Republic of the Philippines

COURT OF APPEALS-MINDANAO STATION

CAGAYAN DE ORO CITY

BENITO GEMINA, JR., CA GR C NO. 05934

CAMILO GEMINA,
DIOSDADO GEMINA & FOR: RECOVERY OF
EDUARDO GEMINA POSSESSION, OWNERSHIP
Plaintiffs-Appellees, AND DAMAGES

-versus-

ROMEO REMOLLANO,
SULPICIO SAYSON,
ANECITO TRAZONA,
ARNULFO ESTIMO,
FELIPE DINGDING, SR.,
SOFRONIO LUDUETA,
ANTONIO HINGGO,
PASTOR SABORNIDO,
ESTILILA REDOBLE &
ESTELLA DELOS CIENTOS
Defendant-Appellmants.

PHILIPPINE NATIONAL
BANK
Defendant.
X---------------------------------------------------/

APPELLEE`S BRIEF

Plaintiffs-Appellees, through the undersigned Counsel, respectfully file this brief for the
Plaintiffs-Appellees and state that:

PREFATORY

The Regional Trial Court, Branch 19, Digos City, Davao del Sur committed no error in its
JUDGMENT dated April 28, 2022 and s it must be sustained.

On April 28, 2020, th Regional Trial Court, Branch 19 rendered a judgment in favor of
herein Plaintiffs-Appellees, the dispositive portion of which is hereby quoted

“NOW WHEREFORE, after considering all the foregoing judgment is hereby rendered:

1. Ordering the Defendant heirs of Spouse delos Cientos to return the actual
possession of subject property to the Plaintiffs; and

2. Ordering the defendant heirs of Spouse delos Cientos to account all the
incomes derived from the fruits of the subject properties from the time they
have started possession and occupation of the subject property until
complete return and surrender of the same to the herein Plaintiff.

(Copy of the said Judgment is attached to the Defendant-Appellants Brief as EXHIBIT “I’’).
 1

THE PARTIES

Plaintiffs-Appellees namely: Benito Gemina, JR., Camilo Gemina, Diosdado Gemina and
Eduardo Gemina, are all legal age, all married and are residents of Poblacion Digos City, Davao
del Sur

Defendant-Appellants, Romeo Remollano, Sulpicio Sayson, Anecito Trazona, Arnulfo

Estimo, Felipe Dingding, Sr., Sofronio ludueta, Antonio Hinggo, Pastor Sabornido, Estelila
Redoble and Estrella Delos Cientos are also of legal age, all married except Estrella Delos
Cientos who is a widow, and are resident of Cabasagan, Matano, Davao del Sur and Poblacion
Bansalan, Davao del Sur, respectively.

Defendant PHILIPPINE NATIONAL BANK is a duly organized and existing corporation

under the laws of the Philippinesand is impleaded as the mortgagee of the land subject matter
of the litigation, whose branch office is located at Quezon Avenue, Digos City Davao del Sur.

STATEMENT OF FACTS

This is an action for RECOVERY OF POSSESSION AND OWNERSHIP and DAMAGES filed by
the Plaintiffs-Applellees and Defendant Philippines National Bank- Digos Branch.

THE PLAINTIFFS` COMLAINT

Plaintiffs-Appellees are the lawful heirs, being the legitimate children of the deceased
spouses Benito Gemina, Sr., and Maria Fernandez Gemina who died intestate on October 10,
1979 and on August 10 1978 respectively. At the time of the death of the spouses, they real
properties at Cabasagan, Matanao, Davao del Sur: one has an area of One Hundred Thirty-Eight
Thousand Seven Hundred Forty-Six (138,746) square meters, more of less and is covered by
Original Certificate of Title No. (P-50890) P-1402 in the name of Benito Gemina, Sr., and the
order has an area of Fifty-Four Thousand Nine Hundred Fifty-Two (54,952) square meters,
covered by Transfer Certificate of Title No. (T-13632) T-2937 in the name of the moter Maria
Fernandez.

