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-Appellants.

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

MOTION FOR RECONSIDERATION

Defendants-appellants, unto this Honorable Court of Appeals, most respectfully states:

1. That undersigned counsel received a copy of the decision of the Court of Appeals on
May 5, 2023 and had until May 20, to file motion for reconsideration but has filed a
motion for extension of time to file for another 15 days or on or before June 4, 2023;

2. That undersigned counsel, despite diligent effort, was unable to contact his client for
consultation after receipt of the adverse decision in keeping with seeking their advice
whether or not to file for motion for reconsideration or file an appeal or accept the
decision;

3. That despite the proscription to file motion for extension for motion for
reconsideration, this counsel take it upon himself to nonetheless file this motion on
the ground that until this writing undersigned counsel has not kept in touch with his
client/s of the adverse decision. The following is the unreplied text message of the
undersigned counsel to his client ESTRELLA DE LOS CIENTOS ET.AL. (through
granddaughter, Jennifer de los Cientos ) “Jen, I am informing u we lost in the
court of appeals. Wish to inform you too and the tenants that we have until May
20 to appeal or file motion for recon. Please advise.”

4. That this motion is not intended to disregard the disallowance of the filing for an
extension of time to file motion for reconsideration but it is the honest disposition of
undersigned counsel, that his client should know every step of the way the status of
the case.
 5. That until now defendants has not communicated to undersigned counsel but since the
agency of lawyer-client is not severed, notwithstanding the lack or absence of
communication, undersigned counsel is disposed to file this motion for
reconsideration.

6. That in filing this motion for reconsideration it is the honest belief of undersigned
counsel for defendants-appellants that plaintiff-appellee’s evidence is insufficient to
justify the decision hence, this motion for reconsideration based on the following
grounds:

WITH RESPECT TO DEFENDANT ESTRELLA DE LOS CIENTOS

A. THERE IS A VALID DEED OF

ABSOLUTE SALE OF THE
CONTROVERTED PROPERTY.

The contention of plaintiff-appellees sustained by the court that the sale of the
controverted land from the appellee to the appellant is null and void because it does not bear the
signature or consent of the wife of the vendor. This contention of plaintiff-appellee is not true.

Reason/s:
1. Although the thumb mark of Maria Fernandez is faintly visible in the Deed of Sale in
pages 1 and 2 in the Deed of Sale is faintly visible, there I, in fact, a thumbmark;

2. The notarization by Atty. Benjamin P. Fernandez of the Deed of Sale gives rise to the
presumption of GENUINENESS AND DUE EXECUTION OF THE DOCUMENT.
The document being notarized by a public notary enjoys the presumption of regularity
and he who impugns the genuineness and due execution of the instrument must prove
the same;

3. In the original (first) complaint Plaintiffs-appellees are silent nor they claimed the
absence of the thumbmark of Maria Fernandez in the questioned document;

4. In a change of theory, an amended complaint was filed to replace the original

complaint. The amended complaint admitted that the questioned transaction was
thumbmarked by the wife of the vendor, and we quote “Taking advantage of of the
spouses Gemina’s lack of education, Ramon de los Cientos was able to let the
spouses Gemina affix their signatures AND THUMBMARK in documents which
he fraudulently presented to the spouses as lease contract which we discovered
years later by the Plaintiff’s-appellees to be Deed of Sale.”

5. That (Judicial) admission against interest is binding to the one who made the
admission. Afortiori, the change of theory in the AMENDED COMPLAINT (which
is a premeditated change of heart) should not break into pieces the TESTIMONY
IN COURT OF ATTY. BENJAMIN P. FERNANDEZ whose examination in-chief
was subjected to the crucible of cross-examination. He testified that consent to the sale
transaction was given by Maria Fernandez and he was the notarizing lawyer to the sale
transaction.

B. THE ACTION HAS PRESCRIBED.

1. THE PRESENT ACTION HAS ALREADY PRESCRIBED. An action based on a

written document prescribes in 10 years. The questioned Deed of Absolute Sale was
executed on August 21, 1972. The original complaint was filed on September 14, 1999
and the amended complaint was made/filed on October 11, 2006. Either date
considered the present action has already prescribed. That the Deed of Sale is inexistent
 is a question of fact which can be rebutted by a competent evidence, in this case by the
admission by the plaintiff-appellees in their amended complaint. The present action is
for annulment of deed of sale, hence, how can that document be inexistent?

WITH RESPECT TO DEFENDANT TENANTS REMOLLANO ET. AL.

