Republic of the PhilippinesMunicipal Trial CourtBranch 6, cebu city7th judicial region

PRIMARY STRUCTURES CONSTRUCTIONCORPORATION,

CIVIL CASE NO. ______________________FOR: UNLAWFUL DETAINER WITH PRAYER FOR PRELIMINARY MANDATORY INJUNCTION AND DAMAGESPlaintiff,

-versus- ARTURO CHOI, and all persons claiming rights under him,Defendants.x--------------------------------------------------------x

VERIFIED COMPLAINT

PRIMARY STRUCTURES CONSTRUCTION CORPORATION, by counsel, and unto this Honorable Court, most respectfully alleges that:

1. Plaintiffs, represented by Ms. Rose Tan-Ong, Filipinos, of legal age, and residents of #65 R. Landon St., Cebu City, Philippines. For purposes of this action, Plaintiff may be served with copies of notices, orders, and other processes of this Honorable Court at the office address of the undersigned counsel indicated below;

2. Defendant, ARTURO CHOI is also all of legal age, Filipino, and for purposes of this action, he may be served with summons and other processes of this Honorable Court at his residence and post-office address at Blk. 288, Lot 6, Somerset Tower BII, Osmena Blvd, Cebu City, Philippines;

3. Plaintiff is the true and registered owner of a certain condominium unit of land situated in Somerset Towers, Osmena Blvd, Cebu City, Philippines, consisting of approximately Ninety-Seven (97) square meters, and identified as Lot 6, Blk. 288 and covered by Transfer Certificate of Title No. 227254[footnoteRef:1] of the Registry of Deeds of the City of Cebu; [1: ]

4. The Plaintiffs desiring of establishing their own family, and building a home close to their place of work, bought the lot subject matter of the instant complaint from Mr. Clarito Lim (Mr. Lim), as evidenced by a Deed of Absolute Sale[footnoteRef:2] dated ________________. [2: ]

5. Prior to the sale, and sometime in the 2010, Defendant, Arturo Choi and his family began to be in possession of the said property, by virtue of the generosity and charity of Mr. Arturo Choi, as he had no immediate need of the said property at that time;

6. That on 16 April 2010[footnoteRef:3], Mr. Lim notified the Defendants of his intention to sell the said property, wherein he offered the same to the Defendants should they be interested to buy the same and conversely to vacate the same should they not be interested. [3: ]

7. The Defendants did not respond to Mr. Lims Notice. As such, the land subject matter of the instant complaint was sold to the Plaintiffs.

8. On 28 July 2012, The Defendants through Mr. Arturo Choi entered into a Kasunduan with the Plaintiffs, as the new owners of the land, wherein they agreed to vacate the land on 24 November 2012.

9. Thereafter, the Defendants approached the Plaintiffs and asked for another grace period within which to vacate the said lot. The Plaintiffs, as an act of mercy and goodwill, acceded to the request and agreed to move the previous deadline to 15 February 2013, as embodied in the Kasunduan dated 10 November 2012.

10. The Defendants, however, failed to vacate the lot on the above-stated date, and again begged the Plaintiffs for another extension of time to vacate. Plaintiffs again granted the request and moved the deadline to the 31 March 2013.

11. In order to protect their interest, the Plaintiffs asked the Defendants to sign a new Kasunduan embodying the new deadline. However, for reasons unknown to the Plaintiffs, Defendants unjustly refused to sign and enter into a new Kasunduan.

12. As a consequence, Plaintiffs filed a complaint against the Defendants before the Office of the Barangay Chairman of Brgy. Pabo Real. As a result, the Barangay summoned the Defendants to appear before the Lupon Tagapamayapa.

13. The Defendants, during the mediation proceedings before the Lupon Tagapamayapa, entered into another Kasunduan[footnoteRef:4], embodying the new deadline requested by the Defendants, i.e. 31 March 2013. [4: ]

14. In addition, as part of the above-stated settlement, the Plaintiffs agreed to give the Defendants twenty thousand pesos (P20,000.00). As agreed upon, the amount was deposited with the Barangay for safekeeping, to be given to the Defendants when they will vacate the lot on 31 March 2013.

15. Unfortunately, the Defendants again refused to vacate the premises on the date agreed upon in the settlement. They again asked for another extension, i.e. after the May 2013 Elections.

16. In addition, the Defendants demanded that the amount of fifty thousand pesos (P50,000.00) instead of the original amount of twenty thousand pesos (P20,000.00) agreed upon in the settlement. They reasoned that the original amount was too small and not enough for their family.

