REPUBLIC OF THE PHILIPPINES

EIGHTH JUDICIAL REGION

REGIONAL TRIAL COURT
CITY OF CATBALOGAN
BRANCH ____

PRISCILA HOBAYAN-MIGUEL,
Plaintiff,

-versus- CIVIL CASE NO. _______

For: Recovery of Possession
with Damages and
prayer for Temporary
Restraining Order/
Preliminary Injunction

ATTY. LUCIANO S. BORJA, JEOVANI

G. ARNADO and FREEMONT FOODS
CORP. represented By FREDERICK
G. CRUZ,
Defendants.
x--------------------------------------------------x

COMPLAINT

PLAINTIFF, by counsel, unto this Honorable Court, most respectfully

avers:

PARTIES

1. Plaintiff PRISCILA HOBAYAN-MIGUEL is a Filipino, widow,

with address at No. 203 Allen Ave., Catbalogan City, Province of Samar. She
can be served with summons and other processes of this Honorable Court at
the aforesaid address or at the office address of the undersigned legal
counsel at Rm. 406, S. Medalla Bldg., EDSA cor. Gen. MacArthur St., Araneta
Center, Cubao, Quezon City.

2. Defendant ATTY. LUCIANO S. BORJA is a Filipino, of legal age,

with address at San Bartolome St., Catbalogan City, Province of Samar where
he can be served with summons and other processes of this Honorable Court.

3. Defendant JEOVANI G. ARNADO is a Filipino, of legal age and

with address at Petron Corp., ML Quezon Highway, Brgy. Ibo, Lapu-Lapu City
where he can be served with summons and other processes of this Honorable
Court.

4. Defendant FREEMONT FOODS CORP. , is a domestic corporation

with principal office address at 10 Emerald Ave., Ortigas Center, Pasig City
where it may served with summons and other processes of this Honorable
Court through its owner, FREDERICK G. CRUZ.

STATEMENT OF FACTS

4. Plaintiff, together with her siblings, is one of the absolute and

registered owners of Lot 206, Cad. 255 of Catbalogan Cadastre, more
specifically identified as No. 203 Allen Ave., Catbalogan City, Province of
Samar with an area of 142 sq. meters, more or less. On the said lot, plaintiff’s
family constructed a 3-storey combined residential/commercial building
where plaintiff and other family members have resided since the 1970s or
more than 40 years already while plaintiff’s predecessors-in-interest have
occupied the aforesaid lot since the 1940s. Plaintiff’s family reside in the
second floor of the building and operates a commercial establishment, SAN
ROQUE LODGE, in the third floor of the building. The building’s ground floor
is rented out to different business establishments.

Photocopy of Transfer Certificate of Title No. 13678 issued by the

Registry of Deeds for the Province of Western Samar under the names of
plaintiff and her siblings is attached herewith as Annex “A” hereof. Likewise,
photocopies of Tax Declaration with PIN 229-01-0003-04-012 covering the lot,
Tax Declaration with PIN 229-01-0003-04-012-1001 covering the commercial/
residential building are attached herewith as Annexes “B” and “C”,
respectively.

5. Defendant BORJA is the registered owner of the

adjoining/adjacent property denominated as Lot 207, Cad 255 of Catbalogan
Cadastre, covered by Transfer Certificate of Title No. 14930 and where a 2-
storey building is being constructed.

6. Defendant ARNADO is a Property Manager of Petron Corporation

which is operating a gas station on a portion of Lot 207, Cad 255 while
defendant FREEMONT FOODS CORP./ FREDERICK G. CRUZ is the
applicant/grantee of the building permit covering said 2-storey construction.

6. On October 2, 2018, plaintiff filed a complaint against defendant

BORJA and his brother Rolando, before the Barangay Chairperson of
Barangay 3, Catbalogan City, ANASTACIA JUAN, wherein she alleged that
sometime in August, 2018, the aforesaid brothers and/or persons acting in
their behalf, destroyed and/or closed the existing pathway beside her
property and illegally constructed a concrete and hollow block (CHB)
perimeter wall and fence which encroached on plaintiff’s property and asked
that defendants be ordered to restore/rehabilitate the previous structure that
was illegally destroyed by defendants. Photocopy of the said complaint is
attached herewith as Annex “D”.

