ORIGINAL COPY

Republic of the Philippines

COURT OF APPEALS
Manila

CA G.R. No. CV- 103117

(Civil Case No. 61352)
(RTC-Branch 218, Quezon City)

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ANTONIO P. AVANTE
Plaintiff-Appellee ,

-versus-

LEONITO COMISO ET. AL.,

Defendant- Appellants.
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BRIEF FOR THE APPELLEE

With
NOTICE OF CHANGE OF ADDRESS
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ALFEROS ARMAS & ASSOCIATES

Law Office
Unit K, No. 1143 San Francisco Del Monte Avenue
Barangay Paltok 1105, Quezon City
By:

JOHN THOMAS S. ALFEROS III

PTR No. 9152528; 01.14.14 Q.C.
IBP No. 926023; 01.14.14; Q.C.
Roll No. 48188; Page No. 138; Book no. XX
MCLE Compliance No. IV-0018398; 04.13.13
Mobile No. 0918-9390566
jtsalferosiiilaw@yahoo.com
 INDEX

Pages

COVER PAGE 1

INDEX 2

NOTICE OF CHANGE OF ADDRESS 3

PARTIES 4

STATEMENT OF THE CASE 4

STATEMENT OF THE FACTS 5-6

COUNTER STATEMENT OF FACTS 6

ISSUES 6

ARGUMENTS 7-11

RELIEF 11-12

Laws and Authorities in Support of Appellees Brief:

Civil Code of the Philippines

Revised Rules of Court
Regalado, Remedial Law Compendium, Volume 1, 6th Revised Edition

Cases cited:

Madrid vs. Mapoy, 596 SCRA 14

Padilla vs. Velasco, 576 SCRA 219
Beltran vs. Nieves, 634 SCRA 242
Monasterio-Pe vs. Tong 646 SCRA 161
Ramos-Balalio vs. Ramos 479 SCRA 533
Gonzaga vs CA 546 SCRA 532
Urieta Vda. De Aguilar vs Alfaro, 632 SCRA 130
Zosa vs. Estrella, 572 SCRA 428
Tio vs. Abayata, 556 SCRA 175
Angeles vs. Pascual, 658 SCRA 23
Construction Development Corporation of the Philippines vs. Estrella,
501 SCRA 228

REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
 MANILA

ANTONIO P. AVANTE,
Plaintiff-Appellee ,

-versus- CA G.R. No. CV- 103117

LEONITO COMISO ET. AL.,

Defendant- Appellants.
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NOTICE OF CHANGE OF ADDRESS

Please take notice that the undersigned counsel for the Accused-
Appellants has transferred his office to a new address, to wit:

ALFEROS ARMAS & ASSOCIATES

Law Office
Unit K, No. 1143 San Francisco Del Monte Avenue
Barangay Paltok 1105, Quezon City

Henceforth, it is respectfully requested that all resolutions, orders,

or any other court processes, pleadings letters/communications and
such other documents intended to be given to the undersigned counsel
be forwarded and sent to the above-stated address.

BRIEF FOR THE PLAINTIFF-APPELLEE

 Plaintiff-Appellee, by counsel to this Honorable Court most
respectfully presents their brief:

THE PARTIES

Plaintiff-Appellee, Antonio P. Avante substituted by Joel C. Avante

is of legal age, Filipino Citizen and resident of No. 1277 Estrada St.,
Malate Manila. Plaintiff-Appellee is being represented by ALFEROS
ARMAS & ASSOCIATES, now with office address at Unit K, No. 1143
San Francisco Del Monte Avenue, Barangay Paltok 1105,
Quezon City.

Defendants-Appellants, Leonita Comiso, Marilyn Solibaga

and Rosalina Bahia are all of legal age, Filipino Citizen and as claimed
in the Defendants-Appellants brief residents of 133 Daisy St., Pangkian
III, Barangay Pasong Tamo, Quezon City.

I. STATEMENT OF THE CASE

The instant appealed case arose from the decision of the Regional
Trial Court Branch 218, Quezon City, dated May 06, 2014 to wit:

WHEREFORE, in view of the foregoing a judgment is

hereby rendered:

1. ORDERING the defendants and all the persons claiming

rights thereto to vacate the premises located at Myrnas
Subdivision, Pingkian 3, Barangay Pasong Tamo, Quezon
City, evidenced by TCT No. RT-127108 and LRC-Psd31346
and restore the same to the plaintiffs and to remove the
structure built thereon;

2. ORDERING the Defendant to pay plaintiff sum of Php

2,000 as reasonable rental for the use and occupation of the
premises beginning from the filing of this complaint until
they vacate the premises;

3. ORDERING the defendants to pay the plaintiff the

amount of TWENTY THOUSAND PESOS (Php 20,000) as
attorneys fees and costs of suit.

