Republic of the Philippines

Municipal Trial Court

Branch 5
Cabanatuan City

SARANGHE S. ANYEONG
Plaintiff,

Civil Case No. 12354

- versus- FOR: EJECTMENT

MOON PARK CHU

Defendant

x --------------------------------------x

MEMORANDUM
For the Defendant

COMES NOW THE DEFENDANT, through the undersigned counsel, unto

this Honorable Court most respectfully submits and presents this
Memorandum in the above-titled case and aver that:

STATEMENT OF THE CASE

On January 26, 2011, plaintiff filed a Complaint for Ejectment against herein
defendant.

On April 15, 2011, defendant received summons issued by the Honorable Court
to file an answer.

On April 25, 2011, defendant filed his answer against the plaintiff.

On May 6, 2011, preliminary conference was held in the presence of the plaintiff,
defendant, and their respective counsels.

Accordingly, after presentation of evidences, the Honorable Court ordered the

parties to submit their respective Memoranda fifteen days (15) days from notice,
otherwise, the case is deemed submitted for decision.

STATEMENT OF FACTS

The Plaintiff owned a two-storey apartment located at Block 7, Lot 5 Subdivision,

Fishball Drive, Cabanatuan City covered by TCT No. 14344. On March 27, 2002,
plaintiff leased the first storey of the apartment to defendant for five (5) years with a
monthly rental of P 3,500.00 payable within the first seven (7) days of each month as
shown in the lease contract (Annex A).

Allegedly, the lease contract had expired on March 28, 2010. Defendant, after
repeated demands, refused to vacate the premises and continued to occupy the same.
Hence, plaintiff resulted to seek judicial relief.

On the other hand, defendant denies the allegations of the contents of the lease
contract presented by plaintiff. Defendant argues that plaintiff has no cause of action
against him. The lease contract was fictitious and simulated for it was not properly
subscribed.

Defendant presented a lease contract (Annex 1) wherein it was stipulated that

the lease was for a period of ten (10) years from March 27, 2002 to March 29, 2013. It
was supported by an affidavit executed by Andy Bilaga (Annex 2) who was the witness
thereof.

Moreover, defendant raised the issue on prescription of action wherein plaintiff

instituted the complaint after the prescriptive period for an ejectment case. Also, the
compliant was fictitious on the ground that it was unverified. The certification against
forum shopping was not acknowledged and subscribed by a notary public and was not
entered into the Notarial registry of the notary public.

STATEMENT OF ISSUES

1. Whether or not the plaintiff has cause of action to eject the defendant on the
premises.
2. Whether or not the lease contract presented by plaintiff is fictitious and
simulated.
3. Whether or not plaintiff’s action is barred by prescription.

ARGUMENTS

1. The plaintiff has no cause of action in commencing the ejectment case against
the defendant.
2. The lease contract provided by plaintiff is fictitious as provided by Article 1409
of the New Civil Code.
 3. Plaintiff’s action is barred by prescription since it was filed after one year from
the last demand.
4. Unverified complaint is a formal requisite and can be cured by amendment.
Unsubscribed certificate of non-forum shopping shall be dismissed for not complying
with SC Admin. Circular 04-94.

DISCUSSION

1. It is necessary to emphasize that defendant leased the first storey apartment

owned by plaintiff. Rule 70 of the Rules of Court deals with unlawful detainer which
provides:

“...a lessor, vendor, vendee, ot other person against whom the possession
of any land or building is unlawfully withheld after the expiration of or
termination of the right to hold possession, by virtue of any contract,
express or implied, or the legal representatives or assigns of any such
lessor, vendor, vendee, or other person, may, at any time within one year
after such unlawful deprivation or withholding of possession, bring an
action in the proper MTC against the person or persons unlawfully
withholding or depriving of possession, or any person or persons claiming
them, for the reconstitution of such possession, together with damages
and cost.”

In the case of Ocampo vs Tirona, April 6, 2005, unlawful detainer cases are
summary in nature. The elements to be proved and resolved are the facts of lease and
expiration or violation of its terms. The main issue of unlawful detainer is possession de
facto.

The contention of plaintiff that there is unlawful withholding of the leased property
by the defendant justifies the ejectment case. The phrase “unlawful withholding” has
been held to imply possession on the part of the defendant, which was legal in the
beginning, having no other source than a contract, express or implied, and which later
expired as a right and is being withheld by defendant. (Barba vs. Court of Appeals,
G.R. No. 126638)

The defendant’s argument in the action for ejectment has no cause of action
since the facts set forth by the plaintiff is not sufficient to justify a right to bring action.
Defendant does not deny that he leased the property of the plaintiff for period of 10
years contrary to what the latter posited that the lease contract is only for 5 years from
March 24, 2005 to March 25, 2010.

2. The second argument is related to the first since the lease contract presented
by plaintiff is fictitious and simulated. Article 1409 of the New Civil Code states:

“The following contracts are inexistent and void from the beginning:
x x x x x x x x x x
2. Those which are absolutely simulated or fictitious;
x x x x x x x x x x
The contracts cannot be ratified. Neither can the right to set up the
defense of illegality be waived.

