REPUBLIC OF THE PHILIPPINES

THIRD JUDICIAL REGION

REGIONAL TRIAL COURT
IBA, ZAMBALES
BRANCH 70

ELANY
M.
MARTY,
represented in this action
by her Attorney-In-Fact,
HON. LUISITO E. MARTY,
Petitioner,

- versus -

CIVIL CASE NO. RTC-2735-I

HON.
ATTY.
AMOR
D.
DELOSO,
ATTY.
AD
HERBERT
P.
DELOSO,
EDGARD E. MARCELLANA,
and BERNIE D. EDNILAO,
Respondents.
x-----------------------------------x

MOTION FOR RECONSIDERATION

(Of the Decision Dated August 25, 2015)
PETITIONER ELANY M. MARTY (petitioner),
counsel, unto this Honorable Court, respectfully avers:

by

I.
TIMELINESS
1. On November 17, 2015, petitioner received a copy of
the Decision of this Honorable Court dated August 25, 2015
dismissing the instant case (Assailed Decision).
2. Petitioner has a period of fifteen days from receipt of
the Assailed Decision within which to file a Motion for
Reconsideration. Reckoned from the date of receipt of the
Assailed Decision, that is, November 17, 2015, the instant
Motion for Reconsideration is timely filed.

3. In dismissing the instant case, the Honorable Court

gave the following justification:
Sec. 17, Rule 3 of the Rules of Court provides:
Section 17. Death or separation of
a party who is a public officer. When a
public officer is a party in an action in
his official capacity and during his
pendency dies, resigns, or otherwise
ceases to hold public office, the action
may be continued and maintained by or
against his successor if, within thirty
(30) days after the successor takes
office or such time as may be granted
by the court, it is satisfactorily shown to
the court by any party that there is a
substantial need for continuing or
maintaining it and that the successor
adopts or continues or threatens to
adopt or continue the action of the
predecessor. Before a substitution is
made, the party or officer to be effected,
unless expressly assenting thereto, shall
be given reasonable notice of the
application therefor and accorded an
opportunity to be heard.
Considering that the attendant circumstances
in this case, the failure to make the substitution
pursuant to the aforequoted provision is a
procedural defect. When Governor Amor Deloso
was replaced in his position, it is incumbent upon
petitioner, to file for substitution of parties within
(30) days after the named successors-in-office of
Governor Deloso, assumed office. Inasmuch as no
such substitution was effected, the injunction
petition cannot prosper in the absence of a
supplemental pleading showing that the successor
of Governor Deloso, had adopted or had continued
or threatened to adopt or continue the action of
their predecessors. Thus, the petition should have
been dismissed for non-compliance with the
substitution procedure pursuant to rule 3, Section
18 of the Rules of Court.

In Roque, et al. vs. Delgado, et al., G.R. No. L6770, August 31, 1954 and reiterated in heirs of
Mayor Galvez vs. CA, et al., G.R. No. 119193,
March 29, 1996, the Supreme Court held:
Another reason, though technical,
why the present petition should be
dismissed,
is
that
although
the
petitioner, Hon. Marciano Roque, had
ceased to hold the office in virtue of
which he instituted the petition, no
substitution
has
been
made
in
accordance with Section 18, Rule 3, of
the Rules of Court.
IN VIEW OF THE FOREGOING, this case is
hereby DISMISSED.
II.
GROUND
4. With due respect, the Honorable Court committed
grave and rank error as the above justification is contrary to
law and it is on this ground that petitioner seeks a
reconsideration of said Assailed Decision.
III.
ARGUMENTS/DISCUSSION
The case was filed
against the respondents
Hon. Atty. Amor D. Deloso,
Atty. AD Herbert P. Deloso
and Edgard E. Marcellana
in their personal capacities
and not their being public
officers.
-----------------------------------5. It must be noted that the repeated and continuing acts of
intrusion of respondents Atty. Amor D. Deloso (A. Deloso), Atty.
AD Herbert P. Deloso (H. Deloso) and Edgard E. Marcellana
(Marcellana) are personal harassments against petitioner
because they are political rivals.
3

