Anda di halaman 1dari 9

Mindanao State University

College of Law Iligan Extension Class


MSU-IIT, Iligan City

COMMENTS AND SUGGESTIONS IN ADVANCED LEGAL


WRITING ON EXPROPRIATION AND RECOVERY OF
PROPERTY

Submitted by:

Abedin, Mohammad Jamalodin


Angas, Riezyl Reen
Ibrahim, Mohammad Salman
Lauron, Irene

Submitted to:

Atty. Jehan Gift Gonzaga-Morong

October 06, 2017


COMMENTS on the assignment of GROUP 2 (EXPROPRIATION)

Complaint

1. The caption, in particular the parties, is somewhat erroneous. It


should be: The City Council of Iligan City, as represented by Mayor
Juan Dela Cruz versus Xander Ford and the title of the action is for:
Expropriation. The complaint for. And the (eminent domain)
should be removed.

2. The paragraph spacing is not in accordance with the efficient


paper rule which should be single space per paragraph. The
complaint is in multiple paragraph spacing.

3. As to matters in No. 4, the resolution should be stated in the


complaint as an Annex attached to the same. Say: That for the
purpose of the city project, resolution 2015-110 and ordinance 06-
4950 were issued. Attached herein is the resolution as Annex A
and the ordinance as Annex B.

4. Upon reading the resolution and the ordinance in relation to the


complaint, it seems that nowhere in the ordinance authorized the
local Chief Executive to institute and expropriation proceedings
in behalf of the City Council. The essential requisites for the
Local Government Unit to validly exercise Eminent Domain as
decided in the case of Municipality of Paraaque vs. V.M. Realty
Corporation G.R. No. 127820, July 20, 1998 are as follows:

a. That there is an ORDINANCE enacted by the local


legislative council authorizing the local Chief Executive to
exercise such a power.
b. The exercised is for PUBLIC USE, purpose or welfare or to
the benefit of the poor and the landless.
c. PAYMENT of just compensation
d. That there is VALID and DEFINITE OFFER has been
previously made to the owner of the property but said
offer was not accepted.

In this case, the ORDINANCE is wanting.

Moreover, a local government unit cannot authorize an


expropriation of private property through a mere resolution of
the law making body (Beluso vs. Municipality of Panay, Capiz GR
No. 153974, August 7, 2006)

5. As to the matters in No. 7, this could have been substantially


expounded as to how the plaintiff made a valid and definite offer
such as how much did the municipal corporation offered to pay
the defendant to depict certainty that there was indeed a valid
and definite offer and the circumstances of making the offer.

6. With regards to the prayer of the complaint, in particular No. 2,


it seems that the municipal corporation wants to gain immediate
position of the private property. In the connection, there is no
showing in the face of the complaint that the municipal
corporation made a preliminary deposit amounting to 15% of the
fair market value of the property to be expropriated based on it
current tax declaration (Bardillon vs. Brgy. Masali, Calamba,
Laguna GR No. 146886, April 30, 2003). Once the preliminary
deposit has been made, the expropriator is entitled to a writ of
possession as a matter of right and the issuance of said writ
becomes ministerial on the part of the trial court (Biglang-Awa vs.
Bacalla, GR No. 139927-36, November 22, 2000).

Answer

7. The caption, in particular the parties, is somewhat erroneous. It


should be: The City Council of Iligan City, as represented by Mayor
Juan Dela Cruz versus Xander Ford and the title of the action is for:
Expropriation. The complaint for. And the (eminent domain)
should be removed.

8. The compulsory counterclaim should be stripped off in the


answer. Section 3, Rule 67 of the Rules of Court provides that:

If a defendant has any objection to the filing of or the allegations


in the complaint, or any objection or defense to the taking of the
property, he shall serve his answer within the time stated in the
summons. The answer shall specifically designate or identify the
property in which he claims to have an interest, state the nature
and extent of the interest claimed and adduce all his objections
and defense to the taking of the property. No counterclaim,
cross-claim or third party complaint shall be alleged or
allowed in the answer or any subsequent pleading.

The spirit behind the disallowance if for expediency.


COMMENTS on the assignment of Group 3 (RECOVERY OF
PROPERTY)

Complaint

1. The top margin of the complaint did not follow the requirement
set forth under the Efficient Paper Rule promulgated by the
Supreme Court (instead of 1.2 inch, the margin is only 1 inch).

