marriage Certificate of Carlito Sacay and Patricia Aput is hereto attached

as Exhibit “A” and Certificate of Live Birth of Joseph Aput Sacay is hereto
attached as Exhibit “B”

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 5. Defendants are the descendants of Simplicio Aput who is the brother of
Constancio Aput and Iglecerio Aput.

FACTS OF THE CASE

6. The subject parcel of land is located at Gimampang, Initao, Misamis

Oriental, covered by TCT No. T-4156 and Tax Declaration No. 21-0012-
06589 with a market value of P78,760.00, registered under the name of the
late Constancio Aput.

Copy of TCT No. T-4156 is hereto attached as Exhibit “C” while copy of
Tax Declaration No. 21-0012-06589 is hereto attached as Exhibit “D”.

7. On March 25, 1990, the said parcel of land was donated to Iglecerio Aput
and as stated in the instrument, he has already been occupying the same and
has planted many plants and trees therein.

Copy of the instrument conveying the subject parcel of land to Iglecerio

Aput is hereto attafhed as Exhibit “E”.

8. On November 29, 1991, Constancio Aput died intestate and without any
compulsory heirs. He was only survived by his siblings Iglecerio Aput,
Simplicio Aput, Luiz Aput, and Gregoria Aput Makabigsa.

Copy of Constancio Aput’s death certificate is hereto attached as Exhibit

“F”.

9. On May 13, 2016, the defendants executed an Extrajudicial Settlement with

Waiver of Rights where they attested that they were the “sole and only
heirs” of Constancio Aput and partitioned among themselves the subject
parcel of land to the exclusion and prejudice of the plaintiff.

Copy of the Extrajudicial Settlement with Waiver of Rights is hereto

attached as Exhibit “G”.

10. Defendants, by virtue of such Extrajudicial Settlement, have started

harvesting and cutting down the coconut, gemelina, mahogany, and “tugas”
trees planted by the plaintiff.

11. The Plaintiff sought the help of Kagawad Buhian and Kagawad Jarales to
settle the matter amicably but to know avail. The Plaintiff thus initiated a
Blotter at the Police Station in order to put into record the acts of the
defendants in harvesting and cutting down the coconut, gemelina,
mahogany, and “tugas” trees.

Copy of the police blotter regarding the incident of harvesting and cutting
down of the trees is hereto attached as Exhibit “H”. And Photographs of the

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 harvesting and cutting down of the trees planted by the plaintiff is hereto
attached as Exhibit “I” to Exhibit “I-13”.

12. Sometime around the last week of June 2022, Defendants have sold the
subject parcel of land to one Emerald Castillon. Because of such sale, a road
has been paved to make a pathway for vehicles to and from the property. A
“No Trespassing” has also been put up by Emerald Castillon in the property
to excluding people, even the Plaintiff, from entering the subject parcel of
land. A casualty of this development is the destruction of the house of the
late brother of the Plaintiff.

Photographs of the Road, the “No Trespassing” sign, and the site where the
house of the late brother of the Plaintiff used to stand are hereto attached as
Exhibit “J” to Exhibit “J-10”

CAUSES OF ACTION

THE EXTRAJUDICIAL SETTLEMENT WITH WAIVER OF RIGHTS IS

NULL AND VOID

13. Plaintiff is a descendant and heir of Constancio Aput. Under Art. 1004 of the
New Civil Code:

“Art. 1004. Should the only survivors be brothers and sisters of the full
blood, they shall inherit in equal shares.”

Being that Constancio Aput is not survived by any children or a spouse, his
brothers and sister will inherit his estate in equal shares. As the sibling of
Constancio Aput, Iglecerio Aput is entitled to an equal share of the former’s
estate. In turn, as the heir of Iglecerio Aput, Patrica Aput is entitled to the
same. Thus, herein plaintiff as a descendant and heir of Patricia Aput Sacay,
he is entitled to a portion the in the aforementioned estate.

14. For excluding an heir in their Extrajudicial Settlement with Waiver of

Rights, the same is a nullity and cannot be countenanced. As stated in the
case of Amparo S. Cruz et. al. vs Angelito S. Cruz et. al.1:

“The partition in the present case was invalid because it excluded six of
the nine heirs who were entitled to equal shares in the partitioned
property.”