6. Thus, the fact that respondents A. Deloso, H. Deloso

and Marcellana are public officers at that time are only
incidental because the case was filed against them in their
personal capacities.
7. This Honorable Court should consider the fact that
sometime in the year 1998, the project was allegedly suspended
or was not attended to since respondent A. Deloso was no longer in
power. In March 11, 2008, the constituents of Barangay San
Fernando, Sta. Cruz, Zambales, allegedly executed a Manifesto,
addressed to respondent A. Deloso, indicating their desire to continue
the construction of said school in the subject lot. In answer to the said
Manifesto, respondent A. Deloso allegedly decided to continue the
construction of said school.1
8. Thus, on September 3, 2008, after proper coordination with
respondent Marcellana, workers of Aztec Construction proceeded to
the subject lot to allegedly inspect it for possible clearing operations,
to give way for the construction of the said School. However, the
caretaker of petitioner, Mario S. Bayola and the alleged private
armies of L. Marty led by Vergel Misola allegedly harassed them on
September 4 and 5, 2008 which is not true.
9. Thus, it is of no moment if during that time, respondents A.
Deloso, H. Deloso and Marcellana are not already public
officers since they continued to intrude the property of
petitioner even if they are no longer in office. Apparently, the
acts of respondents A. Deloso, H. Deloso and Marcellana are
no longer within the ambit of their positions or their offices.

Even assuming that

the case was filed in the
capacities of respondents
A. Deloso, H. Deloso and
Marcellana
as
public
officers
for
which
no
substitution was allegedly
been made, there is a
respondent private person
wherein
the
subject
injunction may be directed
to.
-----------------------------------1

Supplemental Memorandum of Petitioner, par. 24, p. 5.

10. Aside from respondents A. Deloso, H. Deloso and

Marcellana, there is another respondent who is not a public
officer in the person of respondent Bernie D. Ednilao
(Ednilao).
11. Respondent Ednilao, is a private individual, a resident of
Botolan, Zambales, and a business contractor.2
12. In the cases of Roque, et al. vs. Delgado, et al., G.R.
No. L-6770, August 31, 1954 and Heirs of Mayor Galvez vs.
CA, et al., G.R. No. 119193, March 29, 1996, the Supreme
Court dismissed the cases because there were no proper
substitutions made due to the fact that the public officers
concerned were the only parties to the case.
13. It is only fitting that there must be proper substitution made
in the aforementioned cases because the parties are public officers
and there are no private individuals involved.
14. Petitioner, in so far as it is pertinent, the succeeding
arguments are reiterated.
Petitioner has a right over
the land (Lot 1-B-B) to be
protected.
----------------------------------------------15. One of the requisites of injunction is that there must
be a right in esse or the existence of a right to be protected. 3
Petitioner submits that she has a right over the land (Lot 1-BB).
16. It is underscored that the entire Lot-1-B of
Subdivision Plan (LRC) Psd-335217 (Lot 1-B for easy
reference) was covered by Transfer Certificate of Title
respondents did not dispute. Lot 1-B was later subdivided
into 17 lots, namely, Lot 1-B-A to Lot 1-B-Q, inclusive, of
subdivision plan Psd-03-069969 (AR) DAR- Module Z-06-94.
Prior to the actual distribution and titling of these subdivided
lots, the ownership remained with Adorancion M. Otengco
(Otengco). Likewise, those subdivided lots that were not
distributed to farmer-beneficiaries, such as lots 1-B-B, Lot 1B-D, Lot 1-B-D, and Lot 1-B-P, remained under the ownership
2
3

Memorandum of Petitioner, par. 9, p. 3.

