Republic of the Philippines

Eleventh Judicial Region

2 MUNICIPAL CIRCUIT TRIAL COURT
ND

OF MALUNGON-ALABEL
Alabel, Sarangani Province

SPOUSES RONNIE B. SECHONG, CIVIL CASE NO. 16-194-A

Plaintiff,

-versus- -for-

RODEL BASILIO, CHRISTOPHER UNLAWFUL DETAINER

BASILIO, RUTCHIE BASILIO, AND ATTORNEY’S FESS
ET. AL.,
Defendants.
X--------------------------X

POSITION PAPER
(For the Respondent)

COMES NOW, respondent through counsel and unto this

Honorable Court, most respectfully submits this position paper and
affidavits of witnesses, in support of the arguments in the Answer and
the documentary evidence attached therewith, thus:

TIMELINESS

On 07 March 2019, the Respondent thru counsel received an

Order from this Honorable Court requiring the parties to file their
respective Position Paper together with affidavits of their witnesses
and other evidence within ten (10) days from receipt thereof
or on or before 17 March 2019. Considering 17 March 2019 falls on
Sunday, the respondent has until 18 March 2019 to file, hence said
Position Paper is filed.

Civil Case No. 18-201-A.Position Paper for the Respondent

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 NATURE OF AN ACTION FOR EJECTMENT

Section 1, Rule 70 of the Rules of Court provides:

Section 1. 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 withheld after the expiration or termination of the right to
hold possession, by virtue of any contract, expressed 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.

Forcible entry and unlawful detainer cases are two distinct

actions defined in the afore-cited provision. In Forcible Entry, one
employs force, intimidation, threat, strategy or stealth to deprive
another of physical possession of the land, (Montanez vs. Mendoza,
392 SCRA 541). Possession by the defendant of the subject property is
unlawful ab initio.

On the other hand, Unlawful Detainer involves the person’s

withholding from another of the possession of real property to which
the latter is entitled, after the expiration or termination of the former’s
right to hold possession under the contract, either expressed or
implied (Republic vs. Luriz, 513 SCRA 140). Possession by the
defendant of the property is originally lawful but becomes illegal by
virtue of the termination of his right of possession under his contract
with the plaintiff, either expressed or implied, ( Tirona vs. Alejo, 367
SCRA 17).

In Go, Jr. vs. CA, 362 SCRA 755, it was adjudicated that tolerance
must be present right from the start of possession sought to be
recovered to be within the purview of unlawful detainer.

Basic is the rule that what determines the nature of the action
and what court has jurisdiction over it are the averments or allegations
Civil Case No. 18-201-A.Position Paper for the Respondent
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in the complaint and the character of the remedy or relief sought. As
in the case of unlawful detainer, the permission or tolerance must be
present at the outset or at the beginning of the possession. If not, a case
of forcible entry is the proper remedy. The time or period mandated
by law should be complied with. Otherwise, prescription steps into the
picture (Notes and Cases on Ejectment, Igmidio Cuevas Lat, p.1, 2005).

The nature of defendant’s entry into the land determines the

cause of action. If entry is illegal, it is Forcible Entry and the action
must be filed within one year from the date of unlawful intrusion.
Otherwise, the appropriate action is Unlawful Detainer and should be
filed within one year from the time possession by the defendant
became illegal.

The one year period within which to bring an action for forcible
entry is reckoned from the date of actual entry to the land, (Gener vs.
De Leon, 367 SCRA 631). After the lapse of the one-year period, the
party dispossessed of a parcel of land can file either an accion
publiciana or accion reivindicatoria.

He who alleges must prove and the party having the onus
probandi must establish his case by preponderance of evidence.

PARTIES

Plaintiff, Victoriano Canillo, is of legal age, married and a

resident of Maharlika, Alabel, Sarangani Province, where he may be
served with summons and other legal processes. On 29 June 2019,
while this case is pending, the plaintiff, Victoriano Canillo died and as
evidence, the counsel for the plaintiff submitted a Certificate of Death
of Victoriano Canillo and he, likewise, moved for substitution in
favour of Victoriano Canillo’s son, Josue Canillo. The plaintiff is
represented by Atty. Felipe Vicente A. Velasco with address at Vicente
Law Office, Arradaza St. Corner Caline St., Lagao, General Santos City.

Respondent, Lucio Lalisan, on the other hand, is of legal age,

married and a resident of Purok 8, Barangay Ladol, Alabel, Sarangani
Province, where he may be served with summons and other legal
processes. He is being represented by the Public Attorney’s Office,

Civil Case No. 18-201-A.Position Paper for the Respondent

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Alabel, Sarangani Province with address at Capitol Compound, Hall
of Justice, Alabel, Sarangani Province.

