REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
CEBU

FELISA CODILLA,
CHERRY ARDIENTE NABLE,
RICARDO ARDIENTE, JR.,
ROSALINA ARDIENTE DIACOMA,
EDUARDO ARDIENTE,
BIENVENIDA ARDIENTE,
JUANITO ARDIENTE,
AVELINO ARDIENTE, and
NARCISA ARDIENTE RABASANO,
Plaintiffs-Appellant,

CIVIL CASE NO. CEB-25963

-versus- FOR:
RECONVEYANCE &
PARTITION

MANUEL CABUENAS and

AGAPITO CINCO,
Defendants-Appellees.
x------------------------------------------------------x

Pursuant to the

Notice of this Honorable Court,

Plaintiffs-Appellants

FELISA CODILLA,
CHERRY ARDIENTE NABLE,

Page 1 of 22
 RICARDO ARDIENTE, JR.,
ROSALINA ARDIENTE DIACOMA,
EDUARDO ARDIENTE,
BIENVENIDA ARDIENTE,
JUANITO ARDIENTE,
AVELINO ARDIENTE, and
NARCISA ARDIENTE RABASANO

by counsel, most respectfully submit their

APPELLANTS’ BRIEF

Page 2 of 22
 SUBJECT INDEX

Table of Authorities ......................................................................................... 4

II. Assignment of Errors ................................................................................... 5
III. Statement of the Case ................................................................................ 5
IV. Summary of the Proceedings ....................................................................... 5
V. Statement of Material Dates ......................................................................... 6
VI. Appealed Decision ..................................................................................... 7
VII. Statement of the Facts ............................................................................... 7
VIII. ISSUES..................................................................................................... 7
IX. Discussion and Arguments .......................................................................... 8
X. Relief ...................................................................................................... 21

Page 3 of 22
 Table of Authorities

PHILIPPINE JURISPRUDENCE PAGE

Basilio v. Court of Appeals, G.R. No. 125935, November 29, 2000 10

Lustan v. Court of Appeals, G.R. No. 111924, January 27, 1997 10

Metropolitan Waterworks and Sewerage System v. Court of Appeals, 10
G.R. Nos. 126000 & 128520, October 7, 1998, 357 PHIL 966-987

Nielsen & Co., Inc. vs. Lepanto Consolidated Mining Co., L-21601, 17 17
December 1966

Regalado vs Go, G.R. No. 167988 February 6, 2007 18

Virtucio v. Alegarbes, G.R. No. 187451, [August 29, 2012] 17

PHILIPPINE STATUTE

The New Civil Code of the Philippines 8, 12, 16

BOOKS

Dean Willard B. Riano, Evidence: The Bar Lecture Series, (2013 ed.) 12,12

Page 4 of 22
 II. Assignment of Errors

I. The Honorable Trial Court committed a reversible error in declaring

the due execution of the Deed of Sale relying on the presumption of
regularity by reason of the document being notarized;

II. The Honorable Trial Court committed a reversible error in stating

that appellant is now estopped and precluded from asserting that
subject property is conjugal;

III. The Honorable Trial Court committed a reversible error in stating

that appellees can raise the defense of good faith as against the
alleged misrepresentation by the appellants;

IV. The Honorable Trial Court committed a reversible error in ruling that
prescription has set in;

V. The Honorable Trial Court committed a reversible error in relying on

the principle of laches through uninterrupted adverse possession of
more than thirty years.

III. Statement of the Case

Nature of the Action

This is an appeal under Rule 41 of the Rules of Court to the Court of Appeals
from a judgment of the Regional Trial Court in its exercise of its original jurisdiction
by reason of several reversible errors of fact and law committed by the trial court.
This Brief pertains to the Appellants and it enumerates reversible errors
committed by the Honorable Trial Court, as well as the arguments in support of the
findings of said errors.
IV. Summary of the Proceedings

1. On December 20, 2000, Appellants filed a Complaint for

Reconveyance & Partition against Appellees.
2. The case was docketed as Civil Case No. CEB-25963, and was raffled
before Branch 5 of the Regional Trial Court of Cebu under the Honorable Presiding
Judge Ireneo Lee Gako, Jr.