National Power Corp. vs. Vera, G.R. No. 83558, February 27, 1989.

over the same subdivisions. She lost ownership over some

of these subdivisions only after these were distributed and
titled in the name of designated farmer-beneficiaries.
17. It would then appear that when Lot 1-B was
subdivided, Ongteco lost ownership over it; and that she
regained ownership over the subdivided lots only when she
applied for retention and when such application is approved.
This is of course not in accord with the law on land reform.
18. Ongteco did not lose her ownership over Lot 1-B or
its subdivision that were not awarded to any persons or
farmer-beneficiaries, nor such ownership depend on the
approval of her application for retention of these lots. The
application for retention and consequent approval thereof
are not the operative acts that vest in Ongteco ownership
over those undistributed subdivisions of Lot 1-B, for she
never lost such ownership in the first place. Ongtecos
application for retention merely informs the Department of
Agrarian Reform (DAR) that she was not willing to part with
these lots.
19. While Lot 1-B-B of subdivision plan Psd-03-069969
(AR) DAR-Module Z-06-94 was allegedly proposed to be a
school site, such remained a mere proposal and does not
amount to an award to any person of farmer-beneficiary.
Being a mere proposal the bona fide owner Ongteco, may at
anytime change her mind and choose to retain the same
instead. Not being awarded to anyone, she could always
apply for its retention.
20. Being the owner of Lot 1-B and its subdivision that
were not awarded to any farmer-beneficiaries including Lot
1-B-B of subdivision plan Psd-03-069969 (AR) DAR-Module Z06-94, it follows that Ongteco could at anytime dispose of
those properties if she wanted to, as her ownership over
them does not depend on her application for retention and
its subsequent approval. There is no law prohibiting her
from disposing these properties.
21. Thus, when Ongteco donated Lots 1-B-B, Lot 1-B-D,
Lot 1-B-K, and Lot 1-B-P to petitioner, complying with all the
formalities required by law, the donation was valid, and the
petitioner ipso facto stepped into the shoes of Ongteco by
operation of law. Petitioner automatically became the full
owner of the donated properties upon her acceptance, and

from that moment on, gained all the rights of an owner that
the law could and should protect.
Merin is not the owner
of Lot 1-B-B.
-----------------------------------22. According to respondents, On June 6, 1995,
Subdivision Plan (LRC) Psd-335217, also designated as Psd03-069969(AR) DAR-Module-Z-06-94 was approved. In the
said subdivision plan of Lot 1-B, Lot 1-B-A with an area of five
hundred fifty-seven square meters (577 sq. m.), and Lot 1-BC with an area of twelve thousand six hundred thirty-seven
square meters (12,637 sq. m.), are named after Jose Merin
(Merin), whereas, Lot 1-B-B is indicated as proposed school
site, thereby, if computed, the total area obtained, owned
and belonging to Merin (Lots 1-B-A, 1-B-B and 1-B-C) was 1.9
which is consistent with the Certificate of Land Transfer
issued to him sometime on August 15, 1981.
23. However, this erroneous because if the areas will be
correctly summed up (including the area of Lot 1-B-B), it
would total to more than 1.9 hectares. Thus, Lot 1-B-B
cannot possibly be the third (3 rd) lot transferred by Otengco
to Merin.
24. In fact, if this Honorable Court will examine the
records, the only lots covered by the Deeds of Transfer
executed by Otengco to Merin were Lots 1-B-A and 1-B-C. Lot
1-B-B was not included.
Lot 1-B-B was not
donated
by
Merin
to
Barangay San Fernando.
-----------------------------------25. According to respondents, prior to the issuance of
Emancipation Patent, Merin waived and donated Lot 1-B-B to
Barangay San Fernando and as early in February 1999 the
Sanggunian of Barangay San Fernando approved Resolution
No. 09 wherein Lot 1-B-B was proposed as the site for San
Fernando Elementary School. In fact, an alleged public
bidding was already held for which the construction of said
school was awarded to Aztec Construction.
7

26. How could have Merin waived and donated Lot 1-BB to Barangay San Fernando if prior to the issuance of
Emancipation Patent to him when during that time, the same
was not yet transferred to him?
27. Moreover, respondents did not present any Deed of
Waiver or Donation executed by Merin in favor of Barangay
San Fernando. Respondents did not also present any
Resolution passed by the Sanggunnian of Barangay San
Fernando accepting the donation of Merin.

