Republic of the Philippines

11th Judicial Region

Municipal Trial Court in Cities
Branch 02
General Santos City

JOEL N. MERCADO
Plaintiff,

- Versus - CIVIL CASE NO. 6581-2

For: EJECTMENT

MARK R. FACTOR, NENITA R.

FACTOR, AND REYNALD R. FACTOR,

Defendants.
x------------------------------------------------x

POSITION PAPER
(FOR THE DEFENDANTS)

DEFENDANTS, as represented by counsel, unto this Honorable

Court most respectfully aver:

PRELIMINARIES

The order to submit the instant Position Paper was received by the
Plaintiff on 25 July 2017.

THE PARTIES

Plaintiff is the alleged owner of lot no. 6496, PLS-209-D-13 by virtue of

a deed of sale executed by Bernardo Factor with the marital consent of
Erlinda Factor on March 7, 2013.

Defendants, MARK R. FACTOR, NENITA R. FACTOR, REYNALD R.

FACTOR are heirs of the late Bernardo Factor who are caretakers of lot
no. 6496, PLS-209-D-13 owned by the late Antonio B. Oloroso.
 STATEMENT OF THE CASE

This is an ejectment case filed by the plaintiff claiming that he is the

lawful owner of lot no. 6496, PLS-209-D-13 by virtue of a Deed of Sale
executed by Bernardo Factor with the marital consent of Erlinda Factor
on March 7, 2013.

STATEMENT OF THE FACTS

The matter at hand broke when Plaintiff Joel Mercado initiated a

proceeding to fortify his right of possession, anchoring on the
purported Deed of Absolute Sale.

Sometime in the year 1954, the Board of Liquiditors awarded a

vast tract of land to the late Antonio Oloroso, with more or less six (6)
hectares of land situated at Barangay Mabuhay, General Santos City.
Upon acquiring ownership and possession over the vast tract of land,
then Antonio Oloroso seek help form spouses Bernardo Factor and
Erlinda Factor to oversee the land. From then on, and in consideration
of trust and kindness reposed on the part of the Factors, they toil the
land for the benefit of the Oloroso and in exchange, Oloroso allowed
them to enjoy possession over the land.

When Antonio Oloroso died, spouses Factor continued to

possess the land but under the whims and discretion of the Oloroso.
Thus, another unhappy incident broke when Bernardo Factor died
living his heirs, but despite his death, the heirs of Oloroso still
recognizes the Factors being their caretakers, and to put the matter into
writing, Freddie Oloroso and Jose Harry Factor executed a
“Kasabutan” before the Office of the Punong Barangay of Barangay
Mabuhay.

Claiming ownership and possession over the parcel of land, Joel

Mercado, instituted a case for ejectment dated May 2016 before this
Honorable Court to fortify his rights and claims. However, by way of
an Answer with Special Affirmative Defenses, the named Defendants
aver that the said Deed of Absolute Sale was fictitious in character and
that they cannot sold the land as they are only mere caretakers over
the parcel of land.
 To adjudicate the matter, this Honorable Court on an Order
dated __________ directed the parties to fire its respective Position
Paper, hence this paper.

ISSUES

1. WHETHER OR NOT THE LATE ANTONIO OLOROSO

OWNED THE LOT.

2. WHETHER OR NOT JOEL MERCADO IS ENTITLED TO THE

POSSSESSION OVER THE LAND.

3. WHETHER OR NOT THE DEFENDANTS ARE ENTITLED TO

DAMAGES, ATTORNEY’S FEE AND THE COST OF THIS SUIT
BECAUSE OF THE PLAINTIFF’S UNWARRANTED FILING OF
THE CASE.

ARGUMENTS AND DISCUSSION

THE LATE ANTONIO

OLOROSO AND HIS
HIERS HAVE A FOUNDED
CLAIM OVER THE
SUBJECT LOT ;

THE FACTOR ENJOY

POSSESSION OVER THE
LAND IN A CONCEPT OF
A HOLDER ;

Plaintiff anchored his right over the subject lot by asserting that
he bought it from the Factors’ and to vehemently argue and insist, the
refuge by the Plaintiff is misleading. For the consideration of the
Honorable Court, the subject lot is an unregistered land that was
awarded to by the Board of Liquiditors to Antonio Oloroso , sometime
in the year 1954.
 The Power of the Board of Liquiditors/ National Resettlement
and Rehabilitation Administration, in awarding lands to the poor
reverts form the power and authority granted by law to the Land
Settlement and Development Corporation (LASEDECO). By virtue of
an Executive Order dated ___, President Elpidio Quirino gives account
for the LASEDECO to award an agricultural land to a qualified
individual. The same law was susperseded when Republic Act 1160
becomes effective, thus, the said law grants and fueled the National
Resettlement and Rehabilitaion Administration though the Board of
Liquiditors to award and dispose the land.

