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Republic of the Philippines

COURT OF APPEALS
Cagayan de Oro City

Hrs. of Sps. Solomon P. CA-G.R. CR No. 04577

Fernando and Candelaria S.
Falcasantos, rep. by Domingo F. RTC BRANCH: 13-
Fernando, Heirs of Rosario S. ZAMBOANGA CITY
Falcasantos, rep. by Trinidad F.
Ibaez, Heirs of Tecla S. RTC CASE NO: 1190-4583
Falcasantos, rep. by Cesar B.
Bazan, Heirs of Segundo S. RE: Nullification/Cancellation
Falcasantos, rep. by Modesto F. of Deeds of Sale, Transfer
Nicolas and Heirs of Rafael S. Certificate of Title Covering Lot
Falcasantos, rep. by Camila F. No. 2088 & 2180, ETC.
Fernando
Plaintiff-Appellee/s,

-versus-

Miguel S. Sotto, Sps. Rosario

Carmencita A. Sotto and Melgrio
Calantas, Heirs of Francisco
Falcasantos and Sps. Doracion
Tigmo and Ernesto Tigmo
Defendants-Appellants
X----------------------------------------------X

DEFENDANTS-APPELLANTS APPEAL BRIEF

Submitted by:

GIAN PAOLO U. ENRIQUEZ

Counsel for Defendants-Appellants
Enriquez Capin and Gaugano Law Offices
2nd Floor, LDM Building, Pilar Street
Zamboanga City, Philippines
PTR No. 1402788 1/04/17
IBP No. 755895 1/3/17
at Zamboanga City
Roll No. 49871-05/02/05
MCLE Compliance No. III- 0012187-04/13/10
MCLE Compliance No. IV- 0000617-05/11/10
MCLE Compliance No. V- 0002658- 06/19/14
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SUBJECT INDEX

Page No. Contents

3 Decision Appealed
4 Statement of the Case
5 Statement of Facts
6 Statement of Issues
7 Discussion
10 Prayer

Cases cited:

Republic of the Philippines vs. East Silverlane Realty Development

Corporation, G.R. No. 186961, February 20, 2012.
Paterno v. Court of Appeals, 339 Phil. 154, 160-161 (1997), as cited in
VIEGELY SAMELO vs. MANOTOK SERVICES, INC., G.R. No. 170509,
June 27, 2012.
Lotte Phil. Co., Inc. v. Dela Cruz, G.R. No. 166302, July 28, 2005, 464
SCRA, 591.
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Republic of the Philippines

COURT OF APPEALS
Cagayan de Oro City

HEIRS OF JOSE PACLIBAR, CA-G.R. CR No. 04441

NAMELY: LUCILA P PACLIBAR,
JORGE P. PACLIBAR, ANTONIO RTC BRANCH: 2-ISABELA
P. PACLIBAR, JULIANA P. CITY, BASILAN
LACHICA, GERARDO P. RTC CASE NO. 981-298
PACLIBAR, BRIGIDA P. TEO,
GINES P. PACLIBAR, MARILOU RE: RECOVERY OF
P. GLANG AND DANIEL P. POSSESSION OF REAL
PACLIBAR; REPRESENTED BY PROPERTY COVERED BY
THEIR CO-PLAINTIFF AND KATIBAYAN NG ORIHINAL NA
JOINT ATTORNEY-IN-FACT, TITULO BLG. P-8364 WITH
JULIANA P. LACHICA DAMAGES
Plaintiff-Appellee/s,

-versus-

ADORACION CARVAJAL,
Defendant-Appellant
X-------------------------------------------------X

APPEAL MEMORANDUM FOR DEFENDANT-APPELLANT

COMES NOW, Defendant-Appellant ADORACION P.

CARVAJAL and unto this Honorable Court most respectfully submits
this Appeal Memorandum and states that:

DECISION APPEALED

1. This is an Appeal of the Decision of the Regional Trial Court

of Basilan,Branch 2,Isabela City, Basilan, the dispositive
portion of which is hereunder stated as follows, to wit:

WHEREFORE, in view of the foregoing, the

court resolves in favor of Plaintiffs, ordering
Defendant:

1. To deliver to the possession of the Plaintiffs

the real property subject of this suit within
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fifteen (15) days from receipt of this

decision;

2. To indemnify Plaintiffs the sum of ONE

HUNDRED THOUSAND (P100, 000.00)
PESOS, representing damages from lost
income;

3. To indemnify Plaintiffs the sum of TWENTY

THOUSAND (P20, 000.00) PESOS as
exemplary damages; and

4. To reimburse Plaintiffs the sum of THIRTY

THOUSAND (P30, 000.00) PESOS as
Attorneys Fees.
.

