REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

7th Judicial Region
Branch 62, Oslob , Cebu

LUCILLE M. TEVES,
Plaintiff -Appellee,
APPEALED CASE NO. OS -1865A
-versus- (CIVIL CASE No.136-Sm)10th MCTC
For: Ejectment (Forcible Entry)
MARILYN BASILIO,
Defendant - Appellant.
x------------------------x

APPEAL MEMORANDUM
(For the Appellee)

PREFATORY STATEMENT

A person occupying a parcel of land, by himself and through his

predecessors – in interest ,enjoys the presumption of ownership,
anyone who desires to remove him from the property must overcome
such presumption by relying solely on the strength of his claims

Plaintiff-Appellee, ( “Appellee” ) by counsel states :

1. The parties in this case are :

1.1 The Appellee Lucille M. Teves has the residence address at

Tangbo ,Samboan , Cebu.

1.2 The Appellant Marilyn Basilio, has declared two residences

one in Calatagan, Samboan , Cebu as she admitted in her Answer the
pa.1.2 of the Complaint and the other residence is in Tangbo,
Samboan Cebu as she provided in her personal circumstance in her
Judicial Affidavit. (in her Position Paper)

Appelee’s Memorandum
Teves vs. Basilio
 2. The Appeal was directed at the Decision rendered by the
Municipal Circuit Trial Court in Samboan, Cebu dated December
19,2017

2.1 The Decision reads :

“WHEREFORE, judgement is hereby rendered in favor of the plaintiff

Lucille M. Teves, ordering the defendant Marilyn Basilio, and all persons
claiming under her, to vacate the premises of Lot 5049 situated at Tangbo,
Samboan, Cebu and turn over its peaceful possession to the plaintiff. The
defendant is further ordered to pay the plaintiff the following amounts :

(1) reasonable rent for the use and occupation of the premises at
the rate of PhP 2,000.00 per month to be computed from March
2017 until such time that the defendant finally vacates the same;

(2) Attorney’s fees in the amount of PhP 20,000.00 and

(3) Costs of suit.

The defendant’s counterclaims are dismissed.

SO ORDERED”

3. The material dates are as follows:

3.1 On February 6, 2018 the defendant received the Judgment

rendered by the Municipal Circuit Trial Court in Samboan on Civil
Case No.136, (the date is provided in her Motion for Reconsideration )
but defendant did not comply on the said Judgment..

3.2 On February17,2018, defendant filed a Motion for

Reconsideration directed against the Judgment, instead of filing
Notice of Appeal within fifteen (15) days of receipt of the Judgment.

3.3 The Court outrightly denied the Motion for Reconsideration

considering it is a prohibited motion under Rules on Summary
Procedure Section 19 (c).

Appelee’s Memorandum
Teves vs. Basilio

Page 2 of 10
 3.4 On March 9,2018 Plaintiff filed a Motion for the Issuance of
Writ of Execution and was set for hearing on April 17, 2018.
Unfortunately , the lower court transmitted the records to Regional
Trial Court. Such that On a Summary Hearing dated April 17, 2018
on the Plaintiff`s Motion for the Issuance of Writ of Execution, the
lower Court could no longer act on the pending motion due to the
transmission of the records to the appellate court , therefore the court
directed the parties and counsels to refer the Motion for the Issuance
of Writ of Execution and /or Comment /Opposition thereon to the
appellate court.

3.5 Upon examination of the records of this case, it shows that the
Notice of Appeal filed on March 15, 2018 was filed out of time and
there was no accompanying superseadeas bond which is a
requirement to complete an appeal. Hence, the Notice of Appeal
could not stay the execution.