Page 5 of 22
 3. On September 14, 2006, the Honorable Trial Court rendered judgment
dismissing the complaint for want of a valid cause of action. The counter-claim was
also dismissed for want of evidence.
4. A Notice of Appeal was duly filed by the plaintiffs on November 20,
2006. Well within the period within which to file an appeal after its receipt of the said
decision on November 16, 2006.

Appealed Judgment and Relevant

Orders and Pleadings

5. The appealed judgment and orders issued by the trial court are as
follows:
a) Decision dated September 14, 2006, an original of which is hereto
attached as Annex “A,” and was received by Appellants, through
counsel, on November 16, 2006. In said decision, the Honorable Trial
Court dismissed the complaint for want of a valid cause of action. The
counter-claim was also dismissed for want of evidence.
b) Notice of Appeal dated November 20, 2006 was filed with the trial
court, an original of which is attached hereto as Annex “B.” The
Honorable Trial Court was duly notified that the Appellants were
appealing its Decision to the Honorable Court of Appeals;
c) Notice from the Clerk of the Court of the Honorable Regional Trial
Court, Branch 5, Cebu City, to the Chairman of the Court of Appeals,
which was received by the Appellants, through counsel, on December
19, 2006, of the transmittal of the complete records of the case. An
original thereof is hereto attached as Annex “C.”

V. Statement of Material Dates

6. The decision appealed from, dated September 14, 2006 was received
by Appellant, through counsel, on November 16, 2006.
7. Appellant filed its Notice of Appeal and paid the required fees on
November 20, 2006.
8. The Notice of the transmittal of the complete records of this case by
the Clerk of Court, RTC Branch 5 was received by Appellants, through counsel, on
December 20, 2006.
9. The Appellants’ Brief was filed within 45 days from the receipt of this
Notice.
10. Hence, this Appellants’ Brief is filed on time.

Page 6 of 22
 VI. Appealed Decision
11. The dispositive portion of the appealed Decision dated September 14,
2006 states that:
“WHEREFORE, in view of the foregoing, judgment is
hereby rendered dismissing the complaint for want of a valid
cause of action. The counter-claim is also dismissed for want
of evidence.”

VII. Statement of the Facts

12. Spouses Ricardo Codilla, Sr. and Felisa Codilla bought a parcel of
land from a certain Ikoy Daclan towards the end of the Second World War. Such
parcel of land was covered by TCT 120150 and has been in the possession of the
plaintifs unti the present.1
13. Sometime in 1962, approximately a year after the death of Rircardo
Sr., appellant Felisa mortgaged the subject property to the appelle Manuel
Cabuenas (appellee Manuel) through an oral agreement also known as “A Prenda
Indono”.2
14. Sometime in 2000, the appellants tried to redeem the subject land but
was rejected by appellee Manuel saying that he already owned the land.3
15. Appellees presented to appellants documents namely, Tax Declaration
No. 120150 and 120151 (TD#120150 and TD#120151), and purportedly an Absolute
Deed of Sale with appellant Felisa’s thumbmark as proof of a purported sale back in
1962.4 Copies are attached herein as Annex “E”,”F”, and “G”, respectively.

16. After formal demand letters and after mediation between appellants
and appellees failed at Office of the Barangay Captain at Barangay Malubog, Cebu
City resulting in a Certification to File Action, the appellants were constrained to file a
Civil Case for Reconveyance and Partition.

VIII. ISSUES

I. On Assigned Error No. 1 – Whether the notarized Deed of sale

enjoys the presumption of regularity as to its due execution;

1
TSN, Felisa Codilla, December 19, 2001, pp. 5-7.
2
TSN, Felisa Codilla, December 19, 2001, pp. 8-9.
3
TSN, Juanito Ardiente, June 6, 2002, pp. 21-22.
4
TSN, Juanito Ardiente, June 6, 2002, pp. 15-16.

Page 7 of 22
 II. On Assigned Error No. 2 – Whether the appellants are now
estopped from claiming that the subject property was
conjugal property;

III. On Assigned Error No. 3 – Whether there was good faith on

the part of the appellees in dealing with the appellants;

IV. On Assigned Error No. 4 – Whether prescription has already

set in;

V. On Assigned Error No. 5 – Whether appellants are now barred

by laches.

