Republic of the Philippines MUNICIPAL TRIAL COURT Pastrana, Leyte NELLY EMPILLO Plaintiff, -versusFOR: Sps. SALUD D.

ALVAREZ and EDDIE ALVAREZ Defendants, x--------------------x FORCIBLE ENTRY with Damages

Civil Case No.

113

POSITION PAPER FOR THE DEFENDANTS

COME NOW, the Defendants, through the undersigned counsel, unto this Honorable Court, most respectfully submit their Position Paper and aver:

PREFATORY STATEMENT
The Plaintiff in this case is NELLY EMPILLO with postal address at Aquino Village, Palo, Leyte where she can be served with the Court processes while Defendants, SALUD D. ALVAREZ and EDDIE ALVAREZ are husband and wife with residence at Brgy. Halaba, Pastrana, Leyte.

STATEMENT OF THE CASE

The Plaintiff filed this case alleging that she is the absolute owner of that parcel of land located in Brgy. Caninoan, Pastrana, Leyte containing an area of 1.2888 square meters, more or less.1 The said parcel of land appears to be sold by Antonio Daguinod, Eufemia Daguinod and Teresita Daguinod (19, 16 and 14 years2 of age, respectively) to Romeo Modesto the commonly husband of Pilar Monton3. The Deed of Absolute Sale of Land4 appears to be signed by the vendors on February 15, 1969 and appears to be notarized on
1 2

Complaint, paragraph 3. Deed of Absolute Sale of Land, (Annex A of the Complaint) 3 Ibid. 4 Exhibit A of Plaintiff and Exhibit 1 of the Defendants

August 25, 1970 as can be gleaned from the cancellation of the documentary stamps. The said parcel of land appears now to be covered by Katibayan ng Original na Titulo Blg. P-80996 in the name of Hrs. of Pilar Modesto rep. by Nelita Empillo with an area of 24,807 square meters designated as Lot No. 828 (Case 9, Cad. 821-D)5. This title to the land appears to be issued on December 29, 2009. The Plaintiff alleged that she was in actual physical possession of the said parcel of land even during the lifetime of her mother Pilar Modesto until November 24, 2009 when the Defendants allegedly entered by means of force, intimidation, stealth and strategy the said land without plaintiffs knowledge and consent6. It is significant to note that one of the exhibits of the Plaintiff is a Resibo marked as Exh. I apparently showing that the land was mortgaged to one Cresencia Calumag and was just redeemed by Nelly Empillo on November 11, 2009. Although the Defendants have not seen this particular exhibit7, it is the usual practice in local mortgages or prenda that it is the mortgagee who takes actual possession of the property involved. The Defendants, on the other hand, states that the property which they are tilling was previously owned by Macaria Tibreo and was declared for taxation purposes in her name8. Upon Macarias death, her son, Jose Daguinod inherited the same9. Jose Daguinod married Visitacion Montanejos and they had five (5) children, namely Alejandro Daguinod, Antonio Daguinod, Teresita Daguinod, Eufemia Daguinod and Ma. Salud D. Alvarez10. The latter is one of the Defendants in this case.

5 6

Katibayan ng Original na Titulo No. P-80996 (Annex B of the Complaint). Complaint, paragraph 4. 7 The only reference of Defendants is what is stated in the Pre-Trial Order dated June 16, 2011 8 Tax Declaration No. 4774 in the name of Macaria Tebrio, (Exh. 5) 9 Answer, paragraph 5A4. 10 Based on the Affidavits of Teresita Daguinod Badion (Exh. 2), Alejandro M. Daguinod (Exh. 4), Ma.Salud Daguinod Alvarez (Exh. 6)