To bolster the fact

that the case was not filed
against
respondents A.
Deloso, H. Deloso and
Marcellana
as
public
officers, it is evident that
there is no government
project to speak of in the
instant case.
-----------------------------------28.
Aside from being a proposal, the alleged
construction of the San Fernando Elementary School is yet to
be approved by the Department of Education (DEPED) and
no approval has been given by the latter with respect
thereto.
29. In fact, in Resolution No. 09 of the Sanggunian of
Barangay San Fernando, the latter is still requesting the
DEPED for the construction of said school on Lot 1-B-B.
30. Moreover, the bidding papers do not indicate that
the bidding was for the alleged construction of said school. It
only says Sta. Cruz Phase II project.
31. Furthermore, there is no Resolution or Ordinance
from the Sanggunian Panlalawigan that the same is a project
of respondent A. Deloso.

The injunction being

sought by petitioner is
against the repeated acts
of intrusion of respondents
in their personal capacities
and who even continued
the same even after they
were no longer in public
office. Moreover, what is
not enjoined is the alleged
construction of the school.
-----------------------------------32. The injunctive relief which petitioner seeks is
against the repeated acts of intrusion of respondents into his
land and the destruction of the perimeter fence.
33. It is not the construction of the school because
there is no project yet that was approved. In fact, as
mentioned above,
the
Barangay Resolution
which
respondents are arrogating is still requesting the DEPED for
its approval. Moreover, the bidding papers do not indicate
that the same was for the construction of said school.

The repeated acts of

intrusion of respondents
into the subject lot and the
destruction of its fence
against
which
the
injunction sought is being
directed is a violation of
the right of petitioner over
the same.
-----------------------------------34. Another requisite of injunction is that the act
against which the injunction is to be directed is a violation of
a right.4 Considering that petitioner owns the land, she has a
right thereto and as such, she has to be respected and
shielded from encroachments.
4

Searth Commodities Corp. vs. Court of Appeals, 207 SCRA 622.

35. The repeated acts of intrusion of respondents into

his land and the destruction of the perimeter fence are
violations of her right and interest to said land.
The first requisite for
the
issuance
of
an
injunction, i.e. existence of
a right to be protected, is
present.
-----------------------------------36. When Ongteco donated Lots 1-B-B, Lot 1-B-D, Lot 1B-K, and Lot 1-B-P to petitioner, complying with all the
formalities required by law, the donation was valid, and the
petitioner ipso facto stepped into the shoes of Ongteco by
operation of law as the owner of the subject lot. Stated
otherwise, petitioner automatically became the owner of the
donated properties (including the subject lot) upon her
acceptance and from that moment on, gained all the rights
of an owner that the law could and should protect.
37. Under Article 712 of the Civil Code, the modes of
acquiring ownership are generally classified into two (2)
classes, namely, the original mode (i.e., through occupation,
acquisitive prescription, law or intellectual creation) and the
derivative mode (i.e., through succession mortis causa or
tradition as a result of certain contracts, such as sale, barter,
donation, assignment or mutuum).
38. As being itself a mode of acquiring ownership,
donation results in an effective transfer of title over the
property from the donor to the done. 5 In donations of
immovable property, the law requires for its validity that it
should be contained in a public document, specifying therein
the property donated and the value of the charges which the
donee must satisfy6 which Otengco and petitioner did.
39. Be it noted that the entire Lot-1-B of Subdivision
Plan (LRC) Psd-335217 (Lot 1-B for easy reference) was
covered by Transfer Certificate of Title respondents did not
dispute. Lot 1-B was later subdivided into 17 lots, namely,
5
6

Article 712, Civil Code.

Article 749, New Civil Code.

