REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

7th Judicial Region
Branch 2
Cauayan, Isabela

VICTORIANO M. ENCARNACION,
Plaintiff

-Versus-
Civil Case No:

FOR: Accion Publiciana Ejectment

NIEVES AMIGO,

Defendants

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PRE-TRIAL BRIEF

(For Plaintiff VICTORIANO M. ENCARNACION)

Plaintff Victoriano M. Encarnacion, through the undersigned counsel and unto his
Honorable Court, most respectfully submits his Pre-Trial Brief pursuant to Order of the
Honorable Court, and avers:

A. Possibility of Amicable Settlement or Compromise

Plaintiff is willing to withdraw to this compliant if Dependant will peacefully and
voluntarily vacate the disputed land property at District 1, National Hi-way,
Cauayan, Isabela. Plaintiff advice defendant Nieves Amigo to peacefully vacate the
land.
B. Brief Settlement of Defendant’s Claim
Plaintiff is registered owner of a 2 parcels of land with an area of 100 square meters
and 607 square meters respectively, located at District 1, National Hi-way, Cauayan,
Isabela, and which lands are covered by Transfer Certificate Title No. T- 256650 and
TCT No. T-256651, Said two lots originally form part of Lot No. 2121, a
single 707 square meter track of land owned by Rogelio Valiente who sold
the same to Nicasio Mallapitan on January 18, 1982. On March 21, 1985,
Mallapitan sold the land to Victoriano Magpantay. After the death of the
latter in 1992, his widow, Anita N. Magpantay executed an Affidavit of
Waiver[2] on April 11, 1995 waving her right over the property in favor of
her son-in-law, herein petitioner, Victoriano Encarnacion. Thereafter, the
latter caused the subdivision of the land into two lots[3] and the issuance of
titles in his name on July 18, 1996.[4]

An ocular inspection was no longer conducted by the plaintiff since a plan was already
made by his Architect and decide to do the same after the prospective has been made.
Defendant allegedly entered the premises and took possession of a portion
of the property sometime in 1985 without the permission of the then
owner, Victoriano Magpantay. Said occupation by respondent continued
even after TCT Nos. T-256650 and T-256651 were issue to petitioner.
The Plaintiff has demanded from the Defendant Nieves Amigo to vacate his property
through his lawyer sent a letter[5] dated Febuary 1, 2001; all demands
remained unheeded.

The prosecution has strong evidence to prove that the Plaintiff in this case has the
better right to the immovable property. In accordance with the Article 1544 of the Civil
Code, if the same immovable property is sold to different vendees, the ownership shall
belong to the person acquiring it who in good faith first recorded it in the Registry of
Property. Registration may not confer title to the property, but since it is an action in
rem, it binds all other third persons to questions the ownership of the said property.
Ownership is an independent and general right of a person to control a thing
particularly in his possession, enjoyment, disposition and recovery, subject to no
restrictions except those imposed by the state or private persons, without prejudice to
the provisions of the law. Article 428 of the Civil Code provides that “he owner has also
the right of action against the holder and possessor of the thing in order to recover it”.
Thus, in view of the aforementioned, it is an undisputable fact that the plaintiff is the
true owner of the said property in dispute, located at District 1, National Hi-way,
Cauayan, Isabela.

Hence, it is but proper for the plaintiff to actually occupy and take possession of such
property, without any hindrance to the same. The law has bequeathed on him the better
right to enjoy the fruits of his hard-earned labor. He has the better right to take pleasure
in the land he has desired, and the better to relish in peaceful elation the very property
he has planned to construct his business with. No one should deny him such right. After
all, plaintiff has nothing to do with the agreement between both defendants since the
property was already registered under his name.

C. Proposed Stipulation of Facts

Plaintiff respectfully proposes to stipulate on the following facts:

a. The land in question was previously owned by Rogelio Valiente, and was
covered by Original Certificate Title (OCT) No. 10957;
b. The land in question has an area of 100 square meters and 607 square meters,
sold the same to Nicasio Mallapitan on January 18, 1982. On March
21, 1985, Mallapitan sold the land to Victoriano Magpantay.
c. After the death of Victoruano Magpantay in 1992, his widow, Anita N.
Magpantay executed an Affidavit of Waiver[2] on April 11, 1995
waving her right over the property in favor of her son-in-law, herein
petitioner, Victoriano Encarnacion.
d. Victorianao Encarnacion, herein petitioner, caused the subdivision of the lands
into two lots.
e. Respondent Nieves Amigo allegedly entered the premises and took
possession of a portion of the property sometime in 1985 without
the permission of the then owner, Victoriano Magpantay. ;
f. Said occupation by respondent continued even after TCT Nos. T-
256650 and T-256651 were issue to petitioner.
 g. petitioner, through his lawyer sent a letter[5] dated Febuary 1, 2001
demanding that the respondent vacate the subject property. As
evidenced by the registry return receipt, the demand letter was
delivered by registered mail to the respondent on February 12, 2001.
h. Notwithstanding receipt of the demand letter, respondent still
refused to vacate the subject property.
i. On December 2, 2000, the plaintiff visited his newly purchased property and was
surprised to see a newly constructed rest house made of nipa and bamboo
materials. The newly built rest house was owned by Gilda Reyes-O’Connor who
allegedly bought the land from Lucio Arbutante.
j. Because of unheeded demands, the plaintiff was constrained to file this case to
enforce his right.
k. That no case or adverse claim has ever been filed prior to the filling of this case;

D. Statement Issue

The issue presented by both parties, based on the factual and legal issues, as submitted for
resolution of this Honorable Court is that the alleged respondent who has been in
actual possession and occupation of a portion of the subject land since 1968
has the better right to the land, and that the issuance of Free Patent and titles
in the name of petitioner was tainted with irregularities.

