REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
CEBU CITY

SPOUSES LAMBERTO and CA GR. SP. NO.

PORFERIA SENO,
Petitioners, Civil Case No. OS-18-68A
Civil Case No. 139-SM
-versus-

MUNICIPALITY OF SAMBOAN, FOR: PETITION FOR REVIEW

Respondents, , UNDER RULE 42
X------------------------x

PETITION

COME NOW PETITIONERS, by the undersigned counsel, and

to this Honorable Court, most respectfully states:

THE PARTIES

Petitioners are all of legal age, Filipinos and residents of San

Sebastian, Samboan, Cebu.

Respondent is a Local Government Unit organized and existing

under the laws of the Republic of the Philippines, and represented in
this case by its chief executive officer, Municipal Mayor Emerito
Calderon.

TIMELINESS OF THE PETITION

On August 15, 2019, the petitioners received the Decision dated

April 28, 2019, rendered by the Regional Trial Court of Oslob, Cebu
Branch 62, denying the appeal filed by the petitioners.

On August 30, 2019, Petitioners timely filed their Motion for

Reconsideration, but the same was denied by the Order dated

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November 19, 2019, which was received by counsel on December 4,
2019.

By reason of the foregoing, petitioners have until December 19,

2019 within which to file the instant petition. This Petition is
seasonably filed.

A copy of the Decision dated April 28, 2019 is hereto attached

as Annex “A” while the Motion for Reconsideration is hereto
attached as Annex “B”. A copy of the Order dated November 19,
2019 is hereto attached as Annex “C”.

NATURE OF THE PETITION

This a petition for review under Rule 42 of the Revised Rules of

Court, seeking for the reversal of the decision of the Regional Trial
Court of Oslob, Cebu, Branch 62, in exercise of its appellate
jurisdiction which affirmed the original judgment rendered by the
10th Municipal Circuit Trial Court of Santander-Samboan-Oslob,
Cebu in Civil Case No. 139-SM.

CONCISE STATEMENT OF THE FACTS OF THE CASE

Petitioners have been in continuous, open, notorious possession

of a parcel of land located in San Sebastian, Samboan, Cebu now
known as Lot No. 12025, having built his residential house made of
concrete and wooden materials in 1975;

Ever since the Calderons came back to power in Samboan,

Cebu, they have been trying to coerce the petitioners and the other
occupants of Lot 12025 and nearby lot 12027 and even the occupants
of Lot 11686 to vacate the said lots, Mayor Emerito Calderon and his
predecessor, who happen to be his son, have been repeatedly
summoning the petitioners, trying to convince the latter to vacate
said the property, the officials of the respondent even resorted to
forcing the occupants to sign written promises, otherwise, the

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occupants will not be issued with Mayor’s Permit for their small
businesses.

On June 2017, respondent caused the erection of a perimeter

fence, which was meant to encircle the Lot No. 12025 and Lot 12027,
which perimeter fence also included a road lot which is owned by the
national government and separates Lot 12025 and Lot 12027, machine
copy of the fencing permit and plan was attached as Exhibit “2” to
the petitioners’ position paper, while colored printouts of the pictures
of the perimeter fence was attached as Exhibits “1”, “1A”, “1B” and
“1C” to the petitioners’ position paper, while colored printouts of the
west side of lot no. 12027 and 12025 was attached as Exhibits “3”,
“3A”, 3B” and “3C” to the petitioners’ position paper.

While there are several other occupants of Lot No. 12025 and
Lot no. 12027, as shown by the minutes of the confrontation of before
Brgy. Captain Emiliano Ferrater (machine copy of which was
attached as Exhibit “6” to the petitioners’ position paper), petitioner
Lamberto Seno was the only person brave enough to file a case before
the Office of the Provincial Prosecutor’s Office against Mayor
Emeterio Calderon and several others, for grave coercion.

Aside from the case for grave threats, petitioner also filed two
(2) cases against Emerito Calderon before the Office of the
Ombudsman and another case before the Cebu City Prosecutor’s
Office for Perjury;

It came as no surprise that out of all the occupants of Lot No.

12027 and Lot 12025, the respondent filed a case for ejectment against
the petititioners only, respondent did not file any ejectment case
against the other occupants of Lot No. 12025 and 12027.

Machine copy of the Complaint is hereto attached as Annex

“D”.

In the complaint in Civil Case No. 139, respondent alleged that

it is the declared owner of Lot No. 12025, as can be gathered from one
of the annexes of the complaint which is Tax Declaration No. 36-0013-
10047, machine copy of which is hereto attached as Exhibit “7” to the
petitioners’ Position Paper.

On March 14, 2018, petitioner Lamberto Seno filed a Civil

Action before the Regional Trial Court of Oslob, Cebu, Branch 62
against the respondent, along with other defendants namely: ALMA
SIBONGA, in her official capacity as the Provincial Assessor of the

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Province of Cebu, ERWIN GAMALLO, in his official capacity as
Municipal Assessor of the Municipality of Samboan, Cebu for
DECLARATION OF NULLITY OF TAX DECLARATIONS,
DAMAGES AND ATTORNEY’S FEES WITH PRAYER FOR
PRELIMINARY MANDATORY INJUNCTION.