IX. Discussion and Arguments

The Honourable Trial Court erred in

declaring that the Deed of Sale
enjoyed the presumption of
regularity merely because it was a
notarized document.

17. The Honorable Court in its decision dated September 14, 2006 stated,
to wit:
XXX
1. The deed of sale executed by the plaintiff FelisaCodillavda
de Ardiente, dated March 26, 1962, is valid and being a
notarized document, its due execution is presumed. This
document would support the courts findings that
defendants are the lawful owner(sic) of lot 116304-CAD-
12 Ext. located in Barangay Pong-ol, Cebu City;
2. The same document clearly shows it is a deed of sale, not
mortgage;
XXX
18. Article 1332 of the New Civil Code states that:
“When one of the parties is unable to read, or if the contract is in a
language not understood by him, and mistake or fraud is alleged,
the person enforcing the contract must show that the terms thereof
have been fully explained to the former.
19. Unmistakably, there was misplaced haste committed by the Honorable
Tial Court in declaring outright that the alleged Deed of Sale enjoyed the
presumption of regularity merely because it was a notarized document. There was

Page 8 of 22
no effort, however miniscule, exerted to explain the contents of the questioned
document to appellant Felisa who neither can read nor write.
20. Appellant Felisa, during her direct examination, declared that:
xxx
Atty Sarausos: By the way, will you please tell the court, what is
your educational attainment, Madam witness?
Felisa: I have no formal education.
xxx
Q: Just for purposes of clarity Madam witness, does that mean that
you cannot possible read?
A: I cannot read.
Q: And you cannot also write?
A: Yes, Maam, I cannot also write.
Court: Even, a Cebuano dialect?
A: Yes your honor.
Court: So, you are not an elector?
A: No Your Honor, because I cannot read.
xxx5
21. To further establish this point, Agapito Cinco, during his Cross-
examination merely alleged that it was appellant Felisa who prepared the
questioned document, without any knowledge as to latter’s lawyer’s name,
who was claimed to had assisted appellant.
xxx
Atty. Largo: Who prepared the Deed of Sale?
Agapito: It was FelisaCodilla
Q: So, it was not Bernard Cinco?
A: No, maam.
Q: Where was it prepared?
A: At the city hall
Q: by whom?
A: It was Felisa Codilla
Q: In other words, the document was already prepared?
A: Yes, in fact, she brought it.
Q: Do you know the name of the lawyer?
A: I do not know the name of that lawer.

5
TSN FelisaCodilla December 19, 2001 pg. 10-11

Page 9 of 22
 Q: Who know the lawyer, who among you knew the lawyer?
A: Bernard Cinco brought FelisaCodilla to the lawyer.
xxx6

22. Clearly then, how can an unknown lawyer be competent enough to fully
explain the contents of the questioned document to appellant Felisa who
is unable to read.
23. Furthermore, the importance of fully explaining the contents of a contract
is further highlighted in the case of Lustan v. Court of Appeals, in which
the Supreme Court emphasized:

“Petitioner had no knowledge that the contract she signed is a

deed of sale. The contents of the same were not read nor
explained to her so that she may intelligibly formulate in her
mind the consequences of her conduct and the nature of the
rights she was ceding in favor of Parangan. Petitioner is
illiterate and her condition constrained her to merely rely on
Parangan's assurance that the contract only evidences her
indebtedness to the latter. When one of the contracting parties
is unable to read, or if the contract is in a language not
understood by him, and mistake or fraud is alleged, the
person enforcing the contract must show that the terms
thereof have been fully explained to the former.7”
24. It is likewise worthy of consideration that while a notarized document
enjoys the presumption of regularity, it is not conclusive. By reason of the
illiteracy of appellant Felisa, it was incumbent upon the appellees to
establish that the contents of the questioned document were fully
explained to the former. No less than the Supreme Court in the case of
Basilio vs Court of Appeals emphasized that the presumption may be
overcome by clear and convincing evidence to the contrary. To quote:
“Generally, a notarized document carries the evidentiary weight
conferred upon it with respect to its due execution, and documents
acknowledged before a notary public have in their favor the
presumption of regularity. However, the presumption is not
absolute and may be rebutted by clear and convincing
evidence to the contrary” 8
25. Appellant Felisa’s uncontested testimony establishing her illiteracy should
have been considered by the Honorable Court as a clear and convincing
evidence which overcame the presumption and thus, shifted the burden
to the appellees.
6
TSN, AgapitoCinco, 3/16/2004, pp. 5-7
7
Lustan v. Court of Appeals, G.R. No. 111924, January 27, 1997
8
Basilio v. Court of Appeals, G.R. No. 125935, November 29, 2000
10
Metropolitan Waterworks and Sewerage System v. Court of Appeals, G.R. Nos. 126000 & 128520,
October 7, 1998, 357 PHIL 966-987