2. The complaint is sufficient as to substance depicting clearly


therein the parts of the pleading set forth under the Rules of
Court in application of a Writ of Replevin to wit:

a. The particularity of the property as described in the


complaint.
b. The entitlement of the ownership of the applicant or the
entitlement of the possession.
c. That the property is wrongfully detained by the adverse
party.
d. That the property is neither distrained nor taken for tax
assessment or a fine in pursuant to a law or under seizure.
e. More importantly, there is a statement depicting the actual
market value of the property.

This is shown under paragraph 3 of the complaint wherein the


plaintiff alleged that:

3. That the plaintiff is the lawful owner of one (1) unit Isuzu
Dump Truck, with motor no. 452232122, serial/chassis no. 6789
and plate no. POP-441 (attached is the Certificate of
Registration of the subject vehicle under the name XANDER Y
ZYRUS, marked as Annex A;

The second requirement requires that the affidavit must show


that the property is wrongfully detained by the adverse party,
alleging the cause of detention thereof according to the best of
his knowledge, information, and belief;

This is shown in paragraph in paragraphs 4 and 5 which states


that:
4. That on June 20, 2017, the defendant borrowed said Dump
Truck from the plaintiff promising to return the same after one
(1) month;

That after the lapse of one (1) month, that is July 20, 2017, and
for months thereafter, the plaintiff demanded from the defendant,
in person and in writing, the return of the aforementioned
personal property, the last of which was on August 22, 2017
(attached is the Final Demand Letter marked as Annex B), but,
despite said repeated demands, the defendant refused and still
refuses to return said property, gratuitously claiming that the
same belongs to him;

The third requirement states that the property has not been
distrained or taken for a tax assessment or a fine pursuant to law,
or seized under a writ of execution or preliminary attachment,
or otherwise placed under custodia legis, or if so seized, that it is
exempt from such seizure or custody. This is shown in
paragraph 6 of the complaint which states that:

6. That said property has not been taken from the plaintiff for
a tax assessment or fine pursuant to law, or seized under an
execution, or an attachment against the property of the plaintiff;

The affidavit must also contain the actual market value of the
property. This is shown under paragraph 7 of the complaint
which states that:

7. That the actual value of the said Dump Truck is One


million Philippine pesos (Php1,000,000.00) (attached is the Sales
Invoice issued by Isuzu Iligan where the plaintiff bought the
truck, marked as Annex C);

The law also requires that an applicant must also give a bond,
executed to the adverse party in double the value of the property
as stated in the affidavit aforementioned, for the return of the
property to the adverse party if such return be adjudged, and for
the payment to the adverse party of such sum as he may recover
from the applicant in the action. This is also manifested under
paragraph 8 of the complaint which states that:

8. That the plaintiff is ready and willing to give a bond,


executed to defendant in double the value of the property as stated
above, for the return of the property to the defendant if the return
thereof be adjudged, and for the payment to the defendant of such
sum as he may recover from the plaintiff in the action

3. The group, however, opines that a Judicial Affidavit be attached


as part of the Annexes. It is submitted by the group that an
affidavit not in a form of question and answer would satisfy the
requirement set forth under the Rules of Court requiring the
complaint to have an affidavit to support the complaint. Present
the Judicial Affidavit, it seems to appear that there already
commenced a proper trial on the case as Judicial Affidavits
serves as a direct testimony of the witness during trial proper.

The required affidavit comes after the main body of the


complaint. For example:

Affidavit

I,_________, of legal age, single, and a resident of __________,


being sworn in accordance with law depose and say:

1. That I am the plaintiff in an action for the delivery of


personal property against the defendant, entitled _______ in
the Regional Trial Court of __________.
2. That I am the owner of said property, particularly described
as follows, to wit:

Description

3 That the said personal property is wrongfully detained by the


defendant without lawful cause whatsoever.
4 That the said property has not been taken by reason of tax
assessment or a fine.
5 That the actual value of the property is ______________.

Plaintiff

4. In connection with the Judicial Affidavit executed by Xander


Zyrus, the presentation of the evidence, Annex A should come
first before Annex B:

Q14: Showing to you a copy of a written final demand letter dated


August 22, 2017, what relation does this have to the written demand
letter you were referring to?
A: Thats my file copy of the written final demand letter.

Atty. Galinato: Your Honor, the Final Demand Letter dated August
22, 2017 that the witness identified is, with the consent of the
witness, marked as Exhibit B and made part of this Judicial
Affidavit.

Q18: Showing to you a copy of Certificate of Registration of one


Dump Truck under the name Xander Y. Zyrus, what relation does
this have to the written demand letter you were referring to?
A: Thats the Certificate of Registration.