Simulation of a contract may be absolute or relative. The former takes place

when the parties do not intend to be bound at all; the latter, when the parties conceal
their true agreement. An absolutely simulated or fictitious contract is void. A relative
simulation, when it does not prejudice a third person and is not intended for any
purpose contrary to law, morals, good customs, public order or public policy binds the
parties to their real agreement. There is a need to look into the true intent or agreement
of the parties. (J.R. Blanco vs. Quasha, G.R. 133148, November 17, 1999)

Plaintiff presented a contract of lease not signed by the parties and the witnesses
as well. It is fictitious because the true intent of the parties is not made known. The
period of the lease contract is doubtful. In the complaint, it is stated that the lease
commenced on March 24, 2003 while in the contract on March 24, 2005. The complaint
and the lease contract are inconsistent. It is indubitable that the lease contract
presented by defendant, signed by the parties and the witnesses, shows the true
agreement and intent of the parties.

Relating to the first argument, the plaintiff has no cause of action due to a
fictitious contract of lease, hence, void from the beginning.

3. An action for unlawful detainer must be brought within one year from the date

of last demand. Section 1, Rule 70 of the Rules of Court allows a plaintiff to bring an
action in the proper inferior court for unlawful detainer within one year, after such
unlawful withholding of possession, counted from the date of the last demand. (Canlas
vs. Tubil, G.R. No. 184285, September 29, 2009).
 In the case of Sps Barnachea vs. Court of Appeals, July 23, 2008 it was held that
the petitioners argue that the respondents' cause of action - whether for forcible entry or
for unlawful detainer - had prescribed when the ejectment complaint was filed on April 5,
2000. They point out that the last demand letter (the reckoning date for unlawful
detainer) was dated Aug. 26, 1998 and was received by the petitioners on August 31,
1998; the complaint was only filed on April 5, 2000 or more than 1 year after August 31,
1998.

The last demand of plaintiff was on March 21, 2010 as shown in “Annex B-3”.
Granting that the lease was for five years, an action for unlawful detainer had already
prescribed. The complaint was filed on March 26, 2011 and summon was received on
August 29, 2012 which shows that it was done after the prescribed period to bring an
action for ejectment. Hence, plaintiff is barred from instituting such action.

4. Section 4, Rule 70 of the Rules of Court provides that: “...All pleadings shall be
verified.” The reason thereof is for the court to acquire jurisdiction over the case. But
unverified complaint can be cured by amendment upon order of the court.

It is settled that the requirement regarding verification of a pleading is a formal

not a jurisdictional requisite. It is simply intended to secure an assurance that what are
alleged in the pleading are true and correct and not the product of the imagination or a
matter of speculation, and that the pleading is filed in good faith. Thus, the court may
order the correction of the pleading if not verified, (Oshita v. Republic, 19 SCRA 700
[1967]). The defect was merely format It did not affect the validity and efficacy of the
pleading, much less the jurisdiction of the court (Gadit v. Feliciano, Sr., 69 SCRA 388,
389 [1976]).

With regard to the Certification of Non-Forum Shopping, the Supreme Court

issued Administrative Circular No. 04-94 requiring the plaintiff, petitioner, applicant or
principal party seeking relief to certify under oath that he did not file any complaint with
other tribunal involving same issues. Failure to comply with the requirement is a ground
for the dismissal of the action.

Herein plaintiff attached the Certification of Non-Forum Shopping. However, he

failed to affix his signature thereon. Likewise, the signature and notarial seal of the
notary public was not manifested. With this, the complaint should be dismissed.

CONCLUSION
 With the laws and jurisprudence presented, the defendant, through his counsel
believes that the plaintiff has no cause of action in filing the suit based on fictitious lease
contract; that assuming arguendo the lease contract is for five years, the plaintiff’s
action is barred by prescription; and that the Certification of Non-Forum Shopping did
not comply with the prescribed form.

PRAYER

WHEREFORE, premises considered, defendant respectfully prays to the

honorable court that judgment be rendered in his favor as follows:

1. An order be issued by this Honorable Court dismissing the Complaint

for lack of cause of action;

2. Judgment be rendered upholding the validity of defendant’s copy of the

Contract of Lease;

3. Judgment be rendered ordering the Contract of Lease presented by

plaintiff as void and existent;

4. Ordering the plaintiff to pay the defendant the amount of P30,000.00 as

Attorney’s Fees and to pay cost suit.

Some other relief and remedies as may be deemed just and equitable under the
premises are likewise prayed for.

Cabanatuan City, 1st day of October, 2015.

LAW OFFICE
Counsel of the Defendant
Deped Bldg, Lignon Hill Site
Cabanatuan City

By:

ABC DEFG
Roll No. 11111
IBP O.R. No. 123456
Cabanatuan Chapter
PTR No. 2347908F
 EXPLANATION

In compliance with Section 11, Rule 13 of the Revised Rules of Court, personal
service of copy of Trial Memorandum could not be effected except by service through
registered mail due to distance and personnel constraints.

ABC DEG

Copy Furnished:(By Registered Mail)

ATTY. MALOU H. WANG

Counsel of the Plaintiff
4th Floor, Bigbang Building,
Cabanatuan City