Page 10 of 22
 At very least then, the contract is deemed voidable as there was vitiated
consent by virtue of the fact that there was no conscious and effective
consent enough to perfect such a contract of sale. As enunciated in
Metropolitan Waterworks and Sewerage System v. Court of Appeals:
“Thus, "a contract where consent is given through mistake,
violence, intimidation, undue influence or fraud, is voidable."
Contracts "where consent is vitiated by mistake, violence,
intimidation, undue influence or fraud" are voidable or
annullable.”10

Assigned Error No. 2: The

Honorable Trial Court committed
a reversible error in ruling that
appellants are estopped from
claiming that subject property is
conjugal.
27. The Honorable Court in its decision dated September 14, 2006
continued stating that, to wit:
XXX
3. Plaintiff Felisa Codilla vda. De Ardiente is estopped from
asserting that subject property is conjugal because she
made defendants believe that(sic) land in the deed of sale
that(sic) is her paraphernal property. So defendants
believed her and they brought the property. Article 1431
of the Civil Code, the substantive law on the matter,
provides that through estoppel an admission or
representation is rendered conclusive upon the person
making it, and cannot be denied or disapproved as against
the person relying thereon. Section 2 Rule 131 of the
Rule(sic) on Evidence also provides:
“Conclusive presumptions. Whenever a party, by his own
declaration, act, or omission, intentionally and deliberately
led another to believe a particular thing true, and to act
upon such belief, he cannot in any litigation arising out of
such declaration, act, or omission, be permitted to
falsify it.
28. With all due respect, the Honorable Trial Court failed to see that the
circumstances surrounding the alleged act of the appellant Felisa of making the
appellees believe that the subject property was paraphernal did not fall within the
ambit of a conclusive presumption according to Section 2 Rule 131 of the Rules on
Evidence, also known as estoppel in pais.
29. First of all, the alleged fact, act, or document, TD#120150 in the
appellant Felisa’s name, to prove the conclusive presumption was specifically denied
by the appellant Felisa and was not sufficiently proved by the appellees that the

Page 11 of 22
illiterate appellant Felisa ever consented thereto. How then can a questioned fact,
act or document conclusively prove an additional fact, the conclusive presumption?
“A conclusive or irrebuttable presumption is not a
presumption at all; it is a substantive rule of law directing that
proof of certain basic facts conclusively proves an
additional fact which cannot be rebutted. Such
presumption rests upon grounds of expediency or public
policy so compelling in character as to override the
requirement of proof.” (29 Am Jur 3d, Evidence, §184;
Citations omitted).9
30. Secondly and in arguendo, the notarized document, TD#120150 in the
appellant Felisa’s name, the appellees basis for the supposed estopped act, may
only enjoy the presumption of regularity, a presumption of its genuineness and due
execution, and a mere disputable presumption at best.
“A presumption is disputable or rebuttable if it may be
contradicted or overcome by other evidence (Sec. 3, Rule
131, Rules of Court).. In the language of Sec.3 Rule 131,
disputable presumptions “are satisfactory, if uncontradicted,
but may be contradicted and overcome by other evidence.”
When evidence that rebuts the presumption is introduced,
the force of the presumption disappears.10
32. Again and with all due respect to the Honorable Trial Court, the
undisputed fact of the appellant Felisa illiteracy coupled with the appellees’ inability
to prove that the appellant Felisa ever sufficiently consented thereto should have
destroyed the presumption of genuineness and due execution of the subject
notarized document.
Assigned Error No. 3: The
Honorable Trial Court committed
a reversible error in stating that
there was good faith the part of
the appellees and that this can be
a defense against the alleged
misrepresentation by the
appellants.
31. The Honorable Court in its decision dated September 14, 2006
continued stating that, to wit:
XXX
4. On the issue of good faith of defendants, Article 1127 of
the Civil Code states that good faith of the possessor
consists in the reasonable belief that the person from
whom he received the thing was the owner thereof, and
could transmit his ownership.