Upon the death of Jose Daguinod on July 29, 1967 11, his heirs inherited the said land and cultivated the same. Sometime in 1981 there was an agreement that one-fifth of the land shall be cultivated exclusively by Ma. Salud Daguinod Alvarez as her share, but it was Antonio Daguinod who continued to cultivate her share12. started to cultivate the property13. The Defendants deny that the Plaintiff ever possessed the property that they (defendants) are possessing14. The Defendants are tilling their own property and not the Plaintiffs property 15 because what was allegedly sold to Romeo Modesto and Pilar Monton was merely 12,888 square meters while the titled property is 24,807 square meters16. The Defendants maintain that the alleged Deed of Absolute Sale of Land is a forgery and that the purported sellers of the said land appear to be only three (3) heirs, namely: Antonio, Eufemia and Teresita Daguinod. The other two heirs, namely: Alejandro and Ma. Teresita Daguinod was Salud are not among the purported sellers. When Antonio Daguinod died on May 19, 1989, defendant Eduardo Alvarez

born on March 21, 195717, and this makes her only 11 years, 10 months and 24 days when she purportedly affixed her signature. At the time of the alleged sale, Ma. Salud Daguinod Alvarez was only 3 years, 10 months and 13 days of age18. Moreover, one of the alleged seller of the parcel of land, Teresita Daguinod Badion, denied any participation in the alleged Deed of Sale and that she did not see her sister, Eufemia Daguinod who was only 9 years of age at that time, sign any Deed of Sale.19

11 12

Certificate of Death of Jose T. Daguinod (Exh. 8) Affidavit of Ma. Salud Daguinod Alvarez, (Exh. 6) 13 Affidavit of Eduardo M. Alvarez, (Exh. 7) 14 Answer, paragraph 6A. 15 Ibid, paragraph 6B. 16 Ibid, paragraph 5B. 17 Certificate of Baptism of Teresita Daguinod (Exh. 3) 18 Birth Certificate of Ma. Salud Daguinod, (Exh. 11) 19 Affidavit of Teresita Daguinod Badion, (Exh. 2)

In support of the foregoing allegations are the Affidavits of Ma. Salud Daguinod Alvarez (marked as Exhibit 6), Eduardo M. Alvarez (marked as Exhibit 7), Teresita Daguinod Badion (marked as Exhibit 2), and Alejandro Daguinod (marked as Exhibit 4), as well as the following documentary exhibits, namely: Deed of Absolute Sale of Land (marked as Exhibit 1), Certificate of Baptism of Teresita Daguinod (marked as Exhibit 3), Tax Declaration of the land in the name of Macaria Tebrio (marked as Exhibit 5), Certificate of Death of Jose Daguinod (marked as Exhibit 8), Certificate of Live Birth of Alejandro Daguinod (marked as Exhibit 9), Katibayan ng Original na Titulo Blg. 80996 (marked as Exhibit 10) and Birth Certificate of Ma. Salud Alvarez (marked as Exhibit 11). All the foregoing Affidavits and documents are already attached to the Records of this case and are hereby made integral part of this Position Paper.

ISSUES
The Defendants respectfully submit the following issues, to wit: 1. WHETHER OR NOT PLAINTIFFS CLAIM IN THIS CASE IS CREDIBLE. 2. WHETHER OR NOT THE DEFENDANTS ARE ENTITLED TO THE CONTINUED POSSESSION OF THE LAND THEY ARE TILLING.

DISCUSSIONS
The Defendants offer the following discussions of the issues, to wit: WHETHER OR NOT PLAINTIFFS CLAIM IN THIS CASE IS CREDIBLE The Plaintiff, having initiated the present case before the Honorable Court against the Defendants, has to prove her claim. As stated by the Supreme Court, (A)llegation is not tantamount to proof.