In the instant case, it was on 1954 that National Resettlement and

Development Corporation through the Board of Liquiditors awarded
the lot situated at Barangay Mabuhay, General Santos to Antonio
Oloroso, as a “settlers” in the said place. Such fact was attested by
Certification issued by the Board of Liquiditors through Victoria
B.Villasor that a parcel of land, located at Nopol General Santos City
was Antonio was allocated to a certain Antonio Oloroso, dated
February 21, 1978.

Plaintiff, assert that it was Factor who owned the land and to
travel back in time, it was on 1954 that Antonio Oloroso possess the
land and up to the present through his heirs, continued to exercise
material control and possession over the land, as such, it can be safety
conclude that by virtue of an open, continuous, exclusive and
uninterrupted possession of the subject land, the possession of
Antonio Oloroso is tantamount to an ownership. For consideration of
the Honorable Court, the material and substantial control over the
parcel of land by the Olorosos’ was to the exclusion of other person.
Since 1954 up to now or least till 2013 or for 59 years the Oloroso had
acquired a sufficient and just title over the land and such possession
may ripen into a full ownership.

Pieces of evidence would speak of the fact that Antonio Oloroso

has a material interest over the land, being the lawful owner by virtue
of an open and continuous possession of the subject land, Antonio
Oloroso, have been religiously paying the taxes over the land.
Constant is the fact that what is involved is an unregistered lot and for
purposes of manifesting its intent to exercise control and possession
over the land, the Olorosos’ has been paying the taxes ofr the said lot.
Supreme Court Jurisprudence is repetitive by the fact that Tax
Declarations is not a conclusive evidence of ownership, however the
Honorable Court must take into consideration that paying taxes
religiously may be served as a BADGES of ownership, the Supreme
Court, in the case of Ganilla vs. Court of Appeals, G.r. No. 150755,
June 28, 2005, to wit:

Although tax declarations or realty tax payment of

property are not conclusive evidence of ownership,
nevetherless, they are good indicia of possession in the
concept of owner for no one in his right mind mind would
be paying taxes for property that is not in his actual or
atleast constructive possession. They constitute at least
proof that the holder has a claim of title over the property.
The voluntary declaration of a piece of property for
taxation purpose manifest not only one’s sincere and
honest desire to obtain title to the property and announces
his adverse claim against the state and all interested
parties, but also the intention to contribute needed
revenues to the Government. Such an act strengthen one’s
bona fide claim of acquisition of ownership.

The allegation of the Plaintiff cannot override the fact that the
Factors’ has no interest over the property. To argue, what was
manifested by the Oloroso is a founded and concrete ownership over
the parcel of land.

NO EJECTMENT CASE TO
SPEAK OFF;

THE DEED OF ABOSLUTE

SALE IS FICTITUOUS;

JOEL MERCADO CANNOT

CLAIM POSSESSION OVER
THE PARCEL OF LAND – HE
HAS NO INTEREST;
The heart of instituting an ejectment case is resolving the issue of
possession and on the other hand, possession over a thing and right
can be had whether or not the claimant acclaims ownership over the
parcel of land. In ejectment cases, the focal issue to be resolve is the
determination and award of possession to a person who had a better
claim of possession over the parcel of land ,while the issue of
ownership is not material in resolving the issue of possession, the
court may pass upon the defense and issue of ownership to resolve
the issue of possession as claimed by the moving party.
 To make an argument for the Defendants, the undersigned is
respectfully asserting that Plaintiff Joel Mercado cannot plunge into
the notion that Bernardo has a legal and substantial interest to the
subject lot as by pieces of evidence and law it was the Olosoro who
owned the subject lot

But for purposes of arguing for the Defendants, assuming that

Bernardo Factor owns the subject lot as in this case , Plaintiff asserts
his ownership and possession over the subject land by virtue of the
Deed of Absolute Sale executed by late Bernardo Factor upon his
person.