Atty. Galinato: Your Honor, the Certificate of Registration that the


witness identified is, with the consent of the witness, marked as
Exhibit A and made part of this Judicial Affidavit.

5. The group moreover posits that the case could have been
improved had the plaintiff executed a contract of commodatum,
as the case maybe, with the defendant regarding the borrowing
of the dump truck to strengthen the claim of the plaintiff.

Answer

1. The top margin of the complaint did not follow the requirement
set forth under the Efficient Paper Rule promulgated by the
Supreme Court (instead of 1.2 inch, the margin is only 1 inch).

2. As to the substance, the answer is satisfactory and posits a


reasonable defense. However, the defense would have been
stronger had the defendant asked the plaintiff for a receipt of the
bank deposit when the alleged transfer occurred as stated under
paragraph 4 of the answer which states that:

4. That in consideration of the sale of the subject property,


the Defendant paid the Plaintiff by way of a bank deposit to the
account of the Plaintiff, with account no. 2620032314, on June
20, 2017 at the BDO del Pilar, Iligan City Branch, in the amount
of Nine Hundred Thousand Pesos, (P900,000.00) as full
payment and consideration to the Dump Truck. A copy of the
covering BDO deposit slip is hereto attached as Annex 2.

3. As to the form, the answer lacks the necessary Verification and


Certification pursuant to Section 4 and 5, Rule 7 of the Rules of
Court which provided:
Section 4. Verification. Except when otherwise specifically
required by law or rule, pleadings need not be under oath,
verified or accompanied by affidavit.(5a)

A pleading is verified by an affidavit that the affiant has read the


pleading and that the allegations therein are true and correct of
his knowledge and belief.

A pleading required to be verified which contains a verification


based on "information and belief", or upon "knowledge,
information and belief", or lacks a proper verification, shall be
treated as an unsigned pleading. (6a)

Section 5. Certification against forum shopping. The


plaintiff or principal party shall certify under oath in the
complaint or other initiatory pleading asserting a claim for relief,
or in a sworn certification annexed thereto and simultaneously
filed therewith: (a) that he has not theretofore commenced any
action or filed any claim involving the same issues in any court,
tribunal or quasi-judicial agency and, to the best of his
knowledge, no such other action or claim is pending therein; (b)
if there is such other pending action or claim, a complete
statement of the present status thereof; and (c) if he should
thereafter learn that the same or similar action or claim has been
filed or is pending, he shall report that fact within five (5) days
therefrom to the court wherein his aforesaid complaint or
initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be


curable by mere amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after
hearing. The submission of a false certification or non-
compliance with any of the undertakings therein shall constitute
indirect contempt of court, without prejudice to the
corresponding administrative and criminal actions. If the acts of
the party or his counsel clearly constitute willful and deliberate
forum shopping, the same shall be ground for summary dismissal
with prejudice and shall constitute direct contempt, as well as a
cause for administrative sanctions.

4. The answer, in addition, lacks jurat.


5. An area of improvement is that the defendant, had he wished to
retain possession of the dump truck, he should also have filed
with the Court a bond executed to the applicant in double the
value of the property as stated in the applicants affidavit
pursuant to the Rules of Court Sec. 5 and 6 of Rule 60 which
provides that:

Section 5. Return of property. If the adverse party objects


to the sufficiency of the applicant's bond, or of the surety or
sureties thereon, he cannot immediately require the return of the
property, but if he does not so object, he may, at any time before
the delivery of the property to the applicant, require the return
thereof, by filing with the court where the action is pending a
bond executed to the applicant, in double the value of the
property as stated in the applicant's affidavit for the delivery
thereof to the applicant, if such delivery be adjudged, and for the
payment of such sum, to him as may be recovered against the
adverse party, and by serving a copy of such bond on the
applicant. (5a)

Section 6. Disposition of property by sheriff. If within five


(5) days after the taking of the property by the sheriff, the adverse
party does not object to the sufficiency of the bond, or of the
surety or sureties thereon; or if the adverse party so objects and
the court affirms its approval of the applicant's bond or approves
a new bond, or if the adverse party requires the return of the
property but his bond is objected to and found insufficient and
he does not forthwith file an approved bond, the property shall be
delivered to the applicant. If for any reason the property is not
delivered to the applicant, the sheriff must return it to the adverse
party. (6a)

6. As to the attachment, in particular the Deed of Absolute Sale, the


VENDEE should also be part of the signatory aside from the
VENDOR. The group only indicated the VENDOR absent the
VENDEE.

Anda mungkin juga menyukai