Republic of the Philippines

REGIONAL TRIAL COURT

First Judicial Region
Branch 56, San Carlos City

ARSENIO MACASIEB, represented

by ALEJANDRO F. FERNANDEZ,
Plaintiff,

-- versus -- CIVIL CASE NO. SCC-2962

SPS. IGNACIO GACUSAN

And LYDIA GACUSAN,
Defendants.
x------------------------x

PLAINTIFF’S MEMORANDUM ON APPEAL

Plaintiff, by counsel, respectfully states:

ASSIGNMENT OF ERRORS

THE LOWER COURT ERRED IN FINDING THAT

SPOUSES IGNACIO GACUSAN AND LYDIA GACUSAN

ARE AGRICULTURAL TENANTS IN THE SUBJECT

PARCEL OF LAND.

II

THE LOWER COURT ERRED IN FINDING THAT THE

JOINT AFFIDAVIT OF THE SPOUSES GACUSAN

ATTESTING THAT THEY ARE NOT AGRICULTURAL

TENANTS OVER THE SUBJECT PROPERTY WAS

EXECUTED BY THEM ONLY FOR THE PURPOSE OF

 2

ENABLING ANDRES MACASIEB TO MORTGAGE THE

PROPERTY.

III

THE LOWER COURT ERRED IN DISMISSING THE

CASE FOR LACK OF JURISDICTION.

Statement of the Facts and the Case

Plaintiff Arsenio Macasieb is the co-owner of a 5/8 portion of a

parcel of land consisting of ten (10) hectares located in Brgy. Lareg-

lareg, (Bacundao), Malasiqui, Pangasinan, and covered by TCT No.

81826, Book 403, Page 126 of the Register of Deeds of Pangasinan.

He bought one-half of the property and inherited a one-fourth portion

of the other half totaling five-over-eight (5/8) portion or 6.25-hectare in

all. Although the co-owners have no formal partition yet, he planted an

area corresponding to his share with mangoes.

The mango trees were planted by Arsenio Macasieb and his

predecessor, the late Andres Macasieb, with the help of hired laborers

in the person of the spouses Ignacio and Lydia Gacusan. Mindful of

scheming farm workers, the late Andres Macasieb safeguarded his

interest in the land by asking the spouses Gacusan in 1987 to sign an

Joint Affidavit attesting to the fact that they are not agricultural tenants

but hired farm workers, and that they were merely allowed to stay in

his (Andres Macasieb’s) house thereat..

Sometime in 2001, Arsenio Macasieb allowed the spouses

Gacusan to contract the spraying (with fruit-inducing chemicals) of the

mango trees on the northern portion of the land for one (1) year only.

That year, the spouses Gacusan did not pay the contract price.

Instead, they took advantage of the absence of Arsenio Macasieb and

 3

continued to spray the mango trees and occupy the house to the

present despite numerous demands to pay and vacate the land and

the house occupied by them. The average mango produce yields an

annual net income of Php60,000.00 for the 5/8 portion.

In their answer the spouses Gacusan claim that they were the

ones who constructed the house they are staying in and are the lawful

owners thereof. Further, they claim they were duly instituted as

agricultural tenants over the land in 1979. They also claim they

planted most of the mango trees found thereon. At any rate, they

question the jurisdiction of the lower court because of their allegation

of a tenancy relationship. .

After issues were joined, a pre-trial conference was held and

the following matters were stipulated on:

1. identity of the parties;

2. identity of the land subject matter of this case;

3. a demand to vacate was made upon and received by the

defendants.

Thereafter, the parties agreed to submit their respective

position papers and to litigate the following issues:

1. whether or not defendants may be ejected from the

land subject matter of this case;

2. whether or not defendants are agricultural tenants in

the land subject matter of this case.

In a Resolution dated June 2, 2005, the lower court handed

down the following ruling:

“WHEREFORE and in view of the foregoing, we

rule that the controversy between plaintiff and
defendants partaken of the nature of an Agrarian
Dispute, of which this Court is without jurisdiction. As a
consequence, this case is hereby ordered DISMISSED
on the ground of lack of jurisdiction.”
 4

Hence, this appeal.

Argument

The lower court made a finding that spouses Ignacio Gacusan

and Lydia Gacusan are agricultural tenants in the subject parcel of

land based on the self-serving statements of the said spouses and the

say-so of their alleged witnesses.

The finding is without basis.

No matter how many people would declare that spouses

Gacusan are agricultural-tenants of the land co-owned by the plaintiff,

the declaration will not make them so for such declaration is merely a

conclusion of law. To prove a tenancy relationship, it is important to

prove the existence of the requisites of a tenancy relationship which,

we submit, the spouses Gacusan and their allege witnesses failed to

do.