II. STATEMENT OF FACTS

This is a case of Accion Publiciana, filed by the Plaintiff-Appellee,

Antonio P. Avante, before the RTC dated October 22, 2007, to recover
possession from the Defendants-Appellants Leonito Comiso et,al. of a
real property situated at Myrna Subdivision, Pingkian Village 3, Zone 3
Brgy. Pasong Tamo, Quezon City, covered by Transfer Certificate Title
No. RT-127108 (140252) of the Registry of Deeds of Quezon City.

Plaintiff-Appellee is the registered owner of a parcel of residential

land identified as Lot 35 of the subdivision plan LRC-Psd 31346, being a
portion of Lot 783-D-8, Psd 41740, LRC Rec. No. 5975, located at the
abovementioned paragraph.

Sometime in 2004, Plaintiff-Appellee and his son/ attorney-in-

fact, Joel Avante made an ocular inspection to the same property and
they found out that his lot which was used to be vacant was already
occupied by the defendants herein whose identities were disclosed by the
other residents in the area, by the adjacent lot owners and by the officers
of the Myrna Subdivision Homeowners Association.

After ascertaining the actual location of his property and the

names of the illegal occupants of his property, the plaintiff-appellee
caused the sending of demand letters by registered mail to the
defendants-appellants requiring the latter to vacate the plaintiff-
appellees property. However, despite receipt of the said demand letters,
defendants-appellants failed and refused to vacate and surrender
possession of the property to the plaintiff-appellee to the latters
prejudice and damage.

Thus, in view of the unjustified refusal of the defendants-

appellants to vacate and surrender possession of the property to the
plaintiff-appellee, the plaintiff-appellee suffered mental anguish, untold
misery, extreme anxiety and sleepless nights. Further, the plaintiff-
appellee was constrained to secure the services of counsel to protect the
latters rights and interest which eventually leads to the filing of the
instant case.

Defendants-Appellants, in their Answer, claimed that the Transfer

Certificate of Title of the Plaintiff-Appellee is a fictitious, spurious and
null and void title. Further, they claimed that the parcel of land where
the residential houses of the defendants-appellants are situated, is a
portion of a friar land known as Piedad Estate, and herein defendants-
appellants, being bonafide occupants thereof, are entitled to the
ownership and possession of the respective areas they have legally
occupied pursuant to the Friar Lands Act and other existing laws.
Furthermore, they claimed that they were builders in good faith
considering that they have no knowledge that the subject property was
registered in the name of the plaintiff because at the time they occupied
the premises, there is yet no transfer certificate of title that was issued to
the plaintiff.
 III. COUNTER-STATEMENT OF FACTS

3.0. Second paragraph, second sentence of the Defendants-

Appellants Brief (Statement of Facts and Case) should state the full
second paragraph of the demand letter cited as follows: .Plaintiff
then attached demand letter which states According to our
client, you occupied the above parcel of land without securing
proper authority or consent from him being the legal and
rightful owner thereof. Our client was not able to immediately
call your attention on your said unauthorized occupation for
his property nor demanded from you to vacate the same due
to the difficulty in identifying the names of the actual
occupants thereof and the exact locations of his property by
reason of the removal of the concrete monuments establishing
the boundaries of each lot in the area. It was only this year
when he was able to secure a copy of the Verification Survey
conducted sometime in May 2000 by the Geodetic Engineer
from the Land Registration Authority (LRA) that our client
was able to identify his lot and actual occupants thereof.
(underscore supplied)

3.1. That the letter from the Land Management Bureau dated
October 23, 2013 (Exhibit 4 for Defendants) was not property
identified and authenticated by the persons who issued the same.

IV. ISSUES

WHETHER OR NOT THE REGIONAL TRIAL COURT ERRED

IN ITS FINDING THAT PLAINTIFF HAS A CAUSE OF ACTION
AGAINST THE DEFENDANTS?

WHETHER OR NOT THE REGIONAL TRIAL COURT ERRED

IN FINDING DEFENDANTS NOT BUILDERS IN GOOD
FAITH?

WHETHER OR NOT THE REGIONAL TRIAL COURT ERRED

IN AWARDING MORAL DAMAGES, ATTORNEYS FEES AND
COST OF SUIT?