STATEMENT OF THE CASE

This is an action for Unlawful Detainer, Atty.s Fees, Damages,

etc. commenced by the Plaintiff Victoriano Canillo who was
substituted by his son Josue Canillo against the Respondent Lucio
Lalisan before the Honorable Court. The subject matter of this action
is a piece of land identified as Lot No. 77, Bsd 11-000690 (OLT) covered
with Transfer Certificate of Title No. (T-4073) T-808 with an area
of Eleven Thousand Three Hundred and Fifteen (11,315) square
meters situated at Ladol, Alabel, Sarangani Province.

Plaintiff claims that the respondent was allowed out of

tolerance to stay in the subject parcel of land. That when the
respondent was requested to leave and vacate the area, the latter
refused to obey.

Respondent denied said allegation and interposed the

defense that their stay in the subject parcel of land is out of ownership
and not out of tolerance since the said property has been in
respondent’s open, continuous, exclusive, notorious, and adverse
possession IN THE CONCEPT OF AN OWNER since 1970s until
present.

The case is now submitted for decision before the Honorable

Court.

STATEMENT OF FACTS

Since 1970s until present, respondent and his family have been
in open, continuous, exclusive, notorious and adverse possession IN
THE CONCEPT OF AN OWNER over a parcel of land described as
Lot 77 situated at Purok 8, Ladol, Alabel, Sarangani Province which
was once a portion of the estate owned by the spouses Carriedo.
Hereto attached is the Affidavit of Witness of Supremo C. Dadivas

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certifying their actual occupancy in the subject parcel of land as Annex
“1”.

Herein respondent, Lucio Lalisan, and Novelina Lalisan Rivera

(Novelina for brevity) are the actual occupants and tillers of subject
agricultural land even before the whole area was the subject of
Operation Land Transfer (OLT) in 1983 by the Ministry of Agrarian
Reform (MAR) under the Land Bank of the Philippines (LBP) payment
scheme but it was later shifted by MAR to Voluntary Land
Transfer/Direct Payment Scheme (VLT/DPS).

Despite the presence of the respondent and Novelina as actual

occupants and tillers of the area, Emancipation Patents were generated
and issued not in their respective names as qualified Agrarian Reform
Beneficiaries (ARBs) but to the unknown and non-tiller of the area, and
father Esteban M. Valmera who turned out to have more than five (5)
hectares awarded and titled in his name as farmer beneficiary.

That when herein respondent and Novelina inquired from the

Department of Agrarian Provincial Office (DARPO) as to why they
were not included as qualified ARBs, they were assured to be qualified
in the remaining reserved 17,000 hectares but it turned out later that
the entire 143.5884 hectares of Pedro S. Carriedo Y. Hijos, Inc. which
was covered by MAR under OLT has been fully distributed.

Later, herein respondent and his family were surprised that the
land they were cultivating since late 1970s until present was
erroneously titled to the plaintiff, who has never been in possession of
the land. Due to illiteracy, herein respondent and Novelina did not do
any action regarding the cancellation of the erroneously titled lot but
continue to cultivate the said area. Attached herewith are the copies of
the Joint-Affidavit of Witness of Lucio Lalisan and Novelina Lalisan
and Affidavit of Witness of Mariapaz D. Cabano as Annexes “2” and
“35”, respectively.

Civil Case No. 18-201-A.Position Paper for the Respondent

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 ISSUES

Respondent humbly and honestly submits that the factual

and/or legal issues to be resolved by the Honorable Court, are the
following:

I. Whether or not the elements of unlawful detainer are

attendant to this case;

II. Whether or not the respondent and all persons claiming

rights under him will be ejected of the subject parcel of
land;

III. Whether or not the plaintiff is entitled to the damages he is

claiming;

IV. Whether or not respondent and all other persons claiming

rights under him have been in actual and continuous
possession of a parcel of land consisting of 11,350 square
meters situated in Barrio Ladol, Alabel, Sarangani
Province described as Lot 77, Bsd-11-000690 (OLT) with
TCT No. (T-4073) T-808 since 1970s until present; and

V. Who was better possession the subject parcel of land

between the plaintiff and respondent.

ARGUMENTS

I. Elements of unlawful detainer are NOT attendant to this

case;

II. Respondent and all persons claiming rights under him

should NOT be ejected to the subject parcel of land;

III. Plaintiff is NOT entitled to the damages he is claiming;

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 IV. Respondent and all persons claiming rights under him
have been in actual and continuous possession of a parcel
of land consisting of 11,350 square meters situated in
Barrio Ladol, Alabel, Sarangani Province described as Lot
77, Bsd-11-000690 (OLT) with TCT No. (T-4073) T-808 since
1970s until present; and

V. Respondent and all the persons claiming rights under him

has the better right to possess the subject parcel of land.

