Republic of the PhilippinesMunicipal Trial Court in Citiesninth Judicial regionDipolog CityBranch 1

SESENIO EGUIA, as representedBy his Attorney-in-fact CATALINA CIVIL CASE NO. 3742VILLASECA,Plaintiff,-for--versus- - E J E C T M E N T -FELIPE SUMONDONG,Defendantx-----------------------------------------------------x

MEMORANDUM

The undersigned law firm most respectfully enters its appearance as counsel for the Plaintiff SESENIO EGUIA in the above-entitled case. Henceforth, it is most respectfully prayed that all notices and other legal processes be sent to and furnished the undersigned at the address indicated herein below.

AND BY WAY OF MEMORANDUM --Plaintiff SESENIO EGUIA, thru the undersigned counsel and unto this Honorable Court, respectfully submits this MEMORANDUM in compliance with the 10 July 2004 Order of this Honorable Court which was received by plaintiff on 25 July 2004, requiring the parties to file their respective Memoranda within thirty (30) days from receipt or until 24 August 2004 as for plaintiff.

THE PARTIES

The Plaintiff SESENIO EGUIA is of legal age, Filipino, married, and presently residing at Novaliches, Quezon City, and represented herein by his attorney-in-fact, Catalina Villaseca, of legal age, Filipino, married, and a resident of Biasong, Dipolog City.

The defendant, FELIPE SUMONDONG is of legal age, Filipino, married and a resident of Herrera St., Dipolog City.STATEMENT OF THE CASE

Plaintiff SESENIO EGUIA is the owner and possessor of a parcel of land known as Lot 997-D-6-A of the subdivision plan, PSD-09-050117, being a portion of Lot 997-D-6, with an area of 128 square meters and covered by Transfer Certificate of Title No. T-2486.

He acquired aforesaid property sometime in 1986 through a sale of conveyance made by his father, Estanislao Eguia in his favor. Said property had a house built therein where his father used to live when the latter was still alive because the family of herein plaintiff temporarily resided in Manila.

On 28 June 2004, plaintiff SESENIO EGUIA filed a complaint for the recovery of possession unlawfully withheld by defendant, Felipe Sumondong, who was permitted by plaintiff on account of an express agreement with his sister, Nieva Eguia-Sumondong, now the deceased wife of Defendant, to use the same when she suffered an illness, sometime in May 2003.

The agreement was clear and on point, that the use of the disputed property shall only be temporary while the plaintiffs sister was under medication in Dipolog City.

The plaintiffs sister died on May 06, 2003. The defendant, Felipe Sumondong made known to the plaintiff right after the burial, that he will be going back to his house in Sibutad, Zamboanga del Norte.

However, when plaintiff was supposed to make improvements of his house so as to accommodate his family who is planning to stay in Dipolog City, he found out that defendant Sumondong, brought his belongings thereon instead of vacating, and allowed the lower portion of the plaintiffs house to be occupied by a female friend, with a clear intent of dispossessing the plaintiff of his property without benefit of any contract of law.

Having been fully aware of his unlawful occupancy of the subject property through his attorney-in-fact, the defendant defiantly continued possession and refused to vacate the same without valid or legal justification.

In view of all the foregoing, the plaintiff cannot effectively recover the subject property, hence he was constrained to bring the case before the office of the barangay justice, where the defendant also failed and refused to appear, hence a certification to file an action to this Honorable Court was issued.STATEMENT OF THE ISSUES

I.UNLAWFUL DETAINER IS THE PROPER REMEDY FOR THE RECOVERY OF POSSESSION OF REAL PROPERTYII.THE POSSESSION OF THE DEFENDANTIS UNLAWDFUL AND ILLEGAL, AND PLAINTIFF HAS THE RIGHT OF RECOVERYIII.PLAINTIFF IS ENTITLED TO RECOVER ATTORNEY'S FEES AND LITIGATION COSTSAS A RESULT OF THE FILING OF THEINSTANT CASEARGUMENTS AND DISCUSSIONS

I.UNLAWFUL DETAINER IS THE PROPER REMEDY FOR THE RECOVERY OF POSSESSION OF REAL PROPERTY___________________________________Unlawful detainer is an action to recover possession of real property from one who illegally withholds possession after the expiration or termination of his right to hold possession under any contract, express or implied. The possession by the defendant in unlawful detainer is originally legal but became illegal due to the expiration or termination of the right to possess (Valdez, Jr. v. CA, G.R. No. 132424, May 4, 2006, 489 SCRA 369, 376).

