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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 –
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.)
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:
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.
ARMAND LUNIO
Affiant
________________
________________
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.
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:
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of May,
2014 at Mangagoy, Bislig City, Surigao del Sur, Philippines.
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.
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