Atty. Michel U.

Ligan
F. Ramas Ext., Poblacion
6002 Lilo-an Cebu

ATTY. JAMES GUPANA

counsel for the Plaintiff Mayol
5 C Ouano St., Centro, Mandaue City
 Republic of the Philippines
MUNICIPAL CIRCUIT TRIAL COURT
CONSOLACION-CORDOVA
7th Judicial Region
Consolacion Cebu

JOSELITO R. MAYOL,
- Plaintif

-versus- Civil Case No.: 678

For: UNLAWFUL
DETAINER with DAMAGES

ILLUMINADA JUDAYA
- Defendant
x------------------------------------------------/

POSITION PAPER
(FOR THE DEFENDANT)

Defendant, through counsel and unto this Honorable Court,

respectfully states, that:

TIMELINESS OF FILING THE POSITION PAPER

On December 17, 2018, counsel for the defendant received a

copy of the Court giving him fifteen (15) days from receipt of said
order, to file the position paper. Defendant has until January 3, 2018
to file the same since January 2, 2018 had been declared a holiday.
The filing of this position paper today is within the period.

FACTS OF THE CASE

In the year 1993, a parcel of land known as Lot 1205 and 1213,
situated in Tayud, Consolacion, Cebu with an area of 2,928 sq. meters
became the subject of a civil case for Annulment of Sale. Plaintiff in
the said case was the late Angelo Mayol, then represented by herein
plaintiff at hand, Joselito Mayol against Sps. Loreto Judaya (deceased)
and Illuminada Judaya, including Nemesia Rivera, mother of plaintiff
Joselito Mayol.

The suit was predicated upon the lack of consent of the husband,
Angelo Mayol to the sale. In May 24, 1990, the RTC Branch 55 of
Mandaue City Cebu which handled the case rendered a decision
declaring the sale made by Nemesia Rivera without her husband’s
consent as null and void. An appeal was made to the Court of
Appeals but the same was denied. The Court of Appeals rendered a
decision affirming in toto the decision of RTC 55, Mandaue City.
Incidentally, an Entry of Judgment was made and on September 2,
2005, the appealed decision became final and executory.

Between 2005 and until 2018, Angelo Mayor and/or herein

plaintiff Joselito Mayol was unable to effect or cause the execution of
the alluded judgment. They were not even able to cause the
cancellation of the tax declaration in the name of the defendants.
Also, when the Mayol’s instituted the suit for Annulment of Sale, they
did not cause the annotation of any LIS PENDENS on the tax
declaration of the defendant. As it was then up to now, the tax
declaration of the defendants remained untouched. It has neither a
notice of lis pendens annotated on it nor the final judgment been
indicated. Attached and marked as Annexes………. Up to …………..
are the tax declarations of the defendant. They are herein attached
in chronological order, specifically starting in the year 1990’s up to the
current one.

To prove their belief that they are owners of the land on which
they had their house, they even took a mortgage over the land, in the
amount of P600,000.00 in the year 1996. Please note that the said
mortgage had been carried over and annotated in the tax declarations
of the defendant. Please see the back portion of their tax declaration.
Unless and until the mortgage is voided by a court with competent
jurisdiction, the mortgage is presumed valid and subsisting.

On with the execution, it is apparent that the victors of the RTC

case was unable to execute as provided for under Rule 39 of the Civil
Procedure which said to wit;
 Xxxxx

Section 6. Execution by motion or by independent

action. – A final and executory judgment or order may be
executed on motion within five (5) years from the date of its
entry. After the lapse of such time, and before it is barred by the
statute of limitations, a judgment may be enforced by action.
The revived judgment may also be enforced by motion within
five (5) years from the date of its entry and thereafter by action
before it is barred by the statute of limitations. (6a)

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It is beyond dispute that from 2005 when the decision became

final and executory, they were not able to execute. In the 2010, which
is five years after the finality of the judgment, they also did not file for
revival of the judgment. Thus, they are now suing for ejectment
because they were unable to avail of the remedies within the metes
and bounds of Rules of Court pertaining to execution of judgment.