7. On August 6, 2019, during the hearing in connection with plaintiff’s

complaint with the Lupon Tagapamayapa, respondents BORJA brothers were
duly represented by two (2) relatives who brought with them defendant
ARNADO. The latter suggested that the parties should conduct a joint survey
to determine the actual metes and bounds of their respective properties.
Plaintiff told them that she will confirm her agreement thereto upon conferring
with her family. She further advised that their family’s position will be
subsequently confirmed in writing by their legal counsel.

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 8. Plaintiff previously commissioned a geodetic surveyor, Ma. Shena
Mae D. Macalalad, to plot a sketch plan of Lot 206, Cad. 255, Catbalogan
Cadastre, in order to show the metes and bounds of her property vis-a-vis the
property of respondents’ BORJA and how the latter encroached on plaintiff’s
property. Photocopy of the aforesaid sketch plan prepared by the said
geodetic engineer is attached herewith as Annex “E”. Based on the said
sketch plan, it can be seen that before respondents’ BORJA brothers illegally
constructed a wall and fence made of concrete hollow block (CHB), there was
an existing pathway which was 1.65meters wide separating the two
adjacent properties. Respondents’ BORJA brothers constructed their CHB
wall and fence very close and almost touching the boundary and edge line of
plantiff’s property. In fact, the CHB wall that respondents’ BORJA brothers
erected encroached on 0.23 meters of plaintiff’s property and at the same
time, the said wall covered the latter’s drainage so that the same can no
longer be repaired if needed. Actual photos showing the front view of
plaintiff’s property and respondents’ BORJA brothers’ adjacent property is
attached as Annex “F”. The two (2) photos on the left side shows the existing
wall and fence prior to the construction of the respondents’ CHB wall and
fence which can be seen/indicated in the two (2) photos at the right side.
Another actual photo taken from the back of the plaintiff’s property can be
seen in attached Annex “G” which also shows the CHB perimeter wall and
fence constructed at or near the boundary and edge line of plaintiff’s
property. Still another photo taken from the top and back of plaintiff’s
property attached as Annex “H” would clearly show the same CHB perimeter
wall and fence illegally constructed by respondents’ BORJA brothers.

9. On August 14, 2019, undersigned counsel sent a letter to barangay

chaiperson JUAN outlining the position of the plaintiff and her family
regarding the proposed joint survey. Photocopy of the said letter to the
barangay chairperson is attached as Annex “I” together with proof of
delivery (LBC tracking details) marked as Annex “I-a”. In the said letter,
counsel said that plaintiff and her family was willing to agree to the conduct of
the proposed joint survey but with some conditionalities.

10. Due to the impending construction activities which plaintiff and her
staff observed during the period August 14-17, as shown in the photos
attached herewith as Annex “J”, undersigned counsel sent a letter to
defendant BORJA dated August 17, 2019 demanding that he and/or his
tenants’ Petron and Jollibee CEASE AND DESIST from undertaking any
construction activity in the meantime due to the fact that there was still a
boundary dispute covering the property which had not been resolved yet.
Photocopy of the said letter is attached herewith as Annex “K” and proof of
delivery (LBC tracking details) thereof marked as Annex “K-a”.

11. Despite plaintiff’s demand to CEASE and DESIST from undertaking

any construction activity, defendants ignored the same and continued with
their construction activities as shown in the actual photos starting with
demolition of existing structures seen in attached Annexes “L”-“N”,
excavation/diggings shown in attached Annex “O”, fillings shown in attached
Annex “P” and staking shown in attached Annex “Q”.

12. Verification with the City Engineering Office/Office of the Building

Official revealed that it was only on September 6, 2019 that the said office
transmitted to the Office of the City Mayor an approved application for the
renovation of Jollibee Building with defendant FREEMONT FOODS CORP/

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FREDERICK G. CRUZ as owner/applicant, with photocopy thereof herewith
attached as Annex “R” .

