Republic of the Philippines

National Capital Judicial Region

REGIONAL TRIAL COURT
City of Manila, Branch 28

JOVENAL T. FERNANDO,
Plaintiff-Appellee,
Civil Case No. M-MNL-18-06582-SC
For: Unlawful Detainer
-versus-

CARMELITA P. ANDREWS
Defendant-Appellant.

COUNTER MEMORANDUM

Plaintiff-Appellee, JOVENAL T. FERNANDO (“Plaintiff-

Appellee”), by counsel, and unto this Honorable Court, respectfully states
that:

STATEMENT OF THE FACTS AND OF THE CASE

1. The complaint filed by Plaintiff-Appellee against Carmelita P.

Andrews (“Defendant-Appellant”) on 27 June 2018 alleges Unlawful
Detainer.

2. Plaintiff-Appellee and Defendant-Appellant were married on 01

May 1965 in the City of Manila, Philippines during which they had four (4)
children. Regrettably, after several years of being married, Plaintiff-
Appellee filed a Complaint for Divorce,1 dated 27 May 1986, before the
Second Judicial District Court of the State of Nevada. Their divorce was
granted after the Second Judicial District Court of the State of Nevada issued
a Final Decree of Divorce dated 12 September 1986.2

3. Sometime in 1976, Plaintiff-Appellee acquired a property

located at 1817B, San Pascual, Malate, Manila City (“subject property”)
through intestate succession from his parents. Being an exclusive property-
acquired through inheritance, the property was registered in the name of the
Plaintiff-Appellee and his siblings as evidenced by TCT No. 1231413 of the
Register of Deeds of Manila.

1
See Annex “B” of the Complaint.
2
See Annex “C” of the Complaint.
3
See Annex “D” of the Complaint.

1
 4. Plaintiff-Appellee, as the registered owner and possessor of the
property, leased some portions of the property to third persons who occupied
the rooms of the property as bed spacers and boarders.

5. Thereafter, however, it came to the knowledge of the Plaintiff-

Appellee that Defendant-Appellant occupied the subject property and
refused to pay rent to Plaintiff on the ground that the same was allegedly a
conjugal property despite the divorce of the parties.

6. Considering the years that the Parties spent with each other and
because Plaintiff-Appellee was already residing in the United States of
America during the time of occupation, Plaintiff-Appellee tolerated the
occupation of Defendant-Appellant at the subject property.

7. However, after some time, Plaintiff-Appellee learned that

Defendant-Appellant was spreading rumors against the Plaintiff-Appellee.
Worse, Defendant-Appellant ejected the subject property’s tenant on the
basis that she is the legal wife of the Plaintiff-Appellee.

8. It was then that Plaintiff-Appellee decided to terminate his

tolerance to Defendant-Appellant’s possession over the subject property.
Thus, Plaintiff-Appellee made successive verbal requests to Defendant-
Appellant asking the latter to vacate the premises but such requests were to
no avail.

9. On 20 December 2017, Plaintiff-Appellee through counsel,

personally served a Formal Demand to Vacate4 demanding from the
Defendant-Appellant to vacate the said property within fifteen (15) days
from receipt thereof. At the time of service, Mr. Niño De Guzman,
messenger of the undersigned counsel, was informed by Mr. Jonathan
Fernando, son of Plaintiff-Appellee and Defendant-Appellant that the latter
was not inside the property. Mr. Jonathan Fernando also refused to receive
the demand letter because, according to Mr. Jonathan Fernando, the surname
of the Defendant-Appellant and the name of the Plaintiff-Appellee was
wrong.5

10. Due to the failure of the personal service of the Formal Demand
to Vacate, Plaintiff-Appellee, through counsel, sent the Formal Demand to
Vacate to Defendant-Appellant through registered mail, as evidenced by
Registry Receipt No. RD 790 225 573 ZZ, posted on 20 December 2017, at
Parañaque City Hall.6

11. Again, on 21 December 2017, Plaintiff-Appellee, through

counsel, sent a Formal and Final Demand to Vacate7 demanding from

4
See Annex “E” of the Complaint.
5
See Annex “F” of the Complaint.
6
See Annex “G” of the Complaint.
7
See Annex “H” of the Complaint.

2
 Defendant-Appellant to vacate the said property within fifteen (15) days
from receipt thereof. However, no one was present at the subject property to
personally receive the same during the time the demand letter was served, as
evidenced by the statement of Mr. Niño De Guzman, dated 21 December
2017, messenger of the undersigned counsel.8

12. Due to the failure of the personal service of the Formal Demand
to Vacate, Plaintiff-Appellee, through counsel, sent the Formal and Final
Demand to Vacate to Defendant-Appellant through registered mail, as
evidenced by Registry Receipt No. 087255, posted on 21 December 2017, at
the Makati Post Office.9

13. Regrettably, despite repeated personal service and service by

registered mail of the Formal Demand to Vacate, Defendant-Appellant has
failed and continues to refuse to vacate the subject premises. Thus, Plaintiff-
Appellee was left with no other recourse but to initiate this instant case.

