TH

Republic of the Philippines

MUNICIPAL CIRCUIT TRIAL COURT OF MOBO-MILAGROS
Fifth Judicial Region
Mobo, Masbate

SPOUSES ALPIO C. GIGANTE

AND CONCHITA T. GIGANTE
Represented by: Dante T. Gigante,
Plaintiffs,

CIVIL CASE NO. 217

- for -

- versus UNLAWFUL DETAINER

FELY C. MESA,
Defendant.
x----------------------x
ANSWER WITH COUNTERCLAIMS
COMES NOW the defendant, thru undersigned counsel, unto this Honorable Court,
and in answer to plaintiffs complaint, most respectfully states that:
1. Defendant admits the allegations in paragraphs 1 and 2 of the Complaint.
2. Defendant is without knowledge or information sufficient to form a belief as to the
truth of the averments contained in paragraphs 3, 5, 9, 10, 11, 12 and 13 of the Complaint,
hence said averments are specifically denied, as stated in the Special and Affirmative
Defenses.
3.

Defendant specifically denies the allegations made in paragraph 4 of the

Complaint, and states that she and her deceased spouse got married in 1980. After their
marriage, they built their conjugal house on the portion of the defendants fathers residential
land located at Barangay Marintoc, Mobo, Masbate and more particularly described as
follows:
A residential land containing an area of 411 square meters, more or
less, bounded on the North by the lot Marcos Danao, on the East by Bagalihog
St., on the South by De Mesa St., and on the West by the lot of Castor
Maristela, covered by Tax Declaration No. 3268, under the name of Leopoldo
Consulta, with an assessed value of P8,220.00.
Copy of said Tax Declaration No. 3268 is attached hereto as Annex 1.
4. Defendant denies specifically the allegations in paragraph 6 of the Complaint, the
truth being that plaintiffs never ordered defendant to cease and desist from introducing

concrete structure, for they never had the right to do so, defendant and her deceased spouse
having built their conjugal house on her fathers residential land and not on the plaintiffs lot.
5. The allegations contained in paragraph 7 of the Complaint is vehemently denied,
for plaintiffs never made any demand for defendant to demolish her house and peacefully
vacate, as in fact defendant never received any such demand, as they do not have any right
to make said demand not being the owner of the land over which the house of the defendant
was built.
6. Likewise, defendant strongly denies the assertion in paragraph 8 of the Complaint,
the truth being that defendant, in the year 2014, twice appeared before the Lupong
Tagapamayapa of Barangay Marintoc, Mobo, Masbate, for mediation and conciliation
conference.
SPECIAL AND AFFIRMATIVE DEFENSES
Defendant repleads the foregoing allegations, and by way of Special and Affirmative
Defenses further alleges that:
7. Plaintiffs have no valid cause of action against defendant for the Complaint avers
that defendant built her house on the plaintiffs lot covered by Annex B or Tax Declaration
No. 6070, when in truth and in fact, defendants house was built on her fathers land covered
by Annex 1 or Tax Declaration No. 3268, and hence, that the case against defendant be
dismissed.
8. The Complaint failed to state a cause of action, as presuming without admitting
that the allegations therein are true, plaintiffs had never served upon defendant a written
notice of the demand to vacate. Supreme Court held in Arambulo v. Gungab, 508 Phil. 612,
621-622 (2005), citing Boy v. Court of Appeals, 471 Phil. 102, 114 (2004), and reiterated in
Rey Castigador Catedrilla v. Mario and Margie Lauron, G.R. No. 179011, April 15, 2013,
that Well settled is the rule that a person who occupies the land of another at the latters
tolerance or permission, without any contract between them, is bound by an implied promise
that he will vacate the same upon demand, failing which a summary action for ejectment is
the proper remedy against him. The High Court stated in Lao v. Lao, G.R. No. 149599,
May 16, 2005, 458 SCRA 539, 547, and also restated in Rey Castigador Catedrilla v. Mario
and Margie Lauron, supra, that His status is analogous to that of a lessee or tenant whose
term of lease has expired but whose occupancy continued by tolerance of the owner.
However, Section 2, Rule 70 of the Rules of Court provides as follows:
SEC. 2. Lessor to proceed against lessee only after demand. Unless, Otherwise stipulated, such actions by the lessor shall be commenced
2