15. The fact that the Extrajudicial Settlement was executed on May 13, 2016 or
more than 6 years ago is of no moment since under Rule 74, Section 1 of the
Rules of Civil Procedure, as amended:

1
G.R. No. 211153 February 28, 2018

Complaint
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 “…no extrajudicial settlement shall be binding upon any person who
has not participated therein or had no notice thereof.”

Such a rule has also been elaborated by the abovementioned jurisprudence 2

to wit:

“The deed of extra-judicial partition in the case at bar being invalid, the
action to have it annulled does not prescribe.”

Explaining further that:

“The rule covers only valid partitions. The partition in the present case
was invalid because it excluded six of the rune heirs who were entitled
to equal shares in the partitioned property. Under the rule 'no
extrajudicial settlement shall be binding upon any person who has not
participated therein or had no notice thereof.' As the partition was a
total nullity and did not affect the excluded heirs, it was not correct for
the trial court to hold that their right to challenge the partition had
prescribed after two years from its execution...”

Thus, for excluding an heir in the defendants’ Extrajudicial Settlement with

Waiver of Rights, the same is null and void and the Plaintiff can assail its
validity beyond the two years as prescribed under the Rules.

PLAINTIFF IS ENTITLED TO MORAL DAMAGES

16. Under Art. 2220. Of the Civil Code, willful injury to property may be a
legal ground for awarding moral damages if the court should find that,
under the circumstances, such damages are justly due. The same rule
applies to breaches of contract where the defendant acted fraudulently or in
bad faith.

Here, the Defendants knowing full well that there were other heirs
partitioned among themselves, to the exclusion of the others, the subject
parcel of land. They then took it upon themselves to harvest and cut down
the trees and plants planted by herein Plaintiff. They even went so far as to
sell the parcel of land to another person which then further prejudiced the
rights of the Plaintiff due to the constructions and developments caused by
the buyer.

Thus, for their willful injury to property, the Plaintiff is entitled to moral
damages.

PLAINTIFF IS ENTITLED TO TEMPERATE DAMAGES

2
Id.

Complaint
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17. Under Article 2224. of the Civil Code, when pecuniary loss has been
suffered but the amount cannot, from the nature of the case, be proven with
certainty, temperate damages may be recovered. Temperate damages maybe
allowed in cases where from the nature of the case, definite proof of
pecuniary loss cannot be adduced, although the court is convinced that the
aggrieved party suffered some pecuniary loss.

Here, the defendants have cut down and harvested the plants and trees
planted by the Plaintiff for their own gain and profit. They even sold the
subject parcel of land to another person who has caused constructions and
developments therein to the prejudice of the rights of the Plaintiff.

It is unequivocal that the Plaintiff has suffered pecuniary losses due to the
acts of the defendants. Although the amount cannot be proven with certainty,
such losses are apparent and thus temperate damages may be awarded.

PLAINTIFF IS ENTITLED TO EXEMPLARY DAMAGES

18. In the case of JAIME P. ADRIANO and LEGASPI TOWERS 300, INC.
vs. ALBERTO LASALA and LOURDES LASALA3 the Supreme Court states
that:

“To warrant the award of exemplary damages, the wrongful act must be
accompanied by bad faith…”

It can be gleamed from the foregoing that Defendants have acted in bad
faith. They partitioned the subject parcel of land for themselves to the
exclusion of other heirs, specifically the Plaintiff. They even so much as to
sell the subject parcel of land to another person and collected the proceeds
for themselves. It is thus clear that the Defendants through stealthy and
unethical machinations took the property as their own for their own gain, to
the exclusion and prejudice of the rights of the Plaintiff.

Thus, for their acts surreptitiously partitioning and then selling the subject
parcel of land, Defendants acted in bad faith to the prejudice of the Plaintiff.

ALLEGATIONS IN SUPPORT OF THE APPLICATION FOR

WRIT OF PRELIMINARY INJUNCTION

The Plaintiff re-pleads, by way of reference all the foregoing allegations and
aver that:

19. According to Art. 484. of the Civil Code, there is co-ownership whenever
the ownership of an undivided thing or right belongs to different persons.

3
G.R. No. 197842, October 9, 2013

Complaint
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 The plaintiff herein as an heir to Constancio Aput is a co-owner of the
subject parcel of land.

20. Furthermore, under Art. 491. of the Civil Code, none of the co-owners shall,
without the consent of the others, make alterations in the thing owned in
common, even though benefits for all would result therefrom.