In the said Complaint which was docketed as Civil Case No.

0OS-18-284, petitioner Lamberto Seno prayed for the following:

WHEREFORE, premises considered, it is most

respectfully prayed of this Honorable Court to render judgment
in the following manner, to wit:

1. After due notice and hearing, issue a Preliminary

Injunction, ordering the defendant to refrain from ejecting the
plaintiff from Lot No. 12025 located in San Sebastian,
Samboan, Cebu;

2. After the trial on the merits, to render judgment in

favor of the plaintiff and against the defendant in the following
manner:

a. Declare Declaration No. 36-0013-10965,

Declaration No. 36-0013-10047, and Declaration
No. 013610567 as NULL and VOID ab initio, and
to direct the nominal defendants to immediately
cancel the same;

b. Order the defendants to refrain from

disturbing the peaceful possession of the plaintiff
over Lot No. 12025 located in San Sebastian,
Samboan, Cebu;

c. Condemn defendants to pay to plaintiff the

sum of ONE HUNDRED THOUSAND PESOS
by way of Moral Damages, another FIFTY
THOUSAND PESOS by way of attorney’s fees and
FIFTEEN THOUSAND PESOS as litigation
expenses;

3. Other reliefs as are just and equitable under the

circumstances are likewise prayed for by the Plaintiff.

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 Machine copy of the complaint in Civil Case No. OS-18-284 is
hereto attached as Annex “E”.

Preliminary conference was conducted and thereafter, the

parties submitted their respective Position Papers.

In the Petitioners’ position paper, they advanced the argument:

1. PETITIONERS HAVE THE BETTER RIGHT TO

POSSESS THE PROPERTY. SINCE TAX DECLARATION THE
RESPONDENTS WERE FOUND TO BE SPURIOUS, THE
RESPONDENTS HAVE NO TAX DECLARATION OVER LOT
12025 EARLIER THAN 2002, MEANWHILE, THE PETITIONER
HAS BEEN OCCUPYING THE PORTION OF LOT 12025 SINCE
1975.

2. JUDICIAL COURTESY, SINCE CIVIL CASE NO. 0S-18-

284 IS ALREADY PENDING BEFORE REGIONAL TRIAL COURT
OF OSLOB, CEBU , A COURT HIGHER IN THE HIERARCHY AS
THE 10TH MCTC, THE SAID 10TH MCTC SHOULD HAVE
AWAITED THE OUTCOME OF SAID CIVIL CASE NO. 0S-18-284
BEFORE RENDERING JUDGMENT.

3. THE PLAINTIFF CANNNOT EJECT DEFENDANTS

FROM LOT 12025 BECAUSE IT NEVER POSSESSED THE
PORTION SUBJECT MATTER OF THE CASE AND NEITHER IS
THE PLAINTIFF THE OWNER OF THE ENTIRE LOT 12025.
SINCE THE PLAINTIFF IS NOT THE OWNER OF LOT 12025, IT
IS NOT ENTITLED TO POSSESSION OVER LOT 12025.

4. THE PLAINTIFF’S TAX DECLARATIONS OVER LOT

12025 ARE SPURIOUS AND THEREFORE, VOID AB INITIO

5. PLAINTIFF DID NOT COME TO THIS HONORABLE

COURT WITH CLEAN HANDS. THE ACTS OF THE
RESPONDENT IN TOTALLY ENCIRCLING LOT NO. 12025 AND
12027 WAS DONE WANTONLY, AND WAS AIMED SOLELY AT
COERCING THE DEFENDANTS INTO GIVING IN TO THE
PLAINTIFF’S WILL. EVEN BEFORE THE FILING OF THIS
INSTANT CASE, RESPONDENT HAS ALREADY APPOINTED
ITSELF AS THE JUDGE AND SHERIFF, PASSED JUDGMENT
AND IMPLEMENTED THE JUDGMENT ITSELF BY ERECTING
THE PERIMETER FENCE ENCIRCLING LOT 12025 AND LOT
12027.

Machine copy of the Petitioners’ Position Paper is hereto attached as

Annex “F”, while a copy of the respondent’s Position Paper is hereto
attached as Annex “G”.

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 In the Judgment dated July 2, 2018, the 10 th Municipal Circuit
Trial Court ruled in favor of the respondent the dispositive portion of
which reads as follows:

“WHEREFORE, Judgment is hereby rendered in

favor of plaintiff Municipality of Samboan and against
defendants Spouses Lamberto and Porferia Seno ordering
said defendants and all persons claiming rights under
them to immediately vacate the premises or portion of
Lot No. 12025 which they are occupying, demolish all
structures built thereon, and turn over its peaceful
possession to the plaintiff.”