only after demand to pay or comply with the conditions of the lease and to
vacate is made upon the lessee, or by serving written notice of such demand
upon the person found on the premises, or by posting such notice on the
premises if no person be found thereon, and the lessee fails to comply
therewith after fifteen (15) days in the case of lands or five (5) days in the case
of buildings.
There being no valid demand to vacate, this Honorable Court did not acquire jurisdiction
form the very beginning, as demand to vacate is jurisdictional in unlawful detainer. Perforce,
the only jurisdiction on this Honorable Court is to dismiss this case against defendant.
9. The General Power of Attorney granting authority to Dante T. Gigante to file this
case did not include any authority to sign the Verification/Certification of Non-Forum
Shopping, in violation of Supreme Court Administrative Order No. 04-94 and Section 5, Rule
7 of the Rules of Court. Supreme Court Administrative Order No. 04-94 mandates, thus:
The plaintiff, x x x or principal party seeking relief in the
complaint x x x or other initiatory pleading shall certify under oath in such
original pleading, or in a sworn certification annexed thereto and
simultaneously filed therewith, x x x.
Any violation of this Circular shall be cause for the dismissal of the
complaint x x x. (underscoring supplied)
On the other hand, Section 5, Rule 7 of the Rules of Court provides as follows:
SEC. 5. Certification against forum shopping. - The plaintiff or
principal party shall certify under oath in the complaint or other initiatory
pleading asserting a claim or relief, or in a sworn certification annexed thereto
and simultaneously filed therewith: x x x.
Failure to comply with the foregoing requirements shall not be curable
by mere amendment of the complaint or other initiatory pleading but shall be
cause for the dismissal of the case without prejudice, unless otherwise
provided, upon motion and after hearing. x x x.
COUNTERCLAIMS
Defendant further repleads her earlier averments, and by way of Counterclaims
further avers that:
10. Having been maliciously dragged to court by the filing of this unfounded and
baseless suit, defendant suffered sleepless nights, mental anguish, wounded feelings,
besmirched reputation, serious anxiety, moral shock and social humiliation, of which she can
only be atoned if the plaintiffs be made to pay her the amount of P50,000.00, as and for
moral damages.

11. Defendant had already incurred and still will likely incur litigation expenses until
the termination of this case, in the amount of P20,000.00, more or less, which amount should
be charged against plaintiff.
WHEREFORE, premises considered, it is most respectfully prayed of this Honorable
Court that judgment be rendered in favor of the defendant and against the plaintiffs as
follows:
a) Dismissing the Complaint.
b) Ordering the plaintiffs to pay the defendant the following amounts:
b.1) P50,000.00 - as and for moral damages
b.2) P20,000.00 - as and for litigation expenses
Defendant prays for other relief and remedies consistent with law and equity, and for
costs.
Masbate City, 25 May 2015.

ROY L. REYES
Counsel for the Defendant
Roll of Attorneys No. 64212
IBP Lifetime Member No. 013793; Masbate Chapter

VERIFICATION
REPUBLIC OF THE PHILIPPINES ]
Province of Masbate
] SS
City of Masbate
]
I, FELY C. MESA, of legal age, Filipino, widow, and a resident of Barangay
Marintoc, Mobo, Masbate, after having been sworn to in accordance with law, hereby depose
and say that:
1. I am the defendant in the above-entitled case;
2. I have caused the preparation of this Answer;
3. I have read and understood the contents therein;
4. All the allegations contained therein are true and correct to the best
of my own personal knowledge and belief.
IN WITNESS WHEREOF, I have hereunto set my hand this 25 th day of May 2015 at
Masbate City, Masbate, Philippines.

FELY C. MESA
Affiant
SUBSCRIBED AND SWORN to before me this 25 th day of May, 2015 at Masbate
City, Masbate, Philippines, affiant having exhibited to me her Social Security System I.D.
No. 05-0819800-3.

Doc. No.
: _______;
Page No.
: _______;
Book No.
: _______;
Series of 2015.

Copy furnished:
Counsels for the Plaintiffs:
Atty. ARIS RAMONES MONTILLA
Public Attorney II
Public Attorneys Office
Masbate City District Office
Susana Bldg., City Hall Compound
Masbate City
Atty. HANNIBAL A. BARRUGA, Jr.
District Public Attorney
Public Attorneys Office
Masbate City District Office
Susana Bldg., City Hall Compound
Masbate City