REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
CEBU

FELISA CODILLA,
CHERRY ARDIENTE NABLE,
RICARDO ARDIENTE, JR.,
ROSALINA ARDIENTE DIACOMA,
EDUARDO ARDIENTE,
BIENVENIDA ARDIENTE,
JUANITO ARDIENTE,
AVELINO ARDIENTE, and
NARCISA ARDIENTE RABASANO,
Plaintiffs-Appellant,

CIVIL CASE NO. CEB-25963

-versus- FOR:
RECONVEYANCE &
PARTITION

MANUEL CABUENAS and

AGAPITO CINCO,
Defendants-Appellees.
x------------------------------------------------------x

Pursuant to the

Notice of this Honorable Court,

Plaintiffs-Appellants

FELISA CODILLA,
CHERRY ARDIENTE NABLE,
RICARDO ARDIENTE, JR.,
Page 1 of 24
ROSALINA ARDIENTE DIACOMA,
EDUARDO ARDIENTE,
BIENVENIDA ARDIENTE,
JUANITO ARDIENTE,
AVELINO ARDIENTE, and
NARCISA ARDIENTE RABASANO

by counsel, most respectfully submit their

APPELLANTS’ BRIEF

Page 2 of 24
 TABLE OF AUTHORITIES

PHILIPPINE JURISPRUDENCE PAGE

Spouses Santiago v. CA, G.R. No. 103959, August 21, 1997. 13

PHILIPPINE STATUTE
The New Civil Code of the Philippines 13

BOOKS
Dean Willard B. Riano, Evidence: The Bar Lecture Series, (2013 ed.) 15,15

Page 3 of 24
 SUBJECT INDEX

PAGE

I. Table of Authorities 3

II. Assignment of Errors 5

III. Statement of the Case 5

IV. Summary of Proceedings 6

V. Statement of Material Dates 7

VI. Appealed Decision 7

VII. Statement of Facts 8

VIII. Issues 10

IX. Arguments 10

X. Relief 23

XI. Appendices XXX

Page 4 of 24
 II. ASSIGNMENT OF ERRORS

I. The Honorable Trial Court committed a reversible error in relying on

the presumption of regularity of the questioned Deed of Sale;

II. The Honorable Trial Court committed a reversible error in stating

that appellant is estopped from asserting that subject property is
conjugal;

III. The Honorable Trial Court committed a reversible error in stating

that appellees can rely on good faith as a defense against the alleged
misrepresentation by the appellants;

IV. The Honorable Trial Court committed a reversible error in relying on

the principle of laches through uninterrupted adverse possession of
thirty years.

III. STATEMENT OF THE CASE

Nature of the Action

This is an appeal under Rule 41 of the Rules of Court to the Court of Appeals
from a judgment of the Regional Trial Court because of several reversible errors of
fact and law committed by the trial court.

This Brief pertains to the Appellants and it enumerates reversible errors

committed by the Honorable Trial Court, as well as the arguments in support of the
findings of said errors.

Page 5 of 24
 IV. SUMMARY OF THE PROCEEDINGS

1. On December 20, 2000, Appellants filed a Complaint for

Reconveyance & Partition against Appellees.

2. The case was docketed as Civil Case No. CEB-25963, and were
raffled to Branch 5 of the Regional Trial Court of Cebu under the Honorable
Presiding Judge Ireneo Lee Gako, Jr.

3. On September 14, 2006, the Honorable Trial Court rendered judgment

dismissing the complaint for want of a valid cause of action. The counter-claim was
also dismissed for want of evidence.