SO ORDERED.

Given this11th day of April 2016 at Isabela City,

Basilan.

(SGD.)
DANILO M. BUCOY
Presiding Judge

A copy of the Decision appealed from consisting of six

(6) pages is herein attached to this Brief as Annex 1;

STATEMENT OF THE CASE

1. On 11 April 2016, the Regional Trial Court of Basilan, Branch

02, Isabela City, Basilan, issued a Decision ordering the
Defendant-Appellant to deliver possession of the Plaintiffs-
Appellees the real property subject of this suit, indemnify
Plaintiffs-Appellees the sum of ONE HUNDRED THOUSAND
PESOS (P 100,000.00) Philippine Currency, the sum of
TWENY THOUSAND PESOS (P20, 000.00) Philippine
Currency, as exemplary damages and reimburse Plaintiffs-
Appellees the sum of THIRTY THOUSAND PESOS (P 30,
000.00) Philippine Currency, as Attorneys Fees;

2. Last 06 May 2016, the Defendant-Appellant filed a Motion for

Reconsideration seeking reconsideration on the above-
mentioned Decision. A copy of Motion for Reconsideration is
hereto attached asAnnex 2 and forming an integral part
hereof;
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3. However, last 01 June 2016 issued an Order denying the

above-mentioned Motion for Reconsideration. A copy of the
order is hereto attached as Annex 3;

4. Defendant-Appellant appealed the aforesaid Decision through a

Notice of Appeal filed on 04 July 2016 before the Regional Trial
Court of Basilan, Branch 02, Isabela City, Basilan;

5. On 16November 2016, the Accused-Appellant through counsel

received the letter dated 14October 2016 of this Honorable
Court requiring the herein Defendant-Appellant to submit her
Appellants Brief within forty five (45) days from the notice
thereof;

6. However, due to the holidays and heavy workloads of counsel,

the said notice of the Honorable Court was inadvertently
overlooked from the records, thus, the Defendant-Appellant and
counsel respectfully prayed of this Honorable Court to please
admit this Appellants Brief;

STATEMENT OF THE FACTS

7. On 28 July 2011, the Plaintiffs-Appellees filed their Complaint

for Recovery of Possession of Real Property covered by
KatibayanngOrihinal Na TituloBlg. P-8364 with Damages before
the Municipal Trial Court in Cities, Isabela City, Basilan
docketed as Civil Case No. 138 which was dismissed without
prejudice for lack of jurisdiction;

8. On 18 April 2012, Plaintiffs-Appellees refiled the said case

before the Regional Trial Court of Basilan and docketed as civil
case no. 981-298. They alleged in their Complaint that they are
the heirs of JOSE PACLIBAR and they sought to recover
possession of the land from the Defendant-Appellant
considering that they alleged that the subject property where
Defendant-Appellant occupies is registered under the name of
their father JOSE PACLIBAR and the latter had entered into a
Lease Agreement with DR. RICARDO FULGENCIO which
agreement has long expired;

9. The Defendant-Appellant in her Answer contended that the

subject property is owned and registered under the name of
ALON DE JAMCO since the 1962 per Tax Declaration No. 213-
001-05903. She also alleged in her Answer that she was made
as the Administratrix of the subject property. Defendant-
Appellant further alleged in her Answer that she was able to
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occupy the subject property through the kindness of CORAZON