THE REGULAR COURT HAS NO

JURISDICTION OVER THE PERSONS OF
THE DEFENDANT.

1. It is respectfully submitted that as regards defendants ROMEO REMOLLANO,SULPICIO

SAYSON ,ANECITO TRAZONA, ARNULFO ESTIMO, FELIPE DINGDING, SR.,SOFRONIO
LUDUETA, ANTONIO HINGGO, PASTOR SABORNIDO, and ESTILILA REDOBLE, their case
should be proceeded with in accordance with DAR Administrative Order No. 4, Series of 2009 on
SUBJECT: RULES AND REGULATIONS IMPLEMENTING SECTION 19 OF R.A. NO. 9700 (JURISDICTION ON AND
REFERRAL OF AGRARIAN DISPUTE) applying Section2, 3, 4 and 5 thereof, thus:

“SECTION 2. Cases Covered - This guideline shall apply to cases tiled

before the Prosecutor's Office, the Municipal Circuit Trial Court, Municipal Trial
Court, Metropolitan Trial Court and the Regional Trial Court (MCTC, MTC, MeTC
and RTC), whether it be criminal or civil in nature, by landowners/lessors or their
representatives against a tenant/lessee/farmerbeneficiary/farmer/farm-worker
and/or cases that may arise out of or in connection with an agrarian dispute
except those cases provided for under Section 57 of Republic Act No. 6657.

SECTION 3. When Automatic Referral Shall Be Made - Referral to DAR

shall be made when: a) there is an allegation in the pleadings from any of the
parties that the case is agrarian in nature or involves an agrarian dispute and
one of the parties is a TENANT, lessee, farmer-beneficiary, farmer, or
farmworker; or b) the case arises out of or is in connection with an agrarian
dispute.

SECTION 4. Who Shall Make the Referral - When the complaint or

information is filed before the Office of the Prosecutor or before the court, the
case shall be referred to the DAR by:

I. the concerned judge or fiscal motu propio; or

2. upon motion by the party concerned.

SECTION 5. To Whom Shall Referral Be Made - Referral shall be made to the

Provincial Agrarian Reform Office (PARO) concerned to determine whether an
agrarian dispute exists.”

2. While plaintiff appellees never mentioned or discussed the case of ROMEO REMOLLANO,SULPICIO
SAYSON,ANECITO TRAZONA, ARNULFO ESTIMO, FELIPE DINGDING, SR.,SOFRONIO
LUDUETA, ANTONIO HINGGO, PASTOR SABORNIDO, and ESTILILA REDOBLE in the
body of their complaint both in the original and amended, the allegation by Romeo Remollano et. AL in
their answer/affirmative defense particularly in No. 6 thereof that “ Defendants are in possession of the
property above-mentioned being TENANTS thereof;” effectively brought into application DAR
Administrative Order No. 4, Series of 2009 and therefore their case should have been
automatically referred to the DAR for CERTIFICATION to determine whether or not the regular
court has jurisdiction over the case as against them where the issue of tenancy must necessarily be
resolved.

WITH RESPECT TO BOTH DEFENDANTS ESTRELLA DE LOS CIENTOS AND

REMOLLANO ET. AL.
 The defendant-appellees submitted their Plaintiff-Appellees 18 days late and was
admitted, hence, in the interest of substantial justice, we appeal that this pleading be treated as
submitted 15 days late. The technical rules of procedure is intended to promote not to frustrate
the ends of justice.

P RAY E R

WHEREFORE, PREMISES CONSIDERED, it is most respectfully prayed that this

motion for reconsideration be admitted by the Honorable Court of Appeals.

RESPECTFULLY SUBMITTED this 31st day of May 2023 in Digos City, Davao del Sur

NESTOR C. FERNANDEZ
Counsel for the Plaintiff
Email ad: nestorfernandez74@yahoo.com
1967 Tres de Mayo, Digos City
PTR NO. 0060430 2/6/23 Digos City
IBP No. 147136 2/23/22 Digos City
MCLE VII 0008611

The Clerk of Court

Court of Appeals, Mindanao Station
Cagayan de Oro City

Sir/Madam:

Please submit the foregoing motion to the attention of the Honorable Court for its
consideration and approval and/or set the same for hearing on the motion day of this
court.

Thank you.

Digos City, Davao del Sur, Philippines, May 31, 2023.

ATTY. NESTOR C. FERNANDEZ

Counsel for Defendant-Appellants