Attached to the said transmittal was the application for a building

permit (Building Permit No. 19-SE-C0777) and other applications for
electrical, mechanical, electronics, sanitary/plumbing permits, fire safety
clearance and locational clearance. Photocopies of the building permit and
application for a building permit are attached as Annexes “S” and “T”,
respectively. As can be seen in the said application, the same is incomplete
as there is no data indicated as to the Lot No., title no. and Tax Declaration No.
of the property where the proposed building is to be built. Also, it is not
indicated in the same application if the scope of work is new construction or
as alleged in the transmittal letter, renovation works only. Moreover, in the
box reserved for the consent of the lot owner, the application purports to
show that the lot owner is a certain EDOUARD ANTHONY L. DE CASTRO, with
address at 1 Fort Max Resort, Amsterdam St., Paranaque City when the truth
is that the said lot is registered under the name of defendant BORJA with TCT
No. 14930 and similarly, the Tax Declaration is likewise registered under the
same name since he is the one paying for the real property taxes.

13. Due to the defendants’ continuous demolition, excavation, digging,

filling and other construction activities notwithstanding the pendency of the
boundary dispute between the parties herein, plaintiff has suffered and
continues to suffer damages with dust and other construction debris entering
their building and posing a daily threat to the health of plaintiff and her
immediate family. The said construction activities have also brought anxiety
and sleepless nights to plaintiff and her family.

14. With the defendants’ continued defiance of plaintiff’s just and valid
demand to cease and desist from undertaking the construction activities in
complete disregard of the pending dispute at the office of the Lupon
Tagapamayapa, the latter issued a certificate to file action, photocopy of
which is attached as Annex “U”.

15. Hence, this complaint.

ISSUES

1. WHETHER OR NOT THE DEFENDANTS ILLEGALLY OCCUPIED AND

ENCROACHED ON THE LOT OF THE PLAINTIFF BASED ON THE
SKETCH PLAN OF LOT 206, CAD. 255 OF THE CATBALOGAN
CADASTRE;

2. WHETHER OR NOT DEFENDANTS HEREIN SHOULD BE ENJOINED

FROM CONTINUING WITH THEIR CONSTRUCTION ACTIVITIES
PENDING THE RESOLUTION OF THE BOUNDARY DISPUTE BETWEEN
THE PARTIES; and

3. WHETHER OR NOT THE DEFENDANTS HEREIN SHOULD BE HELD

LIABLE FOR ACTUAL, MORAL AND EXEMPLARY DAMAGES.

ARGUMENTS/DISCUSSION

RE: FIRST ISSUE

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 1. Based on the sketch plan prepared by the licensed geodetic engineer,
defendants have illegally appropriated for themselves an existing pathway
which had been used by the public since plaintiffs occupied their property in
the 1970s or for more than forty (40) years with plaintiff’s predecessors-in-
interest having occupied the same property since the 1940s.

2. Under the law, the existing pathway had already been converted into
an easement of right of way due to the continuous and apparent use as such by
the public including plaintiff herein. Thus, Art. 620 of the Civil Code provides
that:
“Continuous and apparent easements are acquired either by virtue of
a title or by prescription of ten years.”

3. Prescription as a mode of acquisition requires the existence of the

following: (1) capacity to acquire by prescription; (2) a thing capable of
acquisition by prescription; (3) possession of the thing under certain
conditions; and (4) lapse of time provided by law. [12] Acquisitive
prescription may either be ordinary, in which case the possession must be in
good faith and with just title, [13] or extraordinary, in which case there is
neither good faith nor just title. In either case, there has to be possession
which must be in the concept of an owner, public, peaceful and
uninterrupted.

4. Even assuming, without agreeing, that the existing pathway could not
be converted into an easement of right of way through prescription, the same
still could not be appropriated exclusively by the defendants since they have
yet to prove that the subject property is covered by, or included in, their title.
Thus, a joint survey which was initially proposed by defendant ARNADO
should have been conducted first before the defendants could rightfully and
legally claim the existing pathway as part of their private property which
would have entitled them to legally construct the CHB perimeter wall and
fence. Absent such showing that the existing pathway is owned by defendants
or included in their title, their construction activities would be considered
precipitate and illegal since it constitutes an apparent violation of plaintiff’s
property rights.