Spauses Benito Gemina, Sr., and Maria Fernandez Gemina were induced and persuaded
by the spouses Estrella and Ramon Delos Cientos, Sr., to have the subject parcel of land leased
in their favor and to let them utilize the certificates of title of the subject [arcel of land as
security for a loan with Philippine National Bank. Talking advantage of the Spouses Gemina`s
lack of education, Ramon delos Cientos, Sr., was able to let the Spouses Gemina affix their
signature and thumbmark in documents which he fraudulently presented to the Spouses as
lease contracts which were discovered years later by the Plaintiffs-Appellees to be Deed of Sale.

Defendant-Appellant Estrella delos Cientos and her husband instructed the other
Defendant-Appellants namely: Romeo Remollano, Sulficio Sayson, Anecito Trazona, Arnulfo
Estimo, Filipe Dingding, Sr., Sofronio Ludueta, Antonio Hinggo, and Pastor Sabornido to take
possession of the land and cultivate the same.

Right after the death of Spouses Gemina, Plaintiffs-Appellees demanded from the
Defendant-Appellants Estrella vda. Delos Cientos the return of the land titles, but the letter
would not and could no longer return the land titles because the same were already held by
the Defendant Philippine National Bank (PNB) as securities for the loan.

Despite the lapse of twenty-Five years from the time subject parcel of land were
mortgaged to Defendant PNB, the certificates of title have not been foreclosed by the
Defendant Philippine National Bank, are still intact, and are still in the name of the Spouses
Gemina.

ANSWER OF DEFENDANT
ESTRELLA DE LOS CIENTOS

Defendant-Appellant Estrella Delos Cientos controverted the claims of the Plaintiffs-

Appellees in her Amended Answer and averred the following:

The parcels of land covered by original Certificate of Title No. (P-50890) P-1402 and Transfer
Certificate of Title (T-13632) -2937 have long been acquired by her and her late husband Ramon
delos Cientos, Sr., as early as 1970 and 1972 repectively, per Deed of Absolute sate EXECUTED
BY Benito Gemina on August 21, 1972 identified as Document No. 139, Page 29, Book No. XV,
Series of 1972 of the Notary Public Benjamin P. Fernandez, and Deed of Sale with Assumption of
Mortgage executed by Maria Fernandez on December 29, 1070 identified as Document No.
128, Page No. 26, Book No. VIII, Series of 1970 of the Notary Public Esquio V. Garzon, all with
marital consent so that the said parcel of land no longer form part of the estate of Spouses
Gemina for their heirs to inherit.

ANSWER OF DEFENTDANTS ROMEO REMOLLANO

SULFICIO SAYSON, ANECITO TRAZONA, ARNULFO
ESTIMO, FELIPE DINGDING, SR., SOFRONIO
LUDUETA, ANTONIO HINGGO, PASTOR
SABORNIDA and ESTELITA REDOBLE:

Defendant-Appellants allege that they do not claim ownership over the subject lands as
they are in possession of the properties as tenants thereof and that they have regularly and
religiously delivered to Defendant-Appellant Estrella Delos Cientos her share in the harvests of
the land in question.

The above-named Defendant-Appellants vouched that Plaintiffs-Appellees never

questioned the possession of Defendant-Appellants Estrella Delos Cientos over the subject lands
which dates back to the early 80s up to the early 90s and that in fact, Defendant-Appellants
never knew, nor they have seen the Plaintiffs-Appellees during their (Defendants`) possession of
subject lands.

It was only sometime in 1998 that Plaintiffs-Appellees introduced themselves to be the

alleged owner of the land. By reason of the conflicting claims of the Geminas and the delos
Cientos, the Defendant-Appellants deposited to the Barangay Captain the share in the harvest
of the landowner.

Defendant-Appellants assert that Plaintiffs-Appellees have no cause of action against

them as there is only their tenancy right over the subject land and that they are entitled to
judicial protection regardless of the ownership claims by the parties.