14. On 21 August 2018, Defendant-Appellant filed a Motion to

Admit Answer praying that the attached Answer with Special and
Affirmative Defense and Counterclaim be admitted despite being filed out
of time but was denied by the Court in an Order dated 24 September 2018.

15. On 26 September 2018, the Hon. Judge Jorge Emmanuel M.

Lorredo rendered a Decision (“Decision”) in favor of Plaintiff-Appellee. The
dispositive portion of the Decision provides:

“WHEREFORE, as warranted by the facts alleged in the

complaint, judgment is hereby rendered:

(1) Ordering defendant Carmelita P. Andrews and all

persons claiming rights under her to vacate the subject
premises located at 1817B, San Pascual, Malate, Manila
and to restore peaceful possession thereof to plaintiff;
and

(2) Ordering defendant Carmelita P. Andrews to pay

plaintiff the amount of P35,000.00 per month as
reasonable compensation for the use and occupation of
the property counted from the date of filing of the
Complaint (June 27, 2018) until defendant vacates the
premises.

Plaintiff’s claims for attorney’s fees and litigation expenses

are denied.

SO ORDERED.”
8
See Annex “I” of the Complaint.
9
See Annex “J” of the Complaint.

3
 16. On 16 October 2018, Defendant-Appellant filed a Notice of
Appeal. Thereafter, Defendant-Appellant filed her Memorandum dated 23
November 2018. Thus, this Counter Memorandum.

II

COUNTER-ARGUMENTS

THE HONORABLE METROPOLITAN TRIAL COURT OF

MANILA, BRANCH 26, HAD JURISDICTION OVER THE
SUBJECT MATTER OF THE CASE. THE FACT THAT
DEFENDANT-APPELLANT’S POSSESSION OVER THE
PROPERTY WAS BY MERE TOLERANCE WAS
SUFFICIENTLY ALLEGED IN THE COMPLAINT
CLEARLY MAKES THE INSTANT CASE AN
EJECTMENT CASE FOR UNLAWFUL DETAINER, THUS
WITHIN THE PURVIEW OF THE JURISDICTION OF
THE METROPOLITAN TRIAL COURT.

THE COMPLAINT FOR UNLAWFUL DETAINER

SHOULD NOT BE DISMISSED FOR HAVING FAILED TO
ALLEGE THEIREIN THAT EARNEST EFFORTS
TOWARDS A COMPROMISE HAVE BEEN MADE, BUT
THE SAME HAVE FAILED SINCE THE RULE APPLIES
ONLY TO A SUIT BETWEEN MEMBERS OF THE SAME
FAMILY. THE INSTANT CASE IS A SUIT BETWEEN A
FORMER HUSBAND AND WIFE THUS, EXCLUDING IT
IN THE COVERAGE OF THE LAW SINCE THE PARTIES
ARE NOT COVERED BY THE ENUMERATION OF
FAMILY RELATIONSHIPS IN ARTICLE 150 OF THE
FAMILY CODE.

AS PROPERLY FOUND IN THE DECISION,

DEFENDANT-APPELLANT SHOULD BE EJECTED
FROM THE SUBJECT PREMISES AND SHOULD
RESTORE PEACEFU POSSESSION THEREOF TO THE
PLAINTIFF. THE POSSESSION BY DEFENDANT-
APPELLANT WAS ONLY BY MERE TOLERANCE OF
PLAINTIFF-APPELLEE. SUCH POSSESSION OR
DETAINER BECAME ILLEGAL FROM THE TIME

4
 THERE WAS A DEMAND TO VACATE FROM THE
PLAINTIFF-APPELLEE.

CONTRARY TO DEFENDANT-APPELLANT’S
MISTAKEN AND MISGUIDED CLAIMS, THE FILING OF
A SUPERSEDEAS BOND AND THE OBLIGATION TO
DEPOSIT MONTHL RENTALS ARE NOT REQUISITES
FOR THE PERFECTION OF THE APPEAL BUT ARE
NECESSARY IN ORDER TO STAY THE EXECUTION OF
JUDGMENT IN EJECTMENT PROCEEDINGS WHICH
ARE IMMEDIATELY EXECUTORY IN NATURE.

III

DISCUSSION

THE HONORABLE METROPOLITAN TRIAL COURT OF

MANILA, BRANCH 26, HAD JURISDICTION OVER THE
SUBJECT MATTER OF THE CASE. THE FACT THAT
DEFENDANT-APPELLANT’S POSSESSION OVER THE
PROPERTY WAS BY MERE TOLERANCE WAS
SUFFICIENTLY ALLEGED IN THE COMPLAINT
CLEARLY MAKES THE INSTANT CASE AN
EJECTMENT CASE FOR UNLAWFUL DETAINER, THUS
WITHIN THE PURVIEW OF THE JURISDICTION OF
THE METROPOLITAN TRIAL COURT.