V. DISCUSSION

The Regional Trial Court is correct

in finding that there is a cause of
action against the defendants.
 5.0. Accion publiciana, is also known as Accion plenaria de
posesion, is an ordinary civil proceeding to determine the better right of
possession of realty independently of title it refers to an ejectment suit
filed after the expiration of one year from the accrual of the cause of
action or from the unlawful withholding of possession of the realty.1
Accion publiciana is used to refer to an ejectment suit where the cause of
dispossession is not among the grounds for forcible entry and unlawful
detainer, or when possession has been lost for more than one year and
can no longer be maintained under Rule 70 of the Rules of Court.2

5.1 Accion publiciana or the plenary action for the recovery of the real
right of possession, which should be brought in the proper Regional
Trial Court when the dispossession has lasted for more than one year. 3

5.2 In the instant, the plaintiff is the registered owner if the subject
property being unlawfully occupied by herein defendant-appellants.
Being registered owner of the subject property, the plaintiff should have
possession of his property against the defendants who had no right or
title over it. The Supreme Court in one case, had the occasion to rule that
Registered owners are entitled to the possession of the property covered
by the title from the time such title was issued in their favor. 4 Settled is
the rule that the right of possession is a necessary incident of
ownership.5

5.3 It is undisputed in this case that the plaintiff-appellee is the lawful

and registered owner of the subject property that was covered by
Transfer Certificate of Title No. RT-127108 (140252) of the Registry of
Deeds of Quezon City. Plaintiff-appellee is also the one paying the realty
taxes of the subject property. It is well settled in this jurisdiction that
although tax declarations or realty tax payments of property are not
conclusive evidence of ownership, nevertheless, they are good indicia of
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.6

5.4 Suffice it to state that herein defendant-appellants have not even

1 Madrid vs. Mapoy, 596 SCRA 14

2 Padilla vs. Velasco, 576 SCRA 219

3 REGALADO, Remedial Law Compendium, Volume 1, Sixth Revised Edition, pp. 767-768

4 Beltran vs. Nieves, 634 SCRA 242

5 Monasterio-Pe vs. Tong 646 SCRA 161

6 Ramos-Balalio vs. Ramos 479 SCRA 533

presented evidences to show even resemblance of ownership of the
property they are occupying. Not even a tax declaration or realty tax
payment of property was ever presented by the defendant-appellants.

5.5 The fact that plaintiff-appellee failed to alleged in the

complaint prior physical possession of the subject property is of no
moment since this is a case for accion publiciana and not for forcible
entry. As held in one case by the Supreme Court, An accion publiciana
is a plenary action for recovery of possession in ordinary civil
proceedings in order to determine the better and legal right to possess,
independently of title it differs from a forcible entry action in that it
does not require prior physical possession in order to prosper. 7

5.6 The defendant-appellants cannot also attack the Transfer

Certificate of Title of the plaintiff-appellee in this case as the same is
considered a collateral attack on the certificate title which is not allowed.
A Certificate of Title shall not be subject to collateral attack it cannot
be altered, modified, or cancelled except in a direct proceeding in
accordance with law.8

5.7 In view of the foregoing, the plaintiff, being the registered owner of
the subject property and the one paying the realty estate taxes, should
have the right to recover possession of the subject property from the
defendants who have been enjoying the property of the plaintiff for so
long a time already.

Defendants acted in bad faith in

occupying the subject property and
thus cannot be considered builder in
good faith

5.8 The defendant-appellants in this case cannot be considered

as builders in good faith. Article 526 of the Civil Code of the Philippines
states that:

He is deemed a possessor in Good Faith who is not

aware that there exists in his title or mode of
acquisition any flaw which invalidates it. He is
deemed a possessor in bad faith who possesses in any
case contrary to the foregoing. Mistake upon a
doubtful or difficult question of law may be the basis
of good faith.

7 Gonzaga vs CA 546 SCRA 532

8 Urieta Vda. De Aguilar vs Alfaro, 632 SCRA 130

 5.9 The Defendants in this case cannot be considered as builders
in good faith. A builder or planter in good faith is one who builds or
plants on land with the belief that he is the owner thereof, unaware of
any flaw in his title to the land at the time he builds or plants on it. 9

5.10 In the instant case, the defendant-appellants were able to occupy

the subject property by buying rights over the same from certain
Marcelo Bahia and on the information that nobody owned the subject
property. The same was testified to by one of the defendants, Leonito
Comiso, in his judicial affidavit10, to wit:

Q5- Do you recall how did you able to occupy the

place you are presently residing?