17. The Plaintiffs, tired of the repeated breaches of the Defendants, asked the Barangay for assistance. The Barangay, again initiated and conducted another series mediation proceeding before the Lupon Tagapamayapa.

18. Unlike the previous mediation proceedings, it did not yield any positive result, as the parties failed to reach a reasonable and amicable settlement of the dispute. Hence, the Lupon Tagapamayapa issued in favor of the Plaintiffs, a Certificate to File Action[footnoteRef:5]. [5: ]

19. The Plaintiffs then engaged the services of the undersigned counsel. Still desirous to settle the case out of court, Plaintiffs through counsels liaison officer, Mr. Paul Villanueva, personally served a Demand/Notice to Vacate[footnoteRef:6] to the Defendants on 26 December 2013. [6: ]

20. Defendants, however, ignored the above-described Demand/Notice to Vacate. As a result, a Final Demand/Notice[footnoteRef:7] to Vacate was personally served to the Defendants on 07 January 2014 by the Counsels liaison officer[footnoteRef:8]. Similarly, the said letter was ignored by the Defendants. [7: ] [8: ]

21. While possession by tolerance is lawful, such possession becomes illegal upon demand to vacate is made by the owner and the possessor by tolerance refuses to comply with such demand (Prieto vs. Reyes, 14 SCRA 432; Yu vs. De Lara, 6 SCRA 786, 788; Isidro vs. Court of Appeals, G.R. No. 105586, December 15, 1993);

22. A person who occupies the land of another at the latter's tolerance or permission, without any contract between them, is necessarily bound by an implied promise that he will vacate upon demand (Yu vs. De Lara, supra, cited in Sumulong vs. Court of Appeals, G.R. No. 108817, May 10, 1994);

23. That the reasonable rental value of the said land is ten thousand pesos (PhP 10,000.00) per month;

24. That due to the unjust refusal of the Defendant to vacate and to return the said land to the Plaintiff, the latter was constrained to endorse the said matter to its legal counsel for the filing of an appropriate action in court for a fee of fifty thousand pesos (PhP 50,000.00).

25. That this action is being filed within a period of one (1) year from the demand on Defendant to vacate the said property.

ALLEGATIONS IN SUPPORT OF THE PRAYER FOR ISSUANCEOF A WRIT OF PRELIMINARY MANDATORY INJUNCTION

1. Plaintiffs re-plead by reference all of the foregoing allegations as may be material and relevant under this heading;

2. Defendant's continued illegal occupation of the said parcel of land and refusal to vacate the same and to peacefully surrender possession thereof to herein Plaintiff is working grave injustice and causing damage to the latter;

3. The Plaintiffs, due to the unwarranted and unjust refusal of the Defendants to vacate the premises, is unable to utilize the said lot and build a home, where they intend to establish and build a family of their own.

4. Plaintiffs are entitled to the reliefs demanded, and the whole or part of such relief consists in the immediate delivery and surrender by the defendants of possession of the land to the Plaintiff, to build thereon a house they can call their home;

5. In the event that a writ of preliminary mandatory injunction is granted to Plaintiff, she is ready, willing and able to post a bond to answer for all damages Defendant may sustain by reason of said injunction if the court should finally decide that Plaintiff is not entitled thereto.

P R A Y E R

WHEREFORE, it is most respectfully prayed that, after due hearing, judgment be rendered in favor of the plaintiffs:

a) Ordering the Defendant, his family, successors, assigns and all persons acting under him, to vacate Blk. 288, Lot 6, Brgy. Pabo Real, Cebu City, that is covered by Transfer Certificate of Title No. 227254 of the Registry of Deeds of the City of Cebu and to peacefully turn over the possession thereof to the Plaintiff;

b) Ordering Defendant to pay Plaintiff monthly rental at the rate of P10,000.00 per month from the time of the filing of this action to the time possession is returned to the Plaintiff;

c) Ordering Defendant to pay Attorney's Fees in the amount of P60,000.00, and to pay cost of suit;

d) That pending the outcome of the instant case, a writ of preliminary mandatory injunction be immediately issued ordering the Defendant, his family, successors, assigns and all persons acting under him, to immediately vacate the said parcel of land and return possession of the same to the Plaintiff.

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

Cebu for Cebu City, 27 January 2014.