It must be stressed that one who alleged a fact has the burden of proving it.20 The Plaintiffs evidences shows that her land was mortgaged to one Cresencia Bingco Calumag for P 98,000.00. As local practice goes, the said land would have been actually possessed by Calumag upon the effectivity of the said mortgage. The Plaintiff only redeemed the said land on November 11, 2009, and this date refers only to the payment of the P 98,000.00 loan. The taking of actual possession by the Plaintiff of the said land is a different matter. It could be that Plaintiff would have to take possession of her land on a later date, for instance, in order to afford the mortgagee to harvest her plants. At any rate, the proof of the mortgage of the land shows that the Plaintiff was not in actual possession of the said land prior to November 11, 2009 and her actual possession after that date is still doubtful. It is significant to note that (T)he word possession as used in forcible entry and unlawful detainer, means nothing more than physical possession, not legal possession in the sense contemplated in civil law.21 The Plaintiff is claiming that the land was sold to her The

predecessor-in-interest by three persons, two of them minors.

land area subject of the sale was only 12,888 square meters. However, when this land was titled, the property ballooned to 24,807 square meters. This is, or course, unbelievable. If the land has been enlarged by only a couple of hundred square meters, the same may be attributed to the inaccuracy of measurement by the Assessors Office. However, a discrepancy of around 12,000 square meters (1.2 hectares) is incredible and this would surely encroach on the property of other persons. The Defendants cannot think of any valid reason for such incredible growth of the Plaintiffs land. Can this be attributed to a plain land-grab? Whatever is the reason, this clearly shows that the Plaintiff did not come to Court with clean hands.
20
21

Ading Quizon, et.al., vs. Laniza Juan, (G.R. No.171442, June 17, 2008) Tirona vs. Alejo, (G.R. No. 129313, October 10, 2001)

Likewise, the ownership of the Plaintiff of the whole 12,888 square meters, allegedly sold by Antonio, Eufemia and Teresita Daguinod is on shaky ground because only three out of five heirs sold the property. Granting for arguments sake that the sale actually transpired, as co-owners of the land subject of the sale, Antonio, Eufemia and Teresita Daguinod can only sell their share as allowed by Art. 493 of the Civil Code. It is significant to note that this land is not yet partitioned among the legal heirs22, hence, the sale is limited only to the parts that maybe allotted to the three upon the partition of the land. Therefore, granting that that the sale is valid, the Plaintiff is only entitled to 3/5 of 12,888 square meters or to only about 7,732.8 square meters. The alleged entry of the Defendants to her land is said to be on November 24, 2009. This date is highly suspect if one is to consider the November 11, 2009 date of redemption of the mortgage. It could be that the Plaintiff has no idea as to the metes and bounds of the area mortgaged (if the mortgage was made by another person) and when she assumed possession of the land, she found the Defendants to be in possession of part of what she claims to be within the boundaries of her land. If we view this in relation to the issuance of the Katibayan ng Original na Titulo which was on December 29, 2009, it could be that the Plaintiff knows beforehand that her application for Free Patent for the land subject of the Deed of Absolute Sale of Land included parcels of land not included in the said sale. Hence, this case could just be an attempt to preempt any action by the affected parties, and to give an appearance of truth of what Plaintiff stated in her application for free patent with the DENR as to the land area that she applied for. It is significant to note that (R)egistration does not vest title. It is not a mode of acquiring ownership but is merely evidence of such title over a particular property. It does not give the holder any better title than what he actually has.23 In this case, the registration of the land under
22

Affidavits of Alejandro Daguinod (Exh. 4), Ma. Salud Daguinod Alvarez (Exh. 6), and Teresita Daguinod Badion (Exh. 2) 23 De Guzman vs. Court of Appeals, (G.R. No. L-46935, December 21, 1987)

the Katibayan ng Original na Titulo does not give a better title to the Plaintiff than the 12,888 square meters subject matter of the sale or to only about 7,732.8 square meters thereof if we consider the 3/5 that is legally subject of the sale. The foregoing discussion shows that the claim of the Plaintiff is not credible. It is significant to note that it is very easy to allege or claim forcible entry in order to remove an otherwise lawful owner or possessor of the land, especially if the Plaintiff is expecting or has received already the title of the (greatly enlarged) land. This inevitably leads the Defendant to conclude that the act of the Plaintiff, in registering the parcel of land in unconscionable excess than what is due to her, is an act of inequity. Plaintiff now comes to the Honorable Court demanding justice and equity. It is respectfully submitted that her plea should be denied. The Supreme Court has many times mentioned the maxim that he who comes into equity must come with clean hands, and in one case, the High Court stated, as follows: x x x This is so because among the maxims of equity are (1) he who seeks equity must do equity, and (2) he who comes into equity must come with clean hands. The latter is a frequently stated maxim which is also expressed in the principle that he who has done inequity shall not have equity. It signifies that a litigant may be denied relief by a court of equity on the ground that his conduct has been inequitable, unfair and dishonest, or fraudulent, or deceitful as to the controversy in issue.24 WHETHER OR NOT THE DEFENDANTS ARE ENTITLED TO THE

