Republic of the Philippines Sixth Judicial Region REGIONAL TRIAL COURT Branch___ Roxas City PEOPLE OF THE PHILIPPINES,

Plaintiff, - versus TITO CRUZ AND VIC CRUZ, Accused. x-----------------------------------------------x PRE-TRIAL BRIEF OF THE PROSECUTION THE PEOPLE OF THE PHILIPPINES, through the undersigned City Prosecutor, before this Honorable Court, most respectfully submit this Pre-Trial Brief: SUMMARY OF ADMITTED FACTS AND PROPOSED STIPULATION OF FACTS The following are the admitted facts: 1. the identities of those charged in the information and that of the persons arraigned are one and the same; 2. the identity of Joey Cruz, the victim; 3. the killing of the victim; 4. the date and places of the commission of the crime. EVIDENCE FOR MARKINGS 1. Affidavit of the cashier Geraldine Demetri Purpose: to prove that she was on-duty when the robbery took place and that one of the accused pointed a gun at her, who eventually declared hold-up while the other emptied the cash registers and took some grocery stuffs; 2. Affidavit of customer Bea Robles Purpose: to prove that she was one of the customers at the time the robbery took place and that she saw and identified the accused by their faces; 3. Affidavit of customer Paris Michaels Purpose: to corroborate the testimonies of Geraldine Demetri and Bea Robles; 3. Autopsy Report of Joey Cruz issued by Iloilo Mission Hospital Purpose: to prove the extent of the injury and the cause of death of the victim; 4. Blotter Report of Jaro Police Station (ICP-PP3) Purpose: to prove that the police authority received a report that a robbery took place at Iloilo Supermart, located at Tabuk Suba, Jaro, Iloilo City. 5. Affidavit of Romeo V. Benamarca CIVIL CASE NO._______ FOR: RECKLESS IMPRUDENCE

Purpose: To prove that he personally heard a gun shot from an abandoned rice mill and actually saw the accused holding a gun and the dead body of the deceased which subsequently followed the arrest of the accused. 6. Paraffin test result Purpose: To prove that accused became positive of gun powder burns. 7. Anatomical Sketch Purpose: To prove which part of the victims body was shot and the nature, extent and location of wound. 8. Ballistics Test result Purpose: To prove that the slug recovered from the victims body came from the same gun which was recovered from the possession of Tito Cruz. 9. Fired Shell 10. Three live ammunitions 11. .45 caliber pistol ISSUES 1. Whether or not the accused committed the crime charged; 2. Whether or not they were guilty thereof. WITNESSES 1. Geraldine Demetri to testify that a robbery took place; 2. Bea Robles to testify that she was one of the customers of the Iloilo Supermart at the time the robbery took place; 3. Paris Michaels to testify that she was one of the customers of Iloilo Supemart at the time the robbery took place. 4. Romeo V. Benamarca to testify that he was the police officer who went to the scene of the crime and arrested the accused. 5. Dra. Isabel Cenon to testify that she conducted the post mortem examination of Joey Cruz and to attest to the veracity of her findings in the autopsy report. 6. Police Senior Inspector Anthony Villar to testify that he conducted the ballistics examination and to attest to the veracity of his findings in the said report. 7. Chemist Dionisia Paqui to testify that she conducted a paraffin test to the accused and to attest to the veracity of her findings in the said report. TRIAL DATES Specifically all Fridays of the month, with the regular appearance of the undersigned city prosecutors before this Honorable Court. RESPECTFULLY SUBMITTED. Iloilo City, Iloilo, Philippines, July 4, 2008.

