Republic of the Philippines

REGIONAL TRIAL COURT

11th Judicial Region
Branch 29, BisligCity

SPOUSES FRANCISCO CACHO DE CASTRO

and LUCRESIA B. DE CASTRO,
CIVIL CASE NO. _____________
Plaintiffs,
FOR: Recovery of Possession
and Ownership,
-versus-
Damages and Attorney’s
Fees.
ARMAND LUNIO,
Defendant.
x-----------------------------------------------------/

ANSWER with COUNTERCLAIM

And Motion to Dismiss
Defendant ARMAND LUNIO, through undersigned counsel unto this
Honorable Court, by way of Answer with Counter-Claim and Motion to Dismiss to
the Complaint filed by herein plaintiffs, most respectfully avers that:

1. Except as to the marriage of Francisco Cacho de Castro to Lucresia B.

De Castro of which herein defendant has no knowledge or information sufficient
to form a belief as to the truth or falsity of the same, the allegations in
Paragraphs 1 and 2 of the Complaint are hereby admitted;

2. The allegations in Paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the

Complaint cannot be admitted or denied by herein Defendant because he does
not have knowledge or information sufficient to form a belief as to the truth or
falsity of the same. However, if documents presented by herein plaintiffs were to
be believed, the following are observed, viz:

a. per plaintiffs’ Annex “B” which is the Extrajudicial Settlement of

Estate of Deceased Person, the portion which was subdivided and
adjudicated to Francisco Cacho de Castro “is the middle portion of
Lot 682, Pls-426-D, containing an area of FOURTEEN THOUSAND
FIVE HUNDRED AND FORTY THREE (14,543) SQUARE METERS, to
be bounded on the North by National Road going to Bislig City; on
the East, South and West by the share of the children of Tomas
Cacho, as can be gleaned from the Sketch Plan as prepared for
Francisco de Castro, et. al.” (emphasis supplied) As such, plaintiffs
have no legal basis for claiming the area occupied by herein
 defendant which is part of the adjacent portion of Lot 682, Pls-
426-D;
b. contrary to allegations paragraphs 7 and 8 of the Complaint, what
was declared by plaintiff Francisco de Castro solely for taxation
purposes anyway is not Lot No. 682, Pls 426-D (which has a total
land area of 72,713 square meters) but only a portion thereof
which is Lot No. 682-D, Pls-426-D (which has a total land area of
1.40 hectares per plaintiffs Annex “D” or 14,543 square meters
per plaintiffs Annex “B”); in other words, plaintiffs are
erroneously claiming to own the entire 72,713 square meters of
Lot No. 682, Pls-426-D when what plaintiff Francisco de Castro
inherited is only a portion thereof, specifically, Lot No. 682-D, Pls-
26-D, which has only a land area of 14,543 square meters;
c. corollarily, plaintiffs assertions as to the implications of their
Annexes “E”, “F”, “G” and “H” particularly that they own the
whole of Lot No. 682, Pls 426-D and that herein defendant is
illegally occupying a portion of the same as contained in
Paragraphs 8 and 9 of the Complaint are baseless and erroneous
and, at best, inaccurate;
d. the content of the Certification issued by CENRO as evidenced by
Annex “I” to the Complaint is immaterial and does not help the
claim of herein plaintiffs because the same only indicated that the
survey claimant for the whole Lot No. 682, Pls-426-D is Tomas
Cacho. It did not say that the whole Lot No. 682 is owned by
herein plaintiff Francisco de Castro; Tomas Cacho is not even a
party-litigant in the instant case;
e. based on the foregoing, the Certification from the Office of the
Barangay Captain as well as the Joint Affidavit of Two (2)
Disinterested Persons executed in support of plaintiff Francisco
de Castro’s patent application as evidenced by Annexes “J” and
“K” to the Complaint, respectively, are likewise baseless and
erroneous and, at best, inaccurate. Verily, plaintiff Francisco de
Castro inherited only a portion of Lot No. 682, Pls-26-D, not the
entire area of the said lot;

3. As to the plaintiffs’ first cause of action, while it is admitted that

herein defendant’s fuel station now stands at Lot No. 682-E, Pls-426-D, there is no
truth to the allegations in Paragraph 11 of the Complaint that herein defendant
surreptitiously constructed his fuel station thereat and, as such, said allegation is
hereby denied.