On the side of the defendants, their family had been in open,

continuous and notorious possession of the property as early as the
year …………….

The deed of sale between Nemesia Rivera in favor of the Sps.

Judaya was actually belated in its execution. The youngest daughter
of the Judayas had been born and raised within the property now
subject of this unlawful detainer case. In the year 1991 which is the
year the deed of sale was executed, Clare Judaya was already in her
third year high school. In other words, the date indicated in sale did
not reveal the fact that the property was already acquired by the
Judayas even before that. Machine copy of the certificate of live
birth of Claire Judaya is herein attached and marked as Annex ……..

Up to now, she had continued her residence at the very place

where her family resided. Memories of her childhoold are etched in the
humble abode of the Judayas. Blood, sweat and tears had been its
testament. They maintain until now, as they did before, that
whatever they acquired, is legally and rightfully theirs and no one but
no one should take it away from them. They are victims of a
judgment which they feel is wrong, baseless and completely
unjustified. They were not able to testify in court. They were not able
to test the testimony of the Mayol in a full blown trial. Thus, it is a
bitter pill to swallow for her family to accept the decision of the RTC
branch 55 where the Order dated May 24, 1996 reads to wit;

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WHEREFORE, judgment is rendered in favor of plaintiff
Angelo Mayol and against defendants Sps. Loreto Judaya and
Illuminada Judaya, and Nemesia Rivera declaring the Deed of
Absolute Sale dated June 4, 1991 (Exhibit “F”) executed by and
between said defendants as Null and Void; ordering the
reconveyance of the possession and ownership of the subject
land by defendants spouses Judaya to the plaintiff; condemning
defendants jointly and severally to pay to plaintiff attorney’s
fee’s subject of the Exhibit “F”; and litigation expenses in the
amount of P10,000.00; likewise, defendant Nemesia Rivera Mayol
is ordered to reimburse defendants spouses Judaya the amount
of P5,000.00 with legal interest at 12% per annum computed
from the time of the purchase of said land to the time defendant
Mayol can actually pay Sps. Judaya of said purchase price.

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ISSUES INVOLVED

A. Whether or not the defendants has a valid claim of

possession or ownership over the property despite
the decision of RTC 55, Mandaue City?

B. Whether the plaintif is correct in filing a case of

illegal detainer with his failure to allege that initially
the possession of the defendant was lawful and it
became unlawful later;
C. Whether plaintif can claim damages or not against
defendant despite his failure to execute the
judgment;

D. Whether or not the defendant is a buyer in good

faith and a builder in good faith;
 DISCUSSION AND ARGUMENTS TO DISMISS
AND/OR DENY THE COMPLAINT AND/PRAYER OF PLAINTIFF

A. Whether or not the

defendants has a valid
claim of possession or
ownership over the
property despite the
decision of RTC 55,
Mandaue City and
consequently, whether
the judgment can be
executed against them?

Defendants maintain that the decision of RTC branch 55 is wrong,

unlawful, baseless and downright illegal. The alluded decision referred
to Article 96 of the Family Code of the Philippines but the said article
refers to property relations where the property regime is one under
ABSOLUTE COMMUNITY.

Article 96 of the Family Code reads;

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The administration and enjoyment of the community
property shall belong to both spouses jointly. In case of
disagreement, the husband’s decision shall prevail, subject to the
recourse to the court by the wife for proper remedy, which must
be availed of within five years from the date of the contract
implementing such decision.

In the event that one spouse is incapacitated or otherwise

unable to participate in the administration of the common
properties, the other spouse may assume sole powers of
administration. These powers do not include disposition or
encumbrance without authority of the court or the written
consent of the other spouse. In the absence of such authority or
consent, the disposition or encumbrance shall be void.
However, the transaction shall be construed as a continuing offer
on the part of the consenting spouse and the third person, and
may be perfected as a binding contract upon the acceptance by
 the other spouse or authorization by the court before the offer is
withdrawn by either or both spouse. (206a)

Xxxx

It is clear that Article 96 refers to Ownership, Administration,

Enjoyment and Disposition of Community Property. The Mayol spouses
may have been married even before the effectivity of the Family Code.
Thus, they are governed under the old civil code. Essentially
therefore, the property relations that should govern in their marriage
should be CONJUGAL partnership of gains. Defendant’s family are
even under the belief that the portion sold by Nemesia is part and
parcel of her exclusive property, hence no consent is required for her
to dispose a portion of what belongs to her alone.