A- Marcelo Bahia had offered to my father rights to

the portion of the subject premises in the year 1994,
Thereafter I inspected the lot and made verification
from the barangay who is the owner of the subject lot
but I was informed that nobody owned the lot. Only
then that I was convinced to purchase the right and
immediately occupied the premises in the year 1995

5.11 It is very clear from the answer of the defendant Leonito Comiso
that he is not a purchaser in good faith. A purchaser in good faith is one
who buys the property of another without notice that some other person
has a right to or interest in such property and pays a full and fair price
for the same at the time of such purchase or before he has notice of the
claim of another person.11 The defendant in this case did not exercise
ordinary prudence in buying the portion of the subject property. The
defendant should have gone to the Register of Deeds to as who is the
owner of the subject property and not rely on the information of the
barangay. The Barangay is not the proper place to ask for ownership of
the land. Thus, the defendants could not be considered purchaser in
good faith.

5.12 In constructing the house of defendant Leonito Comiso, he stated

in his Judicial Affidavit that:

Q17 will you remember Mr. Witness, the reason for you to
construct on the lot which is located inside T.C.T. No. RT-
127108 (140252)?

A- Because sir, I relied to the fact that I have purchased that

9 Zosa vs. Estrella, 572 SCRA 428

10 Page 2 Judicial Affidavit of Leonito Comiso

11 Tio vs. Abayata, 556 SCRA 175

 premises. Also, Sir it is very clear that T.C.T. No. RT-127108
(140252) with PSD-31346 is located in Laoag Ilocos Norte
and not in Quezon City, in short I relied in good faith sir
before I constructed my house on it.12

5.13 From the foregoing, it can be said that the defendants constructed
their houses over the subject property knowing fully well that they are
not the true owner of the same and relied only on the information that
no one owns the lot and that they purchased the same from someone.
These actuations of the defendants cannot be considered that they have
done the construction in good faith. Good faith consists in the belief of
the builder that the land he is building on is his and his ignorance of a
defect or flaw in his title.13

The Regional Trial Court is correct

awarding Rental Fee, Attorneys
Fees, and Moral Damages.

5.14 Due to unwarranted and malicious refusal of the defendants to

vacate the subject property causing the plaintiff to be deprived of the use
and enjoyment of his property, the latter suffered mental anguish, moral
shock, serious anxiety, besmirched of reputation and other similar
injuries for which reason he should be compensated in the amount of no
less that Php 50,000, each by way of moral damages.

Article 2217 of the Civil Code of the Philippines provides:

Moral damages include physical suffering, mental

anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and
similar injury. Though incapable of pecuniary computation,
moral damages may be recovered if they are the proximate
result of the defendants wrongful act or omission.

5.15 For public good and to deter others from committing the
same acts of the defendants, the plaintiff should be awarded no less than
Php 50,000 as exemplary damages. Considering that the award of moral
damages is legal and proper, it follows that the award of exemplary
damages is likewise appropriate. Exemplary damages may be awarded
in addition to moral and compensatory damages and are imposed not to
enriched one party or impoverished another but to serve as a deterrent

12 Page 3-4 of the Judicial Affidavit of Leonito Comiso

13 Angeles vs. Pascual, 658 SCRA 23

against or as a negative to curb socially deleterious actions.14

5.16 As a result of the defendants unwarranted and malicious refusal to

vacate the subject property, the plaintiff was forced to litigate and to
engage the services of a counsel with whom he to pay Php 10,000.00 as
acceptance fee plus Php 2,000 by way of appearance fee. Since the award
or moral and exemplary damages is correct, it logically follows that the
award of attorneys fees is accurate.

Article 2208 of the Civil Code of the Philippines

states: In the absence of stipulation, attorneys fees
and expenses of litigation, other than judicial costs,
cannot be recovered, except:
5. Where the defendant acted in gross and evident bad
faith in refusing to satisfy the plaintiffs plainly valid,
just and demandable claim;

xxx xxx xxx

11. In any other case where the court deems it just and
equitable that attorneys fees and expenses of
litigation should be recovered.

5.17 Moreover, because of the filing of the instant case the

plaintiff incur litigation expenses in the amount estimated to be no less
than Php 20,000.

5.18 ALL TOLD, the appellant-defendants has not presented any

evidence to merit reversal of the decision of the Regional Trial Court of
Quezon City and in fact the issues raised in the appeal were matters
properly addressed by the Regional Trial Court, thus, sustaining the
same is but proper.