Jurisprudence abounds in rulings to show that the essential

requisites of a tenancy relationship are: 1) the parties are the

landowner and the farmer, 2) the subject matter is agricultural land, 3)

there is consent, 4) the purpose is agricultural production, 5) there is

cultivation, and 6) there is sharing of harvest (Baranda vs Baguio, 189

SCRA 194; Sintos vs Court of Appeals, 246 SCRA 223, Cited in the

Rulings From SCRA In Agrarian Cases by Justice Milagros A.

German, pp 144-145).

In the case under consideration, we submit that the elements of

“consent,” “sharing of harvest” and “cultivation” have not been

proven. There is no showing that the plaintiff or his predecessor-in-

interest have entered into an agricultural leasehold or tenancy

relationship with the spouses Gacusan. There is no Tenancy

Agreement that was presented by them. The witness for spouses

 5

Gacusan in the person of Inocencio Intigo said he saw a “Leasehold

Agreement” but the spouses did not produce it. (TSN, A. L. Esprecion,

4/18/05, pp. 32-33). If it is true that there is such document, which is

the best evidence to prove consent, there is no reason why the

spouses Gacusan did not present it; evidence suppressed is evidence

adverse, On the other hand, if it is not true that there is such a

document then the witness lied which shows that he is an unreliable

witness.

The element of “sharing of harvests” was not proved. As a

matter of fact, the spouses never mentioned any kind of sharing

agreement in their affidavit. This is also true with their witnesses.

Herminigildo Serafica who merely stated in his affidavit that spouses

Gacusan were instituted as tenants, which, to repeat, is merely a

conclusion of law, without mentioning any kind of sharing agreement

over the harvests. So is it with Inocencio Inigo’s testimony; he never

mentioned any kind of sharing agreement. Likewise with Carlos dela

Reyna’s affidavit which merely stated that spouses Gacusan are

tenants on the land, a mere conclusion, without specifying any sharing

agreement, if there is any, as to the harvests. This is also the case

with the affidavits of the other affiants, namely, Hermogenes M. Imus,

Laudencio Moyano, Cesar Tamayo, Alfredo Castaneda and Arnulfo R.

Macaranas which merely stated a conclusion of law, that is, that

spouses Gacusan are tenants on the land without proving the

elements of “consent,” “sharing of harvest” and “cultivation.”

The alleged “receipts” for 2004 and 2005 are not receipts at all

but a vague listing of figures that do not show payment of the amount

of Php56,000.00 owing to the plaintiff in 2001. Aside from not having

been properly authenticated, the said documents (Exh. “11” and

series) are far from being proofs of payment to the plaintiff of what is
 6

due to him. Nowhere in the document can one find the plaintiff’s

signature. The fact is spouses Gacusan never “shared” the plaintiff

any portion of the harvests; the reason is simple, there is no sharing

agreement on the produce which is an element of tenancy. What was

due from spouses Gacusan in 2001 was the contract price in the

amount of Php56,000.00 that the spouses Gacusan never paid to the

plaintiff in 2001 as agreed upon with him. To repeat, the contract price

of Php56,000.00 due to the plaintiff in 2001 has not even been paid

yet.

Lastly, there is no proof that there is the element of

“cultivation”. To be sure, there is no need to have the land

cultivated. The mango land need not be cultivated because the mango

trees are already fruit-bearing. The spouses Gacusan had only to

insure that the fruits thereof were not stolen. This can be gleaned from

the letter of the plaintiff to the defendants which the latter offered in

evidence as Exh. “12” and series. In the said letter, the defendant

Ignacio Gacusan was being instructed not to let his son-in-law,

Ragunton, or any jeep or truck to enter the land. Too, he was

prohibited to meddle with the mango trees. From the tenor of the

document, defendant Ignacio Gacusan is at best only a caretaker or

overseer of the mangoland.

Most important of all, however, is that by their own admission

contained in a “joint affidavit” (Exh. “C”) spouses Gacusan admitted

they are not tenants! This admission made by them, they cannot

deny because they were never forced or threatened into signing it.

Verily, they admit the execution of the joint affidavit but claim they

executed it merely to enable Andres Macasieb, plaintiff’s predecessor,

to mortgage the property.