In the first place, herein plaintiffs do not have the right to question the
possession and even ownership of herein defendant over the subject parcel of
land because, as has already been shown hereinbefore, the subject Lot No. 682-E,
Pls-426-D does not belong to them but to the “children of Tomas Corig” who were
enumerated in Annex “B” of the Complaint as Alfredo E. Cacho, Carmelito E.
Cacho, Letecia C. Quezo and Alicia E. Cacho. What was adjudicated to plaintiff
Francisco E. De Castro as the sole child of the late Francisca Cacho de Castro was
the adjacent lot which is designated as Lot No. 682-D, also of Pls-426-D;

Defendant could show that at least plaintiff Francisco de Castro was aware
and even consented to the construction of the fuel station of herein defendant. It
was only when the latter offered to buy the additional parcel of land which he
used as bunker house for his workers (which he wrongfully thought belongs to
herein plaintiff) that the plaintiff demanded payment for the whole area now
occupied by herein defendant including that portion (200 sq.m.) which he bought
from Paz Silvosa Commendador;

4. And, by way of –

SPECIAL and/or AFFIRMATIVE DEFENSES,

Herein defendant repleads all the averments in the preceding paragraphs
so far as relevant and pertinent and hereby alleges the following:

A. Plaintiffs need to amend the complaint for failure and/or refusal on

its part to implead the wife of herein defendant. As provided by Section 4, Rule 3
of the Rules of Court:

Sec. 4. Spouses as parties. – Husband and wife shall sue or be

sued jointly, except as provided by law.

While the non-joinder of the spouse does not warrant the dismissal of the
instant action as the same is only a formal requirement and she is only a
necessary (not an indispensable) party to the instant case, the same shall be a
cause for the court to order the amendment of the complaint. (Uy, Jr. v. Court of
Appeals, G.R. No. 83897, 9 November 1990, 191 SCRA 275, 283.) Otherwise, such
non-compliance to the said court order shall not prevent the court from
proceeding in the action, and the judgment rendered therein shall be without
prejudice to the rights of such necessary party. (Carandang, et al. vs. Heirs of De
Guzman, G.R. No. 160347, November 29, 2006.)

B. Plaintiffs do not have any cause of action in the instant case for
Recovery of Possession and Ownership, Damages and Attorney’s Fees because
he does not have any interest, ownership or even participation over the subject
parcel of land. The immediately foregoing fact is evident from Annex “B” to the
Complaint which is an Extrajudicial Settlement of Estate of Deceased Person;
 C. This Honorable Court does not have jurisdiction over the instant case
due to the palpable failure and/or adamant refusal on the part of the plaintiff to
implead or join Paz Silvosa Commendador as one of the party-defendants to the
instant case. Paz Silvosa Commendador should have been included as one of the
defendants because, as clearly alleged in Paragraph 12 of their Complaint,
plaintiffs know that it was from her (Paz) that defendant bought the subject
property from. It is only Paz Silvosa Commendador who could explain how she
acquired the property and by what right she sold the same to herein defendant.
Needless to say, it appears that the subject property was, at one point, declared
in the name of the ascendant of Paz Silvosa Commendador, specifically, Pablo
Silvosa, per a Certification issued by the Office of the Provincial Assessor of
Tandag City, a copy of which is attached hereto as Annex “1” and made an
integral part hereof;

When an indispensable party is not before the court, the action should
likewise be dismissed. ( People v. Rodriguez, 106 Phil. 325, 327 (1959); Arcelona
v. Court of Appeals, G.R. No. 102900, 2 October 1997, 280 SCRA 20, 37-38. ) The
absence of an indispensable party renders all subsequent actuations of the court
void, for want of authority to act, not only as to the absent parties but even as to
those present. (Lim Tanhu v. Ramolete, G.R. No. L-40098, 29 August 1975, 66
SCRA 425, 448.)

Grounds for Motion to Dismiss

Defendant repleads all the averments in the preceding paragraphs so far as
relevant and pertinent the immediately foregoing paragraphs B and C and their
subparagraphs are the bases or grounds for herein defendant’s prayer for the
immediate dismissal of the instant case.

5. By way of –

COUNTER-CLAIM,
Defendant repleads all the averments in the preceding paragraphs so far as
relevant and pertinent and, as his counter-claim, hereby allege the following, to
wit:

A. Herein plaintiffs should be made to pay to herein defendant the

amount of not less than P15,000.00 representing the Attorney’s Fees
paid by the latter to his counsel in order to protect and defend his
rights and interests of the former from the baseless and unfounded
accusations of the latter; and in such additional amount as may be paid
by herein defendants in the course of the litigation for appearance fee,
 transportation expenses, reproduction of documents, meals and other
litigation expenses in the sum of not less than P10,000.00;

B. Plaintiffs’ act of instituting this malicious case against herein defendant

and in harassing and threatening the life and limbs of the latter and
his family have caused the latter to suffer sleepless nights, serious
anxieties and wounded feeling, for which reason it is just and proper
that plaintiffs should be made to pay moral damages to herein
defendants in the amount to be determined by this Honorable Court;
and

C. In order to deter other people from doing wanton, unjust and

oppressive acts and to set as an example to other people, the plaintiffs
should be penalized by way of exemplary damages in the amount to be
determined by this Honorable Court.