E. Documentary Evidence
a. Contract to sell executed by Rogelio Valiente with the marital consent of the
former’s wife Stelle Arbutante. This will be presented to prove that the parcel of
land located in District 1, National Hi-way, Cauayan, Isabela, was offered for sale
to Nicasio Mallapitan and sold the same to Victoriano Magpantay.
b. Deed of Absolute Sale executed by Nicasio Mallapitan in favor of Victoriano
Magpantay. This will be presented to prove that the land in question was
lawfully acquired by Victoriano Encarnacion, who inherited the same pursuant
to the Affidavit of waiver made by Anita Magpantay on April 11, 1995, waving
her right over the property in favor of her son-in-law; herein petitioner
Victoriano Encarnacion.
c. Certificate of Original Title No. 10957 in the name of Nicasio Mallapitan along
with the Tax Declaration, Sketch Plan, Site Location Map and O.R of the payment
of the Real Property Tax. This will be presented to prove that Nicasio Mallapitan
was the former owner of the property purchased by Victoriano Magpantay, and
 that all the rest of the documents, being in its original form are handed by the
former to the latter.
d. Receipt for the payment of the registration of the Transfer Certificate Title No.
10986. This is to prove that Victoriano Magpantay legally go through the process
of transferring the ownership of the parcel of land he purchased from Mr.
Mallapitan.
e. Transfer Certificate Title No. 10986. This is to prove that Original Title No.
10957 was cancelled and that ownership was transferred to Victoriano
Magpantay.
f. Copy of the Demand Letter date February 1, 2001 made by Victoriano
Encarnacion’s Lawyer which was sent to Nieves Amigo through registered mail.
This is to prove that defendant Nieves Amigo was given ample of time to settle
the matter amicably.
g. Certified true copies the log book of Cauayan, Isabela. This is to prove that the
demand letter was sent to the known address of Nieves Amigo. Plaintiff reserves
the right to present additional documentary evidence that may become available
only during the trial proper.

F. Number of Witness to be Presented

The defendant intends to present three (3) witnesses. The following are his
intended witness:

a. Victoriano Encarnacion – the plaintiff himself, who will testify on his ownership
of the land in question and will identify the present documentary evidence in
relation to the land. Estimated time for direct examination: 1 hour and 15
minutes.
b. Anita Magpantay – the plaintiff’s mother-in-law who will testify on the validity of
the Deed of Absolute Sale executed by the vendor, Nicasio Mallapitan, to her
husband Victoriano Magpantay, identify the present documentary evidence in
relation to the land ant the payment of the consideration of Five Hundred
Thousand Pesos (Php. 500,000.00).
c. Anastacio D. Suarez – the current Post Master of Cauayan, Isabela and the
former delivery boy of the said post office at the time of the demand letters were
sent to Nieves Amigo, who will testify that the demand letters were delivered at
the known address of the defendant Nieves Amigo.
Plaintiff reserves the right to present additional testimonial evidence as the exigencies of
the trial may require.

G. APPLICABLE LAWS AND JURISPRUDENCE

a. Article 1458 of the Civil Code of the Philippines which provides that “By the
contract of sale one of the contracting parties obligates himself to transfer the
ownership and to deliver a determinate thing, and the other to pay therefore a
price certain in money or its equivalent.”
b. Article 1505 of the Civil Code which provides that “where goods are sold by a
person who is not the owner thereof, and who does not sell them under
authority or with the consent of the owner, the buyer acquires no better title to
the goods than the seller had”.
c. Article 428 of the Civil Code provides that “he owner has also a right of action
against the holder and possessor of the thing in order to recover it.”
d. Sec. 51 of P.D. 1529 which provides that the registration of the deed is the
operative act to bind or affect the land insofar as third persons are concerned.
But where the party has knowledge of a prior existing interest which is
unregistered at the time he acquired a right to the same land, his knowledge of
that prior unregistered interest that has the effect of registration as to him.

H. Discovery Procedures and Referral to Commissioners

When appropriate, Plaintiff shall avail himself of discovery procedures under the
1997 Rules of Civil Procedure. Plaintiff manifest that he is amenable to referring the
case to commissioners under such reasonable and acceptable terms and conditions.

Respectfully submitted.

Cauayan, Isabela, Philippines.

December 17, 2001.

ATTY. JAY SANTOS ABASOLO, RN.

Notary Public