Republic of the Philippines
MUNICIPAL TRIAL COURT
5th Judicial Region
Daraga, Albay
MR. A,
Plaintiff,
versus Civil Case No. 1234
For: Ejectment (Unlawful Detainer)
MR. B,
Defendant.
x----------------------------------------------x
ANSWER with COUNTERCLAIM
COMES NOW, defendant Mr. B, by counsel and unto this Honorable Court,
most respectfully aver that:
1. The allegations set forth in paragraphs 1 and 2 of the complaint are specifically
admitted only in so far as the personal circumstances of the parties involved.
2. Likewise, the allegations under paragraphs 3 and 4 are also admitted only in so
far as the technical description of the subject property is concerned. The rest of
the allegations stated therein are denied due to lack of knowledge sufficient to
form a belief as to the truth thereof.
3. The allegations contained in paragraphs 5 to 16 are hereby denied and the reason
for the denial thereof shall be further discussed in the Special Affirmative
defenses.
SPECIAL AFFIRMATIVE DEFENSE
4. Contrary to what plaintiff Mr. A would like the Honorable Court to believe,
defendant Mr. B has been occupying the subject property since 2017. In fact, Mr.
B had bought the said property from Mr. A, as evidenced by Contract to Sell
executed by both parties on September 2, 2017, a copy of which is attached
herein as Annex “1”.
5. As indicated in the said Contract to Sell, the consideration for the said sale is at
FIFTY THOUSAND PESOS (Php50,000.00) payable within two years, or until
September 2019, from execution thereof. The contract also stipulated that
during the course of the term to pay the consideration for the sale, defendant
can already occupy its premises.
6. In accordance with the said contract, defendant had religiously paid plaintiff, by
quarterly instalment, until the whole amount of consideration was fully settled.
In fact, defendant is in possession of several acknowledgment receipts, dated
from October 2017 until October 2019, duly signed by plaintiff, as proof of the
said payments. Copies of the said acknowledgment receipts are herein attached
as Annexes “2” to “5”.
Page 1 of 6
7. However, when defendant had finally paid in full the consideration amount for
the said sale, it was the plaintiff who started avoiding him. Defendant tried to
contact plaintiff through phones and text messages, to (1) execute a Deed of
Absolute Sale in his favor, and (2) surrender the certificate of title of the lot to
him for proper conveyance and registration before the Registry of Deeds of
Daraga. Despite such lengths of efforts to contact him, plaintiff had but ignored
the defendant. Much to the surprise of defendant, he received Summons from
the Barangay Office of Busay Daraga sometime in January 2021, for mediation
proceedings involving the said property, and his subsequent receipt of the
Demand Letter and a copy of the Complaint for Illegal Detainer from plaintiff,
and the Summons to Answer from this Honorable Court.
8. The instant complaint against defendant for unlawful detainer has no leg to
stand on. Contrary to the allegations of plaintiff, defendant was not occupying
the said property by mere tolerance of the plaintiff.
In Fe U. Quijano versus Atty. Daryll A. Amante 1, the Supreme Court defined the
action for unlawful detainer as:
“xxx
Unlawful detainer involves the defendant's withholding of the possession of the property
to which the plaintiff is entitled, after the expiration or termination of the former's right to
hold possession under the contract, whether express or implied. A requisite for a valid
cause of action of unlawful detainer is that the possession was originally lawful, but
turned unlawful only upon the expiration of the right to possess.
xxx”
As such, the Honorable Supreme Court held that a complaint sufficiently alleges
a cause of action for unlawful detainer if it recites the following:
(1) initially, possession of property by the defendant was by contract with or by
tolerance of the plaintiff;
(2) eventually, such possession became illegal upon notice by plaintiff to defendant of
the termination of the latter’s right of possession;
(3) thereafter, the defendant remained in possession of the property and deprived the
plaintiff of the enjoyment thereof; and
(4) within one year from the last demand on defendant to vacate the property, the
plaintiff instituted the complaint for ejectment .2
Applying such ruling in the instant case, it would seem that plaintiff was trying to
impress the Honorable Court that since plaintiff and defendant are long-time
friends, the former had allegedly transmitted the right of possession to
defendant over the subject property by mere tolerance. However, the Contract
to Sell (Annex 1) and the acknowledgment receipts (Annexes “2” to “5”) would
prove the contrary: that the possession of defendant was due to plaintiff selling
to him the rights and ownership of the subject property. The possession of
defendant over the subject property was neither by mere tolerance of plaintiff
nor through a contract of lease.
1
G.R. No. 164277, October 8, 2014
2
Amada C. Zacarias versus Victoria Anacay, et. al, G.R. No. 202354, September 24, 2014, citing Valentin
Cabrera, et. al verus Elizabeth Getaruela, et. al, G.R. No. 164213, April 21, 2009
Page 2 of 6
The ruling in Cecilia T. Javelosa et. al versus Ezequiel Tapus et. al,3 is applicable in
the surrounding circumstances of the instant complaint, to wit:
“xxx
However, in order for the petitioner to successfully prosecute her case for unlawful
detainer, it is imperative upon her to prove all the assertions in her complaint. After all,
"the basic rule is that mere allegation is not evidence and is not equivalent to proof."