FULGENCIO-KUA, who is the daughter of ALON DE JAMCO
married to RICARDO FULGENCIO and it was also alleged that
she has nothing to do with the Lease Agreement alleged by
Plaintiffs for she is not a privy to the said contract nor occupied
the subject leased area as the description of the area involved
in the said Lease Contract was declared under the name of the
late JOSE A. PACLIBAR under Tax Declaration No. 7362;
10. During the trial of this case, Plaintiff-Appellee, JULIANA P.
LACHICA who is claimed to be one of the heirs of JOSE
PACLIBAR and the Attorney-In-Fact of her Co-Plaintiffs-
Appelleestestified through her Judicial Affidavit before the trial
courtand stated that the subject property was acquired by the
late JOSE PACLIBAR in 1940s where he constructed a house.
It was also testified that sometime in 1966, JOSE PACLIBAR
transferred his family to Barangay Eastside, Isabela City,
Basilan and leased the said house to DR. RICARDO
FULGENCIO. Thereafter, when DR. FULGENCIO transferred
residence to Manila, he left the house and the lot to the care of
his Son-in-Law KUA SEBENG and daughter CORAZON
FULGENCIO-KUA. Thereafter, when KUA SEBENG and
CORAZON FULGENCIO-KUA transferred residence to Cebu
City, the property was left to the care of MRS. ERA BURGOS-
VALENCIA, who later accommodated the Defendant-Appellant
as caretaker of the house. Further, it was also testified that on
08 March 2005, Plaintiffs-Appellees sought to recover
possession of the house and the lot from the Defendant-
Appellant;

11. The Defendant-Appellant was able to testify through her

Judicial Affidavit that she is presently in possession of that
particular lot identified as Lot No. 004, Block No. 05 located at
N. Valderosa Street, Isabela City, Basilan which is adjacent to
that lot owned by Plaintiffs-Appellees. She also testified that
she was appointed as administratrix of the subject property
owned by ALON DE JAMCO and her occupancy and/or
possession thereof was by virtue of the tolerance given by
ALON DE JAMCO. Further, she also testified that she was not
made a privy in any contract pertaining to the occupancy of the
subject property;

STATEMENT OF ISSUES
I.

WHETHER OR NOT THE COURT A QUO GRAVELY ERRED

IN NOTGIVING CREDENCE THE TESTIMONY OF THE
DEFENDANT-APPELLANT AND THE PIECES OF EVIDENCE
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SHE PRESENTED TO PROVE HER RIGHT OF POSSESSION

OVER THE SUBJECT PROPERTY?
II.

WHETHER OR NOT THE COURT A QUO GRAVELY ERRED

IN FINDING DEFENDANT-APPELANTS CLAIM TO BE
UNSUPPORTED OR UNFOUNDED AS REGARDS TO THE
CLAIM THAT THE COMPLAINT IS DISMISSIBLE FOR
FAILURE TO IMPLEAD INDISPENSABLE PARTIES?

ARGUMENT/DISCUSSION

AS TO THE FIRST ISSUE:

THE COURT A QUO GRAVELY ERRED IN NOT GIVING

CREDENCE THE TESTIMONY OF THE DEFENDANT-
APPELLANT AND THE PIECES OF EVIDENCE SHE
PRESENTED TO PROVE HER RIGHT OF POSSESSION
OVER THE SUBJECT PROPERTY.

12. Based on the facts and circumstances, it is submitted that the

court a quo gravely erred in not giving credence the testimony
of the Defendant-Appellant and the pieces of evidence she
presented to prove her right of possession over the subject
property;

13. The Defendant-Appellant was able to testify that the subject

property is owned by ALON DE JAMCO and she was able to
present a Tax Declaration No. 213-001-058903 to that effect
and she also testified that she was appointed by CORAZON
FULGENCIO who is the daughter of ALON DE JAMCO as their
administratrix with the consent of the latter. It is submitted that
the Defendant-Appellant derived her right of possession over
the subject property from the owner and former possessor of
the said property and she maintained in her testimony that she
will only vacate the property if CORAZON FULGENCIO will ask
her to do so;

14. It is a settled rule that albeit tax declarations and realty tax
payment of property are not conclusive evidence of ownership,
nevertheless, they are good indicia of the possession in the
concept of owner for no one in his right mind would be paying
taxes for a property that is not in his actual or at least
constructive possession. They constitute at least proof that the
holder has a claim of title over the property. The voluntary
declaration of a piece of property for taxation purposes
manifests not only ones sincere and honest desire to obtain title
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to the property and announces his adverse claim against the

State and all other interested parties, but also the intention to
contribute needed revenues to the Government. Such an act
strengthens ones bona fide claim of acquisition of ownership.1
It is submitted that in the instant case , although the Tax
Declaration does not establish ownership of the Defendant-
Appellant over the subject property, however, it establishes
prior lawful possession;

15. The Plaintiffs-Appellees through their Attorney-in-Fact JULIANA

P. LACHICAtestified that their father, the late JOSE PACLIBAR
entered into a Lease Agreement with DR. RICARDO
FULGENCIO pertaining to the subject property and it was
already long expired and said Lease Agreement was presented
for that purpose;