3.6 Clearly said under the 1997 Rules of Civil Procedure, Rule 70
Section 19, Immediate execution of judgment; how to stay same. — If
judgment is rendered against the defendant, execution shall issue
immediately upon motion unless an appeal has been perfected and
the defendant to stay execution files a sufficient supersedeas bond,
approved by the Municipal Trial Court and executed in favor of the
plaintiff to pay the rents, damages, and costs accruing down to the
time of the judgment appealed from, and unless, during the
pendency of the appeal, he deposits with the appellate court the
amount of rent due from time to time under the contract, if any, as
determined by the judgment of the Municipal Trial Court. In the
absence of a contract, he shall deposit with the Regional Trial Court
the reasonable value of the use and occupation of the premises for the
preceding month or period at the rate determined by the judgment of
the lower court on or before the tenth day of each succeeding month
or period. The supersedeas bond shall be transmitted by the
Municipal Trial Court, with the papers, to the clerk of the Regional
Trial Court to which the action is appealed.

3.7 In the case of Herminia Acbang vs. Hon. Jimmy H.F. Luczon ,Jr.,
Presiding Judge, Regional Trial Court , Branch 01, Second Judicial Region,
Tuguegarao City , Cagayan , and Spouses Maximo Lopez and Heidi L.
Appelee’s Memorandum
Teves vs. Basilio

Page 3 of 10
Lopez , G.R . No. 164246 January 15,2014 . To quote the Supreme
Court :

“The failure of the defendant to comply with any of the

conditions is a ground for the outright execution of the
judgment, the duty of the court in this respect being
ministerial and imperative . Hence if the defendant-appellant
has perfected the appeal but failed to file a supersedeas bond ,
the immediate execution of the judgment would automatically
follow. Converesely the filing of the supersedeas bond will not
stay the execution of the judgment if the appeal is not
perfected . Necessarily then, the supersedeas bond should be
filed within the period for the perfection of the appeal.

3.8 On a Summary Hearing dated April 17, 2018 on the Plaintiff`s

Motion for the Issuance of Writ of Execution, the lower Court could
no longer act on the pending motion due to the transmission of the
records to the appellate court , therefore the court directed the parties
and counsels to refer the Motion for the Issuance of Writ of Execution
and /or Comment /Opposition thereon to the appellate court.

3.9. Thus, when the defendant filed a Motion for Reconsideration

of the MCTC Judgment, the motion did not stop the running of the
period to appeal. With the continuous running of this period, the
December 19, 2017 MCTC Judgment which defendant through
counsel received on February 6, 2018 had long lapsed to finality
when the defendant - appellant filed their Notice of Appeal only on
March 15, 2018 which was already beyond the period to appeal.

STATEMENT OF FACTS

4. The subject lot being disputed in this case is described as Lot

5049 in which the Plaintiff possessed through her predecessors in
interest. She was in actual , physical possession before the defendant
entered the property .

5. This property was cultivated by Luiz Gonzales. In 1946 he sold

some coconuts planted in that lot. In 1947 Luiz Gonzales sold the lot
and all the coconuts therein to Arsenio Teves the grandfather of the

Appelee’s Memorandum
Teves vs. Basilio

Page 4 of 10
Plaintiff. ( See the Judicial Affidavit of Neopolo Teves , Exhibit “D”,
containing also the documents of Sale ( Plaintiff’s Position Paper . )
6. Meinardo Teves as one of the successors – in – interest of
Arsenio Teves and who also cultivated the lot applied for Homestead
Patent. It was approved by the proper Government Authority
considering that it was alienable and disposable, such that an
Original Transfer Certificate was granted. (See Exh.” F “ - ,the
technical description of the said lot is found at the back of the Title itself
marked as Exh. F-1 (Position Paper )

7. By agreement between the siblings Meinardo M. Teves granted the

plaintiff - Lucille M.Teves the authority to occupy the said lot . Thus
plaintiff herself paid the real property taxes . (See Exh. K, K-1, K-2.
of the Position Paper )

8. Sometime in March ,2017 defendant destroyed the fence made

of barbed wire surrounding the property ,and cleared the property
from ipil -ipil , and other trees. The said property is planted with
bamboo wherein defendant -appellant also cut and built a structure
made of light materials without any authorization nor consent from
the plaintiff. (See photographs Exh. “ J” , “J-1” of the Position Paper )
Photos of the house made of light materials implied that they never resided
the house yet , and that it is newly built.

