Republic of the Philippines

_____________________
REGIONAL TRIAL COURT
Branch ___

HON. JUAN DELA CRUZ

Presiding Judge

JUAN LUNA, Civil Case No. R-XXXX

Plaintiff-Appellant (Civil Case No. XXX)
-versus- -for-
JOSE RIZAL, CRISPIN
RIZAL and CRISPIN FORCIBLE ENTRY
RIZAL,
Defendants-Appellee
x-------------x

MEMORANDUM
(For Defendants-Appellee)

DEFENDANTS-APPELLEE JOSE RIZAL, CRISPIN

RIZAL and CRISPIN RIZAL, through undersigned counsel,
most respectfully avers that:

PREFATORY STATEMENT
“This Court has oft repeated that he
who comes to court must come with
clean hands. Considering that the
right over the litigated properties
claimed by petitioner stems
allegedly from illegal acts, no
affirmative relief of any kind is
available.” 1 (emphasis supplied)

TIMELINESS
1. On ______________, defendants-appellee, by counsel,
receive a copy of the APPELLANT'S MEMORANDUM;

2. In compliance with the Notice of Appealed Case

1
“Osmea et al., vs. Osmea et al.,” G.R. No. 171911 January 26, 2010
dated__________, defendants-appellees timely files this
MEMORANDUM within the fifteen (15) days period from
the receipt of APPELLANT'S MEMORANDUM;

3. The land subject of this case was part of the estate of

MARIA CLARA, covered by Original Certificate of Title No.
XXX containing _____ hectares located at Barangay_________
, _____________, ______________2;

4. MARIA CLARA was the great grandmother of defendant

JOSE RIZAL3;

5. MARIA CLARA gave defendant JOSE a portion of the

land that he presently occupies together with CRISPIN RIZAL
and CRISPIN RIZAL;

6. Unfortunately, the Land Bank of the Philippines

foreclosed the said property of MARIA CLARA for non-
payment of mortgage 4 and on_________ , a new title was
issued in the name of Land Bank of the Philippines under
TCT No. XXXX ;5

7. The land was subsequently placed under the

Comprehensive Agrarian Reform Program (CARP);

8. On________ , defendants JOSE RIZAL mortgaged his

land to JOSEFA LUNA, wife of complainant JUAN LUNA, who
drafted and signed the “Kasunduan” with the following
terms:

“Na, ako JOSE RIZAL ay may

sinasakang lupa portion ng
______________ matatagpuan sa loob
ng apart na taon mula ngayong buwan
ng __________ hanggang _________ sa
__________, __________, __________
humigit kumulang ___ hektarya

“Na, ang nasabing lupa ay aking

ipinahiram (isinangla) kay Gng. JOSEFA
LUNA sa loob ng apat na taon mula
ngayong buwan ng _________

2
Item No. 1 under the Stipulation of Facts as enclosed at the Pre-Trial Order
3
Paragraph No. 4 of the Answer with Counterclaim
4
Item No. 2 under the Stipulation of Facts as enclosed at the Pre-Trial Order
5
Item No. 3 under the Stipulation of Facts as enclosed at the Pre-Trial Order
 hanggang ________

“Na, ako ay nakahiram kay Gng.

JOSEFA LUNA ng halagang Twenty
Thousand (P20,000) pesos at aking
ibabalik sa looban ng 4 na taon o sa
buwan ng ___________ na walang tubo

“Na, ako JOSEFA LUNA ay

pumapayag sa aming napagkasunduan
at aming tutuparin and kasunduang ito.
At ang sinumang magsisira nito ay hindi
papayagan ng bawat isa.”

9. Complainant JUAN LUNA and his wife JOSEFA LUNA

were the ones who worked on the land reaping and
appropriating all the harvests of the land in the duration of
the four (4) year stipulated agreement;6

10. When the duration came to an end, defendant JOSE

RIZAL attempted to redeem the property from Spouses LUNA
with cash. However, the complainant refused; 7

11. Defendant later found out that JUAN LUNA was

awarded TCT CARP No. XXXX by the Department of Agrarian
Reform (DAR)8 on____________ ;9

12. Sometime on_________, defendant JOSE RIZAL

attempted to enter the land and complainant JUAN LUNA
lodged a complaint before the barangay for Grave Threat,
Harrassment, and Squatting Land Properties; 10