17. In her Memorandum, Defendant-Appellant erroneously and

baselessly insists that the Honorable Metropolitan Trial Court of Manila,
Branch 26, had no jurisdiction over the subject matter of the case basically
relying on the premise that the Complaint failed to sufficiently allege a cause
of action for Unlawful Detainer.

18. Contrary to Defendant-Appellant’s mistaken claims, the

Honorable Trial Court of Manila, Branch 26, had jurisdiction over the instant
case. The well embodied rule in ejectment cases is that “what determines the
nature of the action as well as the Court which has jurisdiction over it are the
allegations of the complaint.”10

19. In the case of Fairland Knitcraft Corporation v. Arturo Loo Po,11

the Supreme Court once again clarified that a “complaint sufficiently alleges
a cause of action for unlawful detainer if it recites the following:
10
Caniza v. Court of Appeals, G.R. No. 110427, February 24, 1997
11
G.R. No. 217694, January 27, 2016

5
 a. Initially, possession of the property by the defendant was by
contract with or by tolerance of the plaintiff;
b. Eventually, such possession became illegal upon notice by the
plaintiff to the defendant of the termination of the latter's right
of possession;
c. Thereafter, the defendant remained in possession of the
property, and deprived the plaintiff of the enjoyment thereof;
and
d. Within one (1) year from the last demand on defendant to vacate
the property, the plaintiff instituted the complaint for
ejectment.”

20. In the instant case, there is no question that the Complaint filed
by Plaintiff-Appellee adequately and sufficiently alleged a cause of action
for unlawful detainer. The pertinent portion of the Complaint reads as
follows:

“x x x

5. Thereafter, however, it came to the knowledge of the Plaintiff-Appellee

that Defendant-Appellant occupied the subject property and refused to pay
rent to Plaintiff on the ground that the same was allegedly a conjugal property
despite the divorce of the parties.

6. Considering the years that the Parties spent with each other and because
Plaintiff-Appellee was already residing in the United States of America
during the time of occupation, Plaintiff-Appellee tolerated the occupation of
Defendant-Appellant at the subject property.

7. However, after some time, Plaintiff-Appellee learned that Defendant-

Appellant was spreading rumors against the Plaintiff-Appellee. Worse,
Defendant-Appellant ejected the subject property’s tenant on the basis that
she is the legal wife of the Plaintiff-Appellee.

8. It was then that Plaintiff-Appellee decided to terminate his tolerance to

Defendant-Appellant’s possession over the subject property. Thus, Plaintiff-
Appellee made successive verbal requests to Defendant-Appellant asking the
latter to vacate the premises but such requests were to no avail.

9. On 20 December 2017, Plaintiff-Appellee through counsel, personally

served a Formal Demand to Vacate demanding from the Defendant-
Appellant to vacate the said property within fifteen (15) days from receipt
thereof. At the time of service, Mr. Niño De Guzman, messenger of the
undersigned counsel, was informed by Mr. Jonathan Fernando, son of
Plaintiff-Appellee and Defendant-Appellant that the latter was not inside the
property. Mr. Jonathan Fernando also refused to receive the demand letter
because, according to Mr. Jonathan Fernando, the surname of the Defendant-
Appellant and the name of the Plaintiff-Appellee was wrong.

10. Due to the failure of the personal service of the Formal Demand to Vacate,
Plaintiff-Appellee, through counsel, sent the Formal Demand to Vacate to
Defendant-Appellant through registered mail, as evidenced by Registry

6
 Receipt No. RD 790 225 573 ZZ, posted on 20 December 2017, at Parañaque
City Hall.

11. Again, on 21 December 2017, Plaintiff-Appellee, through counsel, sent a

Formal and Final Demand to Vacate demanding from Defendant-Appellant
to vacate the said property within fifteen (15) days from receipt thereof.
However, no one was present at the subject property to personally receive the
same during the time the demand letter was served, as evidenced by the
statement of Mr. Niño De Guzman, dated 21 December 2017, messenger of
the undersigned counsel.

12. Due to the failure of the personal service of the Formal Demand to Vacate,
Plaintiff-Appellee, through counsel, sent the Formal and Final Demand to
Vacate to Defendant-Appellant through registered mail, as evidenced by
Registry Receipt No. 087255, posted on 21 December 2017, at the Makati
Post Office.

x x x”

21. The above-cited portions of the Complaint sufficiently alleged

that Plaintiff-Appellee was the owner of the subject property. Plaintiff-
Appellee tolerated the possession of Defendant-Appellant and such
possession became illegal upon notice by Plaintiff-Appellant of the
termination of Defendant-Appellant’s possession. Defendant-Appellant
remained in possession of the property after failing to heed Plaintiff-
Appellee’s verbal and formal requests. The Complaint was seasonably filed
within the one-year period prescribed by law. With all the elements present,
there was clearly a cause of action in the complaint for unlawful detainer.