9. As a lawful possessor, the real party in interest who stand

benefited or prejudiced of the outcome of the case, the plaintiff
-appellee proceeded to Barangay Conciliation to seek refuge in order
to protect her right . Marilyn Basilio the defendant -appellant refused
to vacate , and that no conciliation was reached at the Lupong taga
Pag Sundo. (See Exh .”L” of the Position Paper).

ISSUES

THE HONIRABLE COURT ERRED IN DECLARING

PLAINTIFF-APPELLE IN EFFECT AS THE REAL PARTY
-IN-INTEREST
Appelee’s Memorandum
Teves vs. Basilio

Page 5 of 10
 II

THE HONORABLE COURT ERRED IN ORDERING

DEFENDANT AND ALL PERSONS UNDER HER TO VACATE
THE PREMISES OF LOT NO.5049 AND TURN OVER ITS
PEACEFUL POSSESSION TO THE PLAINTIFF.

III

THE HONORABLE COURT ERRED IN ORDERING

DEFENDANT TO PAY THE REASONABLE RENT, ATTORNEY’S
FEES AND COST OF THE SUIT.

ARGUMENTS/DISCUSSION

I. THE PLAINTIFF IS THE REAL

PARTY -IN -INTEREST

10. The lawful possessor is the aggrieved party in an action for

ejectment whether she owns the subject property or not. The issue in
ejectment is possession not ownership .Therefore the plaintiff
-appelleee in this case as the lawful possessor is the real party
-in-interest and can proceed to Barangay Conciliation to protect her
right from any intruder in the subject property with or without the
Special Power of Attorney from the owner. The Special Power of
Attorney from Meinardo M. Teves to Lucille M. Teves clarifies that
the property does not belong to the defendant and that she has no
right to possess either.

11. Rule 3 Sec. 2 of the of the 1997 RULES OF CIVIL

PROCEDURE, Parties in interest. — A real party in interest is the
party who stands to be benefited or injured by the judgment in the
suit, or the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted or
defended in the name of the real party in interest.

Appelee’s Memorandum
Teves vs. Basilio

Page 6 of 10
 12. Since it is the plaintiff- appellee who is benefited or injured in
this case clearly she is the real party -in -interest. The date in the
Special Power of Attorney is of no moment because it is the
plaintiff-appellee’s right to possess and enjoy the property that is first
violated .

II. THERE IS NO ERROR COMMITTED

BY THE HONORABLE COURT IN
ORDERING DEFENDANTAND ALL
PERSONS UNDER HER TO VACATE
THE PREMISES OF LOT NO.5049
AND TURN OVER ITS PEACEFUL
POSSESSION TO THE PLAINTIFF

13. The court in its Judgment committed no error when it said that
“Plaintiff satisfactorily established possession through
straightforward testimonies of Lisondra et al”. (page 5 of 9
JUDGEMENT Civil Case No. 136 -SM, Teves vs. Bsilio ) . The witnesses
uniformly identified the defendant as the one who removed the
barbed wire fence, entered the property or cleared the area when the
plaintiff was in Leyte.

14. The court gave great weight to the title which is indefeasible in
legal contemplation (page 6 of 9 JUDGEMENT Civil Case No. 136 -SM,
Teves vs. Bsilio ) . The title is in the name of plaintiff’s brother -
Meinardo who in turn consented and authorized the former’s
possession.

15. Defendant’s claim was based on payment of tax receipts paid

by her predecessor’s in interest. The plaintiff-appellee likewise
presented real property tax receipts paid by her predecessors -in
-interest. If based on the payment realty taxes it is the plaintiff who
presented receipts in her name paid on 2013, 2014,and 2017 (see
Exhibts K,K-1,K2 in the plaintiff’s position paper).

16. The defendant presented one and only payment in March

2017, the time of her forcible entry.
Appelee’s Memorandum
Teves vs. Basilio

Page 7 of 10
 17. Defendant’s witness Buenaventura Rodriguez stated that their
land adjoin each other. This is a support to the claim that they
became neighbors only at the time defendant entered the property ,
because Buenaventura Rodriguez has not presented title over the
property in the name of the defendant for her to be called an owner.