5. The sketch plan of Lot 206, Cad. 255 of Catbalogan Cadastre clearly
and unequivocally shows that there used to be a pathway continuously used
by the public, including plaintiff, which was 1.65meters wide separating
the two adjacent properties and which the defendants have illegally
encroached and the latter have also occupied 0.23 meters of the plaintiff’s
own property by erecting a CHB wall/fence at the edge and boundary line of
plaintiff’s property. At the same time, the said illegally constructed wall
covered the plaintiff’s drainage system which would make it hard for the
plaintiff to undertake repairs, if needed.

RE: SECOND ISSUE

6. Plaintiff herein is entitled to an injunctive relief. Injunction is a

judicial writ, process or proceeding whereby a party is ordered to do or
refrain from doing a certain act. It may be the main action or merely a
provisional remedy for and as an incident in the main action. (Regalado,
Remedial Law Compendium [1999, p. 637])

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 7. Essential to granting the injunctive relief is the existence of an
urgent necessity for the writ in order to prevent serious damage. Thus, to be
entitled to the injunctive writ, petitioners must show that (1) there exists a
clear and unmistakable right to be protected; (2) this right is directly
threatened by an act sought to be enjoined; (3) the invasion of the right is
material and substantial; and (4) there is an urgent and paramount necessity
for the writ to prevent serious and irreparable damage.1

8. Rule 58 of the Revised Rules of Court provides the definition and

grounds for injunctive relief. Thus, under Sec. 3 thereof:

“Sec. 3. Grounds for issuance of preliminary injunction. – A

preliminary injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and
the whole or part of such relief consists in restraining the
commission or continuance of the act or acts complained of, or in
requiring the performance of an act or acts, either for a limited
period or perpetually;

(b) That the commission, continuance or non-performance of the

act or acts complained of during the litigation would probably work
injustice to the applicant; or

(c) That a party, court, agency or a person is doing, threatening, or

is attempting to do, or is procuring or suffering to be done, some act or
acts probable in violation of the rights of the applicant respecting the
subject of the action or proceeding, and tending to render the judgment
ineffectual.”

9. In the instant case, it is very clear that plaintiff herein is entitled

to the injunctive relief demanded due to the following grounds:

(a) Plaintiff’s rights as an adjacent property owner were violated and are
directly and continuously threatened by the defendants’ premature and
negligent construction activities. The invasion of plaintiff’s rights are
material and substantial because it has completely derogated and
negated her rights as such adjacent property owner.

(b) Defendants are undertaking construction activities in complete

violation of pertinent laws and regulations.

(c) There is an urgent and paramount necessity for the issuance of an

injunctive writ in order to prevent serious and irreparable damage to
plaintiff’s rights as an adjacent property owner and the clear and
present danger to her life and that of her family’s not to mention to her
property.
10. As an adjacent property owner, plaintiff is clearly and
expressly entitled to the legal easement of lateral and subjacent support
provided by Articles 684-6862 of the Civil Code of the Philippines and to

1 Medina v. City Sheriff of Manila, 342 Phil. 90 (1997).

2 Art. 684. No proprietor shall make such excavations upon his land as to deprive any adjacent
land or building of sufficient lateral or subjacent support.
Art. 685. Any stipulation or testamentary provision allowing excavations that cause danger to an
adjacent land or building shall be void.
Art. 686. The legal easement of lateral and subjacent support is not only for buildings standing
at the time the excavations are made but also for constructions that may be erected.

6
be notified by the defendant owner/proprietor intending to make any
excavation contemplated in the said Articles. 3

11. These legal and mandatory provisions afforded under the law to
plaintiff herein were grossly and negligently violated by defendants when
they not only failed to provide for such lateral and subjacent support but
worse, directly and proximately caused the loss or deprivation by plaintiff of
such support.

12. Defendants’ construction activity at the property adjacent to

plaintiff’s property commenced first week of August 2019 without the
defendants securing or even applying for a Building Permit (issued only on
September 6, 2019) in utter violation of Sec. 301, Chapter III of the National
Building Code of the Philippines (“NBCP”) which clearly state that:

“Sec. 301. Building Permits

No person, firm or corporation, including any agency or instrumentality
of the government shall erect, construct, alter, repair, move, convert
or demolish any building or structure or cause the same to be done
without first obtaining a building permit therefor from the Building
Official assigned in the place where the subject building is located or
the building work is to be done.” (emphasis ours)

13. In fact, as early as November 13, 2018, plaintiff already sent a

letter to the City Building Official asking the latter to withhold the granting or
issuance of Building Permit to anyone who would claim the pathway adjacent
to her property and to Lot 207 because the same was still under dispute with
the Lupon Tagapamayapa. Photocopy of said letter is attached herewith as
Annex “V”. As a consequence, plaintiff was summoned by and personally
went to the Office of the City Building Official to discuss her said letter.
However, despite the said letter objecting to the issuance of a building
permit, the same was surprisingly (and surreptitiously) issued to defendants
on September 6, 2019.