22. In a feeble attempt to support her ungrounded claims, Defendant-

Appellant even tried to rebut the statements and allegations in the Complaint
filed by Plaintiff-Appellee and contesting the jurisdiction of the Honorable
Metropolitan Trial court by showing that Plaintiff-Appellee has no cause of
action against Defendant-Appellant when in fact the sole issue in question is
whether the Complaint sufficiently states a cause of action.

23. In her Memorandum, Defendant-Appellant contends that there

was no allegation in the Complaint showing when the Appellant entered or
occupied the subject property and how she was permitted or tolerated to enter
or occupy the same. Contrary to Defendant-Appellant’s mistaken contention,
it is not a requirement in ejectment cases that the complaint should aver, as
jurisdictional facts, when and how entry into the property was made.

24. In the case of Sps. Dela Cruz v. Sps. Capco,12 the Supreme Court
citing the case of Delos Reyes v. Odones,13 once again explained that:

“The requirement that the complaint should aver, as jurisdictional

facts, when and how entry into the property was made by the

12
G.R. No. 176055, March 17, 2014.
13
G.R. No. 178096, March 23, 2011.

7
 defendants applies only when the issue is the timeliness of the
filing of the complaint before the MTC x x x.

This is because, in forcible entry cases, the prescriptive period is

counted from the date of defendants’ actual entry into the property;
whereas, in unlawful detainer cases, it is counted from date of the
last demand to vacate. Hence, to determine whether the case was
filed on time, there is a necessity to ascertain whether the
complaint is one for forcible entry or for unlawful detainer; and
since the main distinction between the two actions is when and
how defendant entered the property, the determinative facts should
be alleged in the complaint.”

25. Here, the timeliness of the filing of the Complaint for unlawful
detainer is not an issue and thus the Complaint sufficiently established a case
for unlawful detainer as to vest the Metropolitan Trial Court of Manila,
Branch 26, with jurisdiction taking into consideration the facts alleged and
stated in the Complaint.

26. Moreover, Defendant-Appellant erringly contends that the

Honorable Metropolitan Trial Court has no jurisdiction over the subject
matter of this case there was no allegation in the Complaint for Unlawful
Detainer – that eventually, such possession became illegal upon notice of
plaintiff to defendant of the termination of the latter’s right to possession.

27. Again, in a futile attempt to support her erroneous and mistaken

claims, Defendant-Appellant merely resorted to trivial matters such as
focusing on the “meaning, import and connotation” of the factual
circumstances alleged in the Complaint.

28. Defendant-Appellant emphasized on the portion of the

Complaint stating that “Plaintiff decided to terminate his tolerance to
Defendant’s possession over the subject property” and contending that “a
decision to terminate one’s right of possession is entirely different from
giving notice of termination to one’s right of possession.

29. A simple perusal of the statements in the Complaint, particularly

paragraph 8 of the Complaint, would clearly show that Plaintiff-Appellee
gave notice to Defendant-Appellant of the termination of the latter’s right of
possession. Paragraph 8 of the Complaint states that:

“8. It was then that Plaintiff-Appellee decided to terminate his tolerance to

Defendant-Appellant’s possession over the subject property. Thus, Plaintiff-
Appellee made successive verbal requests to Defendant-Appellant asking the
latter to vacate the premises but such requests were to no avail.”

30. In fact, because of Defendant-Appellant’s failure to heed to

Plaintiff-Appellee’s verbal request to vacate the premises, Plaintiff-Appellee

8
 was even constrained to secure the services of a legal counsel to help him
facilitate the sending of formal demands to vacate to Defendant-Appellant.
Thus, it is absurd for Defendant-Appellant to claim that Plaintiff-Appellee
has only decided to terminate his tolerance to Defendant-Appellant’s
possession over the subject property and that that Plaintiff-Appellee has not
formally terminated Defendant-Appellant’s right of possession.

31. Moreover, Defendant-Appellant falsely and erroneously alleged

that the Honorable Metropolitan Trial Court had no jurisdiction over the
subject matter because “there was no valid demand to vacate” and that
Appellant did not receive the Letters of Demand to Vacate personally or
through registered mail.

32. It bears stressing that the jurisdictional requirement of demand in

unlawful detainer cases “can be oral. The law does not require it to be in
writing.” This can be gleaned from Rule 70, Section 2 of the Rules of Court
which provides that:

“Sec. 2. Lessor to proceed against lessee only after demand.