DISCUSSION

I. Elements of unlawful detainer are NOT

attendant to this case

In Cabrera v. Getaruela, G.R. No. 164213, April 21, 2009, the

Court held that a complaint sufficiently alleges a cause of action
for unlawful detainer if it recites the following:

(1) initially, possession of property by the defendant

was by contract with or by tolerance of 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.

In the instant case, the petitioner presents the following

allegations in his complaint in support of his unlawful detainer
complaint:

Civil Case No. 18-201-A.Position Paper for the Respondent

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 “3. In July 1989, plaintiff acquired a parcel of land
consisting of 11,315 square meters situated in the Barrio of
Ladol, Municipality of Alabel, Sarangani Province, described as
Lot 77, Bsd 11-000690 (OLT) with TCT No. (T-4073) T-808, xxx;

4. xxx

5. xxx

6. That out of tolerance, plaintiff allowed the

respondent to stay in the area on condition that should
plaintiff needs it, respondent should immediately leave and
vacate the premises;

7. That however when plaintiff informed and requested

respondent to leave and vacate the land as plaintiff needed it
already, respondent refused to obey;

8. That many times plaintiff asked respondent to leave

and vacate the land, but respondent still refused to obey;
(Emphasis ours)

Based on the foregoing allegations in the Complaint, petitioner

claimed that the respondent’s stay on the subject parcel of land was by
mere tolerance. However, he failed to prove that respondent’s
possession was based on his alleged tolerance. He did not offer any
evidence or even an affidavit attesting as to when and how he
tolerated respondent’s entry and occupation of the subject parcel of
land. A bare allegation of tolerance will not suffice. Plaintiff must, at
least, show overt acts indicative of his permission to occupy the subject
property.

It should be noted that in an action for Unlawful Detainer, it

must be shown that the possession was initially lawful; hence, the basis
of such lawful possession must be established. If the claim is that such
possession is by mere tolerance of the plaintiff, the acts of tolerance
must be proved.

However, in his complaint, the plaintiff only made a general

claim that the defendant possessed the property upon his tolerance
sans factual substantiation.

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 In Jose vs Alfuerto, G.R. No. 169380, November 26, 2012, the
Supreme Court reiterate that,

“The contradictory statements in the complaint are

further deemed suspicious when a complaint is silent
regarding the factual circumstances surrounding the alleged
tolerance. In Ten Forty Realty Corporation v. the complaint
simply stated that: “(1) [defendant] immediately occupied the
subject property after its sale to her, an action merely tolerated
by [the plaintiff]; and (2) [the respondent’s] allegedly illegal
occupation of the premises was by mere tolerance.” The Court
expressed its qualms over these averments of fact as they did
not contain anything substantiating the claim that the
plaintiff tolerated or permitted the occupation of the property
by the defendant.” (Emphasis supplied)

The plaintiff’s evidence inadequately proved their claim that

they have a case of unlawful detainer against the respondent.
Plaintiff’s allegation that he merely allowed the respondent to occupy
the land was not substantiated by any evidence. None of the evidence
of the plaintiff supports his claim that respondent’s possession of the
land is merely by virtue of plaintiff’s tolerance. Plaintiff failed to aver
and show as to how or when he tolerated respondent’s possession of
the subject parcel of land.

Likewise, plaintiff failed to prove that there was a final

demand to vacate the subject parcel of land. Consequently, there was
no contract to speak of, whether expressed or implied, between the
defendant, on one hand, and the plaintiff, on the other that would
qualify the respondent’s possession of the land as a case of unlawful
detainer.

In Spouses Valdez, Jr. vs. CA, 523 Phil. 39 (2006), the Supreme
Court ruled that the failure of the complainants to allege key
jurisdictional facts constitutive of unlawful detainer is fatal and
deprives the MTCC of jurisdiction over the action.

Moreover, it should be noted that the allegations in the

complaint determine both the nature of the action and the
jurisdiction of the court. The complaint must specifically allege the
facts constituting unlawful detainer. In the absence of these

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allegations of facts, an action for unlawful detainer is NOT the
proper remedy and the municipal trial court or the MeTC does not
have jurisdiction over the case.

Further, a case for unlawful detainer must be instituted one year

from the unlawful withholding of possession.

In Gener vs. De Leon, 367 SCRA 631, the Supreme Court ruled
that,

“The one year period within which to bring an action for

forcible entry is reckoned from the date of actual entry to the land.”

In the instant case, the one-year period from the unlawful

withholding of possession cannot be determined as there was no
allegations nor any evidence as to when was the alleged unlawful
withholding of possession of the subject parcel of land took place.

Hence, considering that there were no allegations in the

complaint which indicative of the jurisdiction of this Court, this case
should be dismissed.