 7

Evidence to be believed must not only proceed from the mouth

of a credible witness but it must be credible in itself such as the

common experience and observation of mankind can approve as

probable under the circumstances. Against this test, we submit that

the testimony of the spouses Gacusan (that they signed the “joint

affidavit” merely to enable the late Andres Macasieb to mortgage the

property) does not pass. To illustrate, the relevant dates when Andres

Macasieb mortgaged the property, as shown by the annotations at the

back of TCT 81826 (Exh. “A”), are on Dec. 1, 1970, July 18, 1973 and

July 24,1987. Clearly, the “joint affidavit” was made after the

mortgages were taken; the joint affidavit was not for the purpose of

enabling Andres Macasieb to mortgage the property because the

“joint-affidavit” (Exh. “C”) was executed by the spouses Gacusan on

October 28, 1987. More over, after that date, the property was never

mortgage again. It is, therefore, clear that the “joint-affidavit” was not

for the purpose of enabling the late Andres Macasieb to mortgage the

property otherwise the “joint-affidavit” should have preceded or

antedated the various mortgages. In other words, since the “joint-

affidavit” was executed after the mortgages on the property were

taken, it was not executed for the purpose of enabling the late Andres

Macasieb to mortgage the property. It is likewise inconceivable that

the “joint affidavit” was necessary to enable Andres Macasieb to

mortgage the property for even without it, he was already able to

mortgage it before. This being the case, the inescapable conclusion is

that the “joint-affidavit” is a memorandum of the true nature of

the relationship between the parties and of the ownership of the

house thereon. And just as significant, if indeed the property was

tenanted, Andres Macasieb could have not mortgaged it three times in

the past. And because Andres Macasieb was able to mortgage the
 8

land three times before without need for the “joint-affidavit,” there was

no reason for him not to be able to mortgage the property again even

without the said “joint-affidavit.” In short, two factors militate against

the excuse of spouses Gacusan on why they allegedly signed the

affidavit: 1) the mortgages on the land were taken before the date of

the “joint-affidavit;” 2) even without the “joint-affidavit,” the late Andres

Macasieb was able to mortgage the land three times before, so why

would he need it in order to mortgage the property thereafter?

In law, the “joint-affidavit” of the spouses Gacusan is an

admission. It is a voluntary acknowledgement in express terms

against their interest, and about the existence or truth of the fact that

they are hired laborers in plaintiff’s mango land and that they do not

own the house standing thereon. A man’s declaration, wherever

made, provided they are voluntary, are admissible against him,

for the reason that it is fair to presume that they correspond with

the truth, and it is his fault if they do not. Under the Rules on

Evidence, “the act, declaration or omission of a party as to a relevant

fact may be given in evidence against him” (Sec. 26, Rule 130). The

admissibility of this class of evidence does not depend upon the

personal knowledge of a defendant, but is predicated upon the

assumption that he will not make statements of fact contrary to

his interest unless he is satisfied that such statements are true.

(Compendium on Evidence, Sibal and Salazar Jr., 4th. Ed., p. 145).

Finally, the lower court erred in dismissing the case for lack of

jurisdiction because an ejectment case is properly within the

jurisdiction of the Municipal Trial Court as provided in Sec. 33 of Batas

Pambansa Blg. 129 despite the agricultural character of the land,

where there is no showing, as in this case, of tenancy relationship

 9

between plaintiff and defendant (Isidro vs Court of Appeals, 228

SCRA 503).

To summarize: The spouses Gacusan are not agricultural

tenants over the mangoland in question because of the absence of the

elements of “consent,” “mode of sharing” and “cultivation.” Just as

important, by their admission in a joint affidavit (Exh. “C”), they

declared that they are not agricultural tenants and that they do not

own the house thereon. The spouses contracted the ‘sparaying’ of the

mango trees in 2001 for Php56,000.00 but they failed to pay and

continues to stay on the land and in the house despite demands.

PRAYER

WHEREFORE, it is respectfully prayed that the Decision of the

Municipal Trial Court of Malasiqui, Pangasinan dated June 2, 2005 be

reversed and that the defendant-spouses Gacusan and those deriving

their rights from them be ordered to vacate the mango land and the

house in question and to pay Php56,000.00 representing actual

damages, and to pay Php60,000.00 annually as reasonable rental

until they vacate the same and the amount of Php20,000.00 as

attorney’s fees.

Lingayen, Pangasinan this 26th day of September 2005.

NOLAN R. EVANGELISTA
Counsel for the plaintiff
120 Ave. Rizal West
Lingayen, Pangasinan

VERIFICATION

ALEJANDRO F. FERNANDEZ, married, of legal age, Filipino

and resident of Dagupan City, after having been duly sworn to in
accordance with law, depose and say:
1. That I am the representative of Arsenio Macasieb in the
above-entitled case;
 10

2. That I caused the preparation of the foregoing Memorandum

and have read the same;
3. That the contents thereof are true and correct to the best of
my information.
Lingayen, Pangasinan this 26th day of September 2005.

ALEJANDRO F. FERNANDEZ
Affiant

SUBSCRIBED AND SWORN to before me this 26 th day of

September 2005 at Lingayen, Pangasinan.

Doc. No.______
Page No. _____
Book No. _____
s-2005

copy furnished:

Atty. Carlito Soriano

Malasiqui, Pangasinan

Explanation

Due to lack of personnel to effect personal service, a copy of this

Memorandum was sent to Atty. Carlito Soriano by registered mail.

Counsel