13. Complainant JUAN LUNA also lodged another

complaint against the defendants before the DAR who
promptly sent defendant JOSE RIZAL a letter dated
_____________;

12. On_________ , defendant JOSE RIZAL lodged a

Complaint against, wife of JUAN LUNA, who is a
______________________ at the __________________ in
________________ before the Office of the Ombudsman for
6
Paragraph 27 of the Answer with Counterclaim
7
Paragraph 30 of the Answer with Counterclaim
8
Item No. 4 under the Stipulation of Facts as enclosed at the Pre-Trial Order
9
Paragraph 35 of the Answer with Counterclaim
10
Paragraph 32 of the Answer with Counterclaim.
Dishonesty, Grave Misconduct, and Conduct Prejudicial to
the Best Interest of the Service, with the allegation “that
through stealth, fraudulent act, and unlawful manipulation,
was able to transfer into her husband’s name the piece of
land that herein defendant JOSE RIZAL owns11;

13. Subsequently, defendant JOSE RIZAL lodged a Petition

for Disqualification of the complainant as beneficiary under
the CARP dated __________ now pending before the DAR, as
certified by Provincial Agrarian Reform Program Officer
(PARPO) Hon. ________________;

14. On __________, the Office of the Ombudsman found

JOSEFA LUNA guilty of Dishonesty for reneging on her
Kasunduan with defendant RIZAL;

15. In the aforesaid case, JOSEFA LUNA was quoted as

stating in her Counter-Affidavit that:

“JUAN LUNA informed the DAR that the

complainant mortgaged to him the lot
and showed the Kasunduan.”

16. In its Decision, the Office of the Ombudsman opined

that:

“When complainant [JOSE RIZAL]

mortgaged the subject lot to respondent
through a Kasunduan, the latter
acknowledged the former’s right on the
subject lot.” Thus, respondent [JOSEFA
LUNA] cannot later deny their
Kasunduan by alleging that
complainant has no proof of ownership
over the subject lot... It is hardly
believable that the MARO surveyed the
area where the subject lot is located two
years after the execution of the
Kasunduan and identified JUAN LUNA
as a qualified beneficiary... Respondent
knows fully well that her occupation of
the subject lot was TEMPORARY it
being based merely on the Kasunduan
which she refuses to acknowledge.”
11
Paragraph 2 of the Decision dated __________ issued by the Office of the Ombudsman
 17. In the same Decision, the Office of the
Ombudsman noted:

“Moreover, respondent’s assertion that

her husband’s actions and decisions
are different from hers is a flimsy
defense. Noteworthy that once the
subject lot is awarded to her husband,
it would become part of their community
of property from which both of them
would benefit.”

18. JOSEFA LUNA, wife of complainant JUAN LUNA,

was suspended by the Office of the Ombudsman for one
(1) year for Simple Dishonesty and Conduct Prejudicial
to the Best Interest of the Service;

19. Complainant JUAN LUNA was found by the

Honorable Court as not indigent. 12 He originally
availed of the service of the Public Attorney’s Office
using a Barangay Certificate of Indigency issued by
Barangay______ ;

JUDGMENT OF THE MUNICIPAL CIRCUIT TRIAL

COURT OF _________________

20. In a JUDGEMENT dated _________________, the

Municipal Trial Circuit Court dismissed the
Complaint for Forcible Entry;

21. In essence, the court a quo did not sustain the

claim of the plaintiff-appellant that they had prior
physical possession before the alleged forcible entry
of the defendant appellant;

22. It relied on the stipulation in the Kasunduan

between the parties that the land will be returned to
the defendant in _________;

23. The court a quo made the pronouncement that:

12
Item No. 6 under the Stipulation of Facts as enclosed at the Pre-Trial Order dated August 10, 2018
 “For the court to assume that the
plaintiff has possession of the land
after __________ will legalize a
clearly illegal situation, and in fact
the author of such foul play was
held administratively liable and
suspended for one year as ______
staff.”13

24. Further, the court a quo noted that the

plaintiff-appellant had lied to the Public Attorney's
Office (PAO), holding that:

“The plaintiff lied to the PAO

lawyers, when they declared that
they are qualfied for PAO services.
If they did not lie to the PAO
lawyers, how come PAO considered
them qualified for PAO services? If
they lied to PAO, then they can lie to
the court. Falsus in Uno, falsus in
Omnibus.”14