18. All the requisites in an action for forcible entry have been met
.Under the circumstances , given the Judicial Affidavits and the
pieces of documentary evidence of the plaintiff, the defendant was
not able to controvert it . Thus, defendant has no right to possess and
therefore should turn it over the possession to the plaintiff -appellee
of the subject lot 5049 , because unlawful withholding of property is
not allowed. The court will always uphold, respect prior possession.

III. THERE WAS NO ERROR COMMITTED

BY HONORABLE COURT IN ORDERING
DEFENDANT TO PAY THE REASONABLE
RENT, ATTORNEY’S FEES AND
COST OF THE SUIT.

19. The peaceful possession of the plaintiff over the subject lot has
been disturbed by the defendant , causing her to incur expenses to
litigate this case in order to seek refuge in the court.

20 .The time when the defendant forcibly entered the property,

plaintiff was deprived of the income of the harvest of the coconuts .
As stated in the Judicial Affidavit of Vicente Villarin and Semporado
Petiluna that they harvested the coconuts and gave it to the
defendant . Plaintiff - Appellee will leave it to the owner - Meinardo
Teves to file a case for the crime committed those who harvested
coconuts in his property without consent and authority. The cost of
the bamboos and other trees they cut must also be paid.

21. Defendant deprived the plaintiff of her possession thus , it is

but right and just that rent , attorney’s fees and cost of the suit be
paid from the time the defendant forcibly entered the premises.

Appelee’s Memorandum
Teves vs. Basilio

Page 8 of 10
March 2017 until such time they will vacate. Considering that they
have not made payments so far.

WHEREFORE, premises considered, it is respectfully prayed that

1. The DISMISSAL of the Appeal for lack of factual and legal

basis.
2. AFFIRM the Judgment of MCTR -Samboan whereby the
defendant is further ordered to pay the plaintiff the following amounts :

(1 ) reasonable rent for the use and occupation of the premises at

the rate of PhP 2,000.00 per month to be computed from March
2017 until such time that the defendant finally vacates the same;

(2 ) Attorney’s fees in the amount of PhP 20,000.00 and

(3 )Costs of suit.

3. Issue writ of execution to implement the judgment of the

Court should the the records be remanded back to the lower court to
ensure its implementation it is likewise prayed.

Such other reliefs and remedies consistent with law, justice and
equity are also prayed for.

Respectfully submitted 10 , Mayl 2018 Cebu City ( for Oslob).

A ACOSTA & ASSOCIATES

Plaintiff ‘s Counsel
Unit 1606, 16F Keppel Building
Cardinal Rosales Avenue, Corner Samar Loop,
Business Park, Cebu City, Philippines 6000
Landline: 032 231 2642
Mobile: 0928 506 3466
Email: Abraham@AcostaLaw.ph
Website: http://www.AcostaLaw.ph

Appelee’s Memorandum
Teves vs. Basilio

Page 9 of 10
By:
ABRAHAM REY MONTECILLO ACOSTA
Roll of Attorneys No. 54441
IBP Lifetime No. 010415; Cebu City Chapter
PTR No.177135; 03 January 2018; Cebu Province
MCLE Compliance No.: V-0006387; 27 February 2015

And By:

LUCILLE M. TEVES
Roll of Attorneys No. 66995
IBP No. 5622 ; 01-05-2018 ;
Cebu Province Chapter
PTR NO. 16726173 ;01- 08-2018 ;Samboan Cebu
MCLE Exempt (May 2017 Admitted to the Bar)

Copy Furnished :
Atty. ISIAS GUIDOQUIO
Counsel for the Defendant Registry Receipt No.___________
Guidoquio Law Firm Post Office :___________________
2nd Floor , Rm.2 Leyson Bldg., Date :_________________________
26 D.Jakosalem St.Cebu City

Service is done by registered mail to appellant’s counsel in view of

the distance.

Appelee’s Memorandum
Teves vs. Basilio

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 Appelee’s Memorandum
Teves vs. Basilio

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