Unless otherwise stipulated, such action by the lessor shall be

commenced only after demand to pay or comply with the
conditions of the lease and to vacate is made upon the lessee,
or by serving written notice of such demand upon the person
found on the premises, or by posting such notice on the
premises if no person be found thereon, and the lessee fails to
comply therewith after fifteen (15) days in the case of land or five
(5) days in the case of buildings.”14

33. In the instant case, successive verbal requests were made by

Plaintiff-Appellee to Defendant-Appellant to vacate the subject property. It
was also because of Defendant-Appellant’s adamant refusal to vacate the
property and to return possession of the same to Plaintiff-Appellee that the
latter was constrained to send the Formal Demand Letters to Vacate to
Defendant-Appellants through various modes of service such as through
registered mail and private courier service.

34. Defendant-Appellant contends that the Letters of Demand to

Vacate was not addressed to “CARMELITA PANGANIBAN
FERNANDO” thus, there was no valid demand to vacate is clearly devoid
of any merit. As sufficiently stated, and proven in the Complaint, the parties
were already divorced by reason of a Final Decree of Divorce, dated 12
September 1986, issued by the Second Judicial District Court of the State of
Nevada.15 Thus, there can be no reason why the demand letters should not
be addressed to Defendant-Appellant by using her maiden name considering
that their marriage was already dissolved.
14
Emphasis ours.
15
See Annex “C” of the Complaint.

9
 35. In view of the foregoing, the Honorable Metropolitan Trial Court
of Manila, Branch 26 clearly and evidently had jurisdiction overt he subject
matter of the instant case considering that the Complaint sufficiently and
adequately alleged a cause of action for unlawful detainer.

THE COMPLAINT FOR UNLAWFUL DETAINER

SHOULD NOT BE DISMISSED FOR HAVING FAILED TO
ALLEGE THEIREIN THAT EARNEST EFFORTS
TOWARDS A COMPROMISE HAVE BEEN MADE, BUT
THE SAME HAVE FAILED SINCE THE RULE APPLIES
ONLY TO A SUIT BETWEEN MEMBERS OF THE SAME
FAMILY. THE INSTANT CASE IS A SUIT BETWEEN A
FORMER HUSBAND AND WIFE THUS, EXCLUDING IT
IN THE COVERAGE OF THE LAW SINCE THE PARTIES
ARE NOT COVERED BY THE ENUMERATION OF
FAMILY RELATIONSHIPS IN ARTICLE 150 OF THE
FAMILY CODE.

36. Defendant-Appellant’s misguided assertion that the Complaint

for Unlawful Detainer should have been dismissed for failure to allege
therein that earnest efforts toward a compromise have been made, but that
the same have failed is devoid of any merit.

37. Article 151 of the Family Code provides:

“Art. 151. No suit between members of the same family shall

prosper unless it should appear from the verified complaint or
petition that earnest efforts toward a compromise have been
made, but that the same have failed.”

38. The coverage of family relations provided under Article 150 of

the Family Code enumerates those persons who should resort to such
condition precedent before the filing of an action, otherwise, the case should
be dismissed. Thus, family relations include those:

(1) Between husband and wife;

(2) Between parents and children;
(3) Among the descendants and ascendants; and
(4) Among brothers and sisters, whether of the full or half-blood.16

39. In the instant case, the parties are former spouses whose marriage
was dissolved and terminated by reason of a valid Final Decree of Divorce,
dated 12 September 1986, issued by the Second Judicial District Court of the

16
Article 150 of the Family Code of the Philippines.

10
State of Nevada long before the instant case was instituted. In the said
Judgment and Final Decree of Divorce, it was clearly order, adjudged and
decreed that the Plaintiff-Appellee be, granted an absolute and Final Decree
of Divorce from Defendant-Appellant, and forever dissolving the bonds of
matrimony existing between the Plaintiff-Appellee and Defendant-
Appellant and restoring them, and each of them, to the status of single,
unmarried persons.

40. By reason of the aforementioned Final Decree of Divorce,

Plaintiff-Appellee and Defendant-Appellant are not already considered as
members of the same family contemplated by Article 151 of the Family Code
and Rule 16, Sec. 1(j) of the Rules of Court requiring earnest efforts toward
a compromise before a suit between them may be instituted cannot be
maintained.

41. Therefore, since the Plaintiff-Appellee and Defendant-Appellant

are not covered by the enumeration of family relationship in Article 150 of
the Family Code, the alleged failure of the Plaintiff-Appellee to allege
earnest efforts to effect a compromise is not necessary.

