Answer- Agbayani.docx

Republic of the Philippines 10th Judicial Region MUNICIPAL TRIAL COURT IN CITIES Malaybalay City, Bukidnon GRZ MERCURY AGRI BUSINESS DEVELOPMENT CORPORATION, rep. By: GEORGE ZUBIRI, JR., Plaintiff, -versusSPS. ARTHUR AGBAYANI, SPS. MIGUEL LABADAN, SPS. CELSO CASTANARES and REGILMA TILANDUCA, Defendants. X--------------------------------------------X

Civil Case No. 2329

FOR: Unlawful Detainer, recovery of Possession with prayer for a Writ of Preliminary Mandatory of Injunction and Damages.

ANSWER WITH AFFIRMATIVE DEFENSE AND COMPULSORY COUNTERCLAIM COMES NOW, DEFENDANT, through the undersigned Counsel, and unto the Honorable Court, most respectfully avers: I PRELIMINARY STATEMENT 1. That herein defendants SPS ARTHUR GLEN AGBAYANI are presently residing abroad at 53 26 82nd St. Elmhurst, New York 11373, United States of America for more than seven years now and that the date when they will go back to the Philippines is not yet certain. The SUMMONS together with the copy of the Complaint was served only to their son JASPER GLEN T. AGBAYANI on July 19, 2017. 2. That herein defendants through their son who stand as their attorney- in-fact are submitting this answer with affirmative defense and compulsory counterclaim with the corresponding supporting documents in compliance with the said lawful Order of the Honorable Court. A copy of the special power of attorney is hereto attached and marked as Annexes “A” to “A-1” and form an integral part hereof. Page 1 of 8

II ADMISSION AND SPECIFIC DENIAL 3. That herein defendants admit paragraph one (1) of the Complaint insofar as the fact and existence of the document that plaintiff is duly represented by its president pursuant to the Board Resolution. However, the answering Defendants specifically denied the due execution and genuineness of the said document and also the allegation that SPS ARTHUR GLEN AGBAYANI resided at Sumpong, Malaybalay City. The truth on the matter being that Defendants SPS ARTHUR GLEN AGBAYANI is presently resided abroad at 53 26 82nd St. Elmhurst, New York 11373, United States of America for more than seven years now. 4. The answering Defendants specifically denies the allegations contained in paragraph two (2) of the complaint insofar as the fact of existence, due execution and genuineness of the alleged Transfer Certificate of Title registered in the name of the plaintiff. 5. That herein defendants admit the allegation in paragraph three (3) insofar as the allegation that herein defendants encroaches upon the property of the plaintiff. However, the answering Defendants specifically denied the allegation that the encroachment upon the property of the plaintiff consist of seventy one (71) square meters wide. The truth on the matter being that herein defendants pursuant to the relocation survey merely encroaches upon the property of the plaintiff of an area consisting of twenty four (24) square meters. A copy of the relocation sketch plan is hereto attached and marked as Annex “B” and form an integral part hereof. 6. The answering Defendants specifically denies the allegations contained in paragraph four (4) of the complaint that plaintiff merely tolerated their possession and occupation thereat with the understanding that in the event plaintiff will make use of the areas they are occupying, they will immediately vacate and turn over peaceful possession of the same. The truth on the matter being that there was never an agreement or understanding entered into by the plaintiff and the answering defendant over the subject property. 7. The answering Defendants also specifically denied for lack of knowledge or information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph five (5) and Page 2 of 8

six (6) of the complaint that plaintiff undertook a relocation survey on December 02, 2010 and that defendants obviously encroaches and occupied a portions of the property of the plaintiff. 8. That Defendants admit the allegation in paragraph seven (7) and eight (8) of the complaint insofar as the allegation that plaintiff demanded from herein defendants to vacate the subject property. However, the answering Defendants specifically denied the allegations that herein defendants refuses to vacate the subject property. That herein defendants is willing to vacate the subject property as long as the extent of the encroachment is duly proven and supported by evidence especially in this case that the plaintiff demanded an area consisting of seventy one (71) square meters. The result of the relocation survey dated November 25, 2016 revealed that herein defendants merely encroaches upon the property of the plaintiff of an area containing twenty four (24) square meters only and not seventy one (71) square meters. III AFFIRMATIVE DEFENSES The foregoing allegations are repleaded and incorporated herein by reference as if set forth in full and further states that:

THE HONORABLE COURT HAS NO JURISDICTION OVER THE SUBJECT MATTER OF THE CASE CONSIDERING THAT THE POSSESSON OF THE DEFENDANTS OVER THE SUBJECT PROPERTY HAS ALREADY LASTED FOR MORETHAN ONE YEAR. 9. The action should have been accion publiciana or reinvindicatoria and not accion interdictal. As aptly explained in the case of Reyes vs. Hon. Sta. Maria,1 the Supreme Court stressed that there are three kinds of actions for the recovery of possession of real property, namely, (1) the summary action for forcible entry or detainer which seeks the recovery of physical possession only and is 1

G.R. No. L-33213 June 29, 1979. Page 3 of 8

brought within one year in the justice of the peace court; (2) the accion publiciana which is for the recovery of the right to possess and is a plenary action in an ordinary civil proceeding in a Court of First Instance; and (3) accion de reivindicacion which seeks the recovery of ownership. 10.That foregoing possessory actions have separate and distinct applicability and required to be filed in the proper court possessing competent jurisdiction as conferred by law. An accion interdictal is the summary action for the recovery of physical possession where the dispossession has not lasted for morethan one year. However, should the dispossession has lasted for more than one year the proper cause of action is an accion publiciana which is a plenary action for the recovery of the real right of possession or accion de reivindicacion which seeks the recovery of ownership and not accion interdictal which seeks the recovery of physical possession only. 11. In the case at bar, the possession of the herein defendants over the subject property has already lasted for more than one year and is thus the proper action should have been either accion publiciana or accion reinvidicatoria and not an action for unlawful detainer. It is worthy to note that herein defendants acquired the subject property on November 7, 1986 in good faith. Since then defendant’s took over the possession of the subject property continuously, publicly, peacefully, adversely and in the concept of the owner from 1986 to 2017 or for a total period of thirty one (31) years. Presently, the subject property is now covered by Transfer Certificate Title No. T-99192 dated March 9, 2006 registered in the name of the defendants and covered by Tax Declaration No. F-007116 also registered in the name of the defendants. A Copy of the Deed of Absolute Sale of a Residential Lot and Residential and Boarding Houses, Transfer Certificate Title No. T-99192 and Tax Declaration No. F-007116is hereto attached as Annex “C”, “D” and “E”, respectively, and form and integral part hereof. 12.The record will show that plaintiff only acquire their property which is adjacent to the answering defendants on February 25, 2010. This support the fact that the answering defendants had long established prior possession over their property compared to that of the plaintiff. 13.The ruling of the Supreme court in the case of SPS. PEDRO ONG AND VERONICA ONG, vs. SOCORRO PAREL

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AND HON. COURT OF APPEALS2 , is instructive in this nature, to quote: “If private respondent is indeed the owner of the premises subject of this suit and she was unlawfully deprived of the real right of possession or the ownership thereof, she should present her claim before the regional trial court in an accion publiciana or an accion reivindicatoria, and not before the municipal trial court in a summary proceeding of unlawful detainer or forcible entry. For even if one is the owner of the property, the possession thereof cannot be wrested from another who had been in the physical or material possession of the same for more than one year by resorting to a summary action for ejectment. This is especially true where his possession thereof was not obtained through the means or held under the circumstances contemplated by the rules on summary ejectment. [Emphasis ours]

14.As defendants possession over the subject matter has lasted for morethan one year, the Municipal Trial Court therefore has no jurisdiction to take cognizance of the case as the proper jurisdiction fall within the Regional Trial Court. THE HONORABLE COURT HAS NOT ACQUIRED JURISDICTION OVER THE PERSON OF THE HEREIN DEFENDANTS CONSIDERING THAT THERE WAS IMPROPER SERVICE OF SUMMONS. 15.Moreover, the Honorable Court has not acquired jurisdiction over the person of the defendants considering that there was improper service of summons. It must be emphasized that an action for unlawful detainer is an action inpersonam. In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. The summons should have been served personally to the owner several times before availing the substituted service of summons. 16.In the case of ABUBAKAR A. AFDAL and FATIMA A. AFDAL, versus ROMEO CARLOS,3, the Supreme Court ruled that:

2 3

G.R. No. 143173. March 28, 2001 G.R. No. 173379, December 1, 2010 Page 5 of 8

An action for unlawful detainer or forcible entry is a real action and in personam because the plaintiff seeks to enforce a personal obligation on the defendant for the latter to vacate the property subject of the action, restore physical possession thereof to the plaintiff, and pay actual damages by way of reasonable compensation for his use or occupation of the property. In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly try and decide the case. Jurisdiction over the defendant is acquired either upon a valid service of summons or the defendants voluntary appearance in court. If the defendant does not voluntarily appear in court, jurisdiction can be acquired by personal or substituted service of summons as laid out under Sections 6 and 7 of Rule 14 of the Rules of Court.[Emphasis ours]

17.In the case at bar, the summons was not served personally to the defendants but merely to his son JASPER GLEN T. AGBAYANI. The records also does not show that before effecting substituted service of summons several attempts to serve the summons to the defendants was made. Hence, the Honorable Court has not acquired jurisdiction over the person of the defendants on the ground of improper service of summons. IV OPPOSITION TO THE PRAYER FOR A WRIT OF PRELIMINARY MANDATORY INJUNCTION 18. Settled is the rule in this jurisdiction that an application for an injunctive relief is to be construed strictly against the pleader. The plaintiff herein cannot even show any right in her favor that needs protection by the issuance of such an injunctive writ. All that the plaintiff did was to pray for an injunction without even citing what clear and unmistakable right in her favor is sought to be protected, and what acts of the defendants, which are violation of her said right, are sought to be enjoined or restrained. V COMPULSORY COUNTER CLAIM WITH DAMAGES 19.That Defendants replead all the foregoing averments as part of their Counter Claim with Damages and further state. 20.That Plaintiff’s filing of this unwarranted action against Defendants caused the latter undeserved besmirched reputation, undue humiliation to which will entitle them to an award of moral damages quantified in the sum of One Hundred Thousand Pesos (PhP 100,000.00); Page 6 of 8

21.That for filing this baseless action and not having adequately presented evidence to show Defendant’s liability, exemplary damages may also be awarded to Defendants in the sum that the Honorable Court may find reasonable. 22.That Plaintiffs filing of this unwarranted action compelled Defendants to unnecessarily engage the services of counsel at an expense of Fifty Thousand Pesos (PhP 50,000.00) and appearance fees in the amount of Two Thousand Pesos (Php 2,00.00) per court appearance. VI PRAYER WHEREFORE, it is most respectfully prayed that the aboveentitled case against herein Defendants be dismissed for lack of merit. Further, ordering Plaintiffs to pay Defendants in the amount of PhP 100,000.00 for Moral Damages, Exemplary Damages and Attorney’s Fee of PhP 50,000.00 acceptance and PhP 2,000.00 per court appearance. Defendants further pray for such other reliefs as may deemed just and equitable under the premises. City of Malaybalay, Bukidnon 27th day of July 2017. ESTRADA ESTRADA RUBIO ZAMORA LLESIS COLLADO LAW OFFICE Don Carlos St., Malaybalay City By:

ATTY.BURT M. ESTRADA Roll of Attorneys No. 53037 TIN: 945-905-316 PTR No. 5406804; 12-16-2016; Malaybalay City IBP No. 1040129; 12-05-2016; Bukidnon MCLE Compliance No. III-0003073; issued on April 21, 2009 MCLE Compliance No. IV-002862; issued on October 3, 2011 Page 7 of 8

MCLE Compliance No. V-0008400; issued on June 15, 2015 MCLE Compliance No. VI-0001659; issued on January 30, 2017

ATTY. ARBIE S. LLESIS Counsel for the Defendants IBP No. 0986950/01-22-16/Bukidnon PTR No. 3032518-A/ 01-14-16/CDO Roll of Attorneys No. 64045 Mobile No. 0917-702-8949 Email Add: [email protected]

ATTY. ROLAND E. COLLADO4 Counsel for the Defendants PTR No. 6190133-A: 07-06-17: Malaybalay City IBP No. 005604: 05-18-17: Bukidnon Roll of Attorneys No. 67493 TIN No. 409-403-218-000 Malaybalay City Copy furnished:

Atty. ANASTACIO C. ROSOS, JR. Counsel for the Plaintiffs Rosos bldg., Mampaalong St., Malaybalay City Date received: _______________ Signature: ______________

Mr. Collado was admitted to the bar on 22 May 2017. Pursuant to Bar Matter No. 850, her initial MCLE compliance period is up to 2019. 4

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