Dwelling into the core reason of asserting his rights, the

Honorable Court may take into consideration that the Deed of
Absolute Sale and the conduct of Bernardo Factor may be treated as
lawful and regular ,but a careful re-study and repetitive comparison
of the signatures of Bernardo Factor and of his wife Erlinda Factor ,
would give an impression that such document cannot lent to the
presumption of authenticity of a notarized documents. To make an
inference, Plaintiff Joel cannot claim ownership and possession as the
Deed of Absolute Sale will not at cannot stripe off ownership over the
subject lot.

Law and jurisprudence supports that in attacking the

authenticity of the notarized public document, one has to go over with
the allegations and contradict pieces of evidences and thus, the
undersigned is respectfully inviting the attention of this Honorable
Court to the signature of Bernardo Factor on the alleged transaction
of sale and arguing that on the assumption that Bernardo personally
appeared on the March 7, 2013, before the Notary Public, his signature
must for all purposes be CLEARLY MANIFESTED as his intention n
to sold the land to Plaintiff Joel Mercado. But the signature appeared
to be in the executed Deed of Sale was contrary to his attention of
relinquishing his rights over the property. It would be an illogical act
to the common understanding that a buyer who is willing to pay risk
and money would just dive-in to a signature of which is unclear and
cannot bear any proof reasoning. The signature of what it appears is
concocted and

To support the claim against the Plaintiff, the Court may also
take into account that Bernardo Factor died on April 3, 2017 a month
before the Deed of Sale was executed and the fact that before his
death Bernardo Factor was suffering grave sickness to the point that
he was bedridden. Also it is sufficient to note that it would be highly
impossible for a sick and bedridden person to appear in a notary
public.

DEFENDANTS DOES
NOT ILLEGALLY WITHOLD
THE PROPERTY AND THEY
ARE NOT THE REAL
PARTY IN INTEREST

This is a case for unlawful detainer. The Supreme Court enunciated in

Fairland Knitcraft Corporation v. Arturo Loo Po (G.R. No. 217694
January 27, 2016) what unlawful detainer is.

“unlawful detainer is a summary action for the recovery of possession

of real property. This action may be filed by a lessor, vendor, vendee,
or other person from whom the possession of any land or building is
unlawfully withheld after the expiration or termination of the right to
hold possession by virtue of any contract, express or implied. The
possession of the defendant was originally legal, as his possession was
permitted by the plaintiff on account of an express or implied contract
between them. The defendant's possession, however, became illegal
when the plaintiff demanded that the defendant vacate the subject
property due to the expiration or termination of the right to possess
under the contract, and the defendant refused to heed such demand.
A case for unlawful detainer must be instituted one year from the
unlawful withholding of possession.”

As can be gleaned from the above definition, the action presupposes

the following requisites:

1. Lawful possession by the defendant.

 2. Demand to vacate by the plaintiff.
3. Refusal to heed the demand of the plaintiff.
4. Filed within one year from the unlawful withholding of
possession.

Further, in Bienvenido Barrientos v. Mario Rapal G.R. No. 169594 July

20, 2011, the High Court further explained that even though an action
for ejectment only focuses on the issue of possession, the trial court
may also pass upon the issue of ownership to determine who has the
better right to possess the property.

Thus in the present case, the discussion on the issue of ownership is

inevitable.

The true and bona fide owner of the subject property is the late
Antonio B. Oloroso contrary to the claim of plaintiff that he owns the
subject property by virtue of a Deed of Sale executed by Bernardo and
Erlinda Factor. The truth of the matter is that Antonio B. Oloroso
acquired the property in 1954 as a “settlers-grant” from the
Government and the spouses factor are the caretakers of the subject
property. Although the Late Antonio B. Oloroso did not occupy the
subject property physically, he is deemed to still have occupied the
subject lot thru his caretaker, namely, Bernardo and Erlinda Factor.
The Supreme Court explained in Ernesto V. Yu v. Baltazar Pacleb (G.R.
No. 130316 January 24, 2007)

