REPUBLIC OF THE PHILIPPINESTHIRD JUDICIAL REGIONREGIONAL TRIAL COURT

IBA, ZAMBALESBRANCH 70

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

Petitioner,

- versus -

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”), by counsel, unto this Honorable Court, respectfully avers:

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.

CIVIL CASE NO. RTC-2735-I

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.

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In Roque, et al. vs. Delgado, et al., G.R. No. L-6770, 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.

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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.

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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-B-B).

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 1-

2 Memorandum of Petitioner, par. 9, p. 3.3 National Power Corp. vs. Vera, G.R. No. 83558, February 27, 1989.

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B-D, Lot 1-B-D, and Lot 1-B-P, remained under the ownership 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. Ongteco’s 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 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.

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

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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 Psd-03-069969(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-B-C 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 (3rd) 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.

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26. How could have Merin waived and donated Lot 1-B-B 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.

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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.

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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 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 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 Article 712, Civil Code.6 Article 749, New Civil Code.

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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 Ongteco. Likewise, those subdivided lots that were not distributed to farmer-beneficiaries, 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. Ongteco’s 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) DAR-Module 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.

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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) DAR-Module-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 rd ) lot transferred by Otengco to Merin.

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?

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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 petitioner’s 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 set-aside.

7 344 SCRA 492, October 30, 2000.

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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. CORTEZCounsel for the Petitioner

Roll No. 57989IBP No. 964897; 03-04-15; Quezon City

PTR No. Q10004198; 03-04-15; Pasig City

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MCLE Compliance No. IV-0008075; 09-25-12Unit 9, Block 12, Lot 2, Daisy StreetWest Fairview, 1118 Quezon City

REQUEST

THE HON. BRANCH CLERKRegional Trial CourtBranch 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. FERRERCounsel for the Respondentsc/o Municipal HallBotolan, 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. FERRERCounsel for the Respondentsc/o Municipal Hall

Registry Receipt No. ____________15

___________________ Postal OfficeDecember ___, 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

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