Republic of the Philippines

MUNICIPAL TRIAL COURT

8th Judicial Region
BARUGO, LEYTE

FILOMENO R. NEGADO,
Plaintiff, CIVIL CASE No. 273
FOR:
-versus-
FORCIBLE ENTRY with
DAMAGES
SERGIO ANTONIO F. APOSTOL,
Defendant.

x- - - - - - - - - - - - - - - - - - - - - - - - - - x

ANSWER
[Serving as Motion to Dismiss]

DEFENDANT SERGIO ANTONIO F. APOSTOL, through counsel,

unto this Honorable Court respectfully avers: THAT---

ADMISSION

1. Defendant admits the material allegations of paragraph 1 of the

complaint insofar as the parties have the capacity to sue and be sued, but
defendant avers that such action must be defended by the real parties in interest
(Sec. 2, Rule 3 of the 1997 Rules of Civil Procedure), other than the herein
defendant, namely: the spouse of the defendant (Sec. 4, Rule 3 of the 1997
Rules of Civil Procedure) and the Department of Agriculture -Bureau of
Fisheries and Aquatic Resources (Sec. 7, Rule 3, 1997 Rules of Civil
Procedure).

NO PERSONAL KNOWLEDGE

2. For lack of knowledge or information to form a belief as to the

plaintiff’s’ capacity to sue and be sued, the truth being that plaintiff has no
personality to file the present complaint as he has no more legal rights or
interests over the land subject matter of the Fishpond Lease Agreement No.
2972, which has expired on December 31, 2003, but earlier cancelled on
February 26, 2002 by the grantor – Department of Agriculture- per earlier
recommendation by the Bureau of Fishreries and Aquatic Resources, Region
VIII. One of the grounds for the cancellation was “that the area has been
totally abandoned by the lessee (herein plaintiff) since 1994 and that the dikes
are no longer serviceable.
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SPECIFIC DENIALS

3. For the truth of the matter as hereunder stated in the Affirmative

Allegations and Special Defenses of this Answer, defendant specifically deny
paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the complaint.

AFFIRMATIVE ALLEGATIONS

4. Defendant repleads and incorporates all the above stated allegations,

the truth of the matter are stated hereunder.

5. The plaintiff entered into a Fishpond Lease Agreement No. 29721

with the Department of Agriculture and Natural Resources on 30 March 1979
for a period of 25 years to expire on 31 December 2003, for a lease of 35.8075
hectares of public land for fishpond purposes, which is located in the barrio of
Canomantag, Barugo, Leyte.

6. A Memorandum2 dated 19 October 2001 was submitted by

Segundino L. Barrizo, OIC of the Fishpond Leasing of the BFAR Region VIII
to the Regional Fisheries Director, BFAR Region 8, in compliance with a
Memorandum from BFAR Central Office, Manila, to conduct an ocular
inspection over the said FLA 2972. In said Memorandum, Mr. Barrizo
managed to have done the following:

1. Conducted an interview with the 93 year old lessee, Atty.

Filomeno Negado, in his present residence at Capoocan, Leyte in
order to extract from him an honest assessment of his existing
FLA No. 2972, to expire on December 31, 2003.

2. The lessee disclosed that from 1994 to the present he stopped

operation as well as production of his fishpond and on account of
this temporary non-operation of the area, it resulted to the
regrowth of mostly miapi trees, erosion of primary and secondary
dikes. Dikes are discontinued in most parts of the area so that
passage around the area posed a great problem, as what
happened during the first, second and third attempt of the
undersigned to have a clear picture of the entire area.

3. Report of ocular inspection could not have been forwarded to the

BFAR, Central Office, on account of the advice of the Regional
Management to conduct first a personal interview with the lessee.
It took the undersigned more than a year to have met personally
the lessee after tedious linquiries from neighbors in his original
residence at Carigara, Leyte.

1
Annex 1 – Fishpond Lease Agreement No. 2972 dated 30 March 1979
2
Annex 2 – Certified photocopy of Memorandum dated 19 October 2001 by Segundino Barrizo
 3

4. During the interview (a heart-to-heart talk), the undersigned read

to the lessee the terms and conditions embodied in the fishpond
lease agreement. It has been presented to him that the area is
abandoned, no annual reports of productions submitted from
1996-2000, and fishpond rentals have accumulated to the total
amount of P56,520.00 as of CY 2001 which factors suggest to a
cancellation of his FLA No. 2972.