“The Civil Code states that possession is the holding of a thing or the
enjoyment of a right. In the grammatical sense, to possess means to
have, to actually and physically occupy a thing, with or without
right. Possession always includes the idea of occupation x x x. It is not
necessary that the person in possession should himself be the
occupant. The occupancy can be held by another in his
name. Without occupancy, there is no possession.”(Highlight for
emphasis)

Soon after the death of the owner, the late Antonio B. Oloroso, the heirs
became the legal owners by virtue of intestate succession. The property
of the late Antonio B. Oloroso passed on to his heirs by operation of
law. Thus making the heirs the legal owners thereof.
The heirs of Oloroso then executed an agreement with Jose Harry
Factor tasking him to be the caretaker of their property. This is the
basis for the occupancy of the Defendant’s Mark, Nenita, and Reynald
Factor on the subject property contrary to the claim of Plaintiff that he
allowed the Defendants to occupy the subject property.

Section 2, Rule 3 of the Revised Rules of Court provides:

“A real party in interest is the party who stands to be benefitted or

injured by the judgement in the suit, or the party entitled to the avails
of the suit. Unless otherwise authorized by law or these rules, every
action must be prosecuted or defended in the name of the real party in
interest.”

The Defendant’s Mark, Nenita, and Reynald Factor occupied the

property by virtue of the agreement entered into by the heirs of
Antonio B. Oloroso and Jose Harry Factor. Thus making their
possession a mere de facto possession as compared to possession de
jure by the Heirs of Oloroso. As stated earlier, it is not necessary that
the person in possession should himself be the occupant. The
occupancy can be held by another in his name. Therefore, the
occupancy of the Defendant’s Mark, Nenita, and Reynald Factor are
only in representation of the real owner, thus impleading them in the
present case is improper.

THE DEED OF SALE

OF PLAINTIFF
JOEL N. MERCADO
IS SPURIOUS AND
FRAUDULENTLY ACQUIRED.

On the issue of The Deed of Sale allegedly entered into by Bernardo

and Erlinda Factor is spurious and falsified, the High Court’s
explanation on how to prove forgery is very enlightening in the case
of SERCONSISION R. MENDOZA v. AURORA MENDOZA FERMIN,
(G.R. No. 177235 July 7, 2014).
 “With regard to the issue on forgery, the general rule
is, the same cannot be presumed and must be proved
by clear, positive and convincing evidence; the
burden of proof of which lies on the party alleging
forgery. The best evidence of a forged signature in
the instrument is the instrument itself reflecting the
alleged forged signature. The fact of forgery can
only be established by comparison between the
alleged forged signature and the authentic and
genuine signature of the person whose signature is
theorized upon to have been forged.” (emphasis
supplied)

Therefore, it is apparent on the face of the instrument that there is a

discrepancy on the alleged signature of the Spouses Bernardo and
Erlinda Factor as compared with the Community tax Certificate and
Senior Citizen Identification card which would warrant the finding of
forgery.

In addition to the foregoing, allegedly, the Deed of Sale was executed

on March 7, 2013, this is very doubtful because Bernardo Factor died
on his sickbed on April 3, 2013 and he was suffering grave illness and
already immobile even before March 7, 2013.

Bernardo Factor was diagnosed of making it impossible that he

appeared before a notary public and affixed his signature therein on
the said date hence, forged signature.

Moreover, Erlinda Factor specifically denied having executed a Deed

of Sale in favor of plaintiff covering the subject property herein.

Assuming arguendo that the Bernardo and Erlinda Factor did execute
a Deed of Sale in favor of Plaintiff, they cannot still transfer any rights
since they are not the owner of the property. In the case of Spouses
Patricio and Myrna Bernales vs. Heirs of Julian Sambaan (G.R. No. 163271)
the Supreme Court held that “Thus, we hold that with the presentation
of the forged deed, even if accompanied by the owners duplicate certificate
of title, the registered owner did not thereby lose his title, and neither
does the assignee in the forged deed acquire any right or title to the said
property.” Thus, the plaintiff did not acquire any right over the property
by virtue of a falsified Deed of Sale.

Further, article 172 of the Revised Penal Code provides:

“Art. 172. Falsification by private individual and use of falsified

documents. — The penalty of prision correccional in its medium and
maximum periods and a fine of not more than P5,000 pesos shall be
imposed upon:
1. Any private individual who shall commit any of the
falsifications enumerated in the next preceding article in any
public or official document or letter of exchange or any other
kind of commercial document;”

Therefore, the act of plaintiff in forging the signatures in the alleged deed
of sale is a felonious act and is punishable by law.