ILOILO CITY PROSECUTORS OFFICE

Ramon Q. Avancea Hall of Justice Bonifacio Drive,Iloilo City

By: JOHN FRED C. HALLARES

Assistant City Prosecutor Roll No. 67890 / 5-2-07 IBP. No. 667899 / 12-29-07 MCLE Exempt PTR Exempt

And

JASIE ANN MAGHOPOY

Assistant City Prosecutor Roll No. 67891 / 5-2-07 IBP No. 667900 / 12-29-07 MCLE Exempt PTR Exempt

Copy furnished: ATTY. KENETH P. TUPAS Counsel for the Defense Room 200, New Valentine Bldg. Central Philippine University Lopez Jaena St., Jaro, Iloilo City

Received by:___________ Date: ___________

Republic of the Philippines SUPREME COURT Manila City

JUANA DELA CRUZ, Defendant-Petitioner, -versusCIVIL CASE NO. L-12345 For: Ejectment

JANE DOE, Plaintiff-Respondent. x-------------------------------------------------------------------------x MEMORANDUM

COME NOW PLAINTIFF-RESPONDENT, through the undersigned counsel, unto this Honorable Supreme Court most respectfully submit and present this Memorandum in the above-titled case and aver that:

THE PARTIES 1. Plaintiff-Respondent Jane Doe is of legal age, single, and residing on 1010 Ginoo Boulevard, Pasay City, where she may be served with legal processes and notices issued by this Honorable Court; 2. Defendant-Petitioner Juana Dela Cruz is of legal age and residing on 123 Binibini Street, Quezon City, and may be served with legal processes and other judicial notices thereto.

I.

PROCEDURAL BACKGROUND

1. On February 11, 2008, herein Plaintiff-Respondent filed a Complaint for Ejectment dated February 7, 2008 against Defendant-Petitioner; 2. On December 22, 2008, an Answer dated December 15, 2008 was filed by the Defendant-Petitioner; 3. On February 3, 2009, a Decision was rendered by Branch 1 of Metropolitan Trial Court of Pasay City in favor of the Plaintiff-Respondent;

4. On August 6, 2009, a Motion for Reconsideration filed July 5, 2009 by DefendantPetitioner through legal counsel was denied by Judge Lorenzo Menzon of Branch 10 of the Regional Trial Court Pasay City; 5. On September 14, 2009, a Petition for Review dated September 9, 2009 was filed to the Court of Appeals by Defendant-Petitioner; 6. On April 23, 2010, Plaintiff-Respondent through legal counsel filed a Comment dated April 19, 2010; 7. On May 13, 2010, as per Verification and Report from the Judicial Records Division (JRD) no Reply was filed by the Defendant-Petitioner; 8. On May 21, 2010, a Resolution was rendered by the Court of Appeals denying Defendant-Petitioners Prayer for Temporary Restraining Order (TRO); 9. Accordingly, the Honorable Court of Appeals ordered the parties to submit their respective Memoranda fifteen (15) days from notice, otherwise regardless whether or not Memoranda were filed, the petition shall be submitted for decision; Hence, the filing of the instant Memorandum.

II.

FACTUAL BACKGROUND

10. Plaintiff-Respondent seeks that a parcel of land located at 123 Binibini Street, Pasay be returned to her possession, but due to Defendant-Petitioners occupancy thereat, the former cannot claim possession which left her with the option of residing at 1010 Ginoo Boulevard, Pasay City. It is noteworthy to stress that Plaintiff-Respondent is the registered owner of the land subject under TCT No. 12345 of the Registry of Deeds of Pasay City. The property was sold to them by the now deceased original owners, Spouses Marcelo and Marcela del Pilar; 11. Defendant-Petitioner, on the other hand, is an alleged lessee of the original owners of the land since September 1955. They had repeatedly assailed the verbal contract of lease for more than 50 years; 12. Plaintiff-Respondent was not able to claim immediately the land for it was previously subject to a pending legal proceeding and that there was still no urgent necessity of using and occupying it. When the event came that Plaintiff-Respondent was able to enforce her right over the land, Defendant-Petitioner, despite earnest and peaceful efforts of the PlaintiffRespondent still refused to vacate the land. This led her to seek help from the Barangay officials for mediation and/or conciliation in accordance with law. However, the DefendantPetitioner still persistently occupied the land without heed to the serious and constant demand of the Plaintiff-Respondent which rendered it unattainable to reach an agreement; 13. Due to the foregoing failure to claim the parcel of land attributed to the obstinate refusal of the Defendant-Petitioner, Plaintiff-Respondent was compelled to hire the services of a legal counsel to commence the enforcement of ejection under the wings of the courts of law.