This legal proceeding was initiated for the misdeed caused towards the rightful owner against a squatter without title who declines to depart, whereby force is inconsequential, figurative and nonexistent, with nonetheless, the restoration of the lawful owner to possession of the property by eviction of the defendant is within the purview of the remedy.

This entails actions that are possessory in nature, and title is nearly always the basis of possessory rights.InCabrera v. Getaruela, the Court held thata complaint sufficiently alleges a cause of action forunlawful detainerif it recites the following:(1)initially, possession of property by the defendant was by contract withor by toleranceof the plaintiff;(2)eventually, such possession became illegal upon notice by plaintiff to defendant of the termination of the latters right of possession;(3)thereafter, the defendant remained in possession of the property and deprived the plaintiff of the enjoyment thereof; and(4)within one year from the last demand on defendant to vacate the property, the plaintiff instituted the complaint for ejectment.

Clearly, the possession of the defendant of aforementioned subject premise was by tolerance, without the benefit of any contract or any valid justification, the defendant cannot retain possession of the same.

The defendants possession became illegal upon notice by the defendant through his attorney-in-fact of the unlawful occupancy, and his acts of disregard of such notice to vacate falls within the purview contemplated by the Supreme Court as pinned in the Cabrera v. Getaruela case of the grounds for ejectment above-mentioned.

The same was also contemplated in an interesting case of unlawful detainer in Javelosa vs. Court of Appeals, et al. (G.R. No. 124292, December 10, 1996), where A alleged that he is the registered owner of a parcel of land situated in Jaro, Iloilo City and therefore, entitled to possession thereof; that B was illegally occupying the premises and thus unlawfully withholding possession from him; and, despite receipt of his demand to vacate the premises, B refused to leave the property.

The present ejectment action then is proper for reasons above-stated, as well as to apprise plaintiff SESENIO EGUIA who is the actual owner and possessor to be entitled to his rights.

TheCourt has consistently held that those who occupy the land of another at the latters tolerance or permission, without any contract between them, are necessarily bound by an implied promise that the occupants will vacate the property upon demand (Rivera v. Rivera, 405 SCRA 466, 471, July 8, 2003; Pengson v. Ocampo Jr., 412 Phil. 860, 866, June 29, 2001).

Section 1 of Rule 70 of the Rules of Court states:

Who may institute proceedings, and when. Subject to the provisions 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 possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs.

Section 2 of the same Rule, above-stated further provides:

Unless otherwise stipulated, such action shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, or by serving written notice of such demand upon the person found on the premises, or by posting such notice on the premises if no person be found thereon, and the lessee fails to comply therewith after fifteen (15) days in the case of land or five (5) days in the case of buildings.

In close examination of the above rule, there is no express provision that a written demand is necessary, but a demand to vacate made known to the defendant through his attorney-in-fact shall suffice.

II.THE POSSESSION OF THE DEFENDANTIS UNLAWDFUL AND ILLEGAL, AND PLAINTIFF HAS THE RIGHT OF RECOVERY___________________________________

It is to be noted that the acquisition of subject property by the plaintiff was through a sale of conveyance made by the plaintiffs father in his favor, as evidenced by the original copy of the Transfer Certificate of Title No. T-24867.

The vital issues for the Courts consideration are:

(1) whether an action for unlawful detainer is the proper remedy in this case; and (2) if it is, who has a better right of physical possession of the disputed property.

It is settled in jurisprudence that ownership is not the issue in an unlawful detainer case, but the determination of the better right of possession.

It is also an established fact thatthe plaintiff, although he temporarily resides in Novaliches, Manila, have been in continuous possession of the subject property, which, as such, is in the concept of ownership.

The defendant only allowed the subject premises to be used by the defendants wife and family when the latter succumb to an illness and for convenience during her medication, which did not convey ownership or possession to the defendant.

In unlawful detainer, possession was originally lawful but became unlawful by the expiration or termination of the right to possess and the issue of rightful possession is the one decisive, for in such action, the defendant is the party in actual possession and the plaintiffs cause of action is the termination of the defendants right to continue in possession (Sumulong v. Court of Appeals).