14. Based on the filled-up application for building permit, there was
incomplete and incorrect/inaccurate data or information supplied by
defendants which is a ground for suspension or revocation of the defendants’
Building Permit under Sec. 306, Chapter III of the NBCP. The defendants did
not indicate the Lot No., title no and Tax Declaration No. in their application
for building permit and they committed a violation of Art. 183 of the Revised
Penal Code ( which is the willful and corrupt assertion of a falsehood under
oath or affirmation administered by authority of law on a material matter) by
making it appear that the lot owner was EDOUARD ANTHONY L. DE CASTRO
when in truth and in fact, it is actually defendant BORJA who is the registered
owner thereof.

15. Defendants likewise violated Sec. 1202, Chapter XII of the NBCP
which provides that:

“(a) Subject to the provisions of Articles 684-686 of the Civil Code of the
Philippines on lateral and subjacent support, the design and
quality of materials used structurally in excavation, footings,
and in foundations shall conform to accepted engineering
practice.”

3 Art. 687, Civil Code of the Philippines

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 (b) Excavation and Fills
(1) Excavation or fills for buildings or structures shall be so
constructed or protected that they do not endanger life or property.
(2) Whenever the depth of excavation for any construction is
such that the lateral and subjacent support of the adjoining
property or existing structure thereon would be affected in a
manner that the stability or safety of the same is endangered,
the person undertaking or causing the excavation to be
undertaken shall be responsible for the expense of
underpinning or extending the foundation or footings of the
aforementioned property or structure.”
(3) xxxxx
(c) Footings, Foundations and Retaining Walls
(1) Footings and foundations shall be of the appropriate type, of
adequate size, and capacity in order to safely sustain the
superimposed loads under seismic or any conditions of external
forces that may affect the safety or stability of the structure. It shall
be the responsibility of the architect and/or engineer to adopt the
type and design of the same in accordance with standards set forth
by the Secretary.
(2) Whenever or wherever there exists in the site of the
construction an abrupt change in the ground levels or level of
the foundation such that instability of the soil could result,
retaining walls shall be provided and such shall be of adequate
design and type of construction as prescribed by the Secretary.”
(emphasis ours)

16. Defendants may have also violated a very basic law which is R.A.
4566 (as amended by P.D. 1746) which provides that no contractor (including
sub-contractor and specialty contractor) shall engage in the business of
contracting without first having secured a Philippine Contractors Association
Board (PCAB) license to conduct business. There is no showing that the
engineer/contractor that they indicated in their application for building
permit as supervisor of construction works (Reiner Niccson Pilares) is a
licensed civil engineer or one licensed to do construction works. It is an
offense to engage in contracting business without a license first being
obtained. The purpose of the Contractors’ License Law (R.A. 4566) is to
ensure, for the safety of the public, that only qualified and reliable contractors
are allowed to undertake construction in the country. The law also aims to
promote for the benefit of the public and private sectors and for the national
interest, the orderly growth of the contracting sector and the upgrading of
construction capability.

17. Considering that the construction site involves an establishment

that is engaged in food outlet/restaurant and fuel/gas station businesses,
there is a need for defendants to secure an Environmental Clearance
Certificate (ECC) from the Department of Environment and Natural Resources
(DENR) which defendants have failed to do.

18. All the foregoing laws and regulations are meant to protect the
rights of plaintiff herein as an adjacent property owner. The flagrant
violations of these laws and regulations by the defendants are sufficient
grounds for the immediate and urgent necessity of stopping and
enjoining them and/or those acting or working under their employ from
continuing or proceeding with the construction activities unless and until

8
all issues and concerns raised by plaintiff herein are properly and
thoroughly addressed.