The defendants have not only cut down the trees in the subject parcel of land
but they have extrajudicially partitioned the same and sold it to another
person without the consent of the other co-owners.

21. The Plaintiff has no other plain, adequate and speedy remedy to protect his
and his co-owners’ rights as the one of the lawful owners of the subject
property and to render effectual any relief which they are entitled under the
law, except the issuance of a writ of preliminary injunction ordering the
Defendants to cease and desist from entering, occupying and possessing the
subject property, restoring the subject parcel of land to its status prior to the
same being partitioned and sold.

22. The Defendants’ commission, continuance and non-performance of the acts

complained of pending or during litigation would work injustice and great or
irreparable injury to the Plaintiff.

23. The Defendants are doing, threatening or are attempting to do, or are
procuring or suffering to be done the acts complained of in violation of the
rights of the Plaintiff and if allowed to continue, will tend to render any
judgment ineffectual.

24. The Plaintiff is willing to put up a bond to pay all damages which the
Defendants may sustain by reason of the issuance of the Writs of
Preliminary Injunction.

WITNESSES

25. Plaintiff Joseph Aput Sacay will testify on his behalf. His testimony shall
cover his relationship with Constancio Aput, the fact that they were the ones
that planted the trees in the subject parcel of land, and any other matter
relevant to this case.

26. Witness Lourdes J. Yutimar will testify that she personally knew
Constancio Aput, Iglecerio Aput, and Patricia Aput Sacay, the mother of the
Plaintiff. The she personally saw the Plaintiff in possession of the subject
parcel of land and that he was the one that planted the trees therein in and
was the caretaker thereof. She will also testify to any other matter relevant to
this case.

Complaint
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27. Witness Francisca G. Lactuan will testify that she personally knew
Constancio Aput, Iglecerio Aput, and Patricia Aput Sacay, the mother of the
Plaintiff. The she personally saw the Plaintiff in possession of the subject
parcel of land and that he was the one that planted the trees therein in and
was the caretaker thereof. She will also testify to any other matter relevant to
this case.

EVIDENCE

28. Documentary Evidence:

Exhibit Number Description

Exhibit “A” Marriage Certificate of Carlito
Sacay and Patricia Aput
Exhibit “B’ Certificate of Live Birth of Joseph
Aput Sacay
Exhibit “C” to “C-3” Copy of TCT No. T-4156
Exhibit “D” Copy of Tax Declaration No. 21-
0012-06589
Copy of the instrument conveying
Exhibit “E” the subject parcel of land to
Iglecerio Aput
Exhibit “F” Copy of Constancio Aput’s death
certificate
Copy of the Extrajudicial Settlement
Exhibit “G” to “G-1” with Waiver of Rights
Copy of the police blotter regarding
Exhibit “H” the incident of harvesting and
cutting down of the trees
Photographs of the harvesting and
Exhibit “I” to “I-13” cutting down of the trees planted by
the plaintiff
Photographs of the Road, the “No
Trespassing” sign, and the site
Exhibit “J” to “J-10” where the house of the late brother
of the Plaintiff used to stand

PRAYER

WHEREFORE, it is respectfully prayed that:

A. After notice and hearing:

1. A Writ of Preliminary Injunction be issued to halt any more alterations,

constructions and any other developments being done on the subject parcel
of land to the prejudice of the Plaintiff until the same be partitioned in
accordance with the law.

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 B. After trial:

1. Declare the Extrajudicial Settlement with Waiver of Rights null and void.

2. Order the partition of the subject parcel of land amongst the heirs.

3. Order all the Defendants to pay the Plaintiff jointly and solidarily the
following sums:

3.1. Attorney’s fee in the sum of P100,000.00;

3.2. Moral Damages in the sum of P100,000.00;

3.3. Temperate Damages in the sum of P100,000.00;

3.4. Exemplary Damages in the sum of P100,000.00; and

3.5. Pay the cost of suit.

Other relief and remedies just and equitable under the premises are likewise
prayed for.

September 14, 2022, Cagayan de Oro City.