By their express agreement on the temporary use of the property, and until after the sisters death, the defendant himself acknowledged that the house thereon was not in his possession, and that he knew that he must vacate the same, even expressing such confirmation when the defendant informed the plaintiff himself, that he would be returning to his home in Sibutad, Zamboanga del Norte.

Toleration is defined as the act or practice of permitting or enduring something not wholly approved of. The case of Sarona v. Villegas described whattolerated actsmeans, in this language:Professor Arturo M. Tolentino states that acts merely tolerated are, those which by reason of neighborliness or familiarity, the owner of propertyallowshis neighbor or another person to do on the property; they are generally those particular services or benefits which ones property can give to another without material injury or prejudice to the owner, whopermitsthem out of friendship or courtesy.Even then that the defendant may raise the fact that he, as a brother-in-law of the plaintiff, having his rights over the subject property for having been lived there together with their father when the latter was still living, the defendant could not disprove the existence of the Transfer Certificate of Title subjecting the property under the name of herein plaintiff. And given that he claims he has possession over the property, such possession is merely tolerated, a well-settled fact that upon demand, the current possessor must vacate and turn over the property to the rightful possessor.The aforementioned lot No. 997-D6 was originally owned by the plaintiffs father, and that the residential house found thereon was property of the same person which was sold to herein plaintiff, in consideration of FIFTY THOUSAND PESOS (P 50,000.000) in Philippine Currency.

The original owner, Estanislao Eguia, expressly made into writing and duly signed ( on 27 December, 1986) such conveyance that he sold, convey, and transfer ALL of his two-third (2/3) share of the said Lot No. 997-D-6 including the residential house, all improvements and/or accessories found thereon, free from liens and encumbrances.

The plaintiffs sister, Nieva Eguia-Sumondong and her family or her husband, herein defendant FELIPE SUMONDONG, have no legal claims over the subject property.

III.PLAINTIFF IS ENTITLED TO RECOVER ATTORNEY'S FEES AND LITIGATION COSTSAS A RESULT OF THE FILING OF THEINSTANT CASE___________________________________

Article 2208 (2) of the New Civil Code precisely allows for the recovery of attorney's fees when the defendant's act or omission has compelled the plaintiff to litigate witht he third persons or to incur expenses to protect his interest.

In Menzi and Co. vs. Bautista, it was ruled that the costs, expenses and attorney's fees incurred by the plaintiff in the action is recoverable from the defendant who loses in the action and is found by the court to have caused the unnecessary litigation.The circumstances under the present case calls for the award of attorney's fees and litigation expenses as by reason of the unlawful occupancy of defendant, FELIPE SUMONDONG and his omission and inaction, plaintiff SESENIO EGUIA was constrained to file the instant legal action in order to protect his interest against any future litigation that may arise from the occupancy and the possession of the subject premises, as well as to ultimately eject the defendant from further possession on baseless allegations and contentions.

Section 17 of Rule 70 of the Rules of Court provides:

If after trial the court finds that the allegations of the complaint are true, it shall render judgment in favor of the plaintiff for the restitution of the premises, the sum justly due as arrears of rent or as reasonable compensation for the use and occupation of the premises, attorneys fees and costs. If it finds that said allegations are not true, it shall render judgment for the defendant to recover his costs. If a counterclaim is established, the court shall render judgment for the sum found in arrears from either party and award costs as justice requires.

PRAYER

WHEREFORE, premises considered, it is most respectfully prayed unto this Honorable Court that an Order be issued resolving the claims of the plaintiff and against defendant, ordering him as follows:

1.) To turn over the subject properties to the lawful owner and possesses, SESENIO EGUIA;2.) To pay for attorney's fees and the actual expenses and incidental expenses incurred by filing of the instant case;

Plaintiff further prays for such other relief and remedies deemed just and equitable under the circumstances.

RESPECTFULLY SUBMITTED,Dipolog City, Philippines, August 24, 2004.

ATA-LABISIG-DIAMBRANG LAW OFFICECounsel for PlaintiffRM 403, Block 4, JRMSU, Dipolog CityBy:

ATTY. WELLA JANE D. ATARoll No. 62254IBP Lifetime No. 012243PTR No. 2526871; 01/07/14; CebuMCLE Compliance No. 145634-A (signed roll 4/26/13)

Copy furnished:

ATTY. ALEJANDRA BALBUENACounsel for DefendantDipolog City, Philippines

Page 1 of 9