10

Lot 1-B-A to Lot 1-B-Q, inclusive, of subdivision plan Psd-03069969 (AR) DAR- Module Z-06-94. Prior to the actual
distribution and titling of these subdivided lots, the
ownership remained with Ongteco.
Likewise, those
subdivided lots that were not distributed to farmerbeneficiaries, such as lots 1-B-B, Lot 1-B-D, Lot 1-B-D, and Lot
1-B-P, remained under the ownership over the same
subdivisions. Otengco lost ownership over some of these
subdivisions only after these were distributed and titled in
the name of designated farmer-beneficiaries.
40. It would then appear that when Lot 1-B was
subdivided, Ongteco lost ownership over it; and that she
regained ownership over the subdivided lots only when she
applied for retention and when such application is approved.
This is of course not in accord with the law on land reform.
41. Ongteco did not lose her ownership over Lot 1-B or
its subdivisions that were not awarded to any persons or
farmer-beneficiaries, nor such ownership depend on the
approval of her application for retention of these lots. The
application for retention and consequent approval thereof
are not the operative acts that vest in Ongteco ownership
over those undistributed subdivisions of Lot 1-B, for she
never lost such ownership in the first place. Ongtecos
application for retention merely informs the Department of
Agrarian Reform (DAR) that she was not willing to part with
these lots.
42. While Lot 1-B-B of subdivision plan Psd-03-069969
(AR) DAR-Module Z-06-94 was allegedly proposed to be a
school site, such remained a mere proposal and does not
amount to an award to any person of farmer-beneficiary.
Being a mere proposal the bona fide owner Ongteco, may at
anytime change her mind and choose to retain the same
instead. Not being awarded to anyone, she could always
apply for its retention.
43. For being the owner of Lot 1-B and its subdivision
that were not awarded to any farmer-beneficiaries including
Lot 1-B-B of subdivision plan Psd-03-069969 (AR) DARModule Z-06-94, it follows that Ongteco could at anytime
dispose of those properties if she wanted to, as her
ownership over them does not depend on her application for
retention and its subsequent approval. There is no law
prohibiting her from disposing these properties.
11

44. Merin could not have owned the subject lot.

45. Respondents A. Deloso, H. Deloso, Marcellana, and
Ednilao contend that on June 6, 1995, Subdivision Plan (LRC)
Psd-335217, also designated as Psd-03-069969(AR) DARModule-Z-06-94 was approved. In the said subdivision plan
of Lot 1-B, Lot 1-B-A with an area of 577 sq. m. and Lot 1-B-C
with an area of 12,637 sq. m., are named after Merin,
whereas, Lot 1-B-B is indicated as proposed school site,
thereby, if computed, the total area obtained, owned and
belonging to Jose Merin (Lots 1-B-A, 1-B-B and 1-B-C) was 1.9
which is consistent with the Certificate of Land Transfer
issued to him sometime on August 15, 1981.
46. However, this erroneous because if the areas will be
correctly summed up (including the area of the subject lot
which is 6,338 sq. m.), it would total to more than 1.9
hectares (1.9552 hectares).
47. Thus, the subject lot cannot possibly be the third
(3 ) lot transferred by Otengco to Merin.
rd

48. In fact, if this Honorable Court will examine the

records, the only lots covered by the Deeds of Transfer
executed by Otengco to Merin were Lots 1-B-A and 1-B-C.
The subject was not included.
49. There is serious doubt if Merin allegedly donated
the subject lot to Barangay San Fernando.
50. Respondents A. Deloso, H. Deloso, Marcellana, and
Ednilao asseverate
that
prior to the issuance of
Emancipation Patent, Merin waived and donated the subject
lot to Barangay San Fernando and as early in February 1999
the Sanggunian of Barangay San Fernando approved
Resolution No. 09 wherein the subject lot was proposed as
the site for San Fernando Elementary School. In fact, an
alleged public bidding was already held for which the
construction of said school was awarded to Aztec
Construction.
51. How could have Merin allegedly waived and
donated the subject Barangay San Fernando if prior to the
issuance of Emancipation Patent to him, the subject lot was
not yet transferred to him?