A copy of the Judgment dated July 2, 2018 is hereto attached as

Annex “H”.

Petitioners appealed the said Judgment to the Regional Trial

Court of Oslob, Cebu, Branch 62, and advance the following,
assignment of errors, to wit:

1. THE HONORABLE 10TH MUNICIPAL CIRCUIT TRIAL

COURT ERRED IN RULING THAT PLAINTIFF-APPELLEE WAS
ABLE TO PROVE THAT THE DEFENDANTS-APPELLANTS’
POSSESSION OVER THE SUBJECT PROPERTY WAS BY THE
FORMER’S TOLERANCE;
2. THE 10TH MUNICIPAL CIRCUIT TRIAL COURT’S
JUDGMENT DATED JULY 2, 2018 IS CONTRARY TO THE
SUPREME COURT RULING IN EVERSLEY CHILDS
SANITARIUM, ET. AL. VS. SPOUSES ANASTACIO
PERLABARBARONA [G.R. NO. 195814, APRIL 4, 2018]
3. THE 10TH MUNICIPAL CIRCUIT TRIAL COURT
ERRED IN RULING THAT PLAINTIFF-APPELLEE WAS ABLE
TO PROVE THAT THE DEFENDANTS-APPELLANTS’
POSSESSION OVER THE SUBJECT PROPERTY WAS BY THE
FORMER’S TOLERANCE FROM THE VERY BEGINNING;
4. THAT THE 10TH MUNICIPAL CIRCUIT TRIAL COURT
ERRED IN NOT EXERCISING JUDICIAL COURTESY
CONSIDERING THAT THE VERY ASPECT OF THE PLAINTIFF-
APPELLEE’S OWNERSHIP OVER LOT 12025 IS IN QUESTION
BEFORE THIS HONORABLE COURT IN CIVIL CASE NO. OS-
18-284.
5. THE COURT A QOU ERRED IN NOT RULING THAT
THE PLAINTIFF-APPELLE WAS IN BAD FAITH BY FORCING

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 THE DEFENDANTS TO EVICT EVEN PRIOR TO THE FILING OF
THE CASE.

In the Decision dated April 28, 2019, the Regional Trial Court of
Oslob, Cebu Branch 62 denied the petitioners’ appeal and affirmed en
toto the Judgment rendered by the 10th Municipal Trial Court.

Petitioner’s timely filed their Motion for Reconsideration but

the same was denied in the Order dated November 2019.

GROUNDS RELIED UPON IN THIS PETITION

1. THE REGIONAL TRIAL COURT OF OSLOB,

CEBU ERRED IN DENYING THE APPEAL FILED
BY THE PETITIONERS;
2. THE REGIONAL TRIAL COURT OF OSLOB,
CEBU ERRED IN NOT RULING THAT
PETITIONERS WERE ABLE TO PROVE THAT THE
RESPONDENTS’ OVER THE SUBJECT PROPERTY
WAS BY THE FORMER’S TOLERANCE;
3. THE REGIONAL TRIAL COURT OF OSLOB,
CEBU FAILED TO APPLY THE THE SUPREME
COURT RULING IN EVERSLEY CHILDS
SANITARIUM, ET. AL. VS. SPOUSES ANASTACIO
PERLABARBARONA [G.R. NO. 195814, APRIL 4,
2018]
4. THE REGIONAL TRIAL COURT OF OSLOB,
CEBU ERRED IN RULING THAT RESPONDENT
WAS ABLE TO PROVE THAT THE PETITIONERS
POSSESSION OVER THE SUBJECT PROPERTY
WAS BY THE FORMER’S TOLERANCE FROM THE
VERY BEGINNING;
5. THAT REGIONAL TRIAL COURT OF OSLOB,
CEBU ERRED IN NOT RULING THAT THE 10TH
MUNICIPAL CIRCUIT TRIAL COURT SHOULD
HAVE EXERCISED JUDICIAL COURTESY
CONSIDERING THAT THE VERY ASPECT OF THE
RESPONDENT’ OWNERSHIP OVER LOT 12025 IS
IN QUESTION BEFORE THE VERY SAME

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 REGIONAL TRIAL COURT IN CIVIL CASE NO.
OS-18-284.
6. THE REGIONAL TRIAL COURT OF OSLOB,
CEBU ERRED IN NOT RULING THAT THE
RESPONDENT WAS IN BAD FAITH BY FORCING
THE PETITIONERS TO EVICT EVEN PRIOR TO
THE FILING OF THE CASE.