5. In a matter of rebuttal, the lessee aired out his concerns about the
retrieval of the development cost of his fishpond area in which
case he exhorted the BFAR to consider deeply before cancellation
of his FLA will be effected, and before the FLA’s expiry date, he
be given a chance to settle first all his back accounts on fishpond
rentals in order to clear himself of any liability towards the BFAR
and the fishpond industry.

6. In the case of the letter-complaint of Ma. Abegail Apostol,

representative of Amelyn A. Buenaviaje, dated January 29, 1999,
he (the lessee) manifested to the undersigned that he only granted
a road right of way, taken from his leased area, of about six
meters, which was the subject of Waiver of Rights executed on
July 23, 1996, and not for the entire fishpond area, and this “road
right of way” has even been widened by the grantee to 25 meters
on each side (of the 6 meters) by 140 meters long, according to
him.

7. As mentioned in par. (b) of this report, the area has been

abandoned from 1994 to the present, but there are no occupants
in the area even up to this date, the time of the interview.

7. This Memorandum was submitted by Regional Fisheries Director Jose

S. Garrido, Jr. to the BFAR Central Office by way of a Memorandum3 dated
26 November 2001.

8. An Order4 dated 7 September 2004 was issued by Undersecretary

Cesar Drilon of the Department of Agriculture, and repleaded in toto as
follows:

This refers to FLA No. 2972 issued in favor of Filomeno Negado on

March 30, 1979 to expire on December 31, 2003 covering an area of
35.8074 hectares located in Barangay, Barugo, Leyte.

By way of background, as culled from the records, the following

pertinent facts appear:

3
Annex 3 – Certified photocopy of 26 November 2001 Memorandum of BFAR Dir. Jose Garrido, Jr.
4
Annex 4- Order dated 7 September 2004 by DA Usec. Cesar Drilon
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On March 30, 1979 FLA No. 2972 issued in favor of Filomeno Negado to
expire on December 31, 2003, covering an area of 35.8074 hectares located
in Barangay Canomantag, Barugo, Leyte.

On February 26, 2002, a notice of cancellation was sent by the BFAR

to show cause in writing why his FLA No. 2972 should be cancelled in view
of the violation of the lease agreement.

In a Memorandum dated May 10, 2002 by the Director of Fisheries

and Aquatic Resources, FLA No. 2972 was recommended to the Department
of Agriculture for cancellation on the following reasons:

That the area has been totally abandoned by the lessee since 1994
and that the dikes are no longer serviceable.

The lessee failed to pay the rentals and arrearages from 1995 up to
the present in the total amount of PhP 97,020.00

The lessee failed to submit the semi-annual reports on the

development, operation and production of the fishpond area from 1996 up to
1999.

The lessee failed to submit the annual report from 2000 up to the
present which are all in violation of the terms and conditions and of the rules
and regulations on the matter.

Considering the observations of the Director, Bureau of Fisheries and

Aquatic Resources that there are various violations of the terms and
conditions of the lease agreement in his Memorandum dated May 10, 2003,
and in view of the expiration of FLA No. 2972, the same is automatically
cancelled.

WHEREFORE, FLA No. 2972 is hereby declared open to any

qualified and interested applicants without prejudice to the findings and/or
recommendation of the BFAR/LGU concerned to determine whether the area
is still suited for fishpond purposes and to submit their corresponding report
to this Office.

Let the records of the case be returned to BFAR for appropriate

action.

SO ORDERED.
Quezon City. Philippines. September 7, 2004

CESAR M. DRILON, JR.

Undersecretary

Copy furnished: (by registered mail)

1. Mr. Filomeno Negado, Capoocan, Leyte

2. Mr. Filomeno Negado, Canomantag, Barugo, Leyte
3. Director, BFAR Region VIII
4. Director, BFAR, Quezon City
5. Director, Legal Service
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9. The defendant, upon learning that the land subject of this case has been
declared open to any qualified and interested applicants for fishpond lease
agreement, filed his application5 with the BFAR Region VIII Office. He has
complied with all the requirements6 for application and submitted the same to
the BFAR Region VIII Office.

10. One of the requirements that defendant secured for his application
for FLA was a Certification7 from the Regional Fisheries Director dated 8
September 2004 on the status of the fishpond area as requirement needed for
issuance of Certificate of Non-coverage by the Environmental Management
Bureau, DENR, Tacloban City.