III.

ISSUES OF THE CASE

A.) WHETHER OR NOT THE HONORABLE TRIAL COURT ACTED CORRECTLY IN DECIDING THIS UNLAWFUL DETAINER ACTION ON THE BASIS OF THE EVIDENCE OF OWNERSHIP AFTER DEFENDANT HAD RAISED IN DEFENSE THE LESSEES RIGHTS UNDER P.D. 1517, P.D. 2016, APD 1-12 PASAY CITY; B.) WHETHER OR NOT AN UNLAWFUL DETAINER ACTION BARS THE BONA FIDE LESSEES RIGHT TO AVAIL THE PRIVILEGES AND BENEFITS PROVIDED BY SECTION 6 OF P.D. 1517; C.) WHETHER OR NOT IN DETERMINING THE COVERAGE OF AREAS FOR PRIORITY DEVELOPMENT (APD), REFERENCE MUST BE HAD TO THE LIST OF THE STREETS SUBJECT TO THE ZONAL DEVELOPMENT AND NOT TO THE AREAS INCLUDED IN THE DELINEATION BY METES AND BOUNDS AS INDICATED IN THE PROCLAMATION ITSELF.

IV.

ARGUMENTS

A.) The court committed no error in deciding that an unlawful detainer action be enforced upon herein Defendant-Petitioner despite the assailed contention of the former under P.D. 1517 and P.D. 2016. B.) There is no bar in this instant case for an unlawful detainer to avail the benefits and privileges provided by Section 6 P.D. 1517 provided it is applicable. C.) The determination of the scope and limitation of Areas for Priority Development shall be based on the list of specific areas prescribed by the proclamation.

V.

DISCUSSION

A.) It is necessary to emphasize that the Plaintiff-Respondent is the bona fide owner of the parcel of land located at 123 Binibini Street, Pasay City under TCT No, 12345 of the Register of Deeds of Pasay City. In the Philippines, the presentation of a valid certificate of title of the real property is a conclusive evidence of ownership of the person whose name the certificate of title is entitled to. Under Section 47 of the Land Registration Act, or Act No. 496, it provides that the original certificates in the registration book, any copy thereof duly certified under the signature of the clerk, or of the register of deeds of the province or city where the land is situated, and the seal of the court, and also the owners duplicate certificate, shall be received as evidence in all the courts of the Philippine Islands and shall be conclusive as to all matters contained therein except so far as otherwise provided in this Act. Recognized jurisprudence also uphold the significance of a certificate of title in proving valid ownership of a land. In the decision of the case of Spouses Pascual v. Spouses Coronel, the ponente cited two cases which highlight the significance of a valid certificate of title in claiming ownership over a land. It was held that in the recent case of Umpoc v. Mercado, the Court declared that the trial court did not err in giving more probative weight to the TCT in the name of the decedent vis--vis the contested unregistered Deed of Sale. Later