II. Defendant and all persons claiming rights

under him should NOT be ejected to
the subject parcel of land

In Reynante vs. CA, GR No. 95907, April 8, 1992, the Supreme Court
ruled that,

“A party who can prove prior possession can recover

such possession even against the owner himself. Whatever may
be the character of his prior possession, if he has in his favor
priority in time, he has the security that entitles him to remain
on the property until he is lawfully ejected by a person having
a better right by accion publiciana or accion reinvindicatoria
(German Management & Services, Inc. vs. CA, GR No. 76216,
September 14, 1989). On the other hand, if a plaintiff cannot
prove prior physical possession, he has no right of action for
forcible entry and detainer even if he should be the owner of
the property (Lizo vs. Carandang 73 Phil 469).”
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 In the instant case, nowhere in the complaint alleges that plaintiff
was in a prior physical possession of the subject property because the
truth and in fact is that plaintiff has never been in possession of the
subject property being occupied by the defendant, and therefore,
cannot be dispossessed of something which he has not possessed
before. It was the defendant and his family who was and has been in
open, continuous, exclusive and notorious possession of the land in
the concept of an owner and never in tolerance by any person.

III. Plaintiff is NOT entitled to the

damages he is claiming

Considering that the plaintiff has no cause of action for a case of

Unlawful Detainer against the defendant, it follows therefore that
plaintiff is not entitled to payment of damages.

In fact, it is the defendant who is entitled to claim damages from

the plaintiff for forcing and threatening them to vacate the subject
parcel of land. The plaintiff even ordered the demolition of the house
of the defendant and his family.

IV. Defendant and all the persons claiming

rights under him has the better right
to possess the subject parcel of land

Petitioner claims that they have better right to possess

considering that the subject parcel of land was titled in his favour.
However, as stated in the defendants Answer and to reiterate, the title
of the subject land which is erroneously issued in the name of the
plaintiff cannot and should never be a reason to oust the people who
have the better right to possess the property being the actual and
exclusive occupant in the concept of an owner, who are the
respondent and his sister as in the instant case. (Emphasis supplied)

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 Instructive on this matter is Carbonilla v. Abiera, G.R. No.
177637, July 26, 2010, which reads thus:
“Without a doubt, the registered owner of real property
is entitled to its possession. However, the owner cannot simply
wrest possession thereof from whoever is in actual occupation
of the property. To recover possession, he must resort to the
proper judicial remedy and, once he chooses what action to
file, he is required to satisfy the conditions necessary for such
action to prosper.

In the present case, petitioner opted to file an ejectment

case against respondents. Ejectment cases forcible entry and
unlawful detainer are summary proceedings designed to
provide expeditious means to protect actual possession or the
right to possession of the property involved. The only question
that the courts resolve in ejectment proceedings is: who is
entitled to the physical possession of the premises, that is, to
the possession de facto and not to the possession de jure. It does
not even matter if a party’s title to the property is
questionable. For this reason, an ejectment case will not
necessarily be decided in favor of one who has presented
proof of ownership of the subject property. Key jurisdictional
facts constitutive of the particular ejectment case filed must be
averred in the complaint and sufficiently proven.”

Therefore, in view of the foregoing, under an action for Unlawful

Detainer, a title as a proof of ownership is not a reason to oust the
lawful occupant of the subject parcel of land since 1970s more so when
the plaintiff even failed to prove his prior possession over the same.
Further, it is crystal clear that plaintiff has no cause of action for an
unlawful detainer case against the defendant and all other persons
claiming rights under him having failed to comply all the elements for
an unlawful detainer case. Hence, in light of this, this Honorable Court
has no jurisdiction over the instant case.

PRAYER

WHEREFORE, premises considered, it is most respectfully

prayed unto this Honorable Court to render judgment in favor of the
defendant and to direct plaintiff to pay defendant for damages.

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 Alabel, Sarangani Province, 15 March 2019.

Respectfully submitted:

PUBLIC ATTORNEY’S OFFICE

Department of Justice
Sarangani District Office
Alabel, Sarangani Province

By:

BAI ALEFHA HANNAH M. MUSA-ABUBACAR

Public Attorney I
Roll of Attorney No. 67366
MCLE Compliance No. VI-0009755
IBP OR No. 098228-01/January/2019
Email Add: hannahalefha20@gmail.com
09090154295
PTR Exempt

Explanation

Service of the foregoing pleading to the counsel for the plaintiff

was made thru registered mail due to distance, manpower and time
constraint.

BAI ALEFHA HANNAH M. MUSA-ABUBACAR

Copy furnished:

FELIPE VICENTE A. VELASCO

Counsel for the plaintiff
Velasco Law Office
Arradaza St. corner Calina St.
Lagao, General Santos City 9500

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