4. Hence, Appellants were constrained to file this Appeal.

Appealed Judgment and Relevant

Orders and Pleadings

5. The appealed judgment and orders issued by the trial court are as
follows:
a) Decision dated September 14, 2006, an original of which is hereto
attached as Annex “A,” and was received by Appellants, through
counsel, on September 25, 2006. In said decision, the Honorable Trial
Court dismissed the complaint for want of a valid cause of action. The
counter-claim was also dismissed for want of evidence.

b) Notice of Appeal dated September 30, 2006 was filed with the trial
court on September 30, 2006, an original of which is attached hereto
as Annex “B.” This gave notice to the Honorable Trial Court that
Appellants were appealing its Decision to the Honorable Court of
Appeals;

c) Notice from the Clerk of the Court of the Honorable Regional Trial
Court, Branch 5, Cebu City, to the Chairman of the Court of Appeals,
which was received by the Appellants, through counsel, on December

Page 6 of 24
 29, 2006, of the transmittal of the complete records of the case. An
original thereof is hereto attached as Annex “C.”

V. STATEMENT OF MATERIAL DATES

6. The decision appealed from, dated September 14, 2006 was received
by Appellant, through counsel, on September 25, 2006.

7. Appellant filed its Notice of Appeal and paid the required fees on
September 30, 2006.

8. The Notice of the transmittal of the complete records of this case by

the Clerk of Court, RTC Branch 5 was received by Appellants, through counsel, on
December 29, 2017.

9. The Appellants’ Brief was filed within 45 days from the receipt of this
Notice.

10. Hence, this Appellants’ Brief is filed on time.

VI. APPEALED DECISION

11. The dispositive portion of the appealed Decision dated September 14,
2006 states that:

“WHEREFORE, in view of the foregoing, judgment is

hereby rendered dismissing the complaint for want of a valid
cause of action. The counter-claim is also dismissed for want
of evidence.”

Page 7 of 24
 VII. STATEMENT OF THE FACTS

12. Long before the death of Ricardo Ardiente Sr., appellant Felisa
Codilla’s (appellant Felisa) spouse, the spouses bought a 5.2 hectares parcel of land
from a certain Ikoy Daclan, then transfered the Tax Declaration Number to
TD#16184-R in the name of Richardo Ardiente.1 A copy is herein attached as Annex
“D.”

13. Sometime in 1962, appellant Felisa mortgaged the subject property to

the appellee Manuel Cabuenas (appellee Manuel) through an oral agreement more
commonly known as a prenda endono.2

14. Sometime in 1977, appellant Juanito Ardiente (appellant Juanito) tried

to redeem the the mortgage but was rejected by appellee Manuel.3

15. Sometime in 2000, the appellants tried again to redeem the subject
land but was rejected by appellee Manuel saying that he already bought the land.4

16. Appellees showed to appellants documents namely, Tax Declaration

No. 120150 and 120151 (TD#120150 and TD#120151) and an Absolute Deed of
Sale with appellant Felisa’s thumbmark as proof of a purported sale back in 1962.5
Copies are attached herein as Annex “E”,”F”, and “G”, respectively.

17. After formal demand letters and after mediation between appellants
and appellees failed at Office of the Barangay Captain at Barangay Malubog, Cebu
City resulting in a Certification to File Action, the appellants were constrained to file a
Civil Case for Reconveyance and Partition.

1
TSN, Felisa Codilla, December 19, 2001, pp. 5-7.
2
TSN, Felisa Codilla, December 19, 2001, pp. 8-9.
3
TSN, Juanito Ardiente, June 6, 2002, pp. 21-22.
4
TSN, Juanito Ardiente, June 6, 2002, pp. 14-15.
5
TSN, Juanito Ardiente, June 6, 2002, pp. 15-16.

Page 8 of 24
 VIII. ISSUES

I. On Assigned Error No. 1 – Whether the presumption regularity

of the Deed of Sale was overcome by evidence;

II. On Assigned Error No. 2 – Whether the appellants were

estopped from claiming that the subject property was
conjugal property;

III. On Assigned Error No. 3 – Whether the appellees were in good

faith in dealing with the appellants;

IV. On Assigned Error No. 4 – Whether the appellants were barred

by laches considering reckoning period for the appellees’
uninterrupted adverse possession.