ATTY. WELLA JANE ATACounsel for PetitionerAddress: #12 Dr. Su Drive, Nasipit, Talamban, Cebu CityContact Nos.: 0917-449-3285 Roll No. 97871PTR No. 024542; 1/10/09; Cebu CityIBP No. 007308; 12/20/09; Cebu Chapter

VERIFICATION AND CERTIFICATION AGAINST NON-FORUM SHOPPING

I, Ms. ROSE TAN-ONG, representing PRIMARY STRUCTURES CONSTRUCTION CORPORATION, of legal age, Filipino, and residents of #65 R. Landon St., Cebu City, after being sworn in accordance with law, hereby depose and say that:

1. We are the Plaintiffs in the above-entitled case;

2. We have caused the preparation of the above Complaint, and have read the same and know the contents thereof;

3. The allegations contained therein are true and correct of our own personal knowledge, and based on authentic records.

4. We have not theretofore commenced any other action or proceeding or filed any claim involving the same issues or matter in any court, tribunal, or quasi-judicial agency and, to the best of our knowledge, no such action or proceeding is pending therein;

5. If we should thereafter learn that the same or similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or any other tribunal or quasi-judicial agency, I undertake to report such fact within five (5) days therefrom to the court or agency wherein the original pleading and sworn certification contemplated herein have been filed.

IN WITNESS WHEREOF, We have hereunto set our hands this 27th of January 2014 at the City of Cebu, Philippines.

AMANDA ROSE TAN-ONGAffiant

SUBSCRIBED AND SWORN to before me, this 27th of January 2014 in the City of Cebu, by:

NameIdentification No.Valid Until

AMANDA ROSE TAN-ONGDrivers License No. ____________

CLARITO C. LIMDrivers License No. ____________

Both of whom I have identified through competent evidence of identity.

ATTY. ALEJANDRA BALBUENANOTARY PUBLICUNTIL SEP. 13, 2016ATTYS ROLL NO 87980IBP NO. 345654 JANUARY 2013ISSUED AT CEBU CITYDoc. No. ______;Page No. ______;Book No. ______;Series of ______;

AFFIDAVIT OF MERIT

I, AMANDA ROSE TAN-ONG, representing PRIMARY STRUCTURES CORPORATION, of legal age, Filipino, and residents of #65 R. Landon St., Cebu City, after being sworn in accordance with law, hereby depose and say that:

1.That we are the plaintiffs in the above-captioned case filed against Arturo Choi, before the Municipal Trial Court of Cebu City, Philippines;

2.That we are the true and registered owners of a certain parcel of land situated in Blk. 288, Lot 6, Brgy. Pabo Real, Cebu City and covered by Transfer Certificate of Title No. 227254 of the Registry of Deeds for the City of Cebu; 3.That since the 1990s, Defendants and their family began to be in possession of the said property upon the mere tolerance of the previous owner thereof, as he had no immediate need of the said property at that time;

4.That on 26 December 2013, and 07 January 2014, We demanded from the Defendants that they and their family vacate and return the possession of the said property, but despite numerous demands for them to vacate, the Defendants have remained in illegal possession of the said land and, up to the present, still retain such possession;

5.That the reasonable rental value of the said land is Twenty Thousand Pesos (P 20,000.00) per month;

6.That Defendants continued illegal occupation of the property and refusal to vacate the same and to peacefully surrender possession thereof is working grave injustice and causing damage to the undersigned;

7.That we are entitled to the reliefs demanded in my complaint, and the whole or part of such relief consists in the immediate delivery and surrender by the Defendant of possession of the land to the undersigned;

8.That in the event that we are granted a writ of preliminary mandatory injunction, we are ready, willing and able to post a bond to answer for all damages that the Defendant may sustain by reason of said injunction if the court should finally decide that we are not entitled thereto.IN WITNESS WHEREOF, We have hereunto set our hands this 27th of January 2014 at the City of Cebu, Philippines.

AMANDA ROSE TAN-ONGAffiant

SUBSCRIBED AND SWORN to before me, this 27th of January 2014 in the City of Cebu, by:

NameIdentification No.Valid Until

Amanda Rose Tan-OngDrivers License No. ____________________

both of whom I have identified through competent evidence of identity.

ATTY. ALEJANDRA BALBUENANOTARY PUBLICUNTIL SEP. 13, 2016ATTYS ROLL NO 87980IBP NO. 345654 JANUARY 2013ISSUED AT CEBU CITYDoc. No. ______;Page No. ______;Book No. ______;Series of ______;

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