AS PROPERLY FOUND IN THE DECISION,

DEFENDANT-APPELLANT SHOULD BE EJECTED
FROM THE SUBJECT PREMISES AND SHOULD
RESTORE PEACEFU POSSESSION THEREOF TO THE
PLAINTIFF. THE POSSESSION BY DEFENDANT-
APPELLANT WAS ONLY BY MERE TOLERANCE OF
PLAINTIFF-APPELLEE. SUCH POSSESSION OR
DETAINER BECAME ILLEGAL FROM THE TIME
THERE WAS A DEMAND TO VACATE FROM THE
PLAINTIFF-APPELLEE.

42. First and foremost, it is important to note that Defendant-

Appellant has failed to file an Answer to Plaintiff-Appellee’s Complaint
while the instant case is still within the jurisdiction of the Honorable
Metropolitan Trial Court for having failed to file the requisite answer within
the period prescribed by law.

43. In an attempt to cure this defect, Defendant-Appellant tried to

circumvent the provisions of the Rules on Summary Procedure by filing a
Motion to Admit Answer which essentially seeks an extension which is
prohibited under such Rules but was correctly and judiciously denied by the
Honorable Metropolitan Trial Court for having been filed out of time.

44. Considering that Defendant-Appellant failed to file her answer

on time, the Metropolitan Trial Court had the option to render judgment motu

11
 proprio or on motion of Plaintiff-Appellee. In relation thereto, Sections 5
and 6 of the Rules on Summary Procedure provides:

“Sec. 5. Answer. – Within ten (10) days from service of summons,

the defendant shall file his answer to the complaint and serve a
copy thereof on the plaintiff. Affirmative and negative defenses
not pleaded therein shall be deemed waived, except for lack of
jurisdiction over the subject matter. Cross-claims and compulsory
counterclaims not asserted in the answer shall be considered
barred. The answer to counterclaims or cross-claims shall be filed
and served within ten (10) days from service of the answer in
which they are pleaded.

Sec. 6. Effect of failure to answer. – Should the defendant fail to

answer the complaint within the period above provided, the
court, motu proprio or on motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in the
complaint and limited to what is prayed for therein. The court
may in its discretion reduce the amount of damages and attorney’s
fees claimed for being excessive or otherwise unconscionable,
without prejudice to the applicability of Section 4, Rule 18 of the
Rules of Court, if there are two or more defendants.

45. In the case of Fairland Knitcraft Corporation v. Arturo Loo Po,17

the Supreme Court enunciated that “in case the defendant failed to file his
answer, the court shall render judgment, either motu proprio or upon
plaintiff’s motion, based solely on the facts alleged in the complaint and
limited to what is prayed for. The failure of the defendant to timely file his
answer and to controvert the claim against him constitutes his acquiescence
to every allegation stated in the complaint. Logically, there is nothing to be
done in this situation except to render judgment as may be warranted by the
facts alleged in the complaint.”

46. In the instant case, Defendant-Appellant failed to file her answer

on time to the Complaint despite proper service of summons. Worse,
Defendant-Appellant, failed to provide a sufficient justification to excuse her
lapses. Considering that no answer was filed, the judgment made by the
Honorable Metropolitan Trial Court as warranted by the facts alleged in the
complaint was proper and judicious.

47. In her Memorandum, Defendant-Appellant premised her

mistaken and unfounded claims on the ground that the Divorce Decree
obtained by Plaintiff-Appellee cannot bind this Honorable Court since
Philippine Courts do not take Judicial Notice of foreign laws, decrees and
judgment and that it is indispensable and imperative that there must first be
a Judicial Recognition by our courts.

17
Supra.

12
 48. It must be emphasized that the instant case was decided and
judgment was rendered by the Honorable Metropolitan Trial Court as may
be warranted by the facts alleged in the complaint. Because of Defendant-
Appellant’s failure to file an answer, the court was only tasked to determine
whether the complaint of Plaintiff-Appellee alleged a sufficient cause of
action and to render judgment thereon which the court judiciously found
when it ruled in favor of the Plaintiff-Appellee,

49. There was no need nor was there an opportunity to prove the
validity and authenticity of the foreign judgment of divorce because of
Defendant-Appellant’s own failure to file their answer and simply because
the allegations in the Complaint constituted a sufficient cause of action for
unlawful detainer.

50. In a long line of cases, the Supreme Court has consistently ruled
that it is only when “the allegations in the complaint are insufficient to form
a cause of action shall the attachment become material in the determination
thereof. In fact, even under Section 4 of the Rules of Summary Procedure, it
is not mandatory to attach annexes to the complaint.”18

51. This was again pronounced by the Supreme Court in the case of
Lazaro v. Brewmaster19 wherein a judgment was also rendered based on the
complaint due to the failure of the defendant to file an answer as provided
for under the Rules of Summary Procedure. Thus:

“xxx To determine whether the complaint states a cause of action,

all documents attached thereto may, in fact, be considered,
particularly when referred to in the complaint. We emphasize,
however, that the inquiry is into the sufficiency, not the
veracity of the material allegations in the complaint. Thus,
consideration of the annexed documents should only be taken
in the context of ascertaining the sufficiency of the allegations
in the complaint.”