IX. DISCUSSION AND ARGUMENTS

Assigned Error No. 1: The

Honorable Trial Court committed a
reversible error in relying on the
presumption of regularity of the
questioned Deed of Sale.

18. The Honorable Court in its decision dated September 14, 2006 stated,
to wit:

XXX
1. The deed of sale executed by the plaintiff Felisa Codilla
vda de Ardiente, dated March 26, 1962, is valid and being
a notarized document, its due execution is presumed.
This document would support the courts findings that
defendants are the lawful owner(sic) of lot 116304-CAD-
12 Ext. located in Barangay Pong-ol, Cebu City;

2. The same document clearly shows it is a deed of sale, not

mortgage;

XXX

Page 9 of 24
 19. With all due respect, the Honorable Trial Court hastily relied on the
presumption of regularity of the questioned Deed of Sale dated March 26, 1962
despite the undisputed fact that the appellant Felisa was illiterate, and that no iota of
evidence was ever presented to prove that the appellant Felisa was fairly informed
by competent persons with the appellant’s best interest in mind, during the execution
of the document. The appellees’ self-serving testimonies of the appellant Felisa’s
supposed nameless lawyer/advisor is at the very least laughable.

20. With all due respect, the Honorable Trial Court should have
considered the undisputed fact of appellant Felisa’s illiteracy as sufficient evidence to
win over the appellees mere speculation of a nameless lawyer who supposedly
prepared the documents and advised the appellant Felisa.

21. Oddly enough, the testimonies of the appellees worked against them
and provided more proof of their diabolical scheme to defraud the illiterate appellant
Felisa.

22. Appellee Agapito during his cross-examination admitted to having not

known the name of the supposed lawyer that assisted the illiterate appellant Felisa,
to wit:
XXX
ATTY. LARGO: Can I proceed, Your Honor?
COURT: Proceed.
COUNSEL TO WITNESS:
Q: You said sir that who prepared the Deed of Sale?
A: It was Felisa Codilla.
Q: So, it was not Bernardo Cinco?
A: No, ma’am.
COURT TO WITNESS:
Q: Where was it prepared?
A: At the City Hall.
COUNSEL TO WITNESS:
Q: By whom?
A: It was Felisa Codilla.
Q: In other words, the document was already prepared?

Page 10 of 24
 A: Yes, in fact, she brought it.
Q: Do you know the name of the lawyer?
A: I do not know the name of that lawyer.
Q: Who know the lawyer, who among you knew the
lawyer?
A: Bernardo Cinco brought Felisa Codilla to the lawyer.
Q: You said that the document was already prepared
when you met at the City Hall?
A: Yes.
Q: Were you able to go inside the office of the lawyer?
A: Yes.
Q: Where was the office located?
A: At the ground floor of the City Hall.
Q: And when you arrived there what was done, because the
document was already prepared what, if any, was done by
you and Felisa Codilla?
A: She requested the Deed of Sale prepared by the lawyer.
COURT TO WITNESS:
Q: Yes, but did you say, did you not tell the court that when
you went there the document of sale was already
prepared?
A: It was Felisa Codilla who brought, Your Honor.
Q: And why did you tell the court that inside the office the
lawyer prepared the document of sale?
A: I did not say that, Your Honor.
COURT: Proceed.
COUNSEL TO WITNESS:
Q: So, you are saying that the document of sale was already
prepared when you arrived at the office allegedly of
the lawyer?
A: It was Felisa Codilla who requested for a document not us
but Felisa Codilla.6
(Emphasis supplied)
XXX

23. Appellee Manuel likewise affirmed the absence of the supposed

lawyer as well as admitted to the Honorable Trial Judge the fact that there was no
one was on her side of the supposed negotiation, to wit:

XXX

COURT:

6
TSN, Agapito Cinco, 3/16/2004, pp. 5-7.

Page 11 of 24
Q: Why do you say that it is her thumbprint?
A: I was present when she affix her thumbprint.
Q: In what place did you witness Felisa Codilla affix her
thumbprint?
A: At the ground floor of the City Hall building.
Q: When was this Mr. Witness?
A: March 26, 1962.
Q: Were you there alone Mr. Witness?
A: We were many. There were seven (7) of us who went
there and four (4) persons were there died already;
only me, Agapito and Felisa are still alive.
COURT:
Q: On your side how many were you were present?
A: There were seven (7) of us were present.
COURT: On your side?
A: There were seven of us Your Honor.
COURT:
Q: Okey, you mention the seven to include you?
A: There were seven (7) of us Your Honor went there to the
City Hall and there were four (4) persons were already
dead Your Honor, namely: Eutiquiana, Cabuenas,
Mauricia Abella, Bernardo Cinco, and Emilia Bontilao.
COURT TO WITNESS:
Q: Okey, who were those three (3) that are still alive?
A: Agapito Cinco, Felisa Codilla and Manuel Cabuenas are
still alive at present.
COURT TO ATTY. VESTIL: Proceed.
ATTY. VESTIL TO WITNESS:
Q: Mr. Witness, how can you be certain that the said
thumbmark appearing on the Deed of Absolute Sale that
you have identified was affixed by Felisa Codilla?
A: Because I was there when she affixed her thumbprint.
Q: You mentioned that Agapito Cinco and several others
were also present at that time Mr. Witness. If you know
were was Agapito Cinco at the time that when Felisa
Codilla affix her thumbprint?
COURT: He has already testified.
COURT TO WITNESS:
Q: Was the Deed of Sale notarized?
A: Yes Your Honor.
ATTY. VESTIL:
Q: And that Deed of Absolute Sale Mr. Witness you
mentioned was notarized there appears the name
Alberto Sanjurjo, Notary Public. Do you know this
Alberto Sanjurjo?
A: I only knows his face because I met him for the first time.

Page 12 of 24
 Q: Who introduce you to Alberto Sanjurjo?
A: Bernardo Cinco because Alberto Sanjurjo is their lawyer.
COURT TO WITNESS:
Q: Could you still remember the subscribing witnesses?
A: They requested some of the persons in the City Hall Your
Honor who witness the transaction.7
(Emphasis supplied)

XXX

24. Whether or not the statements were in fact true is irrelevant. The
appellants would like to point the Honorable Court of Appeals’ focus towards the
admissions of the appellees; again, the undisputed fact that the appellant Felisa was
illiterate, and that no iota of evidence was ever presented to prove that the appellant
Felisa was fairly informed by competent persons, with the appellant’s best interest in
mind, during the execution of the document other than the appellees’ self-serving
testimonies of the appellant Felisa’s supposedly nameless lawyer/advisor.

25. Unmistakably, Article 1332 of the Civil Code states, to wit:

Art.1332. When one of the parties is unable to read, or if the

contract is in a language not understood by him, and mistake
or fraud is alleged, the person enforcing the contract must
show that the terms thereof have been fully explained to the
former.8

26. Also and in arguendo that there was indeed a genuine and duly
executed Deed of Sale, the notarization as defined by the Supreme Court, to wit:

…though the notarization of the deed of sale in question

vests in its favor the presumption of regularity, it is not the
intention nor the function of the notary public to validate
and make binding an instrument never, in the first place,
intended to have any binding legal effect upon the
parties thereto. The intention of the parties still is and

7
TSN, Manuel Cabuenas, 2/15/2005, pp. 12-14.
8
Art. 1332, Civil Code.

Page 13 of 24
 always will be the primary consideration in determining
the true nature of a contract.9(Emphasis supplied)

27. Lacking such evidence from the appellees, the contract can never be
considered as consented into by a party thereof, namely, the illiterate appellant
Felisa. What greater travesty could there be than allowing a presumption to defeat
logic? Appellant Felisa could never have consented to something she could not read
nor understand by herself.