12

52. Moreover, respondents A. Deloso, H. Deloso,

Marcellana, and Ednilao did not present any Deed of Waiver
or Donation executed by Merin in favor of Barangay San
Fernando. Respondents did not also present any Resolution
passed by the Sanggunnian of Barangay San Fernando
accepting the donation of Merin.
53. Again, in donations of immovable property, the law
requires for its validity that it should be contained in a public
document, specifying therein the property donated and the
value of the charges which the donee must satisfy. However,
there is no such public document to speak of.
The second requisite
for the issuance of an
injunction, i.e. the act
against
which
the
injunction is to be directed
is a violation of the right,
is present.
-----------------------------------54. Considering that petitioner owns the subject lot, she
has a right thereto and as such, she has to be respected and
shielded from encroachments.
55. The repeated and continuing acts of intrusion of
respondents A. Deloso, H. Deloso, Marcellana, and Ednilao
into the subject lot of petitioner and the destruction of the
perimeter fence are violations of her right and interest to
said land.
56. The acts (of respondents A. Deloso, H. Deloso,
Marcellana, and Ednilao) that are sought to be enjoined in
the instant case are violative of petitioners proprietary right
over the subject lot. And this is just but proper as ruled by
the Supreme Court in the case of Development Bank of the
Philippines vs. Court of Appeals.7
57. Owing to the above discussion, the Assailed
Decision dated August 25, 2015 should be reversed and setaside.
7

344 SCRA 492, October 30, 2000.

13

PRAYER
WHEREFORE, premises considered, it is respectfully
prayed of this Honorable Court that the instant Petition for
Injunction be GRANTED to the effect that respondents A.
Deloso, H. Deloso, Marcellana, and Ednilao be enjoined and
refrained from repeatedly intruding into the subject lot of
petitioner (Lot 1-B-B).
Such other relief and remedy just and equitable are
likewise prayed for.
Quezon City for Iba, Zambales; March 6, 2015.

PRAYER
WHEREFORE, premises considered, it is respectfully
prayed of this Honorable Court that the Assailed Decision be
reversed and set-aside and that a new one be issued
granting the Petition for Injunction enjoining respondents A.
Deloso, H. Deloso, Marcellana, and Ednilao be enjoined and
refrained from repeatedly intruding into the subject lot of
petitioner (Lot 1-B-B).
Such other relief and remedy just and equitable are
likewise prayed for.
Quezon City for Iba, Zambales; December 1, 2015.

ELMO R. CORTEZ
Counsel for the Petitioner
Roll No. 57989
IBP No. 964897; 03-04-15; Quezon City
PTR No. Q10004198; 03-04-15; Pasig City
14

MCLE Compliance No. IV-0008075; 09-25-12

Unit 9, Block 12, Lot 2, Daisy Street
West Fairview, 1118 Quezon City
REQUEST
THE HON. BRANCH CLERK
Regional Trial Court
Branch 70, Iba, Zambales
Greetings:
Please submit the foregoing Motion for Reconsideration
for the consideration and approval of the Honorable Court on
December 11, 2015 at 2:00 o clock in afternoon.

ELMO R. CORTEZ
NOTICE
ATTY. NOEL S. FERRER
Counsel for the Respondents
c/o Municipal Hall
Botolan, Zambales
Greetings:
Kindly take notice that the undersigned counsel will
submit the foregoing Motion for Reconsideration for the
consideration and approval of the Honorable Court on
December 11, 2015 at 2:00 o clock in afternoon.

ELMO R. CORTEZ

Copy furnished (by private courier service):

ATTY. NOEL S. FERRER
Counsel for the Respondents
c/o Municipal Hall
Registry Receipt No. ____________
15

___________________ Postal Office

December ___, 2015
EXPLANATION ON MODE OF SERVICE: A copy of the
foregoing Motion for Reconsideration has been served upon
the other party by private courier service due to lack of
office messenger.

ELMO R. CORTEZ

16