DEFENDANT PNB’S ANSWER

The Philippine National Bank (PNB) alleged in its Answer the Special Power of Attorney
executed by late Spouses Benito Gemina and Maria Fernandez, where they not only authorized
Ramon delos Cientos and Estrella delos Cientos to borrow any amount form PNB using their
(Spouse Gemina’s) property as collateral, but they also expressly bound themselves as surety
co-debtors and joint and solidary co-obligors to the loan granted by the Bank. The ``Addendum’’
of the SPA provides:

In additional to the authority and power embodied in page one (1) of

the instrument, the undersigned gives and grants unto my afore-mentioned
attorney-in-fact the authority and power:
3

1. To represent and bind me /us as Surety in connection with the

aforementioned loan of any other types of forms of bank
accommodation applied and granted by the Philippine National
Bank and my/our liabilities thereunder with the Philippine
National Bank as such surety shall be jointly and solidarily with the
principal debtor and/or obligors, whether the letter is/ are natural
or juridical person/s;

2. To represent, bind and obligate me/us as co-debtor/s for the

subject loan or any other types of forms of bank accommodation
supplied for and granted by the Philippine National Bank and
my/our liability thereafter with the Philippines National Bank as
such co-debtors shall be jointly and solidarity with the order
debtor/sof said account/s. ‘’ (emphases ours)

Additionally, Defendant PNB Avers the following:

That the Real Estate Mortgage executed by Spouses Ramon Delos Cientos, Sr., and
Defendant-Appellant Estrella delos Cientos, for themselves and as Attorney-in-fact of Plaintiffs-
Appellees’ parents (among others), expressly provides that if at any time that the mortgagor
shall fail or refuse to pay the obligations secured, the mortgagee, PNB, may foreclose the
mortgage judicially in accordance with the Rules Court or Extra-judicially in accordance with Act
No. 3135, as amended.

It also averred that the mortgage was duly registered and is valid for all interts and
purposes and binding upon the whole world including the Plaintiffs-Appellees and that the
action of the Defendant Bank to foreclose the mortgage has not prescribed, the truth being that
Defendant PNB has been regularly making verbal and written demands from the
borrowers/mortgagors for the payment of the loan and the plaintiffs-appellees and the
borrowers themselves have never denied the existence of the loan but in fact acknowledged its
being due and owing to PNB.

In compliance with the order of the Court dated January 7, 2008, Plaintiffs-Appellees
submitted a Bill of Particulars on their cause of action against the Defendant-Appellants Romeo
Remollano, Anecito Estimo, Felipe Dingding, Sr., Sofronio ludueta, Antonio Hinggo and Pastor
Sabornido.

BILL OF PARTICULARS on the Defendants Romeo

Remollano, Anenito Trazona, Arnulfo Estimo
Felipe Dingding, Sr., Sofronio Ludueta, Antonio
Hinggo, Pastor Sabarnido

The Plaintiffs-Appellees defined their cause of action against the Defendant-Appellants

Romeo Remollano, Anecito Trazona, Arnulfo Estimo Felipe Dingding, Sr., sofronio Ludueta,
Antonio Hinggo, Pastor Sabornido on the fact the said Defendant-Appellants alleged thet they
are tenants of Defendant-Appellants Estrella delos Cientos and that they are accupying certain
portions of the real property subject of the case. Claiming that they are tenants of Estrella delos
Cientos, the above-named Defendant-Appellants became extensions of the personality of
Estrella delos Cientos who is an illegal occupant of the subject parcel of land. Being extensions
of Defendant Estrella delos Cientos, the above-named Defendant-Appellants’ occupation of
subjtc property is illegal. Thus, they are joined as necessary parties in the case.

In order to substantiate their claims against the Defendant-Appellants, Plaintiffs-

Appellees presented Diosdado Gemina, Camilo Gemina and Rogelio Alburo.
4

To buttress their defense against the Plaintiffs-Appellees, Defendant-Appellants Heirs of

Ramon Delos Cientos presented the testimonies of Rizalina Delos Cientos and Atty Benjamin
fernandez.

FOR DEFENDANTS ROMEO REMONLLANO, SULFICI SAYSON, ANECITO TRAZONA,

ARNULFO ESTIMO, FELIPE DINGDING, SR., SOFRONIO LIDUETA, ANTONIO HINGGO, AND PASTOR
SABORNIDO, the Defendant-Appellants Felipe Dingding testified for himself and the above-
named Defendant-Appellants.

FOR DEFENDANT PNB, Erfie A. Responso, an employee of Defendant Philippine National

Bank testified for the said Bank.