9
Willard B. Riano, Evidence, 2013 Ed., p. 108
10
Willard B. Riano, Evidence, 2013 Ed., p. 108

Page 12 of 22
 XXX

32. First, and as discussed in the previous assignment of errors, the

appellees cannot attribute to the appellant Felisa the execution of the documents
that supposedly manifested the misrepresentation for the reason that the appellees
were unable to prove that the appellant Felisa was sufficiently informed of the nature
of the contract.
Second, with regard to the sale of real property sans an Certificate of Title,
the principle of caveat emptor applies. The appellees knew very well that the
appellant Felisa was a widow and had children for the opposing parties in this case
were in fact neighbors. Any person of reasonable mind would question why a tax
declaration would only be in the name of the appellant Felisa.
33. The appellee Manuel in his testimony stated that he knew that the
appellant Felisa had children and that TD#120150 in the name of appellant Felisa
was of the same date as the questioned Deed of Sale, obviously, enough reason for
a person in good faith to inquire about the true ownership of the subject property; to
wit:
XXX
COUNSEL TO WITNESS:
Q: My next question is, can you please inform the
Honorable Court what was this alleged reason as
relayed to you by Agapito Cinco.
A: I do not know about what happened, my money that was
given to her.
Q: Nonetheless, sir, having known of Felisa Codilla you
will be able to confirm, sir, at the time of this sell
in 1962 Felisa Codilla has children?
A: Yes, they are small children.
Q: Before this alleged sell in 1962, in March 1962, did you
bother to ask from Felisa Codilla of some documents that
will prove her ownership of the property?
A: I saw those papers or document when we were there at
the City Hall.
Q: What particular documents were shown to you, sir?
A: A Tax Declaration was shown to the lawyer and when
that Tax Declaration was shown to the lawyer we saw also
the Tax Declaration.
Q: What Tax Declaration are you referring to?
A: Tax Declaration.
Q: In whose name?
A: Tax Declaration in the name of Felisa Codilla.

Page 13 of 22
Q: If I show you this tax declaration, sir, were you be able to
identify it?
A: Yes, I can but I cannot clearly see.
Q: I am showing to you this tax declaration, which we have
already marked as Exhibit A, please have a look at
whether or not this is the tax declaration you were
shown.
A: I cannot really see the document.
Q: At any rate, did you see the Deed of Absolute Sale?
A: Yes.
Q: Did you understand the contents of this Deed of
Absolute Sale?
A: Yes.
Q: Having understood the contents of the Deed of Absolute
Sale, you will be able to confirm, sir, that it was stated
therein that this property is paraphernal?
A: Yes, that was owned by Felisa Codilla.
Q: Did you bother to ask for documents to show that
indeed this is paraphernal property of Felisa
Codilla?
A: There was already a Tax Declaration.
Q: So, you simply relied, sir, on the tax declaration.
A: Yes, Maam.
Q: Did you inspect the tax declaration before signing
allegedly this Deed of Sale, before agreeing to this Deed of
Sale?
A: Yes, because I saw that documents given to the lawyer.
Q: You saw, Mr. Witness, the tax declaration?
A: Yes, I saw.
Q: And you will confirm that this tax declaration is
dated May 26, 1962.
A: Yes.
ATTY. VESTEL: Objection, Your Honor.
ATTY. LARGO: He has already answered.
ATTY. VESTEL: Objection, we move to strike, the best
answer, Your Honor, is the tax declaration, the best
evidence, Your Honor.
ATTY. LARGO: No, I’m just asking for his knowledge.
COURT: He’s cross-examination.