Secondly, the defendant maintains that the judgment cannot be

executed as to them because to them there is a question on whether
or not their property is part and parcel of the property being litigated
upon. To them, the property is separate and distinct from the one the
plaintiffs are claiming. To be sure and to solve such question, the
court must order a RE-LOCATION survey.

B. Whether the plaintif is

correct in filing a case of illegal
detainer with his failure to
allege that initially the
possession of the defendant
was lawful and it became
unlawful later.

In unlawful detainer cases, it is incumbent upon the plaintiff to

allege that the prior possession had color of authority or legality, but it
turned to be unlawful or illegal thereafter. Verily, the plaintiff must
allege what made the possession illegal. None is being alleged in the
complaint. It did not even allege that the possession of the defendant
was tolerated after the RTC decision became final and executory and
that the tolerance ceased upon demand to vacate. On this matter,
defendant maintains that the instant complaint is dismissible, without
prejudice to re-filing the same for failure to allege how the possession
became illegal, from being legal in the beginning.

C. Whether plaintif can

claim damages or not
against defendant despite
his failure to execute the
judgment?

Plaintiff has no legal basis to claim for damages against

defendant. It is very evident that plaintiff Mayol failed to avail of the
remedies provided for by law within the time frame to execute a
judgment. It is his fault or through his inaction why until now he was
unable to execute. To impose damages against defendants is
tantamount to rubbing salt on an open wound. It was his failure to
execute why he filed a case for unlawful detainer. He should not be
rewarded for his failure.

Let it noted that the Angelo Mayol and/or his representative did
not file a motion to secure a special order as provided for by the Rules
of Court as amended within ten years from the time the decision
became final and executory.

Rule 39, Section 10, paragraph (d) of the Rules of Court provides
to wit; “Removal of Improvements on property subject of
execution. – When the property subject of the execution contains
improvements constructed or planted by the judgment obligor or his
agent, the officer shall not destroy, demolish or remove said
improvements except upon special order of the court, issued upon
motion of the judgment oblige after due hearing and after the former
has failed to remove the same within a reasonable time fixed by the
court. (14a)” (emphasis, ours)

Per Entry of Judgment, the decision of the Court of Appeals

affirming in toto the decision of RTC 55 Mandaue City became final
and executory in the year 2005. Plaintiff herein filed for unlawful
detainer in 2018 which is thirteen (13) years from the date of finality.
That clearly shows plaintiff lost his window of opportunity to secure a
demolition order within the period of ten years from 2005.

D. Whether or not the

defendant is a buyer in good
faith and a builder in good
faith;

Defendant posits that good faith is presumed, thus, bad faith

must be proven by the party alleging the same.

The circumstances involving the parties would reveal that the

Deed of Sale was executed only in the year 1991. But yet, even
before the execution of the instrument, the defendant had already
occupied, possessed and laid claim ownership over the property in
issue. Defendant Judaya bought the property, without the shadow of
the doubt as to its validity and regularity. She is entitled to presume
that upon her purchase, she was in good faith. Article 547 of the
Civil code is clear, “Good faith is always presumed, and upon him who
alleges bad faith on the part of a possessor rests the burden of proof.”

In fact, the tax declaration of the plaintiff which was indicated in

the deed of sale DOES NOT CONTAIN any adverse claim. She had no
reason to suspect or doubt about the sale because they merely
thought that what they were buying was the sole property of Nemesia
Rivera Mayol alone.