DEFENDANTS ARE ENTITLED

TO DAMAGES, ATTORNEY’S
FEE AND THE COST OF THIS
SUIT BECAUSE OF THE
PLAINTIFF’S UNWARRANTED
FILING OF THE CASE

Under Article 2208 of the Civil Code, attorney’s fees may be recovered:

xxxx

(2) When the defendants act or omission has compelled the

plaintiff to litigate with third persons or to incur expenses
to protect his interest;

xxxx

(11) In any other case where the court deems it just and
equitable that attorneys fees and expenses of litigation
should be recovered.
 In all cases, the attorneys fees and expenses of litigation must
be reasonable.

Hence, because of this baseless and malicious complaint of the

plaintiff, Defendants were compelled to engage counsel to
litigate their defense, justifying the award of attorney’s fees.

Still, under the New Civil Code, Article 2217 provides:

“Moral damages include physical suffering,

mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings,
moral shocks, social humiliation, and similar
injury. Though incapable of pecuniary
computation, moral damages may be
recovered if they are the proximate result of the
defendant's wrongful act or omission.”

Hence, the award of moral damages is proper because Defendants

suffered, and are still suffering untold anguish and anxieties on
account of this baseless and malicious complaint.

Further, plaintiff has been harassing Defendant’s Factor on their

peaceful possession on the property, and to compensate them for this,
plaintiff should be adjudged liable to defendants for moral damages.

The Supreme Court articulated in the case of Lopez v. Pan American

World Airways (G.R. No. L-22415, 30 March 1966)

“The rationale behind exemplary or corrective damages is, as the

name implies, to provide an example or correction for public good.”

In order to vindicate the public good and deter others from emulating
and replicating this baseless and malicious filing of the complaint,
plaintiff should also be adjudged liable to pay defendants for
exemplary damages.

PRAYER

WHEREFORE, it is respectfully prayed of this Honorable Court, after

due consideration of this position paper, dismiss the Complaint and
grant the foregoing reliefs prayed for.
Other reliefs just and equitable are likewise prayed for.

Respectfully submitted. General Santos City. 4 August 2017.

PANTUA LAW OFFICE

2ND Floor, Valencia Building, Pendatun
Avenue, General Santos City, 9500
Phone: 083-302-7714
Email: pantualaw@gmail.com
COUNSEL FOR THE DEFENDANTS

BY:

ANTHONY DINNES C. PANTUA

Attorney’s Roll No. 59837
IBP No. 1013309, 01/04/16, G.S.C.
PTR No. 6597949, 01/06/16, G.S.C.
Tax Identification No.: 947-813-538
MCLE Compliance No. V-0013180
(January 13, 2016)
Cell No. 09189658908
e-mail address:
atty.adpantua@gmail.com

ACHILLES WINDILEN G. TATO

Attorney’s Roll No. 67672
Admitted to the Bar: May 25, 2017
PTR No. 7598019;07/26/17;G.S.C.
Tax Identification No.: 278-012-628
IBP No. 1070140; 06/09/17;G.S.C.
MCLE No.: EXEMPT-OCA
Cir. No. 67-2008
Contact No. 0998-863-5791
Email Address: chill.4106@gmail.com
Copy Furnished by Registered Mail:

JOEL N. MERCADO
Plaintiff

c/o ATTY. JOEL JONN U. JUMALON

Counsel for the Plaintiff
Door C8, ECA Buildings
National Highway, General Santos City
Registry Receipt No.: ____________ Date: __________

CLERK OF COURT
MTCC Branch 2
General Santos City

NOTIFICATION and
EXPLANATION ON THE MODE OF SERVICE

Greetings! Pursuant to pertinent rules of the Revised Rules of

Court, the undersigned respectfully manifests that copy of the
foregoing POSITION PAPER was served to the Plaintiff through
registered mail due to lack of manpower thereby rendering personal
service thereof impracticable.

The foregoing position paper is respectfully submitted for the

kind consideration and resolution of the Honorable Court and the
same shall form part of the records of this Case.

ACHILLES WINDILEN G. TATO