52. In the case at bar, there was no need to prove the authenticity of
the documents being contested by Defendant-Appellant nor was there a need
to inquire into the veracity of the material allegations in the complaint. The
allegations in the complaint are sufficient to form a cause of action for
unlawful detainer thus, the attachments in the complaint are immaterial in
the determination of the rights of the parties.

53. As properly discussed above, the Complaint sufficiently alleged

that Plaintiff-Appellee was the owner of the subject property. Plaintiff-
Appellee tolerated the possession of Defendant-Appellant and such
possession became illegal upon notice by Plaintiff-Appellant of the
18
Supra.
19
642 Phil. 710 (2010).

13
termination of Defendant-Appellant’s possession. Defendant-Appellant
remained in possession of the property after failing to heed Plaintiff-
Appellee’s verbal and formal requests. The Complaint was seasonably filed
within the one-year period prescribed by law. With all the elements present,
there was clearly a cause of action in the complaint for unlawful detainer.

54. From the foregoing, all other erroneous allegations and

contentions of Defendant-Appellant has clearly and evidently became moot
and academic since her claim that the Honorable Metropolitan Trial Court
of Manila, Branch 26, gravely erred in ruling that Defendant-Appellant
should be ejected from the subject premises is premised and founded on the
allegation that the Divorce Decree obtained abroad by Plaintiff-Appellee was
not proven and consequently, insisting that Plaintiff-Appellee and
Defendant-Appellant are still considered as husband and wife.

55. Simply put, by reason of Defendant-Appellant’s failure to file an

Answer within the period prescribed by law, the Honorable Metropolitan
Trial Court of Manila, Branch 26, in deciding and adjudging the instant case
as warranted by the facts alleged in the Complaint correctly and judiciously
found that Defendant-Appellant should be ejected from the subject premises
without need and necessity to look into the attachments of the Complaint
because the Complaint has already sufficiently stated and alleged a cause of
action for unlawful detainer.

CONTRARY TO DEFENDANT-APPELLANT’S
MISTAKEN AND MISGUIDED CLAIMS, THE FILING OF
A SUPERSEDEAS BOND AND THE OBLIGATION TO
DEPOSIT MONTHL RENTALS ARE NOT REQUISITES
FOR THE PERFECTION OF THE APPEAL BUT ARE
NECESSARY IN ORDER TO STAY THE EXECUTION OF
JUDGMENT IN EJECTMENT PROCEEDINGS WHICH
ARE IMMEDIATELY EXECUTORY IN NATURE.

56. In his Memorandum, Defendant-Appellant insists that the

posting of supersedeas bond is not required in this case mistakenly alleging
that the supersedeas bond answers only for rentals as fixed in the judgment.

57. It is worth emphasizing that in the Decision of the Honorable

Metropolitan Trial Court of Manila, Branch 26, the Court ordered
Defendant-Appellant to pay the Plaintiff-Appellee the amount of P35,000.00
per month as reasonable compensation for the use and occupation of the
property counted from the date of filing of the Complaint (June 27, 2018)
until defendant vacates the premises. This portion of the Decision clearly
imports and connotes that the Defendant-Appellant is liable to pay the rents
for the use and occupation of the property. Thus, Defendant-Appellant’s
absurd claims are again, devoid of any merit.
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 58. Notwithstanding the foregoing, and as properly and extensively
discussed by Plaintiff-Appellee in his Motion for Issuance of Writ of Writ of
Execution Pending Appeal,20 dated 07 November 2018, the failure of
Defendant-Appellant to post the requisite supersedeas bond and to deposit
the monthly rentals did not stay the immediate execution of the judgment
despite the case being on appeal.

59. As provided under Section 19, Rule 70 of the Revised Rules on

Civil Procedure, the Decision is immediately executory except only if the
Defendant perfects his appeal and files a supersedeas bond within the
reglementary period to perfect the appeal, thus:

“SEC. 19. 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 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.”

60. In the case of Chua v. Court of Appeals,21 the Supreme Court

had opportunity to explained the aforementioned provision and laid down
the requisites on the means of staying the immediate execution of a judgment
in an ejectment case, thus:

“As a general rule, a judgment in favor of the plaintiff in an

ejectment suit is immediately executory, in order to prevent
further damage to him arising from the loss of possession of
the property in question. To stay the immediate execution of
the said judgment while the appeal is pending the foregoing
provision requires that the following requisites must concur:
(1) the defendant perfects his appeal; (2) he files a supersedeas
bond; and (3) he periodically deposits the rentals which
become due during the pendency of the appeal. The failure of
the defendant to comply with any of these conditions is a
ground for the outright execution of the judgment, the duty of
the court in this respect being "ministerial and imperative."