ASSIGNMENT OF ERROR

The Regional Trial Court, Branch 19, Digos City, Davao del Sur did not commit any error
which prejudiced and impaired the rights of the Defendant-Appellants when it issued the
assailed Judgment in favor of Plaintiffs-Appellees.

ARGUMENTS/DISCUSSION

On Octuber 22, 2020, a Notice of Appeal was filed by Defendants ( except Defendant
Philippine National Bank) to the Court a quo.

In their Appellant’s Brief, defendants-appellants raised the sole issue of whether or

not the deed of Absolute Sale subject of the controversy is null and void.

I- THE DEEDS OF SALE ARE

NULL AND VOID

Defendant-Appellant Estrella delos Cientos anchored her defense and claim of

ownership on subject parcel of land through the Deed of Absolute Sale executed by Benito
Gemina on August 21, 1972 identified as Document No. 139, Page 29, Book No. XV, Series of
1972 of the Notary Public Benjamin P. Fernandez, and Deed of Sale with Assumption of
Mortgage executed by Maria Fernandez on December 29, 1970 identified as Document No. 128,
Page No. 26, Book No. VIII, Series of 1970 of the Notary public Eaiquio V. Garson.

Deed of Absolute Sale executed by Benito Gemina on August 21, 1972 identified as Document
No. 138, Page No. 29, Book No. XV Series of 1972of the Notary Public Benjamin P. Fernandez,

The subject of the Deed of Absolute described above is a parcel of land, registered in the
name of Benito Gemina, married to Maria Fernandez and covered by Original Certificate of Title
No. (P-5089) 1402.

The above-described Deed of Sale Shows that the same was signed by Benito Gemina as
the vendor and by Ramon delos Cientos, as the vendee and thereate two signatures appearing
in the signature for witnesses.

A careful perusal of this said Deed of Sale reveals that there was no signature of Maria
Fernandez, the spouse of the vendor Benito Gemina.
 The lower court a quo correctly ruled that since Maria Fernandez did not sign the Deed
of Absolute Sale, the Deed of Sale and the transaction it represents lack the ``consent’’of the
spouse Maria Fernandez.

Defendant-Appellants argued that since the questioned Deed of Sale was executed and
notarized by Atty. Benjamin P. Fernandez, a Notary Public, it enjoys the presumption of
regularity and it meant that the consent of the parties was freely and voluntarily given and not
vitiated by any vice of consent. Defendant-Appellants continued to argue that the assailed Deed
of Sale must be sustained in full force and effect.

Atty. Benjamin P. Fernandez who testified in open court, pointed out that the spouse
Maria Fernandez affixed her thumb mark on the Deed of Absolute Sale. However, a careful
examination of the Deed of Absolute reveals that the same does not bear a ``thumb mark’’
belonging to Maria Fernandez which signified her ``consent`` to the Sale. Thus the sale was
with without the consent of Maria Fernandez.

In its Judgment, the lower Court a quo finds it appropriate to revisit applicable
provisions of the law and ruled that since the Deed of Absolute Sale was executed in 1972, the
property regime of the Spouse Gemina is governed by the relevant provisions of the Civil Code.
The lower court a quo likewise cited the case of ARTURO R. ABALOS VERSUS DR. GALICANO S.
MACATANGAY which is especially instructive on the nature of the property regime of spouses
which is governed by the Civil Code and the effects of the disposal of a husband of the conjugal
property without the consent of the wife. To quote the case:

``(Arturo) and (Esther) appears to have been married before the

effectivity of the Family Code. There being no indication that they have
adopted a different property regime, their property relations would
automatically be governed by the regime of conjugal partnership of gains.

The subject land which had been admittedly acquired during the
marriage of the spouse forms part of their conjugal partnership.

Under the Civil Code, the husband is the administrator of the

conjugal partnership. This right is clearly granted to him by law. More, the
husband is the sole administrator. The wife is not entitled as of right to
joint administration.

The husband, even if he is statutorily designated as administrator

of the conjugal partnership, cannot validly alienate or encumber any real
property of the conjugal partnership without the wife`s consent. Similarly,
the wife cannot dispose of any property belonging of the husband. The
law is explicit that the wife cannot bind the conjugal partnership without
the husband`s consent, except in cases provided by law.