16. It is submitted thatassuming without admitting that said Lease

Contract was expired, the fact that the possession of the
Defendant-Appellant of the subject property remained
uninterrupted over a long period of time notwithstanding
expiration of the said contract is a clear indicia that the
agreement was impliedly renewed or revived between the
parties under the principle of implied lease under Article 1670 of
the New Civil Code,which expressly provides:

Article 1670. If at the end of the contract the

lessee should continue enjoying the thing leased for
fifteen days with the acquiescence of the lessor,
and unless a notice to the contrary by either party
has previously been given, it is understood
that there is an implied new lease, not for the period
of the original contract, but for the time established
in Articles 1682 and 1687. The other terms of the
original contract shall be revived.

17. An implied new lease or tacitareconduccion will set in when the

following requisites are found to exist: a) the term of the original
contract of lease has expired; b) the lessor has not given the
lessee a notice to vacate; and c) the lessee continued enjoying
the thing leased for fifteen days with the acquiescence of the
lessor.2

18. Thus, in view of the foregoing provision, it is submitted that the

allegation of the Plaintiff regarding the expiration of the lease
contract is unfounded and unsupported by evidence, thus,

,
1Republic of the Philippines vs. East Silverlane Realty Development Corporation G.R. No. 186961, February 20, 2012.
2Paterno v. Court of Appeals, 339 Phil. 154, 160-161 (1997),as cited in VIEGELY SAMELO vs. MANOTOK SERVICES,
INC., G.R. No. 170509, June 27, 2012.
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Defendant-Appellant still has a better right of possession over

the subject property;

19. The Defendant was able to present the Treasurers Real

Property Tax Receipt No. 9817975, 9818025, 8817436 to
support her allegation that CORAZON FULGENCIO who is the
daughter of the true and lawful owner of the subject property,
ALON DE JAMCO, appointed her as administratrix as the same
being presented not for the purpose to claim ownership but
lawful authority to occupy the subject property;

AS TO THE SECOND ISSUE:

THE COURT A QUO GRAVELY ERRED IN FINDING

DEFENDANT-APPELANTS CLAIM TO BE UNSUPPORTED
OR UNFOUNDED AS REGARDS TO THE CLAIM THAT THE
COMPLAINT IS DISMISSIBLE FOR FAILURE TO IMPLEAD
INDISPENSABLE PARTIES.

20. Based on the facts and circumstances it is submitted that the

court a quo gravely erred in finding that Defendant-Appellants
claim as regards to the claim that the Complaint is dismissible
for failure to implead indispensable parties, to be unsupported
or unfounded;

21. During the trial of this case, it was testified by the Defendant-
Appellant that she believed that reckoned from the time she
occupies the subject property, she has a valid authority to
administer the same as she was appointed by CORAZON KUA
who is the daughter of ALON DE JAMCO who is the true and
lawful owner of the subject property based on the evidence
presented by the Defendant-Appellant such as Tax Declaration
and Real Property Tax Receipt. It was also testified by the
Plaintiffs that their father, the late JOSE PACLIBAR entered
into a Lease Agreement with DR. RICARDO FULGENCIO who
is the father of CORAZON FULGENCIO-KUA pertaining to the
subject property and it was already long expired and said Lease
Agreement was presented for that purpose, thus, in view of the
foregoing, CORAZON FULGENCIO KUA is an indispensable
party and without whom no final determination can be had in
the above-entitled case;

22. An indispensable party is a party-in-interest without whom no

final determination can be had of an action, and who shall be
joined either as plaintiffs or defendants. The joinder of
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indispensable parties is mandatory. The presence of

indispensable parties is necessary to vest the court with
jurisdiction, which is the authority to hear and determine a
cause, the right to act in a case. Thus, without the presence of
indispensable parties to a suit or proceeding, judgment of a
court cannot attain real finality.3 The absence of an
indispensable party renders all subsequent actions of the court
null and void for want of authority to act, not only as to the
absent parties but even as to those present.4

PRAYER

WHEREFORE, it is most respectfully prayed of this Honorable

Court that the Decision of the Regional Trial Court of Basilan, Branch
02, Isabela City, Basilan,11April 2016 be reversed and set aside.

Defendant-Appellant prays for such other reliefs as may be just

and equitable under the premises.

City of Zamboanga for Cagayan de Oro City, Philippines, ___

February 2017.