RE: THIRD ISSUE

19. Aside from the injunctive relief, plaintiff herein is entitled to

damages arising from the abuse of rights committed by defendants.
Defendants herein may be held liable under the pertinent provision of Article
2176 of the Civil Code which governs quasi-delict and which provides that:
“Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence,
if there is no pre-existing contractual relation between the parties, is called
quasi-delict.”

20. Thus, to sustain a claim liability under quasi-delict, the following

requisites must concur: (a) damages suffered by the plaintiff; (b) fault or
negligence of the defendant, or some other person for whose acts he must
respond; and (c) the connection of cause and effect between the fault or
negligence of the defendant and the damages incurred by the plaintiff. 4

21. Defendants can also be held liable for damages for abuse of
rights under Articles 19, 20 and 21 of the Civil Code of the Philippines, which
state that:

Art. 19. “Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his
due and observe honesty and good faith.”

Art. 20. “Every person who, contrary to law, wilfully or negligently

causes damage to another, shall indemnify the latter for the
same.”

Art. 21. “Any person who wilfully causes loss or injury to another in
manner that is contrary to morals, good customs or public policy
shall compensate the latter for the damage.”

When a right is exercised in a manner which does not conform with the
norms enshrined in Article 19 or acts contrary to law under Art. 20 or acts
contrary to morals, good customs or public policy under Art. 21 and the acts
result in damage to another, a legal wrong is thereby committed for which the
wrongdoer must be held responsible. Although the requirements of each
provision is different, these three (3) articles are all related to each other. As
the eminent civilist Senator Arturo Tolentino puts it: “With this article (Article
21), combined with articles 19 and 20, the scope of our law on civil wrongs has
been very greatly broadened; it has become much more supple and
adaptable than the Anglo-American law on torts. It is now difficult to conceive
of any malevolent exercise of a right which could not be checked by the
application of these articles” 5

There is however, no hard and fast rule which can be applied to

determine whether or not the principle of abuse of rights may be invoked.

4 Huang v. Philippine Hoteliers, Inc., G.R. No. 180440, 687 SCRA 162, 194.
5 Tolentino, 1 Civil Code of the Philippines 72.

9
The question of whether or not the principle of abuse of rights has been
violated, resulting in damages under Articles 20 and 21 or other applicable
provision of law, depends on the circumstances of each case. 6

The elements of an abuse of right under Article 19 are the following: (1)
There is a legal right or duty; (2) which is exercised in bad faith; (3) for the
sole intent of prejudicing or injuring another. Article 20 speaks of the general
sanction for all other provisions of law which do not especially provide for
their own sanction.7 Thus, anyone who, whether willfully or negligently, in the
exercise of his legal right or duty, causes damage to another, shall indemnify
his victim for injuries suffered thereby. Article 21 deals with acts contra bonus
mores, and has the following elements: 1) There is an act which is legal; 2) but
which is contrary to morals, good custom, public order, or public policy; 3)
and it is done with intent to injure. Thus, under any of these three (3)
provisions of law, an act which causes injury to another may be made the
basis for an award of damages.

Of the three articles, Art. 19 was intended to expand the concept of

torts by granting adequate legal remedy for the untold number of moral
wrongs which is impossible for human foresight to provide specifically in
statutory law. If mere fault or negligence in one’s acts can make him liable for
damages for injury caused thereby, with more reason should abuse or bad
faith make him liable. The absence of good faith is essential to abuse of right.
Good faith is an honest intention to abstain from taking any unconscientious
advantage of another, even through the forms or technicalities of the law,
together with an absence of all information or belief of fact which would
render the transaction unconscientious. In business relations, it means good
faith as understood by men of affairs.

While Article 19 may have been intended as a mere declaration of

principle, the “cardinal law on human conduct” expressed in said article has
given rise to certain rules, e.g. that where a person exercises his rights but
does so arbitrarily or unjustly or performs his duties in a manner that is not in
keeping with honesty and good faith, he opens himself to liability.

Article 19 of the Civil Code, sets certain standards which may be

observed not only in the exercise of one’s rights but also in the performance
of one’s duties. These standards are the following: to act with justice; to give
everyone his due; and to observe honesty and good faith. The law, therefore,
recognizes the primordial limitation on all rights: that in their exercise, the
norms of human conduct set forth in Article 19 must be observed. A right,
though by itself legal because recognized or granted by law as such, may
nevertheless become the source of some illegality.