ARGUMENTS AND DISCUSSION

I. THE REGIONAL TRIAL

COURT OF OSLOB, CEBU
ERRED IN DENYING THE
APPEAL FILED BY THE
PETITIONERS;

II. THE REGIONAL TRIAL

COURT OF OSLOB, CEBU
ERRED IN NOT RULING
THAT PETITIONERS WERE
ABLE TO PROVE THAT THE
RESPONDENTS’ OVER THE
SUBJECT PROPERTY WAS
BY THE FORMER’S
TOLERANCE;

III. THE REGIONAL TRIAL

COURT OF OSLOB, CEBU
FAILED TO APPLY THE THE
SUPREME COURT RULING
IN EVERSLEY CHILDS
SANITARIUM, ET. AL. VS.
SPOUSES ANASTACIO
PERLABARBARONA [G.R.
NO. 195814, APRIL 4, 2018]

IV. THE REGIONAL TRIAL

COURT OF OSLOB, CEBU
ERRED IN RULING THAT
RESPONDENT WAS ABLE
TO PROVE THAT THE
PETITIONERS POSSESSION
OVER THE SUBJECT

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PROPERTY WAS BY THE
FORMER’S TOLERANCE
FROM THE VERY
BEGINNING;

In the case of EVERSLEY CHILDS SANITARIUM vs. SPOUSES

ANASTACIO PERLABARBARONA, [G.R. No. 195814, APRIL 4,
2018], citing Carbonilla v. Abiera 639 Phil. 473 (2010), the Supreme
Court reiterated the requisite for a valid cause of action in an
unlawful detainer case, said the Supreme Court:

A requisite for a valid cause of action in an unlawful

detainer case is that possession must be originally lawful, and
such possession must have turned unlawful only upon the
expiration of the right to possess. It must be shown that the
possession was initially lawful; hence, the basis of such lawful
possession must be established. If, as in this case, the claim is
that such possession is by mere tolerance of the plaintiff, the
acts of tolerance must be proved.
Petitioner failed to prove that respondents' possession
was based on his alleged tolerance. He did not offer any
evidence or even only an affidavit of the Garcianos attesting
that they tolerated respondents' entry to and occupation of the
subject properties. A bare allegation of tolerance will not
suffice. Plaintiff must, at least, show overt acts indicative of his
or his predecessor's permission to occupy the subject
property . . . .

To summarize, the following are the essential requisites for a

valid cause for unlawful detainer according to the ruling in the case
of EVERSLEY CHILDS SANITARIUM vs. SPOUSES ANASTACIO
PERLABARBARONA, [G.R. No. 195814, APRIL 4, 2018], citing
Carbonilla v. Abiera 639 Phil. 473 (2010),:
1. that the possession must be:
a. originally lawful, and
b. such possession must have turned
unlawful only upon the expiration of the
right to possess.

Not only that, the Supreme Court also required:

9
 It must be shown that the possession was initially lawful;
hence, the basis of such lawful possession must be established. If, as
in this case, the claim is that such possession is by mere tolerance of
the plaintiff, the acts of tolerance must be proved.

In the same EVERSLEY CHILDS SANITARIUM vs. SPOUSES

ANASTACIO PERLABARBARONA, [G.R. No. 195814, APRIL 4,
2018], citing Carbonilla v. Abiera 639 Phil. 473 (2010), the Supreme
Court defined what constitutes as tolerance as a proper ground in an
unlawful detainer case, to wit:
A bare allegation of tolerance will not suffice. Plaintiff
must, at least, show overt acts indicative of his or his
predecessor's permission to occupy the subject property . . . .

Now, based on the records of the case, the following must be

answered:
1. Was the possession of the petitioners over a
portion of Lot 12025 originally lawful?
2. Has the possession of petitioners Spouses
Lamberto and Porferia Seno over a portion of Lot
12025 turned unlawful only upon the expiration
of the right to possess?

Based on the records of the case, specifically the Complaint in

Civil Case No. 139 and the Position Paper of the petitioners, it is very
clear that the following questions were not properly addressed by the
respondents, namely
1. Was the possession of the petitioners Spouses
Lamberto and Porferia Seno over a portion of Lot
12025 originally lawful?
2. Has the possession of defendants-appellants
petitioners over a portion of Lot 12025 turned unlawful
only upon the expiration of the right to possess?

The respondents miserably failed to address this issue simply

because they have no evidence as to how or in what manner
petitioners Spouses Lamberto and Porferia Seno came into possession
over a portion of Lot 12025

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 If the respondent fails to address this aspect of how or in what
defendants-appellants Spouses Lamberto and Porferia Seno came
into possession over a portion of Lot 12025, then, it logically follows
that the VALID CAUSE OF ACTION IN AN UNLAWFUL
DETAINER HAS NOT BEEN MET BY THE DEFENDANTS-
APPELLEES.

Clearly, since the requisites of a valid cause of action in an

unlawful detainer has not been met by the plaintiff-appellee, the
Judgment dated July 2, 2018 should be reversed and accordingly
dismiss the Civil Case No. 139.

