Republic of the Philippines

Regional Trial Court

National Capital Judicial Region
Branch 33, Manila

LUISITO T. GARCIA,
Represented by his Attorney-in-fact
MARIAN DOMINGO,
Plaintiff/Appelle,

-versus- Civil Case No. M-MNL-18-09531-SC

For: EJECTMENT

JORVON F. ENCARDEZ and all persons

Claiming rights under him,
Defendant/Appellant,
x--------------------------------------------------------x

APPELANT’S MEMORANDUM

Defendant-Appellant JORVON F. ENCARDEZ, through the

undersigned counsel and unto this Honorable Court most respectfully
submits this MEMORANDUM and avers the following:

PREFATORY

This appealed case stemmed from an ejectment case filed by the

(Plaintiff-Appelle) Luisito T. Garcia, herein represented by his Attorney-
in-Fact, Marian B. Domingo, which sought to recover the material
possession of a parcel of land and the award of damages, against
defendant Jorvon Encardez (Defendant-Appellant) with the
Metropolitan Trial Court of Manila, docketed as Civil Case No. 18-09531-
CV.

On 08 January 2019, the Metropolitan Trial Court rendered the

decision ordering the defendant to immediately vacate the subject
property.

Aggrieved with the decision of the Metropolitan Trial Court, the

defendant filed a Notice of Appeal 11 February 2019. The case was then
raffled to this Honorable Court and defendant was directed to file his
Memorandum. Hence, this Memorandum.
Page 1 of 9
 STATEMENT OF FACTS

1. The plaintiff claimed that he is the owner of a house and lot

as covered by Transfer Certificate of title No. 242198, and that the
plaintiff authorized Jose Luis Hera Cleo Garcia (a.k.a Jijing) while he was
out of the country to administer his property located in Vito Cruz St.,
Manila, consisting of 94.80 sq. m. more or less;

2. That sometime in August 2011, defendant and Jijing entered

into a verbal contract over the said property for a monthly rental of
Sixteen Thousand pesos (php16,000.00);

3. Plaintiff also claimed that, three (3) months into the

contract, the defendant defaulted in his monthly obligation to pay the
rent;

4. When Jijing passed away in 2017, the plaintiff appointed

Marian B. Domingo as his attorney-in-fact to eject the defendant from
the premises, but despite several demands the defendant still refuse to
vacate the premises. Thus, the plaintiff was construed to file an
ejectment case against the complainant;

5. Plaintiff prayed that judgment be rendered ordering the

defendant Jorvon Encardez and/or any or all persons claiming rights
under him be ordered to vacate and surrender the leased premises, and
to pay plaintiff the unpaid rentals, attorney’s fees and costs of suit;

6. In the answered filed by the respondent, he alleged that, the

house and lot is not solely owned by the plaintiff, since there were
people who are claiming that they purchase the property form the real
owners;

7. The Defendant also contends that Plaintiff has no right to

claim the property, much less oust the defendant from the possession
thereof.

8. Defendant prayed for the dismissal of the complaint.

DECISION OF THE MTC

9. On 08 January 2019, the Metropolitan Trial Court rendered

its decision. The dispositive portion of the assailed decision reads, to
wit:

xxxxx

Page 2 of 9
 “WHEREFORE, premises considered, the court renders judgment
in favor of plaintiff LUISITO T. GARCIA, represented by his
Attorney-in-Fact, MARIAN B. DOMINGO and against defendant
JORVON ENCARDEZ and all persons claiming rights under him
as follows:

1. Ordering defendant and all peresons claiming rights under him

to immediately vacate the subject house and lot located at No.
1119 Vito Cruz Street, manila covered by Transfer Certificate of
Title (TCT) No. 242198, and to surrender peaceful possession
thereof to herein plaintiff;

2. To pay okaintiff the amount of ONE MILLION THREE HUNDRED

FORTY-FOUR THOUSAND PESOS (Php1,3444,000.00)
representing rents since 2011;

3. To pay plaintiff the amount of Sixteen Thousand Pesos

(Php16,000.00) per month as reasonable compensation for the
use and occupation of the subject house and lot from filing of the
complaint until the defendant vacates the subject premises;

4. To pay plaintiff the amount of Ten Thousand Pesos (php10,000)

as and by way of attorney;s fees; and

5. To pay the costs of suit.

SO ORDERED.

IN CHAMBERS.

City of Manila, January 8, 2019.”

xxxxx

A machine Copy of the Assailed Decision dated 08 January 2019 is

hereto attached and made an integral part hereof as ANNEX “A”.