Assigned Error No. 2: The

Honorable Trial Court committed
a reversible error in stating that
appellants are estopped from
asserting that subject property is
conjugal.

28. The Honorable Court in its decision dated September 14, 2006
continued stating that, to wit:

XXX

3. Plaintiff Felisa Codilla vda. De Ardiente is estopped from

asserting that subject property is conjugal because she
made defendants believe that(sic) land in the deed of sale
that(sic) is her paraphernal property. So defendants
believed her and they brought the property. Article 1431
of the Civil Code, the substantive law on the matter,
provides that through estoppel an admission or
representation is rendered conclusive upon the person
making it, and cannot be denied or disapproved as against
the person relying thereon. Section 2 Rule 131 of the
Rule(sic) on Evidence also provides:

“Conclusive presumptions. Whenever a party, by his own

declaration, act, or omission, intentionally and deliberately
led another to believe a particular thing true, and to act
upon such belief, he cannot in any litigation arising out of
9
Spouses Santiago v. CA, G.R. No. 103959, August 21, 1997.

Page 14 of 24
 such declaration, act, or omission, be permitted to
falsify it.

29. With all due respect, the Honorable Trial Court failed to see that the
circumstances surrounding the alleged act of the appellant Felisa of making the
appellees believe that the subject property was paraphernal did not fall within the
ambit of a conclusive presumption according to Section 2 Rule 131 of the Rules on
Evidence, also known as estoppel in pais.

30. First of all, the alleged fact, act, or document, TD#120150 in the
appellant Felisa’s name, to prove the conclusive presumption was specifically denied
by the appellant Felisa and was not sufficiently proved by the appellees that the
illiterate appellant Felisa ever consented thereto. How then can a questioned fact,
act or document conclusively prove an additional fact, the conclusive presumption?

“A conclusive or irrebuttable presumption is not a

presumption at all; it is a substantive rule of law directing that
proof of certain basic facts conclusively proves an
additional fact which cannot be rebutted. Such
presumption rests upon grounds of expediency or public
policy so compelling in character as to override the
requirement of proof.” (29 Am Jur 3d, Evidence, §184;
Citations omitted).10

31. Secondly and in arguendo, the notarized document, TD#120150 in the

appellant Felisa’s name, the appellees basis for the supposed estopped act, may
only enjoy the presumption of regularity, a presumption of its genuineness and due
execution, and a mere disputable presumption at best.

“A presumption is disputable or rebuttable if it may be

contradicted or overcome by other evidence (Sec. 3, Rule

10
Willard B. Riano, Evidence, 2013 Ed., p. 108

Page 15 of 24
 131, Rules of Court).. In the language of Sec.3 Rule 131,
disputable presumptions “are satisfactory, if uncontradicted,
but may be contradicted and overcome by other evidence.”
When evidence that rebuts the presumption is introduced,
the force of the presumption disappears.11

32. Again and with all due respect to the Honorable Trial Court, the
undisputed fact of the appellant Felisa illiteracy coupled with the appellees’ inability
to prove that the appellant Felisa ever sufficiently consented thereto should have
destroyed the presumption of genuineness and due execution of the subject
notarized document.

Assigned Error No. 3: The

Honorable Trial Court committed
a reversible error in stating that
appellees can rely on good faith
as a defense against the alleged
misrepresentation by the
appellants.

32. The Honorable Court in its decision dated September 14, 2006
continued stating that, to wit:

XXX
4. On the issue of good faith of defendants, Article 1127 of
the Civil Code states that good faith of the possessor
consists in the reasonable belief that the person from
whom he received the thing was the owner thereof, and
could transmit his ownership.
XXX

11
Willard B. Riano, Evidence, 2013 Ed., p. 108

Page 16 of 24
 33. First of all, and as discussed in the previous assignment of errors, the
appellees cannot attribute to the appellant Felisa the execution of the documents
that supposedly manifested the misrepresentation for the reason that the appellees
were unable to prove that the appellant Felisa was sufficiently informed of the nature
of the contract.