This, the petitioner failed to do. As correctly observed by the CA, the petitioner failed
to adduce evidence to establish that the respondents' occupation of the subject
property was actually effected through her tolerance or permission.
xxx
Remarkably, in Quijano v. Atty. Amante, the Court ruled that in an action for unlawful
detainer, the plaintiff must show that the possession was initially lawful, and
thereafter, establish the basis of such lawful possession. Similarly, should the plaintiff
claim that the respondent's possession was by his/her tolerance, then such acts of
tolerance must be proved. A bare allegation of tolerance will not suffice. At least, the
plaintiff must point to the overt acts indicative of his/her or predecessor's permission
to occupy the disputed property.
xxx
Perforce, guided by all the foregoing cases, an action for unlawful detainer fails in the
absence of proof of tolerance, coupled with evidence of how the entry of the
respondents was effected, or how and when the dispossession started. This rule is so
stringent such that the Court categorically declared in Go, Jr. v. CA that tolerance
cannot be presumed from the owner's failure to eject the occupants from the
land. Rather, "tolerance always carries with it 'permission' and not merely silence or
inaction for silence or inaction is negligence, not tolerance." On this score, the
petitioner's tenacious claim that the fact of tolerance may be surmised from her
refusal for many years to file an action to evict the respondents is obviously flawed.
Furthermore, it must be stressed that the fact that the petitioner possesses a Torrens
Title does not automatically give her unbridled authority to immediately wrest
possession. It goes without saying that even the owner of the property cannot wrest
possession from its current possessor.
“xxx (emphasis supplied)
From the above-cited cases, the Supreme Court has clearly guided us as to the
requirements for an action for unlawful detainer to prosper, specifically in cases
when the issue of possession revolves in the alleged tolerance given by the
plaintiff to the defendant. The indicative acts of tolerance should have been
present right from the very start of the possession.
Considering that defendant presented evidence showing that his possession of
the subject property is neither by mere tolerance of plaintiff, nor through some
other contract that afforded possession thereto, like a contract of lease, and
considering further that plaintiff did not even present evidence, other than his
testimony and bare allegations, to effectively establish the requisites of unlawful
detainer in his complaint, the said action will not prosper and should be
dismissed by the Honorable Court.
9. The allegations set forth in paragraph 14 as to claim for attorney’s fees are
denied for lack of basis in fact and in law. It is explicit in the Rules on Summary
Procedure particularly in all cases of forcible entry and unlawful detainer that the
3
G.R. No. 204361, July 4, 2018
Page 3 of 6
award for attorney’s fees shall not exceed Php20,000.00 irrespective of the
amount of damages or unpaid rentals sought to be recovered. All other claims
for damages are bereft of merit and should not be given due course by the
Honorable Court.
COMPULSORY COUNTERCLAIM
By way of compulsory counterclaim, the foregoing allegations are hereby re-
pleaded and reiterated, defendant Mr. B further allege, that:
10. The filing of this malicious and groundless action against herein defendant has
caused him mental anguish, serious anxiety and has besmirched his reputations
within the barangay of his residence, for which he should be compensated by
way of moral damages the amount of which is left to the sound discretion of the
Honorable Court.
11. The reckless and wanton attitude of plaintiff in bringing the present action
against defendant Mr. B should be penalized by way of exemplary damages, the
amount of which is also left to the sound discretion of the Honorable Court.
12. Defendant was also forced to secure the services of counsel to defend his rights
and interest in the subject property, thereby making plaintiff liable to pay for
Attorney’s Fees in the amount of Php10,000.00 as well as appearance fees for
every hearing in the amount of Php2,000.00. A copy of the official receipt for
acceptance fees is hereto attached as Annex “6”.
PRAYER
WHEREFORE, it is most respectfully prayed from the Honorable Court to
render judgment:
1. DISMISSING the instant complaint for lack of factual and legal bases;
2. To render judgment on defendant’s compulsory counterclaim against
plaintiffs, ordering the latter to pay moral damages, exemplary damages in an
amount which the Honorable Court may find reasonable, plus attorney’s fees
of Php10,000.00, appearance fees for every hearing and cost of suit.
3. Other reliefs just and equitable under the premises are likewise prayed for.
Legazpi City for Daraga, Albay on March 20, 2021.
ATTY. PEDRO DELOS REYES
ROLL NO. 67891
PTR NO. 1928374; 01/04/2021; ALBAY
IBP NO. 657681; 01/04/2021; ALBAY
MCLE Compliance No. VI-009847;04/14/2022
Issued on January 14, 2019
Counsel of Defendant Mr. B
Delos Reyes Law Office
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No. 69, Barangay 1
Em’s Barrio, Legazpi City, Albay
Copy furnished:
ATTY. JUAN DELA CRUZ
Counsel for Plaintiff Mr. A
Dela Cruz Law Office
Purok 3, Barangay Tamaoyan,
Legazpi City 4500
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VERIFICATION
I, MR. B, of legal age, with capacity to sue and be sued and a resident of Purok
3, Brgy. Busay, Daraga, Albay, under oath, deposes and state that:
1. That I am the defendant in this case;
2. The allegations in the pleading are true and correct based on my personal
knowledge and based on authentic records;
3. The pleading is not intended to harass, cause unnecessary delay, or
needlessly increase the cost of the litigation; and
4. The factual allegations therein have evidentiary support or, if specifically
identified, will likewise have evidentiary support after a reasonable
opportunity for discovery.
IN WITNESS WHEREOF, I have hereunto set my hand this March 20, 2021 at
Legazpi City.
MR. B
Defendant/Affiant
SUBSCRIBED AND SWORN to before me the above-named affiant, personally
appeared and exhibited his PRC License ID No. 0111-2345 as competent proof of
identity, who is known to be the same person who executed the foregoing
Verification and he acknowledged to me that, under penalty of law, the allegations
contained therein are all true and correct of his own personal knowledge and based
on authentic records; and that the same is her free act and voluntary deed.
WITNESS MY HAND AND SEAL this March 20, 2021 at Legazpi City, Philippines.
Doc. No. ___;
Page No. ___;
Book No. ___;
Series of 2021.
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