22. Thus, whether under Art. 2176 or under Articles 19, 20 and 21 of
the Civil Code of the Philippines, defendants should be held jointly and
solidarily liable for the following damages due to their fault or negligence, to
wit:
a. Actual or Compensatory Damages- Actual or compensatory
damages are those awarded in satisfaction of, or in recompense for,
loss or injury sustained. They simply make good or replace the loss

6 Globe Mackay Cable and Radio Corporation vs. Court of Appeals, 176 SCRA 778 [1989]).

7 Tolentino, supra, p. 71

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 caused by the wrong.8 Article 2202 of the Civil Code provides that
in crimes and quasi delicts, the defendant shall be liable for all
damages which are the natural and probable consequences of the
act or omission complained of. It is not necessary that such damages
have been foreseen or could have reasonably been foreseen by the
defendant. In this case, plaintiff has suffered actual and
compensatory damages in the total amount of FIVE HUNDRED
THOUSAND PESOS (PHP500,000.00).

b. Moral Damages- Moral damages are awarded to enable the injured

party to obtain means, diversions or amusements that will serve to
alleviate the moral suffering he has undergone, by reason of the
defendant's culpable action.9

Moral damages are not meant to be punitive but are designed to

compensate and alleviate the physical suffering, mental anguish,
fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar harm unjustly caused to
a person. To be entitled to such an award, the claimant must
satisfactorily prove that he has suffered damages and that the injury
causing it has sprung from any of the cases listed in Articles 2219
and 2220 of the Civil Code. Moreover, the damages must be shown
to be the proximate result of a wrongful act or omission. Under Art.
2220, “willful injury to property may be a legal ground for awarding
moral damages if the court should find that, under the
circumstances, such damages are justly due. The same rule applies
to breaches of contract where the defendant acted fraudulently or
in bad faith.” Due to the willful injury suffered by plaintiff’s
property resulting from the defendants’ fault or negligence which
has caused serious anxiety and mental anguish to plaintiff and her
family, the latter is entitled to claim for moral damages in the
amount of THREE HUNDRED THOUSAND PESOS (PHP300,000.00).

ALLEGATIONS IN SUPPORT OF THE APPLICATIONS

FOR THE ISSUANCE OF A TEMPORARY RESTRAINING
ORDER AND/OR WRIT OF PRELIMINARY INJUNCTION

23. Plaintiff reiterates the foregoing allegations insofar as they

are material and relevant. She further states that:

a. The clock is ticking on the ongoing 2-storey construction located

at Lot 207, Cad 255 of the Catbalogan Cadastre. The construction
project is now full blast.

b. The construction activities are being made by defendants on a

property which they do not conclusively and they have
encroached on the property owned by plaintiff in violation of the
latter’s property rights. In fact, there is still a pending boundary
dispute by and between the parties herein which is not yet
settled.

8 TOLENTINO, Civil Code of the Philippines, Vol. V, p. 633.

9 Kierulf v. CA, 336 Phil. 414, 432 (1997).

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 c. There is enough time to enjoin further
construction activities of the defendants before the same inflicts
maximum and permanent damage to plaintiff’s property.

d. The early issuance of a temporary restraining order or writ

of preliminary injunction will force defendants to rectify the
encroachment to plaintiff’s property in order to minimize the
damage thereto.

e. The commission and continuation of the foregoing act of

construction would work grave injustice and irreparable
damage/injury to the plaintiff’s property. Such injury is not
susceptible to being measured with reasonable accuracy by any
standard and, thus, falls within the doctrine laid down in the
landmark case of Social Security Commission vs.
Bayona (5 SCRA 126).

f. Defendants’ are continuing with the

construction of the 2-storey project, in blatant violation of the
rights of plaintiff expressly granted to her under the Civil Code
of the Philippines, National Building Code of the Philippines and
other pertinent laws and regulations.

g. There is no appeal, or plain, speedy and adequate remedy

available to the plaintiff herein.

h. Plaintiff is willing to post the required bond as may be directed

by this Honorable Court.
PRAYER

WHEREFORE, it is respectfully prayed that this Honorable Court that:

(1) Pending the required hearing, if said hearing is still

deemed necessary by the Honorable Court, and to prevent the
subject matter from becoming moot and academic, an EX-PARTE
TRO BE ISSUED pursuant to the first paragraph of Sec. 5, Rule 58 of
the Rules of Court, directing defendants or any of its directors,
officers, employees, contractors, sub-contractors, agents,
representatives and/or other persons under their authority,
direction or control to immediately and completely desist and
refrain from continuing with the on-going construction and
development of the 2-storey building or otherwise from
implementing its development plan, in whole or in part;

(2) Before the expiration of the ex-parte TRO above-mentioned, if

granted, to ISSUE a regular TRO for the same purposes;

(3) Thereafter, before the lapse of the effectivity of the said TRO and
after complying with the prescribed procedure, ISSUE a
preliminary injunction to serve the same purpose as the TRO but this
time effective until termination of the proceedings herein;

And, after proper proceedings,

(4) ISSUE a permanent Prohibitory Injunction ordering the
defendants, any of its officers, employees, contractors, sub-
contractors, agents, representatives and/or other persons under its
authority, direction or control to completely and

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 permanently desist and refrain from continuing with the
construction and development of the 2-storey building, or
otherwise from implementing its development plan, in
whole or in part for the duration of the boundary dispute and until
the same is resolved with finality.
(5) ORDERING an ocular inspection and joint relocation survey to be
conducted on the properties of the parties herein in order to
delineate the actual metes and bounds of their respective
properties.
(6) ORDERING defendants to pay plaintiff ACTUAL and
COMPENSATORY DAMAGES for FIVE HUNDRED THOUSAND PESOS
(PHP 500,000.00), MORAL DAMAGES in the amount of THREE
HUNDRED THOUSAND PESOS (PHP 300,000.00), EXEMPLARY
DAMAGES in the amount of TWO HUNDRED THOUSAND PESOS
(PHP200,000.00) and for attorney’s fees in the amount of ONE
HUNDRED THOUSAND PESOS (PHP100,000.00) plus costs of suit.

Plaintiff also prays for other just and equitable relief.

Quezon City for Catbalogan City, Samar
September 25, 2019

ATTY.NONNATUS P. CHUA
Counsel for the Plaintiff
Rm. 406, S. Medalla Bldg.
EDSA cor. Gen. MacArthur St.,
Araneta Center, Cubao, Quezon City
PTR No. 7785304/ 07-19-2019 / Makati City
IBP Lifetime Roll No. 012419 /O.R. no. 961392
Date of Enrollment 1-28-2014
Roll of Attorneys No. 35618
MCLE Compliance No. V-0013279/3-11-2016
Telephone: 09478208607/09273696101
EMAIL: nonnatuschua@yahoo.com

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 VERIFICATION & CERTIFICATION
OF NON-FORUM SHOPPING

I, PRISCILA HOBAYAN-MIGUEL, Filipino, of legal age, widow and with

residence address at No. 203 Allen Ave., Catbalogan City, Province of Samar,
after being duly sworn in to accordance with law, hereby depose and say:

1. That I am the plaintiff in the above-entitled case;

2. That I have caused the preparation and filing of the instant Complaint;

3. That I have read this Complaint and confirm that the allegations stated
herein are true and correct based on my own personal knowledge and
based on authentic records in my possession;

4. That I hereby certify that I have not commenced any action or

proceeding involving the issues covered by this Complaint before the
Supreme Court, the Court of Appeals, the Court of Tax Appeals, or any
other judicial tribunal;

5. That to the best of my knowledge, no action or proceeding which

involves the issues covered by this Complaint is pending before the
Supreme Court, the Court of Appeals, the Court of Tax Appeals, or any
other judicial tribunal;

6. That should I gain knowledge that any such action or proceeding is

either pending or has been terminated, I shall report such fact to this
Honorable Office within five (5) days from the date that I obtain
knowledge thereof.

PRISCILA HOBAYAN-MIGUEL
Affiant

SUBSCRIBED AND SWORN to before me this ___ day of __________ in

________________ by the Affiant whose identity I have confirmed through her
Identification Number____________________.

Doc No.____
Page No. ___
Book No. ___
Series of _____.

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