PRAYER
WHEREFORE, premises considered, it is most respectfully prayed that
judgment be rendered dismissing the instant case for lack of cause of action and
for failure to implead indispensable parties, namely, the wife of herein defendant
and the seller of the subject property, Paz Silvosa Commendador. Likewise, it is
most respectfully prayed that judgment be rendered granting the counter-claims
of herein defendant for having been shown to be meritorious.

Other remedies which are just and equitable under the circumstances are
likewise prayed for.

14 May 2014, Mangagoy, Bislig City, Surigao del Sur, Philippines.

ATTY. GEOFFREY G. CAGAKIT

CAGAKIT LAW OFFICE
J. Abarca Street, Mangagoy, BisligCity, Surigao del Sur
Telephone number (086) 628-2007; Cellphone number (0919) 508-5952
Attorney’s Roll No. 47368; MCLE Compliance No. III-0017381; 18 June 2010
PTR No. B0058646 / 010612 / City of Bislig;
IBP OR No. 744440 / 010512 / Surigao del Sur Chapter
Copy furnished:

Atty. Howell Rex C. Mabale

Counsel for the Plaintiffs
John Bosco District, Mangagoy,
Bislig City, Surigao del Sur
 VERIFICATION AND CERTIFICATION
OF NON-FORUM SHOPPING
I, ARMAND LUNIO, of legal age, Filipino, married and residing at Tagbina,
Surigao del Sur, after having been sworn to in accordance with law, do hereby
depose and state:
1. That I am the defendant in the above-captioned case;
2. That, in such capacity, I have caused the preparation of the foregoing
pleading;
3. That all the contents and allegations therein contained in the said
pleadings are true and correct of my own personal knowledge and based on
authentic records;
4. That I have not commenced any other action or proceeding involving
the same issues in the Supreme Court, the Court of Appeals, or different Divisions
thereof, or before any other tribunal or agency, and that to the best of my
knowledge, no such action or proceeding is pending in the Supreme Court, the
Court of Appeals or any Division thereof or before any other tribunal or agency;
5. That should I learn that any other similar action or proceeding has
been filed or is pending before the Supreme Court, the Court of Appeals, or any
other tribunal or agency, I undertake to report that fact within five (5) days
therefrom to the Court or agency wherein the original pleading and sworn
certification has been filed.
IN WITNESS WHEREOF, I have hereunto affixed my signature this ____ day
of May 2014 in Mangagoy, Bislig City, Surigao del Sur, Philippines.

ARMAND LUNIO
Affiant
________________
________________

REPUBLIC OF THE PHILIPPINES )

PROVINCE OF SURIGAO DEL SUR ) SS.
CITY OF BISLIG )

SUBSCRIBED AND SWORN to before me, a Notary Public for and in the City
of Bislig, this _____ day of May 2014 by affiant ARMAND LUNIO.

Doc. No. _____;

Page No. _____;
Book No. _____;
Series of 2014.
Republic of the Philippines )
Province of Surigao del Sur ) SS.
City of Bislig )

Affidavit of Service
I, SHEILA MAE R. DELA TORRE, Filipino, of legal age, single and with address
at Purok 4 Market Site, Mangagoy, Bislig City, Surigao del Sur, after having been
sworn to in accordance with law, do hereby depose and state:

That I am one of the legal assistants at the law office of Atty. Geoffrey G.
Cagakit;

That on the ___ day of March 2013, I have personally served a copy of the
foregoing Answer with Counter-Claim and Motion to Dismiss to the counsel for
the plaintiffs in the case entitled _______________________________________
______________________, docketed as Civil Case No. ___________________ for
Recovery of Possession and Ownership, Damages and Attorney’s Fees, pursuant
to the 1997 Rules of Civil Procedure, thus:

Atty. Howell Rex Mabale

Counsel for the Plaintiffs
John Bosco District, Mangagoy,
Bislig City, Surigao del Sur

Affiant further sayeth none.

IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of May,
2014 at Mangagoy, Bislig City, Surigao del Sur, Philippines.

Sheila Mae R. Dela Torre

Affiant

SUBSCRIBED AND SWORN to before me, a Notary Public for and in the City
of Bislig, this ___ day of May 2014, affiant is personally known to me.

Doc. No. ;
Page No. ;
Book No. ;
Series of 2014.