in Arambulo v. Gungab, the Court held that the registered owner is preferred to possess the property subject of the unlawful detainer case. The age-old rule is that the person who has a Torrens Title over a land is entitled to possession thereof. The ruling of Dizon v. Court of Appeals was also used as basis for this argument. It was stated that a certificate of title is conclusive evidence of ownership and the questionability of the title is immaterial in an ejectment suit. Futhermore, Article 428 of the New Civil Code enumerates the rights of an owner. The owner has the right to enjoy and dispose of a thing, without other limitations other than those established by law. The owner has right of action against the holder and possessor of the thing in order to recover it. It is indubitable that the certificate of title of 123 Binibini Street, Pasay City under TCT No. 12345 which is registered in the Register of Deeds of Pasay City entitles PetitionerRespondent the right to exercise the aforementioned rights, specifically, in this instant case, the right of action against the holder and possessor of the thing in order to recover the land. The contention of the Defendant-Petitioner that the verbal lease agreement they had made with the now deceased original owners Marcelo and Marcela Del Pilar for over 50 years shall entitle them to the privileges under P.D. 1517 and P.D. 2016 (Annex A and B, respectively) is untenable. It is expressly stated that Section 6 of P.D. 1517 grants lessees the right of first refusal before they may be ejected from a land, but this is only feasible under certain conditions. It is an indispensable qualification that the land is included in the list of Areas for Priority Development (APD) before an owner can be granted of the right of first refusal. The land subject of this case is clearly not included in the specific areas enumerated in the list of APD. To reiterate the Court of Appeals decision in CA-G.R. No. CV 12345: Insofar as the property in litigation, appellant Jane Doe is, consequently, correct in objecting to appellees exercise of the right of first refusal granted under Section 6 of Presidential Decree No. 1517. The fact that it is not included in the areas for priority development specifically identified under Proclamation No. 1967 indicates that appellee have no cause of action for annulment of sale, reconveyance, and preliminary injunction against appellants. B.) The Plaintiff-Respondents argument in this issue is intimately connected with the preceding argument. Defendant-Petitioner vigorously assails that there is no bar to the availability of the privileges and benefits conferred to bona fide lessee whenever there is an unlawful detainer action. It is however true. But this is subject to circumstances that may qualify a lessee to the privileges and benefits under Section 6 of P.D. No. 1516 such as the right of first refusal. Unfortunately, the land possessed by the Defendant-Petitioner does not fall under the ambit of Section 6 of P.D. No. 1517. Therefore, the Defendant-Petitioner has no cause of action in this issue. C.) The third issue questions the coverage of the APD prescribed by the proclamation, whether or not it refers to the list of streets subject to the Zonal Development or to the areas included in the delineation of the metes and bounds indicated. Reiteration is therefore necessary to lay emphasis on the decision of the Court of Appeals that in the List of Areas for Priority Development (APDs), labeled as the South Sector of Pasay City, the area for priority development was defined as Tramo Lines along Barangays San Isidro, San Roque, and Santa Clara. It was thereafter specifically enumerated the list of covered sub-areas (please refer to Annex C for diagram) which are the following: 1) F. Victor, 2) Ventanilla Street, c) Juan Luna Street, d) D. Jorge Street, e) Viscarra Street, f) Conchita Street, g) Dolores Street, h) Leonardo Street, i) Alvarez Street, j) Basilio Street, k) Rodriguez Street, and i) Villa Barbara. There is consequently no gainsaying the fact that with its Binibini Street location, the property in litigation is not included among the sites identified as Areas for Priority Development in Pasay City.The mere fact that the list does not include Binibini Street necessarily implies that it is deemed excluded from it.

Citing Solanada Enterprises v. Court of Appeals, it made a profound analysis of Section 6 of P.D. 1517 (as found in Annex A of this Memorandum) based on statutory construction: We agree. A close reading of Proclamation No. 1967 reveals that, before a preemptive right can be exercised, the disputed land should be situated in an area declared to be both an APD and a ULRZ.
An urban tenant's right of first refusal is set forth in Section 6, PD 1517, as follows: Sec. 6. Land Tenancy in Urban Land Reform Areas . Within the Urban Zones[,] legitimate tenants who have resided on the land for ten years or more [,] who have built their homes on the land[,] and residents who have legally occupied the lands by contract, continuously for the last ten years shall not be dispossessed of the land and shall be allowed the right of first refusal to purchase the same within a reasonable time and at reasonable prices, under terms and conditions to be determined by the Urban Zone Expropriation and Land Management Committee created by Section 8 of this Decree. Proclamation No. 1967 further delimited the areas or zones wherein this preemptive right could be availed of viz.:

WHEREAS, Proclamation No. 1893 was issued on 11 September 1979, pursuant to Section 4 of P.D. No. 1517, declaring the entire Metropolitan Manila area as Urban Land Reform Zone. WHEREAS, It is now necessary and appropriate to identify specific sites covered by urban land reform in Metropolitan Manila for purposes of making specific the applicability of P.D. Nos. 1517, 1640 and 1642 and of LOI No. 935. NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution and existing laws, and in relation to Proclamation No. 1893 declaring the entire Metropolitan Manila area as an Urban Land Reform Zone, and LOI 935, hereby amend Proclamation No. 1893 by declaring 244 sites in Metropolitan Manila as Areas for Priority Development and Urban Land Reform Zones as described in the attached annex. The provisions of P.D. Nos. 1517, 1640 and 1642 and of LOI No. 935 shall apply only to the above[-]mentioned Areas of Priority Development and Urban Land Reform Zones. xxx xxx xxx The aforecited whereas clauses express a clear intent to limit the operation of PD 1517 to specific areas declared to be located in both an APD and a ULRZ. The conjunctive and in the last sentence of the quoted provision confirms this intention. And in statutory construction implies conjunction, joinder or union. As understood from the common and usual meaning of the conjunction and, the provisions of PD 1517 apply only to areas declared to be located within both an APD and a ULRZ. With the foregoing recognized jurisprudence said, the Defendant-Petitioners action would necessarily lead to futility for no cause of action.

PRAYER WHEREFORE, premise considered, it respectfully prayed for that this Honorable Supreme Court that Defendant-Petitioners prayer for writ of injunction be DENIED for having no cause of action and the petition DISMISSED for being clearly unmeritorious. Other just and equitable relief under the foregoing are likewise being prayed for. Respectfully submitted. Makati City for Manila City, Philippines. April 8, 2011.

AZURIN BUHAIN BONTUYAN AND ARICAYOS LAW OFFICES Counsel for Plaintiff-Respondent 10th Floor, New Building, Makati Avenue, Makati City

By: ATTY. PAOLO COELHO IBP Lifetime No. 67891; 5/10/2005 PTR No. 44568; 1/10/2011 Roll of Attorney No. 2005-001023 MCLE Compliance No. III 000899

Copy Furnished: ATTY. JEFFREY A. ARCHER Counsel for Petitioner Unit 1200, Tall Building Condominium, Espana, Manila
.

LEGAL OPINION FORMAT (ADDRESSED TO THE CLIENT) July 18, 2011 Mrs. Malou Ang 911 Bluewhale Street Palanan, Makati City RE: POSSIBLE LAWSUIT AGAINST MCBEE FOR THE INJURY YOU HAVE SUSTAINED Dear Mrs. Ang: Here is the opinion you requested. The facts, gathered from you and your documents, are as follows: _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ ________________________________________ _____________________________________________________________________________________ _________________________ The issue here is clear: its whether or not McBee is liable to you for damages. In my opinion, _____________________________________________________________________________________ _______________ _____________________________________________________________________________________ _____________________________________________________________________________________ __________________________________________________ As for the nature of McBees liability, the provision that governs is ________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ __________________________________________________ The Supreme Court explained said provision in the case of _________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ __________________________________________________ ______________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _________________________________________________________________________ One thing: my opinion is based on the laws and the jurisprudence applicable to your situation. If by any circumstance you take your plight to court, I am confident that the case willbe decided in your favor. Very truly yours,

Atty. Karren Cecil I. Panopio-Lofranco

- OR YOU CAN USE THIS FORMAT -

In response to your request, I have analyzed whether you can file an action for damages against McBee. My opinion is based on the following facts: ___________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _________________________________________________________________ As regards to the first issue ____________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ ___________________________________________________________________________ As regards to the second issue _________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ ___________________________________________________________________________ On this basis, I hereby offer the following opinion: ________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ ___________________________________________________________________________ ______________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ _____________________________________________________________________________________ ___________________________________________________________________________

If you pursue with this action, I believe you have an excellent chance of prevailing. Please call should you have any questions about this opinion.