Page 14 of 22
COUNSEL TO WITNESS:
Q: And the same date, Mr. Witness, that this alleged
Deed of Sale was executed, correct?
A: Yes.
Q: And the same tax declaration that you said you have
examined shows that the previous tax declaration is in
the name of Ricardo Ardiente, right?
ATTY. VESTIL: Objection, Your Honor, the best evidence is
tax declaration.
COURT: Just ask, do you know?
ATTY. LARGO: O.k.
COUNSEL TO WITNESS:
Q: You said you examined the tax declaration in the name
of Felisa Ardiente, did you also ask, Mr. Witness, for the tax
declaration, do you know rather, Mr. Witness, that the
previous tax declaration as written on this tax declaration
in the name of Felisa Ardiente is in the name of Ricardo
Ardiente, did you know that?
ATTY. VESTEL: Objection, Your Honor, it is in the
document.
COURT: No, no, this is not a subject of inquiries, he was
only confronting, the cross-examiner did not question the
document, so, it can be subject of inquiring.
COURT: Witness may answer.
WITNESS: I did not know because the tax declaration was
in the name of Felisa Ardiente and that is the tax
declaration that I know.
COUNSEL TO WITNESS:
Q: You did not ask for previous tax declarations, Mr.
Witness?
A: (No answer)
Q: You did not ask for previous tax declarations, Mr.
Witness?
A: Yes, all documents were given to our lawyer that she is
indeed the owner of the lot in question.
Q: Did you not ask for previous tax declarations aside from
this tax declaration executed on the same day that the
date of sell allegedly executed?
A: All the documents were given to us, yes.
COURT TO WITNESS:

Page 15 of 22
 Q: You mean without asking Felisa, Felisa gave you
some documents?
A: Those documents were placed on the table.
Q: Whose table?
A: The table of our lawyer, Your Honor.11
(Emphasis supplied)

XXX

34. With all due respect to the Honorable Trial Court, its is quite evident
that the appellees were with the knowledge of the defect in TD#120150 or were in
fact the perpetrators of the fraudulent documents. Either way, the appellees were
definitely devoid of good faith with their dealings with the appellant Felisa.
Assigned Error No. 4: The
Honorable Trial Court committed a
reversible error in ruling that
prescription has set in due to
appellees’ continuous and
uninterrupted adverse possession
of thirty years.
35. The Honorable Court in its decision dated September 14, 2006 finally
stated that, to wit:
XXX
5. On the issue of prescription and laches, Article 1137 of the
Civil Code states that ownership and other real rights over
immovables prescribe uninterrupted adverse possession
thereof for thirty years, without need of title or of good
faith. Plaintiffs are guilty of laches for having asserted that
they are also the owners of subject property only after
thirty-nine (39) years. The defense of laches applies
independently of prescription.
36. With all due respect to the honourable court, it is correct in saying that
the defense of laches applies independently of prescription however it defies logic as
to why it associated the two together in one justification. The case of Nielsen & Co.,
Inc. vs. Lepanto Consolidated Mining Co., clearly elaborated on their distinction, to
wit:
“Laches is different from the statute of limitations. Prescription is concerned
with the fact of delay, whereas laches is concerned with the effect of delay.
Prescription is a matter of time; laches is principally a question of inequity of
permitting a claim to be enforced, this inequity being founded on some
change in the condition of the property or the relation of the parties.