In not a few cases, we ruled that the sale by the husband of

property belonging to the conjugal partnership without the consent of the
wife when there is no showing that the latter is incapacitated is void ab
initio because it is in contravention of the mandatory requirements of
Article 166 of the Civil Code. Since Article 166 of the Civil Code requires
the consent of the wife before the husband may alienate or encumber
any real property of the conjugal partnership, it follows that acts or
 transactions executed against this mandatory provision are void except
when the law itself authorizes their validity. ( emphasis ours)

The lower court a quo also cited the more recent case of SPS. LITA
DE LEON and FELIX RIO TARROSA versus ANITA B. DE LEON which
reinforces the legal principle enunciated in the above-quoted case.

6
``It cannot be over-emphasized that the 1950 Civil Code is very
explicit on the consequence if the husband alienating or encumbering any
real property of the conjugal partnership without the wife`s consent. To a
specific point, as administrator, must, as a rule, be with the wife`s
consent. Else, the sale is not valid. So it is that in several cases we ruled
that the sale by the husband of property belonging to the conjugal
partnership without the consent of the wife is void ab initio absent any
showing that the letter is incapacitated, under civil interdiction, or like
causes. The nullity, as we have fact that sale is in contravention of the
mandatory requirement of Art.166 of the Code. Since Art. 166 of the Code
requires the encumber any real property of the conjugal partnership, it
follows that the acts or transactions executed against this mandatory
provision are void except when the law itself authorized their validity.
( emphasis ours)

Accordingly, as correctly ruled by the lower court a quo, the Deed of Absolute Sale
executed by Benito Gemina on August 21, 2972 identified as Document No. 138, Page No, 29,
Book No. XV, series of 1972 of the Notary Public Benjamin P. Fernandez is void.

II- THE ACTION HAS ALREADY

PRESCRIBRD.

Additionally, Defendant-Appellant claimed that the action has already prescribed. They
contended that a long twenty-seven (27) years has already elapsed from the execution of the
assailed Deed of Sale to the filing of the case. The Deed of Sale was executed on August 31,
1972 the original complaint was filed by the heirs on September 14, 1999 and the Amended
Complaint, charging the theory of the case was filed on October11, 2006. Clearly, plaintiffs-
Appellees who are merely heirs of vendors Benito Gemina and Maria Fernandez were in dab
faith in filing the case. If not confused.

Plaintiffs-Appellees beg to disagree.

As correctly ruled by the lower court a quo, Plaintiffs-Appellees were able to present and
formally offer Transfer Certificate of Title No. (T-13632) T-2937 and Original Certificate of Title
No. (P-5089) T-1402 which are still intact and still in the name of their parent, Spouse Benito
and Maria (Fernandez) Gemina.

On the other hand, the Defendant`s Deeds of Absolute Sale executed by Benito Gemina
on August 21, 1972 identified as Document No. 29, Book No. XV, Series of 1972 of the Notary
Public Benjamin P. Fernandez, is declared void and Deed of Sale with Assumption of Mortgage
executed by Maria Fernandez on December 29, 1970 identified as Document No. 128, Page No.
26, Book No. VIII, Series of 1970 of the Notary public Eaiquio V. Garson was not considered by
the Court.

Thus, the lower court a quo ruled that the plaintiff are able to prove their cause of action
against the defendants by preponderance of evidence.

``A Torrens Certificate, as compared to a mere deed evidencing a

contract of sale or any other private document, is still best evidence of
ownership over registered land. Such title is entitled to respect and great
weight until someone else can show a better right to the lot. The Court
 has previously held that a certificate of registration accumulates in one
document a precise and correct statement of the exact status of the fee
held by its owner which, in the absence of fraud, is the evidence of title
showing exactly the owner`s real interest over the property covered
thereby. Therefore, the person who is registered as the owner of the
property in a certificate of title presumed to be the owner of such
property.

7
A Torrens certificate is still the best evidence of ownership over
registered land as compared to a mere deed evidencing a contact of sale.
The registered owner has a preferential right to the possession of the
owner`s duplicate than one whose does not appear in the certificate.