DISCUSSION/ARGUMENTS
AND ASSIGNMENT OF ERRORS

10. The MTC erred in ordering the defendant and all persons
claiming rights under him to vacate the subject house and lot, under the
following circumstances:

a) The MTC has no jurisdiction to hear and decide the case.

b) The MTC has no jurisdiction to resolve the case, since the

house and lot has a market value is _________________.

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THE LOWER COURT HAS NO
JURISDICTION TO HEAR AND DECIDE
THE CASE ON THE MERITS

11. Plaintiff-appellant cause of action is Unlawful Detainer.

However, a deliberate reading of the complaint will reveal the complaint
is bereft of allegations that will vest jurisdiction to the MTC;

12. The basic rule is ejectment complaints must definitely and

clearly show that plaintiff’s action is either for forcible entry or unlawful
detainer. Otherwise, failure to allege jurisdictional facts, on the face of
the complaint, would justify dismissal thereof;

13. Jurisdiction is determined by the allegations in the

complaint. The fundamental rule in ejectment cases is the allegation of
how the defendants entered the premises as this will determine
whether the case is for forcible entry or unlawful detainer and whether
the court will have jurisdiction to try the case;

14. That jurisdictional facts must appear on the face of the

complaint for ejectment such that when the complaint fails to faithfully
aver facts constitutive of forcible entry or unlawful detainer, as where it
does not state how entry was effected, or how and when dispossession
started, the remedy should either be an accion publiciana or an accion
reinvindicatoria in the proper regional trial court1;

15. An accion publiciana is the plenary action to recover the

right of possession which should be brought in the proper regional
trial court when dispossession has lasted for more than one year. It
is an ordinary civil proceeding to determine the better right of
possession of realty independently of title;2 (Emphasis supplied)

16. In the absence of these allegations of facts, an action for

unlawful detainer is not the proper remedy and the municipal trial
court or metropolitan trial court do not have jurisdiction over the
case3;(Emphasis supplied)

` 16. In the case at hand, the complaint alleged the following:

xxxxx

1
Sarmiento vs. Court of Appeals, G.R. No. 116192.
2
Bejar v. Caluag, G.R. No. 171277, February 17, 2007
3
Canlas v. Tubil, G.R. No. 184285, September 25, 2009

Page 4 of 9
 5. That it was in August of 2011 when Jijing entered into
a verba; contract with the defendant over the house
and lot located at Vito Cruz, manila for a monthly
rental of P16,000;

6. That after barely three (3) months of occupancy on the

rented house, defendant defaulted his monthly
obligations over the premises and it continues
thereafter until the last quarter of 2011 extending
further up to the present time;

7. That because of defendant’s failure to pay his monbthly

dues, the administrator (Jijing) reminded said
defendant to update his payment;

xxxxx

15. That by reason of the failure of the defendat to vacate

the premises, the plaintiff was constrained to file this
complaint thus engaging the services of counsel in the sum
of P50,000, and P2,000, as and by of court appearance.

xxxxx

Manila, Philippines, August 7, 2018.

xxxxx

17. Section 1 of Rule 70 of the Rules of Court allows a plaintiff

to bring an action in the proper inferior court for unlawful detainer
within one year, after such unlawful withholding of possession, to wit:

“Sec. 1. Who may institute proceedings, and when. –

Subject to the provision of the next succeeding section,
a person deprived of the possession of any land or
building by force, intimidation, threat, strategy, or
stealth, or a lessor, vendor, vendee, or other person
against whom the possession of any land or building is
unlawfully withheld after the expiration or termination
of the right to hold possession, by virtue of any
contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor,
vendee, or other person, may, at any time within one
(1) year after such unlawful deprivation or
withholding of possession, bring an action in the
proper Municipal Trial Court against the person or
persons unlawfully withholding or depriving of

Page 5 of 9
 possession, or any person or persons claiming
under them, for the restitution of such possession,
together with damages and costs.” (Emphasis
supplied)
18. Rule 70 of the Rules of Court provides that action for either
forcible entry or unlawful detainer shall be brought before the MTC at
any time within one (1) year after unlawful deprivation or withholding
of possession;

19. In the case of Abad vs. Farrales, G.R. No. 178635; the
Supreme Court explained the two mandatory allegations for inferior
courts to acquire jurisdiction:

“Two allegations are mandatory for the municipal

court to acquire jurisdiction: First, the plaintiff has
prior physical possession of the property. Second,
the defendant deprived him of such possession by
force, intimidation, threats, strategy, and stealth.