CONTINUED POSSESSION OF THE LAND THEY ARE TILLING

24

Cited in University of the Philippines vs. Hon. Catungal, Jr., et. al., (G.R. No. 121863, May 5, 1997)

It is respectfully submitted that the Defendants are entitled to continue the possession of the land they are tilling. They are occupying the parcel of land owned and declared for taxation purposes in the name of Macaria Tebrio under Tax Declaration No. 4774 (Exh. 5). A perusal of the land area in the said tax declaration which is only 6,264 square meters shows that this land is different from the one subject of the alleged Deed of Absolute Sale of Land although both lands are located in Brgy. Caninoan. The land subject of the said deed of sale has an area of 12,888 square meters and if we look closely at the boundaries of this land, it can readily be noticed that this land is bounded on the East and on the West by lands belonging to the Tibreos. This means that the Tibreos have parcels of land adjoining that which is the subject of the alleged deed of sale. However, it is likely that all the lands of the Tibreos were included by the Plaintiff when she applied for free patent. The foregoing discussion shows that the Defendants are even entitled to 1/5th of the land subject of the sale, being co-heirs of the alleged sellers. Thus in this regard, it is important to determine the actual location and identity of the portion of the land possessed by the defendant in relation to the land subject of the sale, not the land actually titled. It is the Plaintiffs who has the burden of showing the actual location of the property possessed by the Defendants. The Defendants are firm in their claim that they are tilling their property and have not entered into anothers property. They are likewise firm in their assertion that the Plaintiff never actually possessed the land they are tilling. One of the attributes of ownership is the continued peaceful possession of their property and the right to defend such possession from usurpers who disturb their possession, perhaps emboldened by their questionable title. It is significant to note that the Plaintiff insisted that the Defendants surrender their rights to their own land in consideration of

the amount of P 20,000.00 pesos but the Defendants refused25. It is submitted that this offer is a hallmark of a usurper because a true owner of a land would not offer any amount. The Defendants were likewise threatened by the Plaintiff that if they do not concede their ownership over the property they are tilling, the Plaintiff will file a criminal case against them and the latter made good of her threat. It is submitted that this criminal case is just an effort of the Plaintiff to wear out the meager resources of the Defendants so that the latter would give in to the desire of the Plaintiff.

PRAYER
WHEREFORE, foregoing premises considered, it is most

respectfully prayed of this Honorable Court to dismiss this case for lack of merit and award moral damages, exemplary damages and litigation expenses in favor of the Defendants. Other relief and remedies just and equitable under the premises are likewise prayed for. July 13, 2011. Tacloban City for Pastrana, Leyte

The PUBLIC ATTORNEYS OFFICE (Counsel for the Defendants) Bulwagan ng Katarungan Magsaysay Blvd., Tacloban City By: NEMITZ F. NEGADO Public Attorney II Roll of Attorneys No. 40747 IBP No. 05045 (Lifetime) MCLE Compliance No. III-0017029 (June 2, 2010)

Copy furnished: (by registered mail)

25

Answer, paragraph 7.

ATTY. TARCELO A. SABARRE, JR. Counsel for the Plaintiff LF & V Fatima Building 3/F Real St., Tacloban City

EXPLANATION
A copy of this Position Paper was furnished to the counsel for the Plaintiff by way of registered mail only due to lack of personnel to effect personal service.

NEMITZ F. NEGADO