RELIEF

WHEREFORE, premises considered, it is most respectfully

prayed of this Honorable Court that the Decision of the Regional Trial
Court in Civil Case No. Q-07-61352 be UPHELD.

Plaintiff-Appellee prays that this Honorable Court order the Court

a quo for execution of the abovementioned decision and for other relief
just and equitable in the foregoing premises.
14 Construction Development Corporation of the Philippines vs. Estrella, 501 SCRA 228
 RESPECTFULLY SUBMITTED.
30 December 2014, Quezon City for Manila.

ALFEROS ARMAS & ASSOCIATES

Law Office
Unit K, No. 1143 San Francisco Del Monte Avenue
Barangay Paltok 1105, Quezon City

By:

JOHN THOMAS S. ALFEROS III

PTR No. 9152528; 01.14.14 Q.C.
IBP No. 926023; 01.14.14; Q.C.
Roll No. 48188; Page No. 138; Book no. XX
MCLE Compliance No. IV-0018398; 04.13.13
Mobile No. 0918-9390566

Copy Furnished:

Atty. RAFAEL N. CRISTOBAL RR No. __________

Counsel for Defendant-Appellants QC Hall Post Office
No. 94 M.H. Del Pilar 5 January 2015
Near corner E. Angeles Sts.,
Sto. Tomas 1600, Pasig City

Mr. LEONITO COMISO RR No. __________

No. 133 Daisy Street, Pingkian 3 QC Hall Post Office
Zone 3, Brgy. Pasong Tamo 5 January 2015
1110 Quezon City

Ms. MARLYN SOLIBAGO RR No. __________

No. 80 Santan Street, Pingkian 3 QC Hall Post Office
Zone 3, Brgy. Pasong Tamo 5 January 2015
1110 Quezon City
Ms. ROSALINA BAHIA RR No. __________
No. 135 Daisy Street, Pingkian 3 QC Hall Post Office
Zone 3, Brgy. Pasong Tamo 5 January 2015
1110 Quezon City

EXPLANATION
(Pursuant to Rule 13 Section 11 of the 1997 Rules of Civil Procedure)

Copy of the foregoing Appellees Brief was served upon Atty.

RAFAEL N. CRISTOBAL, Counsel for Defendant-Appellants, Mr.
LEONITO COMISO, Ms. MARLYN SOLIBAGO and Ms. ROSALINA
BAHIA the only Defendant-Appellants in this instant appeal by
registered mail due to time constraints, distance and lack of personnel of
the undersigned counsel to effect personal service for which the kind
understanding of this Honorable Court is pleaded.

JOHN THOMAS S. ALFEROS, III

REPUBLIC OF THE PHILIPPINES}

QUEZON CITY }s.s.

AFFIDAVIT OF SERVICE

I, CHARMAINE LYN ANNE C. NICOL, of legal age, Filipino and with postal
address at Unit K, 1143 San Francisco Del Monte Avenue, Barangay Paltok 1105,
Quezon City, after having been sworn to in accordance with law, do hereby depose
and state: That..

I am the personnel of Alferos Armas and Associate Law Office and I have
today furnished a copy through registered mail with return card of the Appellees
Brief in the case entitled ANTONIO P. AVANTE vs LEONITO COMISO ET.
AL. docketed as CA G.R. No. CV- 103117 pending before the Court of Appeals to:

Atty. RAFAEL N. CRISTOBAL Ms. MARLYN SOLIBAGO

Counsel for Defendant-Appellants No. 80 Santan Street, Pingkian 3
No. 94 M.H. Del Pilar Zone 3, Brgy. Pasong Tamo
Near corner E. Angeles Sts., 1110 Quezon City
Sto. Tomas 1600, Pasig City

Mr. LEONITO COMISO Ms. ROSALINA BAHIA

No. 133 Daisy Street, Pingkian 3 No. 135 Daisy Street, Pingkian 3
Zone 3, Brgy. Pasong Tamo Zone 3, Brgy. Pasong Tamo
1110 Quezon City 1110 Quezon City

I am executing this Affidavit of Service to attest to the truth of the foregoing

facts and for any legal purposes it may serve.

IN WITNESS WHEREOF, I have hereunto set my hand this 05 th day of

January 2015 at Quezon City.

CHARMAINE LYN ANNE C. NICOL

Affiant

SUBSCRIBED AND SWORN to before me this 05th day of January 2015 in

Manila, Affiant exhibiting to me her Non-Professional Drivers License bearing no.
N25-13-006130 which will expire on 2015-07-22.

Doc. No. ______;

Page No. ______;
Book No. ______;
Series 2015.