Sincerely,

Atty. Karren Cecil I. Panopio-Lofranco

December 10, 2010 Mr. Peter Banag 16 Annapolis St. Cubao, Quezon City Dear Mr. Banag: Here is the opinion you requested. The facts, gathered from you and your documents, are as follows: Your daughter, Mary Banag, about six years old, went to Arthur Sisons house to buy ice-candy on September 12 at about 3 PM. Mary knocked on the gate, but having gotten no response from Arthur who was napping then, she tested the gate by pushing it. Upon doing so, the gate yielded and Arthurs dog jumped out, went after Mary and attacked her from behind, biting her on the leg and arms as she fell to the ground. She was saved by Fred Puzon, a neighbor, who kicked the dog away and protected her. Awakened by the commotion and having heard shouts that his dog had attacked a child, Arthur went out, sent the dog back to his yard and bought Mary to a nearby clinic for treatment, paying the medical bill thereafter. You asked Arthur to pay Mary P20,000 in damages for the ordeal but all you got was a letter saying that he cannot grant your demand because he was not at fault. He based his stand on the following: 1. That there was a sign at the gate warning about the presence of the dog, in effect implying that if Mary heeded what the sign says, the attack wouldnt have happened 2. That at the time of the attack she was not accompanied by an adult, impliedly putting the blame on you as her parent for letting her roam outside unattended and therefore exposing her to danger; and 3. That he already paid the bill for Marys medication. The issue here is clear: its whether or not Arthur is liable to Mary for damages. In my opinion, Arthur is liable for damages notwithstanding his defenses. First and foremost, what happened to Mary is classified as a quasi-delict, as defined by Article 2176 of the Civil Code: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is

no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. As for the nature of Arthurs liability, the provision that governs is Article 2183 of the Civil Code. It provides that: The possessor of an animal or whoever may make use of the same is responsible for the damage which it may cause, although it may escape or be lost. This responsibility shall cease only in case the damages should come from force majeure from the fault of the person who has suffered damage. The Supreme Court explained said provision in the case of Vestil v. Intermediate Appellate Court (G.R. No. 74431, 179 SCRA 47), saying that: According to Manresa, the obligation imposed by Article 2183 of the Civil Code is not based on the negligence or on the presumed lack of vigilance of the possessor or user of the animal causing the damage. It is based on natural equity and on the principle of social interest that he who possesses animals for his utility, pleasure or service must answer for the damage which such animal may cause. Now, Arthur may say that what happened was brought about by contributory negligence on Marys part as the former implied in his letter, or he may claim that letting Mary roam the vicinity unaccompanied is negligence on your part and constitutes the proximate cause of her injuries, notwithstanding his own negligence in leaving the gate unlocked before napping. Both scenarios are governed by Article 2179 of the Civil Code that provides: When the plaintiffs own injury, he cannot recover immediate and proximate the plaintiff may recover awarded. negligence was the immediate and proximate cause of his damages. But if his negligence was only contributory, the cause of the injury being the defendants lack of due care, damages, but the courts shall mitigate the damages to be

In the first scenario, the Supreme Courts ruling in Jarco Marketing Corporation v. Court of Appeals (G.R. No. 129792, 321 SCRA 375) that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law covers Mary, hence throwing the notion of contributory negligence on her part out the window. As for the second scenario, the ruling in Umali v. Bacani (G.R. No. L-40570, 69 SCRA 263) provides that parental negligence in allowing a young child to go out of the house alone may at most qualify as contributory negligence and as such would be covered by the second sentence of Article 2179. Arthur, being the owner of the dog that attacked Mary, is liable for damages, with all possible defenses taken into consideration. If Arthur didnt leave the gate unlocked before taking a nap an act showing a lack of due care there would have been no way the dog could have attacked Mary. Mary could test the gate all day long and she wouldnt be attacked by Arthurs dog had the gate been closed. Of course, he may say that paying Marys medical bill should be enough, but that does not cover the moral damages that Mary is entitled to under Article 2219 (2) of the Civil Code, which specifically pertains to quasi-delicts causing physical injuries. As mentioned earlier, the only reprieve due him would be a mitigation of his liability. One thing: my opinion is based on the laws and the jurisprudence applicable to your situation. If by any circumstance you take your plight to court, I am confident that the case will be decided in your favor. Very truly yours,

Emile Justin P. Cebrian