In the complaint in Civil Case No. SM-139 (Annex “D”, hereof),

the respondents alleged as follows, to wit:

“3. That plaintiff is the owner of Lot No. 12025 located in

Barangay San Sebastian, Samboan, Cebu with an area of SIX
HUNDRED FORTY FIVE (645) SQUARE METERS, more or
less. A copy of Tax Declaration no. 10047 under the name of the
Municipality of Samboan with an assessed value of P14,190.00 for
the year 2009 is hereto attached as Annex “B” hereof;”
“4. That the defendants are occupying a portion of Lot 12025
by constructing a two storey building made of concrete and light
materials . their possession of this portion consisting an area of 20
square meters more or less, have been tolerated by the plaintiff.
Copies of photographs of the building are hereto attached as Annexes
“C”; “C-1”; “C-2”; “C-3” and “C-4” hereof;”
“5. That as early as January 12, 2017, the defendants were
already made aware about the plan of the Municipality of Samboan
to secure and develop Lot No. 12025 and the other lots owned by
the local government unit;”
“6. That on January 12, 2017, defendant Forferia Seno
entered into an agreement with the Municipal Treasurer that she
would voluntarily vacate Lot No. 12025 in the event the
Municipality of Samboan will already use the land, a copy of which
is hereto attached as Annex “D” hereof;
“7. That the written agreement denominated as
KASABUTAN is hereto reproduced as follows:
“Ako, si Porferia Seno nga naga okupar sa luna
sa merkado publiko sa Baranagy San Sebastian nga
gepanag iya sa Muncipalidad sa samboan naga uyon
nga mobakante sa walay paglangan kun ugaling
gameton na ang maong luna nga akong
nahimutangan sa municipyo.”

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 8. That sometime May this year a series of consultative
meetings were conducted by the plaintiff among the occupants,
including the defendants, about the intention of the local
government unit to fence off Lot no. 12025 and the adjacent
government owned lots in order to secure these properties
preparatory to other development projects that will be introduced
later in the area;
9. That all of the occupants, except the defendants who
refused to attend any of these meetings, had opted to be relocated;
10. That on September 12, 2017, the plaintiff formally
notified defendants in writing to vacate the premises of Lot No.
12025 within a period of 15 days from receipt thereof, a copy of the
notice to vacate and certification issued by the Post Office are hereto
attached as Annexes “E” and “E-1” hereof;
11. That contrary to their promise contained in the
KASABUTAN dated January 12, 2017 to vacate the government lot
without further delay the defendants simply ignored the wriiten
demand and still continue to unlawfully withhold or occupy that
portion of Lot No. 12025 to the damage and prejudice of the plaintiff
and the general public.”

Clearly, the respondent failed to address as to how or in what

petitioners Spouses Lamberto and Porferia Seno came into possession
over a portion of Lot 12025, then, it logically follows that the VALID
CAUSE OF ACTION IN AN UNLAWFUL DETAINER HAS NOT
BEEN MET BY THE RESPONDENT.

To reiterate, in the case of EVERSLEY CHILDS SANITARIUM

vs. SPOUSES ANASTACIO PERLABARBARONA, [G.R. No. 195814,
APRIL 4, 2018], citing Carbonilla v. Abiera 639 Phil. 473 (2010), the
Supreme Court reiterated the requisite for a valid cause of action in
an unlawful detainer case, said the Supreme Court:

A requisite for a valid cause of action in an unlawful

detainer case is that possession must be originally lawful, and
such possession must have turned unlawful only upon the
expiration of the right to possess. It must be shown that the
possession was initially lawful; hence, the basis of such lawful
possession must be established. If, as in this case, the claim is
that such possession is by mere tolerance of the plaintiff, the
acts of tolerance must be proved.
Petitioner failed to prove that respondents' possession
was based on his alleged tolerance. He did not offer any
evidence or even only an affidavit of the Garcianos attesting

12
 that they tolerated respondents' entry to and occupation of the
subject properties. A bare allegation of tolerance will not
suffice. Plaintiff must, at least, show overt acts indicative of his
or his predecessor's permission to occupy the subject
property . . . .

Nowhere in the complaint in Civil Case No. Sm-139 can it be

remotely inferred that that the possession of the petitioners were
originally lawful, and that such possession have turned unlawful
only upon the expiration of the right to possess.

In the said EVERSLEY CHILDS SANITARIUM vs. SPOUSES

ANASTACIO PERLABARBARONA, [G.R. No. 195814, APRIL 4,
2018], citing Carbonilla v. Abiera 639 Phil. 473 (2010) case, the
Supreme Court also required:

It must be shown that the possession was initially lawful;

hence, the basis of such lawful possession must be established.
If, as in this case, the claim is that such possession is by mere
tolerance of the plaintiff, the acts of tolerance must be proved.

As can be readily gleaned from the Complaint in Civil Case No.

SM-139 as well as the Position Paper of the respondent (Annex “F”),
there was not even an attempt from the respondent in averring much
less establishing that the acts of tolerance.

Clearly, since the requisites of a valid cause of action in an

unlawful detainer has not been met by the respondent, and therefore,
the Judgment dated July 2, 2018 should be reversed by this
Honorable Court and accordingly dismiss the Civil Case No. 139.