34. Second, with regard to the sale of real property sans an Certificate of
Title, the principle of caveat emptor applies. The appellees knew very well that the
appellant Felisa was a widow and had children for the opposing parties in this case
were in fact neighbors. Any person of reasonable mind would question why a tax
declaration would only be in the name of the appellant Felisa. Or were the
appellees simply thinking they could get away with it by making the illiterate
appellant Felisa put her thumbmark on the said documents?

35. The appellee Manuel in his testimony stated that he knew that the
appellant Felisa had children and that TD#120150 in the name of appellant Felisa
was of the same date as the questioned Deed of Sale, obviously, enough reason for
a person in good faith to inquire about the true ownership of the subject property; to
wit:

XXX

COUNSEL TO WITNESS:
Q: My next question is, can you please inform the
Honorable Court what was this alleged reason as
relayed to you by Agapito Cinco.
A: I do not know about what happened, my money that was
given to her.
Q: Nonetheless, sir, having known of Felisa Codilla you
will be able to confirm, sir, at the time of this sell
in 1962 Felisa Codilla has children?
A: Yes, they are small children.
Q: Before this alleged sell in 1962, in March 1962, did you
bother to ask from Felisa Codilla of some documents that

Page 17 of 24
 will prove her ownership of the property?
A: I saw those papers or document when we were there at
the City Hall.
Q: What particular documents were shown to you, sir?
A: A Tax Declaration was shown to the lawyer and when
that Tax Declaration was shown to the lawyer we saw also
the Tax Declaration.
Q: What Tax Declaration are you referring to?
A: Tax Declaration.
Q: In whose name?
A: Tax Declaration in the name of Felisa Codilla.
Q: If I show you this tax declaration, sir, were you be able to
identify it?
A: Yes, I can but I cannot clearly see.
Q: I am showing to you this tax declaration, which we have
already marked as Exhibit A, please have a look at
whether or not this is the tax declaration you were
shown.
A: I cannot really see the document.
Q: At any rate, did you see the Deed of Absolute Sale?
A: Yes.
Q: Did you understand the contents of this Deed of
Absolute Sale?
A: Yes.
Q: Having understood the contents of the Deed of Absolute
Sale, you will be able to confirm, sir, that it was stated
therein that this property is paraphernal?
A: Yes, that was owned by Felisa Codilla.
Q: Did you bother to ask for documents to show that
indeed this is paraphernal property of Felisa
Codilla?
A: There was already a Tax Declaration.
Q: So, you simply relied, sir, on the tax declaration.
A: Yes, Maam.
Q: Did you inspect the tax declaration before signing
allegedly this Deed of Sale, before agreeing to this Deed of
Sale?
A: Yes, because I saw that documents given to the lawyer.
Q: You saw, Mr. Witness, the tax declaration?
A: Yes, I saw.
Q: And you will confirm that this tax declaration is
dated May 26, 1962.
A: Yes.
ATTY. VESTEL: Objection, Your Honor.
ATTY. LARGO: He has already answered.
ATTY. VESTEL: Objection, we move to strike, the best