PRECIOSO – SEALZA – SASAM & Associates LAW OFFICE

Counsel for the Plaintiff
Zone 3, Patag, Camp Evangelista
Cagayan de Oro City

By:

EDWARD REY E. SASAM

Counsel for the Plaintiff
Roll No.81955; TIN No.608-239-761
IBP OR No.230997; Dated, Jun. 12, 2022
PTR No. 5376413; Dated, Aug. 15, 2022
MCLE Compliance: Recent Bar Passer
Signed the Roll of Attorneys on May 26, 2022
Zone 3, Patag, Camp Evangelista, Cagayan de Oro City
Email Add: edward.sasam@gmail.com
ATTESTATION

(Pursuant to Section 3, Rule 7 of the New Rules of Civil Procedure – AM No. 19-
10-20-SC)

I HEREBY ATTEST AND CERTIFY that my signature as counsel for plaintiff

constitutes as certification that I read the pleading and documents and to best of my
knowledge, information and belief, formed after an inquiry, reasonable
Complaint
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circumstances, it is not being presented for any improper purpose, such as to
harass, cause unnecessary delay, or needlessly increase the cost of litigation, the
claims, defenses, and other legal contentions warranted by existing law or
jurisprudence, or by non-frivolous argument for extending, modifying or reversing
existing jurisprudence. The factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support after availment of the
modes of discovery under these rules.

EDWARD REY E. SASAM

Republic of the Philippines)

Cagayan de Oro City…) S.C.

VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING

I, Joseph Aput Sacay, of legal age, married, Filipino citizen, with residence
address at KM 7, Acasia, Barangay Lumbia, Cagayan de Oro City, Misamis
Oriental, after having been duly sworn to in accordance with law, do hereby
depose and say that:

1. I am the plaintiff in the above-entitled case;

2. I have caused the preparation and filing of the foregoing Complaint, and I
have read all the allegations contained therein;

3. The allegations in the said Complaint are true and correct based on my
personal knowledge, and/or authentic documents;

4. The Complaint is not filed to harass, cause unnecessary delay, or needlessly

increase the cost of litigation;

5. The factual allegations therein have evidentiary support or, if specifically so

identified, will likewise have evidentiary support after a reasonable
opportunity for discovery;

6. I hereby certify that I have not commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi-judicial agency and,
to the best of our knowledge, no such other action or claim is pending
therein;

Complaint
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 7. If I should thereafter learn that the same or similar action or claim has been
filed or is pending, I shall report that fact within five (5) calendar days
therefrom to the court wherein the aforesaid Complaint has been filed; and

8. I executed this verification/certification to attest to the truth of the foregoing

facts and to comply with the provision of Adm. Circular No. 04-94 of the
Honorable Supreme Court.

IN WITNESS WHEREOF, I have hereunto affixed my signature this 14 th

day of September 2022, in Cagayan de Oro City, Philippines.

JOSEPH APUT SACAY

Plaintiff

SUBSCRIBED AND SWORN to before me, a Notary Public, this 14 th of

September 2022, in Cagayan de Oro City, the affiant personally appeared
exhibiting his SSS I.D. with No. 33-6076775-0, bearing his photo and signature.

Doc. No. 300 ATTY. DEXTER BAQUIANO PRECIOSO

NOTARY PUBLIC
Page No. 60 Notarial Commission Until December 31, 2021
Book No. 41 Roll No.62701; TIN No.452-664-622-000.Mis.Or.
IBP OR No.141827; Dated, Jan. 27.2021
Series of 2022 PTR No. 0712588; Dated, Jan. 22, 2021.Cag.de Oro
MCLE Compliance No.VII-0000848; Sept. 4, 2019
Zone 3, Patag, Camp Evangelista,Cag.de Oro City
Pursuant to Supreme Court Resolution, October 26,2021
Re: B.M. No. 3795. September 28, 2021
S.C. Resolution dated July 5, 2022

Copy furnished thru Personal Service:

REGIONAL TRIAL COURT

Clerk of Court Branch No.
Initao, Misamis Oriental

Copy furnished thru Registered Mail:

Rodolfo S. Aput
Defendant
Purok 2, Maki-angayon, Gimangpang
Initao, Misamis Oriental, Philippines

Elioda A. Pagalan
Defendant
Purok 2, Maki-angayon, Gimangpang

Complaint
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Initao, Misamis Oriental, Philippines

Moises S. Aput
Defendant
Purok 2, Linabo, Flores Village
Malaybalay City, Bukidnon

EXPLANATION

Copy of this Complaint is furnished to the defendants through registered

mail instead of personal service due to distance and lack of messengerial aid to
effect personal service.

Atty. Edward Rey Sasam

Complaint
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