11
TSN, Manuel Cabuenas, 3/28/2005, P5-9

Page 16 of 22
 Prescription is statutory; laches is not. Laches applies in equity, whereas
prescription applies at law. Prescription is based on fixed time laches is
not.”1312
Furthermore, prescription is of two kinds in that it can be ordinary or extraordinary
and also it can be acquisitive or extinctive as was explained in the case of Virtucio v.
Alegarbes:
“that prescription is a mode of acquiring ownership through the lapse of time
in the manner and under the conditions laid down by law. Under the same
law, it states that acquisitive prescription may either be ordinary or
extraordinary. 20 Ordinary acquisitive prescription requires possession of
things in good faith and with just title for a period of ten years, 21 while
extraordinary acquisitive prescription requires uninterrupted adverse
possession of thirty years, without need of title or of good faith.”13
“There are two kinds of prescription provided in the Civil Code. One is
acquisitive, that is, the acquisition of a right by the lapse of time as
expounded in par. 1, Article 1106. Other names for acquisitive prescription
are adverse possession and usucapcion. The other kind is extinctive
prescription whereby rights and actions are lost by the lapse of time as
defined in Article 1106 and par. 2, Article 1139.”
The court in its conclusion quoted above invokes and relies on Article 1137 of the
civil code as its basis in its pronouncement that there has been prescription, it failed
to elaborate whether what transpired was an acquisitive prescription on the
part of the appellees or what transpired was an extinctive prescription on the
part of the appellants. Clearly then, this pronouncement by the honourable court is
vague and finds no basis in law. Worse, appellees never presented any evidence
to support that they were indeed in adverse possession of the land.
37. In paragraph 10 of its answer, appellees stated that they were in
possession of the land continuously, adversely, and peacefully in the concept of an
owner and had appropriated the fruits upon said properties unto themselves.
However, they never presented any documentary nor any testimonial evidence to
support this claim. The only evidence to they presented was a single tax declaration
for the year 1962 which falls short to support the claim that there was “continuous
and adverse” possession.
38. Hence, in failing to specify the type of prescription whether it was
acquisitive on the part of appellees or extinctive on the part of appellants and in
failing to prove that there was continuous and adverse possession in the concept of
an owner, prescription cannot or has not yet set in.

Assigned Error No. 5: The

Honorable Trial Court committed a
reversible error in ruling that
Appellants are now barred by

12
Nielsen & Co., Inc. vs. Lepanto Consolidated Mining Co., L-21601, 17 December 1966
13
Virtucio v. Alegarbes, G.R. No. 187451, [August 29, 2012]

Page 17 of 22
laches in failing to question
appellees continuous adverse
possession of the property and only
asserting their ownership claim
only after 39 years.

39. Regalado vs Go, G.R. No. 167988 February 6, 2007 defines estoppel
by laches as:
“Laches is defined as the "failure or neglect for an unreasonable and
unexplained length of time, to do that which, by exercising due diligence,
could or should have been done earlier, it is negligence or omission to assert
a right within a reasonable length of time, warranting a presumption that the
party entitled to assert it either has abandoned it or declined to assert it.” 1514
This particular principle exists only on the basis of equity and is based on the
surrounding circumstances of each case.
40. With all due respect to the Honorable Trial Court, it erred when it
determined that the execution of the supposed Deed of Sale was the reckoning point
for the uninterrupted adverse possession of thirty years for laches to set in. Mere
passage of time is not the sole basis of laches for that is the ambit of prescription.
Laches, as was quoted in the case of of Nielsen & Co., Inc. vs. Lepanto
Consolidated Mining Co., L-21601, 17 December 1966, concerns itself with inequity
and the effect of delay and not merely on passage of time. Hence, passage of time
alone cannot be the sole basis for the court to say that appellants are now barred by
laches.
41. The issue on laches should be resolved on whether there was failure
or neglect for an unreasonable length of time on the part of appellants to exert their
ownership right of the property. The evidence presented clearly point out that
appellants did not abandon nay slept on their rights over the land for laches to
attach. This was shown in the cross-examination of appellant Juanito Ardiente, son
of appellant Felisa, when the Honorable Trial Judge even took matter into his own
hands to verify the reckoning point for the uninterrupted adverse possession of the
subject property; to wit:
XXX
ATTY. DUTERTE:
Q: Before 2001, and from 1977, if you wanted to, you could
have seen this Marcelo at any time?
A: Not yet, sir.
Q: Yes, but you could have seen him if you wanted to?
A: Yes, because we live in the same barangay.
ATTY. DUTERTE: That is all Your Honor. No redirect, Your
Honor. We have three more witness to present.