GIAN PAOLO U. ENRIQUEZ

Counsel for Defendant-Appellant
ENRIQUEZ CAPIN and GAUGANO LAW OFFICES
2nd Floor, LDM Bldg., Pilar St., Zamboanga City
PTR No. 1402788 1/04/17
IBP No. 755895 1/3/17
at Zamboanga City
Roll No. 49871-05/02/05
MCLE Compliance No. III- 0012187-04/13/10
MCLE Compliance No. IV- 0000617-05/11/10
MCLE Compliance No. V- 0002658- 06/19/14
Emailaddress:enriquez.capin.gaugano.law@gmail.com
Telephone Number: (062) 990-1412

3Lotte Phil. Co., Inc. v. Dela Cruz, G.R. No. 166302, July 28, 2005, 464 SCRA, 591.
4Id. at 595-596.
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Republic of the Philippines)

City of Zamboanga )s.s.
X---------------------------------X

VERIFICATION/CERTIFICATION

I, ADORACION P. CARVAJAL, of legal age, married, Filipino

citizen and a resident of N. Valderosa Street, Isabela City, Basilan,
Philippines, after having been duly sworn to in accordance with law,
hereby depose and say that:

1. I am the Defendant-Appellant in the above-entitled case;

2. I have caused the preparation of the foregoing Appellants

Brief;
3. I have read and understood the contents thereof and the
same are true and correct based on personal knowledge and
authentic records;

4. I have not commenced any action or proceeding involving

the same issue in the Supreme Court, Court of Appeals or
any division thereof or any agency or tribunal and that if I
should learn that a similar action or proceeding has been
filed or pending before the Supreme Court, Court of Appeals
or any division thereof or any agency or tribunal, I shall
undertake to inform this Honorable Court within five (5) days
from notice.

IN WITNESS WHEREOF, I have hereunto set my hand on this

____ day of February 2017 in the City of Zamboanga, Philippines.

ADORACION P. CARVAJAL
Affiant
SUBSCRIBED AND SWORN to before me this ____ day of
February 2017 in the City of Zamboanga, Philippines.

Doc No. ___

Page No.___
Book No.___
Series of2017

Copy furnished:

Office of the Solicitor General

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Amorsolo St., Legaspi Village,

Makati City

The Clerk of Court

Regional Trial Court of Basilan, Branch 02
Isabela City, Basilan

Atty. Arnulfo H. Manigos

Counsel for Plaintiffs/Appellees
Strong Boulevard,
Isabela City, Basilan
Republic of the Philippines)
City of Zamboanga )s.s.
X--------------------------------X

AFFIDAVIT OF SERVICE

I, ROMEO B. VASQUEZ,JR. of legal age, single, Filipino

citizen and a resident of Guiwan, Zamboanga City, Philippines, after
having been duly sworn in accordance with law, hereby depose and
say, that:

1. I am a member of the legal staff of Enriquez CapinGaugano

and Associates law offices, with office address located at, 2nd
Floor, LDM Building, Pilar Street, Zamboanga City;
2. In my aforementioned capacity, I have served a copy of the
APPELLANTS BRIEF in the offices mentioned below:

1.) The Solicitor General

Office of the Solicitor General
134 Amorsolo St., Legaspi Village
Makati City, Philippines.
2.) The Clerk of Court
Regional Trial Court of Basilan, Branch 02
Isabela City, Basilan
3. Atty. Arnulfo H. Manigos
Counsel for Plaintiffs/Appellees
Strong Boulevard,
Isabela City, Basilan
4. The substituted service of the said APPELLANTS BRIEF was
made with the instruction to the postmaster to return the said
mail to the sender if unserved within ten (10) days therein from
delivery;
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5. I execute this Affidavit to attest to the truth of the foregoing facts

based on personal knowledge for whatever legal purpose it
may serve.

IN WITNESS WHEREOF, I have hereunto set my hand on this

___day of February 2017 at Zamboanga City, Philippines.

ROMEO B. VASQUEZ, JR.

Affiant

SUBSCRIBED AND SWORN to before me __ day of February

2017 at Zamboanga City, Philippines. Affiant exhibited to me his
above-written competent proof of identity.

Doc. No.__
Page No.__
Book No. __
Series of 2017

EXPLANATION

It is respectfully manifested that the foregoing Appellants Brief

is being filed and served via registered mail with return card due to
distance.

GIAN PAOLO U. ENRIQUEZ