61. Moreover, in the case of Acbang v. Hon. Jimmy H.F. Luczon, JR.
et. Al.22, the Supreme Court had expressly stated that the supersedeas bond

20
A copy of the Motion for Issuance of Writ of Execution Pending Appeal, dated 07 November 2018,
is attached hereto as Annex “A”.
21
G.R. No. 113886, February 24, 1998.
22
G.R. No. 164246, January 15, 2014.

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 should be filed within the period to perfect the appeal in order to stay the
execution of the judgment, to wit:

“If the defendant-appellant perfected the appeal but failed to

file a supersedeas bond, the immediate execution of the
judgment would automatically follow. Conversely, the filing of
a 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.”

62. Further, in the case of Alconera v. Pallanan,23 the Supreme Court

emphasized that if the Defendant perfected the appeal but failed to file the
superseadeas bond within the period to perfect the appeal, the immediate
execution of the judgment would automatically follow, thus:

“Clearly then under said Sec. 19, Rule 70, a judgment on a

forcible entry and detainer action is made immediately
executory to avoid further injustice to a lawful possessor. The
defendant in such a case may have such judgment stayed only
by (a) perfecting an appeal; (b) filing a supersedeas bond; and
(c) making a periodic deposit of the rental or reasonable
compensation for the use and occupancy of the property during
the pendency of the appeal. The failure of the defendant to
comply with any of these 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. Conversely, the filing of a
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.”

63. As applied herein, based on the Notice of Appeal filed by

Defendant-Appellant, they received a copy of the said Decision on 15
October 2018. As such, based on information given by Defendant-Appellant
herself, she had until 30 October 2018 to: (1) perfect her appeal, (2) file a
supersedeas bond and (3) thereafter periodically deposit the PhP35,000.00
monthly rental as stated in the Decision. Defendant-Appellant has failed to
comply with the said requisites.

64. First, the Notice of Appeal absolutely failed to adduce any proof
of Defendant-Appellant’s compliance with the requisites to stay the appeal;
specifically the requirement to file the requisite supersedeas bond and

23
A.M. No. P-12-3069, [January 20, 2014], 725 PHIL 1-19.

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 deposit the monthly rental stated in the Decision. Second, a verification with
this Honorable Court confirmed such failure of the Defendant-Appellant to
file a supersedeas bond and deposit monthly rentals.

65. Accordingly, in view of the utter failure of the defendant to

comply with all three conditions to stay the execution of the Decision, there
is more than sufficient ground for its outright execution. The duty to issue
the writ of execution, in this respect, being "ministerial and imperative" in
nature as mandated by the Supreme Court.

66. Simply stated, considering that the Defendant-Appellant has

perfected the appeal but failed to file a supersedeas bond, the immediate
execution of the judgment herein would automatically follow.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that the

instant Appeal be dismissed for utter lack of merit.

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

Parañaque City for the City of Manila, 07 January 2019.

TAYAG AND ASSOCIATES

Counsel for the Plaintiff-Appellee
118 Concha Cruz Drive,
BF Homes, Parañaque City,
Contact No. 576-5351
Email Address: ninelrsgt@gmail.com

By:
NINEL RUBIO G. TAYAG
PTR No. 5680192/ 17 Jan. 2018/ Quezon City
IBP No. 029823/ 26 Jan. 2018/ Makati City
MCLE Compliance No. V-0017154/21 March 2016
Roll of Attorney’s No. 51045

CZARINA ANGELI B. DEE

PTR No. 1251302/ 11 Jan. 2018/ Paranaque City
IBP No. 1021595/ 09 Jan. 2018/Quezon City
MCLE Compliance No. V-0020430/28 April 2016
Roll of Attorney’s No. 64411

JUSTIN B. LOREDO
PTR No. 11592216/ 13 Aug. 2018/ Las Piñas City
IBP No. 042641/ 18 May 2018/PPLM

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 Roll of Attorney’s No. 71076
Copy furnished:

CARMELITA P. ANDREWS
Defendant-Appellant
1817B, San Pascual, Malate,
Manila City

ATTY. LEOPOLDO P. DELA ROSA

Counsel for the Defendant-Appellant
Suite 307 CCI Building 1091
Concepcion Street, Ermita, Manila

EXPLANATION FOR SERVICE

BY REGISTERED MAIL

In compliance with Section 11, Rule 13 of the Rules of Court,

undersigned counsel, respectfully explains that this Counter Memorandum is
being served on the other party and filed with the Honorable Court through
registered mail due to temporary unavailability of office messengers to effect
personal service and time constraints.

JUSTIN B. LOREDO


Admitted to the Philippine Bar this 2018, MCLE compliance not yet required pursuant to Sec. 3 (b),
Rule 3, Bar Matter No. 850 and MCLE Governing Board Order No. 1, s. 2008.

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