11. The application of herein defendant is only for 10 hectares of the entire
fishpond area (35.8074 hectares), hereto identified as Lot No. 2 of the sketch
with technical description8 prepared by the DA-BFAR. Said sketch likewise
shows that Lot 3, containing 5 hectares, is applied for FLA by Virginia Acuin

12. On 7 December 2004, defendant received a letter from the plaintiff

(Annex A of complaint) stating:

“Please vacate and restore what you have unlawfully did – so the
interest of justice can be properly served. This must be done within twenty (20)
days from receipt hereof, otherwise much to my regret I will file the
EJECTMENT case against you without any further notice to you.”

13. However, without waiting for the grace period to lapse on 27

December 2004, herein plaintiff prepared this complaint for ejectment against
herein defendant on 20 December 2004, notarized on 21 December 2004 and
filed in court on 23 December 2004.

14. It is likewise noted that no ejectment case was filed against another
applicant (Virginia Acuin) similarly situated as the herein defendant, who
likewise occupied a portion of 5 hectares of the entire fishpond area, described
as Lot 3.

SPECIAL DEFENSES

16. The complaint states no cause of action against the defendant due to
the absence of the elements/requisites of a valid cause of action: (1) plaintiff
was not in actual peaceable physical possession of the leased public land at the
time of the alleged forcible entry since he abandoned the premises in 1994; and
(2) there was no element of Force, Intimidation, Stealth, Threat or Strategy,
since the occupation of the defendant of the leased premises was made in a
peaceable, open manner through a public application with the Department of

5
Annex 5 – Application for Fishpond Lease Agreement by Sergio A.F. Apostol dated 2 September 2004
6
Annex 6 – List of Requirements for Application
7
Annex 7 – Certification from BFAR RO8 Dir. Gil Adora dated 8 September 2004
8
Annex 8 – Sketch with technical description of the entire fishpond area
 6

Agriculture-Bureau of Fisheries and Aquatic Resources, which grants the

Fishpond Lease Agreement to qualified applicants.

17. Even granting there is a cause of action, the court cannot proceed for
failure of the plaintiff to implead indispensable parties, who are real parties
in interest in this case. Pursuant to Section 4, Rule 3 of the 1997 Rules of Civil
Procedure, the husband and wife shall sue or be sued jointly. In the instant
case, plaintiff did not implead the wife of the defendant. Likewise, pursuant to
Section 2 in relation to Section 7 of Rule 3 of the 1997 Rules of Civil
Procedure, the Department of Agriculture-Bureau of Fisheries and Aquatic
Resources ought to have been impleaded as party-in-interest, as it stands to be
injured by the judgment in the suit, considering that it is the party that
cancelled the FLA of plaintiff and grants the new FLA to the defendant and
Virginia Acuin.

18. The filing of this case is selective. Plaintiff did not include Virginia
Acuin in this action, although she likewise applied for the 5 hectares of the
land subject matter of FLA No. 2972.

19. There is failure to exhaust administrative remedy before the

Department of Agriculture-Bureau of Fisheries and Aquatic Resources, which
cancelled plaintiff’s FLA No. 2972 and permitted herein defendant and
Virginia Acuin to apply for FLA involving the same fishpond, but with a
different land size. Considering that the plaintiff was not a bona fide applicant
for the public land he formerly occupied due to series of violations of the terms
and conditions of the FLA, it is serious error for him to presume that the
government ought to file ejectment case against him. Such violations
committed by him, as well as his voluntary dispossession of the property by
abandoning the same in 1994 are sufficient reasons to remove him of his right
to possession of the land subject of this case.

20. Plaintiff violates the basic norm that he should come to court with
clean hands. He violated the terms and conditions of his FLA with DA-BFAR,
which had already been cancelled aside from having expired. Now he seeks the
venue of this court to circumvent the contract by asking the court to declare
him rightful possessor of the fishpond and restoring him to his possession.

21. The filing of the case was premature and precipitated, as the
complaint was prepared on December 20, 2004 and filed on December 23,
2004, without due regard to plaintiff’s demand letter to the defendant which
gave the latter a grace period of twenty (20) days from receipt thereof (on 7
December 2004) or until December 27, 2004 within which to comply with the
demand to vacate.