25. Further more, the court a quo did not find the
plaintiff was able to show that he was deprived of
possession over the subject land by means of stealth,
force, or intimidation;

26. The court a quo also found that it was the

plaintiff who deprived the defendants of possession
and ownership through fraudulent tactics;15

27. In other words, the the plaintiff came before

the court a quo with unclean hands;

DISCUSSION
OF ASSIGNMENT OF ERRORS

28. The plaintiff-appellant identify the following

13
p. 12 of the JUDGMENT dated December 6, 2018
14
p. 13, Supra.
15
p.13 of the JUDGEMENT dated December 06, 2018
 issues in the JUDGMENT of the court a quo:

“1. Whether or not the Honorable

Court a quo erred in dismissing this
case for allegedly finding that there
was no threat, stealth, intimidation,
force or strategy?

“2. Whether or not the Defendants

should vacate the disputed area
pursuant to Rule 70 of the Rules of
Court?

“3. Whether or not Defendants

should pay Plaintiff the damages the
latter sustained in relation to this
case?”

FIRST ISSUE:
THE COURT A QUO
DID NOT FIND
FORCE, THREATS,
STRATEGY
OR STEALTH ATTENDANT

29. The plaintiff-appellant misrepresents the

JUDGMENT of the court a quo by stating that it “xxx
found that the Plaintiff may have been in prior
physical possession 'because of the effects of the
Kasunduan but they failed the convince the court
that there were threats, intimidation, stealth, etc.,
etc. xxx”;

30. What the court a quo stated was, to quote:

“The rule on ejectment under
forcible entry can't be availed
because there was no force, stealth,
intimidation when the defendants
took possession because the land
subject of the “Kasunduan” are in
their possession legally and
physically. Plaintiff may have
proven prior physical possession
because of the effects of the
 “Kasunduan,” but they failed to
convince the court that there were
threats, intimidation, stealth, etc.,
etc., for the case to qualify under
the forcible entry.”16

31. Essentially, the court a quo is saying that the

plaintiff-appellant may have been in physical
possession of the subject land only because of the
“Kasunduan” and only up to _______________ and not
at the time that the alleged forcible entry was made;

32. To reiterate, the court a quo pronounced:

“For the court to assume that the

plaintiff has possession of the land
after _______________ will legalize a
clearly illegal situation, and in fact
the author of such foul play was
held administratively liable and
suspended for one year as _____
staff.”17

33. Further, the court a quo held that the subject land
is in the possession of the defendants-appellants legally
and physically;18

34. While it may be true that that the plaintiff-

appellant had adduced ten (10) documentary exhibits, it
failed to convinced the court a quo that such shows “the
truth that the Defendants forcibly dispossessed he
Plaintiff of the subject parcel of land”19;

35. Nor did the plaintiff shown exactly how “those

documents tell a history that even without going through
the plaintiff's title, he was previously in possession of the
property”20;

36. Preponderance of evidence is not necessarily a

number's game. Section 1, Rule 133 of the Rules of
16
Paragraph no. 5 in p.12 of the JUDGMENT
17
p. 12 of the JUDGMENT
18
Paragraph no. 5 in p.12 of the JUDGMENT
19
Paragraph 24, p. 7 of the Position Paper for the Plaintiff
20
Paragraph 25, page 7 of the Position Paper for the Plaintiff
 Court provides:

“xxx preponderance is not necessarily

with the grater number.”

37. It is evidence which is more convincing to the court

a quo as worthy of belief than that which is offered in
opposition thereto;

38. The Supreme Court had already held that “the

concept of preponderance of evidence refers to evidence
which is of greater weight, or more convincing, that
which is offered in opposition to it”21

39. The plaintiff-appellant failed to elucidate in its

Position Paper how these pieces of evidences prove his
claim of prior physical possession;

40. It is worth noting that the plaintiff-appellant does

not deny the authenticity, existence of the Kasunduan
signed by the defendant-appellant and JOSEFA LUNA,
wife of the plaintiff-appellant, over the subject land;

41. In fact, it was admitted in pre-trial before the court

a quo22;