20. As alleged in the Complaint, Plaintiff has the owner of the

property as evidenced by the transfer Certificate of Title (TCT).
However, such allegations is not enough, since there are other claimants
to the property. Here, the plaintiff failed to prove his actual ownership
to the property, the allegations of the plaintiff is a self-serving claim
because it was not supported by any pieces of evidence;

21. In addition the second requirement that the defendant

deprived him of such possession by force, intimidation, threats, strategy,
and stealth were missing. The plaintiff failed to allege that defendant
Jorvon Encardez deprived him of such possession under the
circumstances required by the law;

22. Thus, from the foregoing, plaintiff still cannot avail himself
of the provisions of Rule 70 because his period to file the action has
lapsed. Plaintiff discovered the alleged unlawful possession of the
defendant in November 2011, but filed a case only on September 10,
2018 or almost seven (7) years after the unlawful possession took
effect, well beyond the one (1) period to file an action as provided for by
law.

23. From the foregoing, it clearly shows that at the time of the
filing of the complaint, more than one (1) year had already elapse since
defendant had turned plaintiff out of possession or defendant’s
possession had become illegal, the action will be, not one of forcible
entry or illegal detainer, but an accion publiciana.

Page 6 of 9
 24. Hence, the Metropolitan Trial Court (MTC) does not acquire
jurisdiction over the case.

THE LOWER COURT HAS NO

JURISDICTION OVER THE CASE
SINCE THE VALUE OF THE
PROPERTY IS ______________________________

25. As previously discussed from the preceding paragraph the

MTC lacks of jurisdiction to hear and decide the above-entitled case.

26. The MTC has no jurisdiction to the complaint because Section

33 of Batas Pambansa Blg. 129, as amended by Republic Act No.
7691, states:
xxxxx
“(3) Exclusive original jurisdiction in 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 (P20,000.00) or, in civil actions in
Metro Manila, where such assessed value does not
exceed Fifty thousand pesos (P50,000.00) exclusive
of interest, damages of whatever kind, attorney's fees,
litigation expenses and costs: Provided, That in cases
of land not declared for taxation purposes, the value of
such property shall be determined by the assessed
value of the adjacent lots." (Emphasis supplied)

xxxxx
27. Consequently, the MTC has jurisdiction over the claim of
possession if the jurisdictional amount required by the law is not
beyond the limit allowed. However, plaintiff claim does not fall within
the jurisdictional amount required by the law. Therefore, the complaint
should have been dismissed.

PRAYER
WHEREFORE, premises considered, it is most respectfully prayed
of this Honorable Court that this instant appeal be given due course, and
after due consideration thereof, a Decision be rendered, REVERSING
and SETTING ASIDE the Decision promulgated by the Metropolitan
Page 7 of 9
Trial Court (MTC) on 08 January 2019, and DISMISSING the Complaint
for lack of jurisdiction.

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

RESPECTFULLY SUBMITTED.

Quezon City for City of Manila, 22 March 2019.

ATTY. EDZEL BERT B. CANLAS

Counsel for Defendant/Appellant
Unit 303-A, 3rd Flr.,Fil Garcia Bldg.
Mayaman St., Cor. Kalayaan Ave., Brgy. Central
1111 Quezon City
Roll No. 60612
PTR No. 7188797 - 02/23/2018 - MANILA
IBP No. 033772 - 02/22/2018 - NUEVA ECIJA
MCLE Compliance No. V-0005487
Issued on January 14, 2015
E-mail:clawoffices2019@gmail.com
Mobile no. 09175698339

Copy furnished:

ATTY. CONRADO C. MARQUEZ

Counsel for the Plaintiff
1361 P. Gomez St., Paco, Manila

EXPLANATION

In compliance with Section 11, Rule 13 of the 1997 Rules of

Procedure, counsel respectfully manifests that service was done by
registered mail, personal service not being practicable at the present
time for lack of manpower.

EDZEL BERT B. CANLAS

Page 8 of 9
 VERIFICATION
I, Jorvon Encardez, of legal age, Filipino and with residence and
postal address at ________________________________, after being duly sworn to
in accordance with the law, do hereby depose and state the following:

1. I am the Respondent-Appellant in the above-entitled case;

2. I have caused the preparation of the foregoing Memorandum,

the contents of which I have read and reviewed and the same are true
and correct of my own knowledge and based on authentic documents at
hand.

IN WITNESS WHEREOF, I have hereunto affixed my signature this

________ at ____________.

________________________
JORVON ENCARDEZ
Affiant

SUBSCRIBED AND SWORN TO before me this ______________ day of

March 2019, affiant having exhibited to me his ______________________ as his
competent evidence of identity.

Doc. No. _____;

Page No. _____;
Book No. _____;
Series of 2019.

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