THE RESPONDENT HAS NO TAX

DECLARATION OVER LOT 12025 IN
1975 THE YEAR THE PETITIONERS
ERECTED THEIR RESIDENTIAL
HOUSE!

In contrast, in their Position Paper, petitioners alleged the

following:

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 STATEMENT OF FACTS
Defendant have been in continuous, open, notorious
possession of a parcel of land located in San Sebastian,
Samboan, Cebu now known as Lot No. 12025, having built his
residential house made of concrete and wooden materials in
1975;

This allegation has been neither been denied nor controverted

by the respondent. Therefore, this aspect that the petitioners erected
their house in 1975 should be considered as an uncontroverted fact.

The reason the respondent cannot present proof as to how or in

what manner petitioners Spouses Lamberto and Porferia Seno came
into possession over a portion of Lot 12025 is because in 1975, the
respondent has no Tax Declaration over Lot 12025.

As a matter of fact, it is only in 2002 that the respondent was

issued a Tax Declaration over lot 12025.

In the Complaint in Civil Case No. 139, the respondent claimed

that it is the declared owner because of the existence of Declaration
No. 36-0013-10047 (Annex “B” to the complaint in Civil Case No. Sm-
139).

On March 14, 2018, petitioner Lamberto Seno filed a Civil

Action before the Regional Trial Court of Oslob, Cebu, Branch 62
against the respondent, along with other defendants namely: ALMA
SIBONGA, in her official capacity as the Provincial Assessor of the
Province of Cebu, ERWIN GAMALLO, in his official capacity as
Municipal Assessor of the Municipality of Samboan, Cebu for
DECLARATION OF NULLITY OF TAX DECLARATIONS,
DAMAGES AND ATTORNEY’S FEES WITH PRAYER FOR
PRELIMINARY MANDATORY INJUNCTION.

As alleged in the Complaint in Civil Case No. OS-18-284,

Declaration No. 36-0013-10047 (Exhibit “7” to the petitioner’s Position
Paper) has already been cancelled by Declaration No. 36-0013-10965
(Exhibit “5-J” to the petitioner’s Position Paper), and that the
previous Tax Declaration of Declaration No. 36-0013-10047 is
Declaration No. 013610567 (Exhibit “5-K” to the petitioner’s Position
Paper) for the year 2009.

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 As can be readily read from the dorsal portion of Declaration
No. 013610567 (Exhibit “5-K” to the petitioner’s Position Paper), the
same clearly states that it cancelled Declaration No. 3601300518;

Petitioners have tried several times to secure a copy of

Declaration No. 3601300518 but to no avail, as they were just given
the runaround, which prompted petitioners to ask for a certification
and asked formally and in writing whether or not the office of
Municipal Assessor Erwin Gamallo has in its possession a copy of
this Declaration No. 3601300518.

After several attempts, and Samboan Municipal Assessor Erwin

Gamallo was always not in his office for one reason or another, Erwin
Gamallo still has not issued such certification, instead, petitioners
were furnished with a copy of the his letter dated February 27, 2018,
addressed to Provincial Assessor Alma Sibonga.

In the said letter dated February 27, 2018 (Exhibit “5-K” to the
petitioner’s Position Paper), Samboan Municipal Assessor Erwin
Gamallo certified to the effect that Tax Declaration No. 3601300518
can not be located; as such number can only be derived and found at
the back of Tax declaration No. 0136-10567 and that the number 0518
is usually located at Poblacion, Samboan, Cebu and not in San
Sebastian, Samboan;

Clearly, Tax Declaration No. 3601300518 does not exist, it

logically that the respondent has no Tax Declaration covering Lot
12025 prior to the year of the issuance of Tax Declaration No. 0136-
10567 which was in 2002.

Since Tax declaration No. 0136-10567 was issued in the year

2002, it logically follows that the respondent has no tax declaration
over Lot 12025 prior to the year 2002.

Therefore, the respondent could not have given possession by

tolerance in favor of the petitioners in 1975 since it is only in 2002 that
it claimed ownership over Lot 12025.

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 Clearly, then, based on the foregoing, the respondent was not
able to prove the requisites of a valid unlawful detainer case, the
Judgment dated July 2, 2018 should be reversed and accordingly
Civil Case No. 139 should be dismissed.

THE REPONDENT MUNICIPALITY

OF SAMBOAN, CEBU TAX
DECLARATIONS OVER LOT 12025
ARE SPURIOUS AND THEREFORE,
VOID AB INITIO!

As alleged in the Complaint in Civil Case No. OS-18-284, it can

be readily read from Declaration No. 36-0013-10047 that it cancelled
Declaration No. 013610567.