42. Plaintiff-appellant further uses the Kasunduan to

bolster his claim of possession and the right to cultivate
the property in his MEMORANDUM OF APPEAL, to wit:

“Plaintiff acquired possession and the

right to cultivate the property when the
same was mortgaged to his wife by
Defendant JOSE RIZAL through a
Kasunduan _____ which was both
admitted by the parties during the pre-
trial.”23

43. This only leads credence to the legal theory posited

by the defendant-appellant, that the occupation of the
plaintiff-appellant of the land was transitory in nature,
expiring on _______________, and any right that plaintiff-

21
“Vitarich Corporation vs. Chona Losin,” G.R. No. 181500 November 15, 2010 citing “Jison vs. CA”
22
Stipulation no. 11 as enumerated in the Pre-Trial Order. Also, p. 5 of the JUDGEMENT
23
Paragraph 9 of the APPELANT'S MEMORANDUM
 appellant claims is only derivative only from the right of
the defendant-appellee;

44. This only leads credence to the legal theory posited

by the defendant-appellees, that the occupation of the
plaintiff-appellant of the land was transitory in nature,
expiring on _______________, and any right that latter
claims is derived only from the right of the former;24

45. In a case involving forcible entry, 25 the Supreme

Court had the occasion to pass on the propriety of a
complaint involving transitory possession:

“[T]he defendant undoubtedly then had a

perfect right to maintain an action of
unlawful detainer against the plaintiff to
regain possession. Instead of instituting
such an action, as the defendant was well
entitled to do, she warned the plaintiff off,
or as he would have us believe, ejected
him by force, intimidation, and violence.
Availing himself of the situation thus
created, the plaintiff now seeks to turn the
tables, so to speak, upon the original
possessor, and founding his right upon
the transitory possession which he
had wrongfully acquired, he would not
employ against the defendant the same
remedy which might properly have been
used against himself if he had not vacated
the premises.

“This confusion of the remedy cannot be

permitted. Where a dispute over
possession arises between two
persons, the person first having
actual possession, as between them, is
the one who is entitled to maintain the
action granted in section 80 of the
Code of Civil Procedure. If this were not
so, a mere usurper without any right
whatever, might enter upon the property of
another and, by allowing himself to be
ordered off, could acquired the right to

24
Paragraph 2, p. 5 of the Position Paper for the Defendants-appellants
25
“Masallo vs. Cesar,” G.R. No. L-12449 November 13, 1918, reiterated in “Gaza vs. Lim,” G.R. No. 126863
January 16, 2003
 maintain the action of forcible entry and
detainer, however momentary his
intrusion might have been.

“The mere suggestion of such a possibility

carries its own refutation on its face. The
law discourages continued wrangling over
the possession of property, as being
fraught with danger to the peace of
society; and the purpose of the action of
forcible entry and detainer is to make the
right of possession secure. This purpose
would be totally frustrated, if a petty
warfare could be conducted by two rival
claimants who might alternate with each
other in possession, one putting the other
out to-day, only to be in turn himself
forcibly ejected tomorrow. The only way to
prevent this is to hold, in conformity with
the evident intent of the statute, that the
remedy of forcible entry and detainer
was intended to be used against the
usurper and not against the person
wronged.” (emphasis supplied)

46. Further, the Supreme Court summed up this rule

as, to wit:

“The rule thus to be applied may be simply

summed up by saying that the plaintiff in
an action of forcible entry and detainer
cannot succeed where it appears that,
as between himself and the defendant,
the latter had a possession antedating
his own; and to ascertain this it is
proper to look to the situation as it
existed before the first act of
spoliation occurred.” 26 (emphasis
supplied)

1. Plaintiff-appellant possession of the subject land

was only pursuant to pursuant to the Kasunduan, as
noted by the court a quo:

“In the 'Kasunduan', the plaintiff will

take possession but return the land
26
Supra
 after four (4) years, however thru foul
means, the Plaintiff refused to return
the land and defendant learned late
that JUAN LUNA secured TCT CARP
XXXX by the Department of Agrarian
Reform (DAR) on________________. This
is in clear violation of the 'Kasunduan'
that the land will be returned to the
defendant on _______________. For this
fraud, JOSEFA LUNA was declared
administratively liable and was
suspended for one (1) year by the
Ombudsman.”