AS THE REGISTERED OWNERS, Plaintiffs-Appellees have a right to the possession of

subject properties, which is one of the attributes of ownership and the Defendant Heirs of
Estrella delos Cientos and Defendants Remeo Remollano, Sulficio Sayson, Anecito Trazona,
Arnulfo Estimo, Felipe Dingding, Sr., Sofronio Ludueta, Antonio Hinggo, and Pastor Sabornido
without of possession thereto.

Moreover, contrary to the Defendant-Appellants claim that the action has already
prescribed as they contended that a long twenty-seven (27) years has Deed of Sale to the
filing of the case, the same deserves scant consideration.

Acticle 1410 of the Civil Code of the Philippines provides:

Art. 1410. The action or defense for the declaration of the

inexistence of a contract does not prescribe.

Here, Maria Fernandez did not sign the Deeds of Absolute Sale, the Deed of Sale and
the transaction it represents lack the ``consent`` of the spouse Maria Fernandez. Hence, the
Deeds of Sale are null and void being such, the action or defense for the declaration of its
inexistence or its absolute nullity is imprescriptible. Hence, the defect of a void or inexistent
contract is permanent. Mere lapse of time cannot give it efficacy.

With the adjudication as to the ownership of the subject parcel of land, the Court
proceeds to the other reliefs prayed for the plaintiffs.

THE CASE OF THE PALINTIFFS AGAINST THE DEFENDANTS ROMEO REMOLLANO, SULFICIO
SAYSON, ANECITO TRAZONA, ARNULFO ESTIMO, FELIPE DINGDING, SR., SOFRONIO LUDUETA,
ANTONIO HINGGO AND PASTOR SABORNIDO.

The above-named Defendants declared that they are tenant-residents of subject-

properties allowed possession thereof by the Spouses delos Cientos and/or their Mauricio delos
Cientos. Defendants however, did not submit any proof to evidence that they are tenant of
subject parcel of land. Since they failed to prove that they are tenants of the subject propertied,
the protection the law provides to tenants cannot be extended to them.

Moreover, since the Spouses delos Cientos are found to be not the lawful owners
thereof, it follows that Defendants Romeo Remollano, Sulficio Sayson, Anecito Trazona, Arnulfo
Estimo, Felipe Dingding, Sr., Sofronio Ludueta, Antonio Hinggo, Pastor Sabornido continued
possession of subject parcels of land is unlawful and they should vacate the premises
immediately if they had not done so until date.

Not being the lawful owners, the principle ``NEMO DAT QUOD NON HABET which
means ONE CANNOT GIVE WHAT ONE DOES NOT HAVE’’ squarely applies in this case.

PRAYER/RELIEF
 WHEREFORE, Premises considered, it is most respectfully prayed before this Honorable
Court, that the APPEAL filed by Defendant-Appellants be DENIED and the April 28, 2020
Judgment rendered by the Regional Trial Court, Branch 19, Digos City Davao del Sur, in favor of
herein Plaintiffs-Appellees be SUSTAINED/AFFIRMED.

Such other reliefs, just and equitable under the circumstances ate
likewise prayed for.

Respectfully submitted this 15th day of July 2022, in Digos City,

Davao Del Sur, Philippines

ATTY. LOUISE MARIE THERESE

BRANDARES-ESCOBIDO
Counsel for Plaintiffs-Appellees
TIN NO. 921-464-750; ROLL NO. 44851
PTR NO. 3404074 issued on 01-06-2022; DIGOS CITY
IBP NO. on process (IBP dues already paid)
MCLE COMPLIANCE NO. VI-0028420 (valid until April 14, 2022)

Copy furnished:
1. THE BRANCH CLERK OF COURT
Regional Trial Court Branch 19
Digos City, Davao del Sur
Philippines

2. ATTY. NESTOR C. FERNANDEZ

Counsel for Defendants-Appellants
1976 Tres de Mayo, Digos City Philippines

3. ATTY. BENJAMIN P. FERNANDEZ

Counsel for Defendant-Appellents
Rizal Avenue, Digos City, Philippines

4. ATTY. FRANZ ECAN DANDOY

PNB Cm Recto Branch, Davao City