As can be readily read from the dorsal portion of Declaration

No. 013610567, the same clearly states that it cancelled Declaration
No. 3601300518;

Defendants have tried several times to secure a copy of

Declaration No. 3601300518 but to no avail, as they were just given
the runaround, which prompted plaintiff to ask for a certification to
ask formally and in writing whether or not the office of Municipal
Assessor Erwin Gamallo has in its possession a copy of this
Declaration No. 3601300518; machine copy of the letter is hereto
attached as Annex “E”;

After several attempts, and nominal defendant Erwin Gamallo

was always not in his office for one reason or another, nominal
defendant Erwin Gamallo still has not issued such certification,
instead, plaintiff was furnished with a copy of the his letter dated
February 27, 2018, addressed to Provincial Assessor Alma Sibonga,
machine copy of the said letter is hereto attached as Annex “F”;

In the said letter dated February 27, 2018, Samboan Municipal

Assessor Erwin Gamallo certified to the effect that Tax Declaration
No. 3601300518 can not be located; as such number can only be
derived and found at the back of Tax declaration NO. 0136-10567 and
that the number 0518 is usually located at Poblacion, Samboan, Cebu
and not in San Sebastian, Samboan;

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 In the Answer of the plaintiff-appellee in Civil Case No. OS-18-
284, it only made the flimsy excuse that the reason that no tax
declaration over the plaintiff-appellee over Lot 12025 prior to the year
2002 is that:
“5. xxx xxx. In the first place, the plaintiff is not the
custodian of the original Tax Declaration that was issued way
back many years ago. The fault, if there is any, is on the part of
the assessor’s office.” (Par. 5 of the plaintiff-appellee’s Answer
in Civil Case No. OS-18-284).

-machine copy of plaintiff-appellee’s Answer in Civil Case No.

OS-18-284 is hereto attached as Annex “G”.

One thing is sure, the plaintiff-appellee cannot produce as it has

not produced, any tax declaration over lot 12025 under its name prior
to the year 2002.

Clearly, since Tax Declaration No. 3601300518 does not exist, it

logically follows that Declaration No. 013610567 is a spurious Tax
Declaration and, therefore, NULL and VOID ab initio;

At the very least, since the issue of the ownership of the

plaintiff-appellee over the entire Lot 12025 is in question, and that the
Civil Case No. OS-18-284 is still pending before this Honorable
Court, which exercises appellate jurisdiction over the Honorable 10 th
Municipal Circuit Trial Court, the said 10th Municipal Circuit Trial
Court should have exercised judicial courtesy and hold abeyance the
resolution over Civil Case No. 139 until after the Civil Case No. OS-
18-284 has be ruled upon with finality.

V. THAT REGIONAL TRIAL

COURT OF OSLOB, CEBU
ERRED IN NOT RULING
THAT THE 10TH MUNICIPAL
CIRCUIT TRIAL COURT
SHOULD HAVE EXERCISED
JUDICIAL COURTESY
CONSIDERING THAT THE
VERY ASPECT OF THE
RESPONDENT’S
OWNERSHIP OVER LOT

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12025 IS IN QUESTION
BEFORE THE VERY SAME
REGIONAL TRIAL COURT
IN CIVIL CASE NO. OS-18-
284.

At the very least, since Civil Case No. 0S-18-284 is already

pending before the Regional Trial Court, and that the said Civil Case
No. OS-18-284 determines whether or not respondent’s claim of
ownership over Lot 12025 is true, “JUDICIAL COURTESY” dictates
that the 10th Municipal Circuit Trial Court should have awaited the
outcome of said Civil Case No. 0S-18-284 before rendering judgment.

In the case of JUAN TRAJANO a.k.a. JOHNNY TRAJANO vs.

UNIWIDE SALES WAREHOUSE CLUB, [G.R. No. 190253, June 11,
2014], the Supreme Court reiterated the principle of JUDICIAL
COURTESY, to wit:
Indeed, we introduced in Eternal Gardens Memorial
Park v. Court of Appeals  the principle of judicial courtesy to
justify the suspension of the proceedings before the lower court
even without an injunctive writ or order from the higher court.
In that case, we pronounced that "[d]ue respect for the
Supreme Court and practical and ethical considerations should
have prompted the appellate court to wait for the final
determination of the petition [for certiorari] before taking
cognizance of the case and trying to render moot exactly what
was before this [C]ourt."  We subsequently reiterated the
concept of judicial courtesy in Joy Mart Consolidated Corp. v.
Court of Appeals. [G.R. No. 88705, June 11, 1992, 209 SCRA,
746].

Applying the principle of JUDICIAL COURTESY to the case at

bar, the Regional Trial Court of Oslob, Cebu Branch 62, should have
reversed the Judgment rendered by the 10th Municipal Circuit Trail
court and declared that the latter should have awaited for the final
judgment in Civil Case No. 0S-18-284, in order that the claims and
prayer of the petitioner Lamberto Seno in said 0S-18-284 shall not be
rendered moot and academic, especially so that the petitioner
Lamberto Seno also prayed for the for the following in said 0S-18-284,
to wit:
1. After due notice and hearing, issue a Preliminary
Injunction, ordering the defendant to refrain from ejecting the

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 plaintiff from Lot No. 12025 located in San Sebastian,
Samboan, Cebu;

VI. THE REGIONAL TRIAL

COURT OF OSLOB, CEBU
ERRED IN NOT RULING
THAT THE RESPONDENT
WAS IN BAD FAITH BY
FORCING THE
PETITIONERS TO EVICT
EVEN PRIOR TO THE
FILING OF THE CASE.