47. The plaintiff-appellant only began occupying the

subject land pursuant to the Kasunduan. During the
period, he merely occupied by virtue of possession of the
defendant-appellant. His transitory possession of the
subject land is derived from the possession of the
defendant-appellees;

48. Plaintiff-appellant cannot claim that he had prior

physical possession than the defendant-appellant
because he merely came to possess the land through the
defendant-appellees’ agreement to the Kasunduan;

49. His claim of prior possession by virtue of the

Kasunduan, only proves that it was defendant-appellant
who was in prior possession. He cannot now prevail.
Indeed, the Supreme Court had held that:

“In an action for forcible entry, the

plaintiff must prove that he was in prior
possession of the land or building and
that he was deprived thereof by means
of force, intimidation, threat, strategy or
stealth. The plaintiff, however,
cannot prevail where it appears
that, as between himself and the
defendant, the latter had
possession antedating his own.”27

50. In _______________, upon expiration of the period,

the plaintiff-appellant failed to return the subject land to
27
“Yu vs. Pacleb,” G.R. No. 130316 January 24, 2007
 defendant-appellant;

51. Similar in “Masallo vs. Cesar,” 28 defendant-

appellees had every right to maintain an action for
unlawful detainer. Truly, the defendant-appellant is the
person wronged here and not the usurper;

52. To prove that there was forcible entry attendant of

stealth, plaintiff-appellant presented the statement of a
witness who is the one who plowed the land and merely
claimed it was the defendant-appellant who hired him;

53. Plaintiff-appellant very much know that the

Kasunduan has expired on____________ , and that the
defendant-appellant had the right by virtue of their
agreement to possess the land, to use it, and to cultivate
it. In any case, that knowledge is imputed on him and
he cannot now claim that he had no knowledge nor
consent;

54. He even disclosed this Kasunduan to the DAR;

55. Thus, at the time of the alleged forcible entry, the

court a quo concluded that defendant-appellant was the
one who have legal and actual possession of the subject
land;

56. Plaintiff-appellant assails the reliance of the court

a quo on the Decision of the Office of the Ombudsman,
claiming that it is irrelevant;

57. When the plaintiff-appellant filed the Forcible

Entry, he signed a Verification and Certification Against
Forum Shopping, binding himself to inform the court a
quo of a similar claim or action;

58. Again, plaintiff-appellant came to the possession of

the subject land through the Kasunduan. He failed to
disclose to the court a quo that such was the subject and
basis of an administrative action against his wife
JOSEFA LUNA;

59. Further, he failed to disclose to the court a quo that

28
Ibid.
he had previously filed a complaint before the
Department of Agrarian Reform (DAR);

60. Furthermore, he failed to disclosed that defendant-

appellant had filed a Petition for Disqualification against
the plaintiff-appellant on _________;

61. In any case, the court a quo is duty-bound to take

judicial notice of the official acts of legislative, executive,
and judicial departments of the Philippines;

62. Original and Certified True Copies of the Decisions

and Certification of these government agencies form part
of the record of the case;

63. Plaintiff-appellant relies on the presentation of

documents showing that the subject land was
relinquished in his favour;

64. But such, only leads credence to the defendant-

appellees’ claim of prior possession and legal right of the
plaintiff-appellant, as the signatories in the documents
(Exhibit G to I) are relatives of the defendant-appellant
who came to possess the land as descendants and
relatives of MARIA CLARA;

65. Curiously, the plaintiff-appellant cannot present

any such relinquishment nor document signed by the
defendant-appellant, except the Kasunduan.

MOST RESPECTFULLY SUBMITTED.

_____________________, _________________.

LAWRENCE P. VILLAMAR
VILLAMAR LAW OFFICE
2/F Villamar Bldg.,
National Highway, Brgy. Labangan Pob.,
San Jose, Occ. Mindoro
Email: __________________
Mobile No.___________
Attorney’s Roll No. ________________
 IBP No. _________________
PTR No. __________________________
MCLE Compliance No. __________________________

NOTICE
To The Hon. Branch Clerk of Court
Regional Trial Court,
______________
_____________________________.

Madam:

Kindly bring the foregoing MEMORANDUM to the immediate

attention of the Honorable Court.

LAWRENCE P. VILLAMAR
Copy furnished:

__________________
Counsel for the Plaintiff-Appellant