Page 18 of 24
 answer, Your Honor, is the tax declaration, the best
evidence, Your Honor.
ATTY. LARGO: No, I’m just asking for his knowledge.
COURT: He’s cross-examination.
COUNSEL TO WITNESS:
Q: And the same date, Mr. Witness, that this alleged
Deed of Sale was executed, correct?
A: Yes.
Q: And the same tax declaration that you said you have
examined shows that the previous tax declaration is in
the name of Ricardo Ardiente, right?
ATTY. VESTEL: Objection, Your Honor, the best evidence
is tax declaration.
COURT: Just ask, do you know?
ATTY. LARGO: O.k.
COUNSEL TO WITNESS:
Q: You said you examined the tax declaration in the name
of Felisa Ardiente, did you also ask, Mr. Witness, for the tax
declaration, do you know rather, Mr. Witness, that the
previous tax declaration as written on this tax declaration
in the name of Felisa Ardiente is in the name of Ricardo
Ardiente, did you know that?
ATTY. VESTEL: Objection, Your Honor, it is in the
document.
COURT: No, no, this is not a subject of inquiries, he was
only confronting, the cross-examiner did not question the
document, so, it can be subject of inquiring.
COURT: Witness may answer.
WITNESS: I did not know because the tax declaration was
in the name of Felisa Ardiente and that is the tax
declaration that I know.
COUNSEL TO WITNESS:
Q: You did not ask for previous tax declarations, Mr.
Witness?
A: (No answer)
Q: You did not ask for previous tax declarations, Mr.
Witness?
A: Yes, all documents were given to our lawyer that she is
indeed the owner of the lot in question.
Q: Did you not ask for previous tax declarations aside from
this tax declaration executed on the same day that the
date of sell allegedly executed?
A: All the documents were given to us, yes.
COURT TO WITNESS:
Q: You mean without asking Felisa, Felisa gave you
some documents?

Page 19 of 24
 A: Those documents were placed on the table.
Q: Whose table?
A: The table of our lawyer, Your Honor.12
(Emphasis supplied)

XXX

36. With all due respect to the Honorable Trial Court, its is quite evident
that the appellees were with the knowledge of the defect in TD#120150 or were in
fact the perpetrators of the fraudulent documents. Either way, the appellees were
definitely devoid of good faith with their dealings with the appellant Felisa.

Assigned Error No. 4: The

Honorable Trial Court committed a
reversible error in relying on the
principle of laches through
uninterrupted adverse possession
of thirty years.

37. The Honorable Court in its decision dated September 14, 2006 finally
stated that, to wit:

XXX

5. On the issue of prescription and laches, Article 1137 of the

Civil Code states that ownership and other real rights over
immovables prescribe uninterrupted adverse possession
thereof for thirty years, without need of title or of good
faith. Plaintiffs are guilty of laches for having asserted that
they are also the owners of subject property only after
thirty-nine (39) years. The defense of laches applies
independently of prescription.

38. With all due respect and in arguendo, the Honorable Trial Court erred
when it determined that the execution of the supposed Deed of Sale was the
reckoning point for the uninterrupted adverse possession of thirty years for laches to
set in.
12
TSN, Manuel Cabuenas, 3/28/2005, P5-9

Page 20 of 24
 39. In the cross-examination of appellant Juanito Ardiente, son of
appellant Felisa, in addition to the counsel for the appellees, the Honorable Trial
Judge even took matter into his own hands to verify the reckoning point for the
uninterrupted adverse possession of the subject property; to wit:

XXX
ATTY. DUTERTE:
Q: Before 2001, and from 1977, if you wanted to, you could
have seen this Marcelo at any time?
A: Not yet, sir.
Q: Yes, but you could have seen him if you wanted to?
A: Yes, because we live in the same barangay.
ATTY. DUTERTE: That is all Your Honor. No redirect, Your
Honor. We have three more witness to present.
COURT:
Q: Okay, when Cabuenas told you that you can enter
provided you can redeem the mortgage first, and he tell you
how much was the amount?
ATTY. SARAUSOS: Your Honor please, the witness said
that Cabuenas did not tell him that, it was his mother.
But in the previous questions, Your Honor, the answer
is that, it was not Cabuenas who told him that, he can
redeem, it was his mother. In fact, many times the
lawyer asked.
COURT:
Q: Did Manuel Cabuenas himself prevented you from
entering the land in question?
A: Yes, sir.
COURT:
Q: In fact, he told you that, you can only enter if you can
first redeem the mortgage?
A: Yes, sir.
COURT:
Q: Did he tell you how much?
A: No, Your Honor.
COURT:
Q: Did you ask Cabuenas how much are we going to
redeem?
A: I did not, Your Honor.
COURT:

Page 21 of 24
 Q: Why did you not ask Cabuenas how much so that you
can raise the amount?
A: Instead of asking that, Your Honor, he told us that the
land was registered already in his name and when we
verified in the Assessor’s Office, it was already
registered in his name.
COURT:
Q: So, Manuel Cabuenas also told you that you cannot
redeem anymore the property?
A: Yes, because he already bought the land, Your Honor.
COURT:
Q: So, he also told you that you can enter if you can
redeem the property and later on, he told you that you
cannot enter because you can no longer redeem
the property because he already bought that?
A: That is what he said, Your Honor.13
(Emphasis supplied)

XXX

40. To be fair and in the interest of justice, up until the offer to redeem and
eventual rejection of appellant Juanito Ardiente in 1977, no proof or testimony has
been submitted by the appellees that shows a later assertion of ownership or
adverse possession from which the period of uninterrupted adverse possession may
be reckoned from.

41. When the Honorable Trial Court itself proceeded with this line of
questioning, there was no objection from the appellees’ counsel, it was in fact Atty.
Largo, counsel of the appellants, who raised an objection. When the Honorable Trial
Court was so convinced that there was indeed a mortgage to be redeemed, it should
have alarmed the appellees and precipitated an objection.

42. As a matter of fact, when the appellee Manuel was put on the stand in
February 15, 2005, the appellees had a chance to refute the Honorable Trial Court’s

13
TSN, Juanito Ardiente, 11/22/2002, pp. 16-25.

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perception. Nonetheless, the topic was never touched, restraining the appellants
from tackling the topic again during his cross-examination. Can there be a much
clearer indication of admission by omission?

43. Lastly, in arguendo that the Deed of Sale be upheld and with all due
respect, the Honorable Trial Court erred in not considering that the Purported Deed
of Sale was only for a land area of 16,000 square meters or 1.6 hectares as clearly
indicated in the challenged Deed of Sale, instead of the whole 5.27320 hectares as
indicated in TD#120151.

CLOSING STATEMENTS

The appellants in this case are in the brink of losing a piece of land, tilled by
their departed patriarch, and should have been passed to them as his rightful heirs.

If not for the dubious machinations that awful day in 1962, where the
appellees took advantage of the illiterate appellant Felisa, making her believe it was
a mere redeemable mortgage rather than what it appears to be now, the appellees
should be at present honoring Ricardo Ardiente Sr.’s memory by tilling the land he so
dreamt for his children.

The appellants now come to this Honorable Court of Appeals to make

Ricardo Sr.’s dream a reality. By preponderance of evidence, the appellants claim is
clearly as meritorious as it can get.

The appellants may have taken a little longer time to assert their right, but not for
reasons purely their own, and certainly not too late.

X. RELIEF

WHEREFORE, in view of all the foregoing, it is respectfully prayed that this

Honorable Court:

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 REVERSE the Decision AND RULE in favor of the Reconveyance of the subject
property to the appellants and proceed with the Partition of the subject property for
the appellants.

Other reliefs just and equitable under the premises are also likewise prayed
for.

RESPECTFULLY SUBMITTED.

Cebu City, Cebu, Philippines, January 20, 2018.

XYZ LAW OFFICES

Counsel for the Appellants
Unit 9, Albulario Bldg. II,
Gen. Maxilom Ave., Cebu City

By:

LEO TUMAGAN
ROLL NO. 38657
IBP No. 1059342 – 2-6-17
PTR No. 14309380– 2-10-17
MCLE V Compliance No. 0006427
Cebu City

Copy Furnished:

ATTY. WA SA
Suite 1, FGU Tower
IT Park, Cebu City

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