22. If plaintiff incurred alleged litigation expenses and attorney’s fees

and claims restoration costs, he himself has to be blamed for filing the present
malicious, unfounded, and false complaint against herein defendant, and that
his continuing claim over the fishpond on the basis of FLA No. 2972 is bereft
of basis, in fact and in law, as hereinabove already discussed.
 7

OPPOSITION TO APPLICATION FOR A

TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION

23. In the light of the foregoing, plaintiff clearly has no right in esse to
be protected, and plaintiff will not suffer any injury, since plaintiff never had
bona fide right over the public land by virtue of an expired and cancelled FLA
No. 2792 and has been found to have abandoned it since 1994, hence, no actual
physical possession over the property subject of this case. It is a well-settled
rule that the sole object of a preliminary injunction, whether prohibitory or
mandatory, is to preserve the status quo until the merits of the case can be
heard (Avila vs. Tapucar, 201 SCRA 148). Thus, there is nothing to be restored
to him if the status quo must be preserved. A preliminary mandatory injunction
is not a proper remedy to take property out of the possession of the defendant,
when it is clear that the right of possession is being disputed (Raspado vs. CA,
220 SCRA 650). It would rather work great injustice and irreparable damage to
herein defendant if he is deprived of his possession over the lot subject of FLA
No. 2972 without due notice and prior hearing thereon.

27. There is no merit to plaintiff’s application for Preliminary Injunction.

COUNTERCLAIM

28. Defendant repleads, adopts and incorporates by way of reference all

the allegations of the preceding paragraphs of her answer.

29. Having been made to defend himself in an unfounded suit, the

defendant will be compelled to hire the services of a lawyer and shall be
obligated to pay the sum of P25,000.00 as attorney’s fees and appearance fee
of P1,500.00 per court appearance, and he will incur litigation expenses
estimated to be no less than P50,000.00.

30. The filing of this present malicious, unfounded, and false complaint,
defendant suffered sleepless nights, mental anguish, besmirched reputation and
wounded feelings for which plaintiff is liable to pay defendant the sum of
P100,000.00 as moral damages; and in order to deter others who maybe
similarly situated as plaintiff, the latter should be adjudged to pay defendant
the sum of P30,000.00 as exemplary damages.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this

Honorable Court that the complaint be dismissed, and judgment be rendered in
favor of the defendant and against plaintiff, to wit:

1. Dismissing the complaint of the plaintiff with costs against them;

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2. On the counterclaim, defendant prays for judgment ordering the

plaintiff to pay the defendant P25,000.00 as attorney’s fees and P1,500.00 per
appearance fee; the sum of not less than P50,000.00 as litigation expenses; the
sum of P100,000.00 as moral damages, and the sum of P30,000.00 as
exemplary damages.

Granting defendant such other relief just and equitable in the premises.

Tacloban City for Barugo, Leyte. January 11, 2005.

LEO S. GIRON
Counsel for Defendant Sergio A.F. Apostol
253 AVenida Veteranos, Tacloban City
Roll No. 37379
IBP Lifetime Member No. 00733
PTR No. 5803034; 1-3-05; Tacloban City

Republic of the Philippines )

City of Tacloban )S.S.

VERIFICATION AND CERTIFICATION

OF NON-FORUM SHOPPING

I, SERGIO A. F. APOSTOL, of legal age, Filipino, married and with

post office address at San Gerardo Heights, Tacloban City, after having been
first sworn according to law, hereby state:

I am the defendant in the above-entitled case; I have caused the

preparation of the foregoing Answer; I have read it and the allegations therein
are true and correct of my own personal knowledge or based on relevant and
authentic records.

That on the COUNTERCLAIM, I have not theretofore commenced any

action or filed any claim or pleading involving the same or similar issues or
subject matter in the Supreme Court, Court of Appeals, lower courts or
administrative bodies and quasi-judicial agency and to the best of my
knowledge, no such other action or claim is pending therein; and if there is
such other pending action or claim, a complete statement of the present status
thereof; and, if I should thereafter learn hereafter that the same or similar
action or claim or pleading has been filed or is pending with the Supreme
Court, Court of Appeals, lower courts, administrative bodies or quasi judicial
agency; I shall undertake to report that fact within five (5) days from
knowledge thereof to the court wherein this aforesaid action or initiatory
pleading has been filed.

SERGIO A. F. APOSTOL
Affiant
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SUBSCRIBED AND SWORN to before me this 11 January 2005 at

Tacloban City, Leyte, Philippines.

Doc. No. ____

Page No. ____
Book No. ____
SERIES OF 2005

COPY FURNISHED:

ATTY. JUAN L. CAÑAMAQUE, JR.

Counsel for the Plaintiff
Carigara, Leyte

EXPLANATION

A legible copy of this ANSWER was furnished Atty. Juan L.

Canamaque, Jr. by registered mail for lack of messengerial service. (If served
personally, please disregard explanation.)

LEO S. GIRON