Respondent did come to the 10th Municipal Circuit Trial Court

with clean hands because even before Mayor Emerito Calderon were
“granted” with the authority by the Sanggunian Bayan of Samboan,
Cebu to file the instant ejectment case, respondent, as early as June
16, 2017 has already started erecting a perimeter fence enclosing Lot
12025 and 12027 just to coerce petitioners to vacate the subject
property, as shown by the pictures attached as Exhibit “1” to “1-C” to
the petitioners position paper;

Worse, even though the supposed fencing permit was only

supposed to be for the fencing of the north east and south side of Lot
12025 and 12027, as shown by the copy of the “PLAN”, machine copy
of which, is hereto attached as Exhibit “2”, the respondent violated
the fencing permit by erecting the fence even including the west
side, clearly meant to coerce the petitioners to give in to plaintiff’s
demands to vacate the premises, as shown by the pictures attached as
Exhibits “ 3” to “3-B” of the position paper for the petitioners.

Parties who do not come to court with clean hands cannot be

allowed to profit from their own wrongdoing. People v. Punto, 68 Phil.
481, 482 (1939), cited in DEPARTMENT OF PUBLIC WORKS AND
HIGHWAYS vs. RONALDO E. QUIWA, doing business under the
name R.E.Q. Construction et, al. February 8, 2012, G.R. No. 183444].

The action (or inaction) of the party seeking equity must be free
from fault, and he must have done nothing to lull his adversary into
repose, thereby obstructing and preventing vigilance on the part of
the latter. Kentland Coal & Coke Co. v. Elswick, 167 Ky., 593; 181 S.

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W., 181, 182, 183. cited in DEPARTMENT OF PUBLIC WORKS AND
HIGHWAYS vs. RONALDO E. QUIWA, doing business under the
name R.E.Q. Construction et, al. February 8, 2012, G.R. No. 183444].

Clearly, based on the “CLEAN HANDS” doctrine, the civil case

no. 139 should be dismissed outright because even prior to the filing
of the instant case, respondent has already erected a perimeter fence,
which was meant to deprive the petitioner of proper ingress and
egress, encircling the entire Lot 12027 and Lot 12025, with the
purpose of coercing the petitioners to vacate Lot 12025.

As a matter of fact, the respondent only filed Civil Case No. 139
after the petitioner Lamberto Seno filed criminal and administrative
case against the officials of the respondent, when it became apparent
to them that the petitioners will not bow down to their will.

This act of the plaintiff in totally encircling Lot No. 12025 and
12027 was done wantonly, and was aimed solely at coercing the
petitioners into giving in to the respondent’s will.

Even before the filing of this instant case, respondent has

already appointed itself as the judge and sheriff, passed judgment
and implemented the judgment itself by erecting the perimeter fence
encircling Lot 12025 and Lot 12027.

PRAYER

WHEREFORE, it is most respectfully prayed of this Honorable

Court to reverse and annul the Judgment dated July 2, 2018 and in
lieu thereof,

1. Dismiss Civil Case No. 139 for failure of the respondent to

prove the requisites of a valid cause of action for unlawful detainer.

2. Condemn the respondent to pay to petitioners the sum of

TWO HUNDRED THOUSAND PESOS (P200,000.00) by way of
damages.

3. Condemn the respondent to pay to petitioners the sum of

FORTY THOUSAND PESOS (P40,000.00) as attorney’s fees and

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another TWENTY THOUSAND PESOS (P20,000.00) as litigation
expenses.

Other reliefs as are just and equitable under the circumstances

are likewise prayed for by the petitioners.

Cebu City, Philippines, December 17, 2019.

VERANO LAW OFFICE

F. Martir St.., Lapu-Lapu City, Cebu

By:

ATTY. SAMUEL C. VERANO

Roll No. 56351
Lapu-Lapu City, Cebu
PTR No. 6706259, 1-08-2018 Lapu-Lapu City, Cebu
IBP No. 00159, 1-08-2018, Cebu Chapter
MCLE Compliance No. IV-0003629

Copy furnished:

Atty. Jorge John T. Cane and/or

Atty. Rodrigo Urbiztondo
Provincial Legal Office
Province of Cebu
CPADAO 2nd Floor Legislative Building
Capitol, Capitol Site, Cebu City

The Presiding Judge

Regional Trial Court , Branch 62
Poblacion, Oslob, Cebu

The Presiding Judge

10th Municipal Circuit Trial Court
Poblacion, Samboan, Cebu

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