While it may be argued that ignorance of the law excuses no one

from compliance thereto, the fact remains that defendant was in
perfect good faith when the sale was consummated. There is no proof
or showing that it was defendant urged or coerced, or cajoled Nemesia
Rivera Mayol into selling and signing the deed of absolute sale without
the consent and participation of Angelo Mayol. In the case of
Macasaet vs. Macasaet1, the Supreme Court declared among others
when there is good faith in the following guise;

Xxxx

From these pronouncements, good faith is identified by

the belief that the land is owned; or that -- by some title -- one
has the right to build, plant, or sow thereon
Xxxx

That is what exactly happened in this case, when the family of

the defendant constructed their residence, they were of the belief that
they had the right to build on the property that they bought. They
bought in perfect good faith that they had acquired a legal, valid claim
over the lot, naturally it created a belief that they are the owners of the
land over which they constructed their house.

Thus, defendant and her family enjoys the protective mantle of

Article 448 of the Civil Code, in relation to Articles 546 and 548

For reference purposes, the said articles are copied verbatim as

follows:

Xxxxx

Article 448. The owner of the land on which anything

has been built, sown or planted in good faith, shall have the
right to appropriate as his own the works, sowing or planting,
after payment of the indemnity provided for in Articles
546 and 548, or to oblige the one who built or planted to
pay the price of the land, and the one who sowed, the
proper rent. However, the builder or planter cannot be
obliged to buy the land if its value is considerably more
than that of the building or trees. In such case, he shall pay
reasonable rent, if the owner of the land does not choose to
appropriate the building or trees after proper indemnity. The
parties shall agree upon the terms of the lease and in case of
disagreement, the court shall fix the terms thereof.

Xxxx

1
G.R. Nos. 154391-92. September 30, 2004
 Article 546 of the Civil Code provides, that: x x x x

“Necessary expenses shall be refunded to every possessor

but only the possessor in good faith may retain the thing until he
has been reimbursed therefor.

Useful expense shall be refunded only to the possessor in

good faith with the same right of retention, the person who has
defeated him in the possession having the option of refunding
the amount of the expenses or of paying the increase in value
which the thing may have acquired by reason thereof. (453a)

Xxxx

Article 548 of the Civil Code reads,

Xxxx
“Expenses for pure luxury or mere pleasure shall not be
refunded to the possessor in good faith; but he may remove the
ornaments with which he has embellished the principal thing if it
suffers no injury thereby, and if his successor in the possession
does not prefer to refund the amount expended. (454)

Xxxxx

In the case of Ignacio vs. Hilario; 76 Phil. 605, the rights and
remedies of the builder in good faith, anent the sole option of the land
owner, had been laid down clearly;

Xxxxx

“Accordingly, and pursuant to Article 448 in relation to Art.

546 of the Civil Code, plaintiff-appellee has the sole option or
choice, either to appropriate the building, upon payment of
proper indemnity consonant to Art. 546 or compel the
appellants to purchase the land whereon the building was
erected. Until such time that plaintiff-appellee has elected an
option or choice,
it has no right of removal or demolition against
appellants unless after having selected a compulsory
sale, appellants fail to pay for the land. (emphasis, ours)

Xxxx

On that note, the compulsory sale is conditioned upon the price

of the land because the builder in good faith, cannot be forced to buy
the land if the value of the land, is considerably more than that of the
building or trees.
 More importantly, the landowner, plaintiff in this case HAS NO
RIGHT OF REMOVAL OR DEMOLITION against defendant unless
he opted for a compulsory sale for his land, where the value of land is
NOT higher than the value of the building.

In this present case, the land is clearly more valuable than the
building. The land itself is situated in Tayud, Consolacion Cebu. Its
location alone commands a higher price. As of late, the market value
of real estate within Tayud, Consolacion is estimated to at least
P7,500.00 per square meter, up to as high as P20,000.00 per square
meter. Secondly, the house or improvements built the defendants
family over the lot is NOT more than one million pesos. Machine copy
of the pictures of the house is herein attached and marked as
Annexes……… to …………

Thus, the landowner, or plaintiff in this instance cannot compel

the defendant to pay for the land. The only option left for the plaintiff
is to the re-imburse the defendant in consonance of the case of
LUCIANO BRIONES and NELLY BRIONES, vs. JOSE MACABAGDAL,
FE D. MACABAGDAL and VERGON REALTY INVESTMENTS
CORPORATION, G.R. No. 150666, where the High Court said to wit:

Xxxx

Consequently, the respondent-spouses have the option to

appropriate the house on the subject land after payment to
petitioners of the appropriate indemnity or to oblige petitioners
to pay the price of the land, unless its value is considerably
more than the value of the structures, in which case petitioners
shall pay reasonable rent. In accordance with Depra v.
Dumlao , this case must be remanded to the RTC which shall
2

conduct the appropriate proceedings to assess the respective

values of the improvement and of the land, as well as the
amounts of reasonable rentals and indemnity, fix the terms of
the lease if the parties so agree, and to determine other matters
necessary for the proper application of Article 448, in relation to
Articles 546 and 548, of the Civil Code.

Xxxx

2
G.R. NO. L-57348, 1985
 And for emphatic reasons, the principle in the Depra case is
succinctly clear;

Xxxx

Additional benefits were extended to the builder but the

landowner retained his options.

The fairness of the rules in Article 448 has also been

explained as follows:

"Where the builder, planter or sower has acted in good

faith, a conflict of rights arises between the owners, and it
becomes necessary to protect the owner of the
improvements without causing injustice to the owner of
the land. In view of the impracticability of creating a state of
forced co-ownership, the law has provided a just solution by
giving the owner of the land the option to acquire the
improvements after payment of the proper indemnity, or to
oblige the builder or planter to pay for the land and the
sower to pay for the proper rent. It is the owner of the land who
is authorized to exercise the option, because his right is older,
and because, by the principle of accession, he is entitled to the
ownership of the accessory thing. (Manresa 213; Bernardo vs.
Bataclan, 37 Off. Gaz. 1382; Co Tao vs. Chan Chico, G.R. No.
49167, April 30, 1949; Article applied: see Cabral, et al vs. Ibañez
[S.C.] 52 Off. Gaz. 217; Marfori vs. Velasco, [C.A.] 52 Off. Gaz.
2050)."

Xxxx

As to the property taxes paid for the Judayas,

Article 2175 is controlling, “any person who is constrained to pay for
taxes of another shall be entitled to reimbursement from the latter.”
Attached and marked as Annexes ……….. up ………… are machine
copies of the tax receipt and/or clearances paid by the Judaya
family over the property.

All told, the defendant is entitled to the protection espoused by

law and jurisprudence. Giving her family less than what they
deserved would be tantamount to deprivation of property without due
process and just compensation. That would be infringement of her
rights, constitutional, substantial and procedural. This should not be
allowed.

PRAYER

WHEREFORE, premises considered, defendant prays that a

ruling be issued by Court, declaring among others;

a.) Dismissal of the instant complaint for failure to allege that

prior possession was legal and turned illegal

In the alternative, if the court chooses to proceed with the case,

it is prayed if not begged of this Honoable Court to issue an order
declaring as follows:

b.) The need of relocation survey to determine whether or not the

land in issue is part and parcel of land claimed by the plaintiff
c.) To conduct an ocular inspection at the area to see first-hand
the value of the improvements, vis-à-vis, the value of the land
d.) To declare that the defendant is a buyer in good faith and
builder in good faith, entitled and protected by Article 448 in
relation to Article 546 and 548 and jurisprudence

OTHER RELIEF AND REMEDIES CONSISTENT WITH LAW AND

EQUITY ARE LIKEWISE PRAYED FOR.

Lilo-an Cebu, for Consolacion, Cebu, Philippines.

Most respectfully submitted. December 21 2018.

MICHEL U. LIGAN
Counsel for the Defendant
F. Ramas Ext., Poblacion, Lilo-an Cebu
I.B.P. NO. 1062986/ *1-4-18 * / Cebu Chapter
P.T.R. No. 16925030/ *1-4-18* / Lilo-an, Cebu
 ROLL OF ATTORNEY’S NO.: 50000
MCLE V Compliance Number: 005395/ 1-15-15

Copy Furnished:

ATTY. JAMES GUPANA

Counsel for the plaintiff
5 C Ouano St., Centro, Mandaue City Cebu

Explanation: By registered mail due to distance and lack of personnel

to serve the same personally.

Michel U. Ligan