memo123456

Topics: Pleading, Plaintiff, Defendant Pages: 5 (1043 words) Published: October 22, 2013
Republic of the Philippines
MUNICIPAL TRIAL COURT
8th Judicial Region

FERNANDO PO CIVIL CASE NO. 06
Plaintiff, For: FORCIBLE ENTRY with damages.
-versus-
Spouses : Dingdong Dante and Marian Dante
Defendants.
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MEMORANDUM

Defendant, thru Counsel and unto this Honorable Court, respectfully submits this memorandum.

I. Facts of the Case

1. On August 16,2013 Mr. Fernando Po thru his Counsel, Atty.Sonia S. Quiero filed Case No. 06 for Unlawful Detainer with damages against the defendants, spouses, Dingdong Dante and Marian Dante.

2. The plaintiff alleged that he is the absolute owner and registered owner of the remaining portion of Cad. Lot. 3642 at Brgy. Sawang, Tunga Leyte.

3. That the defendants are occupying said portion of the property by tolerance and are not paying rental, whatsoever, nor is there any contract/agreement, either written or otherwise, with the understanding that they will vacate the premises upon demand.

II. Issue of the Case

WHETHER OR NOT THE COMPLAINT IS SUFFECIENT TO WARRANT EJECTMENT AS A PROPER REMEDY OF THE PLAINTIFF?

III. Discussion/Arguments

An unlawful detainer may be filed in the proper Municipal Trial Court within one year after such unlawful deprivation or withholding of possession. To vest the Municipal Trial Court with jurisdiction to effect the ejectment of the occupant of the land in action for unlawful detainer, the complainant should embody such allegations clearly, showing facts constitutive of unlawful detainer as this proceeding is summary in nature. When the complainant fails to aver such facts, an action for forcible entry is not a proper remedy and thus, the Regional Trial Court has no jurisdiction over the case.1 In this case filed by Mr. Fernando Po, it did not alleged that he was deprived of possession of the disputed portion by force, intimidation, threat, strategy or stealth. It did not also state that they withhold possession of the disputed portions after expiration and termination of the right to hold possession of the same by virtue of an express or implied contract which is not properly established by the plaintiff's allegation as this was denied by the defendants. On the other hand, the complainant did not alleged facts showing compliance with the prescribed period of one year to file an action for forcible entry. It has not satisfied stating the material dates that would have established that it was filed within one year from the date of last demand upon to vacate the disputed portion of the land. Suffice it to say that allegations of the plaintiff was inconsistent when he allegedly mentioned that the Lupon Chairman issued a certificate to file action dated July 20, 2010 and the civil action was filed on August 2013 which is beyond the one (1) year prescriptive period for filing a forcible entry suit. Further, it appears from the allegation of the plaintiff that defendants were already in possession of the disputed portion. Clearly, the possession over the disputed portion is not subject to expiration or termination. At no point it can be said that spouses, Dingdong Dante and Marian Dante's possession of the disputed portion ceased to be legal and became unlawful withholding of the property from Mr. Fernando Po. In Ong vs Parel, a principle was laid down as follows: "If private respondent is indeed the owner of the premises subject of the suit, and he was unlawfully deprived of the real right of remedies of ownership thereof, he should present his claim before the Regional Trial Court in an accion publiciana or an action reinvindicatoria and not before the Municipal Trial Court in a summary proceeding of forcible entry. For even if one is the owner of the proper, the possession thereof cannot be vested from another who had been in the physical or material possession of the same for more than one (1) year by resorting to a summary action for ejectment. This is...
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