14
Regalado vs Go, G.R. No. 167988 February 6, 2007

Page 18 of 22
COURT:
Q: Okay, when Cabuenas told you that you can enter
provided you can redeem the mortgage first, and he tell you
how much was the amount?
ATTY. SARAUSOS: Your Honor please, the witness said
that Cabuenas did not tell him that, it was his mother.
But in the previous questions, Your Honor, the answer
is that, it was not Cabuenas who told him that, he can
redeem, it was his mother. In fact, many times the
lawyer asked.
COURT:
Q: Did Manuel Cabuenas himself prevented you from
entering the land in question?
A: Yes, sir.
COURT:
Q: In fact, he told you that, you can only enter if you can
first redeem the mortgage?
A: Yes, sir.
COURT:
Q: Did he tell you how much?
A: No, Your Honor.
COURT:
Q: Did you ask Cabuenas how much are we going to
redeem?
A: I did not, Your Honor.
COURT:
Q: Why did you not ask Cabuenas how much so that you
can raise the amount?
A: Instead of asking that, Your Honor, he told us that the
land was registered already in his name and when we
verified in the Assessor’s Office, it was already
registered in his name.
COURT:
Q: So, Manuel Cabuenas also told you that you cannot
redeem anymore the property?
A: Yes, because he already bought the land, Your Honor.
COURT:
Q: So, he also told you that you can enter if you can
redeem the property and later on, he told you that you

Page 19 of 22
 cannot enter because you can no longer redeem
the property because he already bought that?
A: That is what he said, Your Honor.15
(Emphasis supplied)
XXX
40. Clearly, appellants exerted their ownership rights within a reasonable
time when it offered to redeem the property in 1977. Furthermore, no proof or
testimony has been submitted by the appellees that show a later assertion of
ownership or adverse possession from which the period of uninterrupted adverse
possession may be reckoned from up until the offer to redeem and eventual rejection
of appellant Juanito Ardiente in 1977, as basis for laches.
On this note, appellants cannot be considered as being barred by
laches.
41. Lastly, in arguendo that the Deed of Sale be upheld and with all due
respect, the Honorable Trial Court erred in not considering that the Purported Deed
of Sale was only for a land area of 16,000 square meters or 1.6 hectares as clearly
indicated in the challenged Deed of Sale, instead of the whole 5.27320 hectares as
indicated in TD#120151.

15
TSN, Juanito Ardiente, 11/22/2002, pp. 16-25.

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 CLOSING STATEMENT
The appellants in this case are now in danger in losing a piece of property,
cultivated and purchased by their decendants, which ought to have been theirs being
the rightful heirs.
Were it not for the self-enriching motives of the appellees committed against
appellant Felisa Ardiente, making her believe that what was executed was a simple
mortgage capable of being redeemed, rather that what the appellees contended as
an a deed of absolute sale, the appellants as heirs would have now enjoyed what
has been purchased by their parents and possibly been intended to be distributed to
them.
The appellants now come to this Honorable Court of Appeals to enable what
their parents have intended in favor of them. Appellants’ claim as ever since, by
preponderance of evidence, should be now declared meritorious by this Court.
By reason of various circumstances not imputable to them, appellants should
not be precluded from redeeming the said property and exercising their rights as the
true and lawful owners of the property subject of the litigation.
X. Relief
WHEREFORE, in view of all the foregoing, it is respectfully prayed that this
Honorable Court:
REVERSE the appealed Decision AND RULE in favor of the Reconveyance of
the subject property to the appellants and subsequently order the Partition of the
subject property in favor of the appellants.

Other reliefs just and equitable under the premises are also likewise prayed
for.
RESPECTFULLY SUBMITTED.

Cebu City, Cebu, Philippines, January 20, 2018.

Dela Cerna and Associates LAW OFFICES

Counsel for the Appellants
dlacerna@dlaw.cebu.ph/235-6678
18/F Ayala FGU Tower, Mindanao Ave.
Gen. Maxilom Ave., Cebu City
By:

Atty. Earl Debalucos

ROLL NO. 14242
IBP No. 1089542 – 2-6-18
PTR No. 14385680– 2-10-18
earldebalucos@dlaw.cebu.ph/254-5566
MCLE V Compliance No. 00063342
Cebu City

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Copy Furnished by personal service:

Atty. Augustine M. Vestil

Room 208, Jesever Bldg. II
Osmena Blvd., Cebu City

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