REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT OF NEGROS OCCIDENTAL

6TH Judicial Region
Branch 48, Bacolod City

ELIZABETH C. FERNANDEZ,
Plaintiff,

- versus – Civil Case No. 04-12341

SPS. BENJIE & JINKY ABLAO

Defendants.
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COMPLAINT

COMES NOW the Plaintiff, by the undersigned counsel, respectfully states

unto this Honorable Court that:

1. Plaintiff is of legal age, Filipino, single, a resident of Bacolod City,

Philippines and she may be served with summons and court process

through the office of the undersigned counsel.

2. Defendants are both of legal ages, married to each other, Filipinos and

residents of Purok Nami-Nami, Brgy. Banago, Bacolod City where they

may be served with summons and court processes.

3. Herein plaintiff is a co-owner of a parcel of land with an area of ONE

HUNDRED TWENTY (120) square meters located at the City of Bacolod

evidenced by Transfer Certificate of Title No. 271859 attached hereto as

Annex “A”.

4. Last March 12, 2003, the plaintiff entered into an agreement with the

defendant-spouses BENJIE & JINKY ABLAO, that they will construct for

her a residential house on the above-described land for the total contract
 price of P340,000.00. Defendant BENJIE ABLAO being an architect,

signed a contract with the plaintiff to this effect attached hereto as Annex

“B”.

5. Defendant JINKY ABLAO on the other hand, represented to the plaintiff

that she was the one who will be in charge of the personnel who would

work on the residential house. Some of the workers were in fact MS.

ABLAO’s relatives since her family has been engaged in this livelihood for

so many years and under the supervision of her husband, the defendant

BENJIE ABLAO.

6. Due to the strong and constant assurances given by the defendant

spouses that the work will be completed within the agreed time frame as

stipulated in the contract, the plaintiff parted with her hard earned money

which she remitted in their favor totaling P340,000.00. Attached hereto as

Annexes “C” to “E” are the acknowledgment receipts issued by defendant

BENJIE ABLAO proving that he has received P318,500.00 for some of the

payments made by the plaintiff were not receipted.

7. Patiently, the plaintiff waited for the defendants to complete the agreed

house project despite the fact that it was way behind the April 15, 2003

completion schedule and constantly reminded them of their commitment in

the contract but to of no avail.

8. Despite the plaintiff having completed her payments, the defendants failed

to render substantial work on the house they have promised to construct

which is not even half finished as of to date and therefore constitutes a

willful breach of the contract on the part of said defendants.

9. Left with no other recourse, the plaintiff made a final demand to the

defendant-spouses BENJIE & JINKY ABLAO through counsel last January

30, 2004 attached hereto as Annex “F”, now asking for the reimbursement

of the cash payments she has made due to their utter failure to finish the

house as per agreed time frame in the contract. The basis of said demand

is item 3 of the subject contract (Annex “B”) of the parties dated March 12,

2003 which specifically states:

“3. Failure to act in accordance with the agreed conditions and

specifications would mean that I, Benjie Ablao, the architect of
the house shall be under legal prosecution and have to pay
back the amount of P340,000.00 received even if the residential
project has already started.”

10. Notwithstanding the several demands made upon the defendants to fulfill

their promise to finish the plaintiff’s house, they have unjustifiably failed

and refused to make any effort to do the same nor return the payments

said plaintiff has made.

11. Considering the entire situation, the defendants’ aforementioned acts

clearly constitutes a wilfull breach of contract and likewise also violates

the basic legal doctrine that “NO ONE SHALL UNJUSTLY ENRICH

HIMSELF AT THE EXPENSE OF ANOTHER” which is what the spouses

BENJIE & JINKY ABLAO exactly did in this case.

12. The defendants’ acts also constitutes a gross violation of Articles 19 and

21 of the new Civil Code which provides:

“Art. 19. Every person must, in the exercise of his rights and
in the performance of his duties, act with justice, give every-
one his due and observe honesty and good faith.

Art. 21. Every person who, willfully causes loss or injury to

another in a manner that is contrary to morals, good customs
or public policy shall compensate the latter for the damage.”
13. The Plaintiff is clearly therefore entitled to the damages brought about by

the defendants’ acts for had they not promise that the house will be

completed based on the agreed price in the contract (Annex “B”), the

plaintiff would have never parted with her hard earned money totaling

P340,000.00 and thereby resulting to her great prejudice and damage.

Attached hereto as Annexes “G” to “J” are the latest pictures of how the

house over the subject property looks like which is undoubtedly

inhabitable nor of any use whatsoever to the plaintiff.

14. From the time of the last demand, the defendants have failed to comply

with their legal obligation to the plaintiff. To date, said defendants have

willfully and continuously refused to refund the price of P340,000.00 as

per stipulated in the contract (Annex “B”) thus, plaintiff is left with no other

choice but to file the herein complaint before this Honorable Court.

15. Due to the unjust refusal of defendants to comply with their obligations,

plaintiff has suffered serious anxieties, sleepless nights, moral shock and

the like which damages are irreparable and incapable of pecuniary

estimation which nevertheless be equated in terms of money in the most

conservative amount of not less than P100,000.00 as Moral damages;

16. In order to deter the defendant from doing similar acts to others who are

similarly situated they should be adjudged to pay Exemplary Damages in

the amount of P50,000.00 or within the sound discretion of the Honorable

Court;

17. In order to protect her rights and best interests, the plaintiff by necessity

had to engage the services of counsel for a contracted fee of P30,000.00

 as Attorney’s Fees and P1,000.00 as appearance fee for every hearing of

this case in the proper forum which the defendants are liable to reimburse.

18. Plaintiff also incurred no less that P20,000.00 for the filing fees and other

necessary expenses of litigation expenses which defendants should also

be ordered to reimburse.

PRAYER

WHEREFORE, premises considered, the Plaintiff respectfully prays that

judgment be rendered against the Defendants as follows:

1. Ordering Defendants to reimburse to the Plaintiff the price paid for the

contract (Annex “B”) amounting to P340,000.00 plus legal interest

representing actual damages.

2. Ordering the defendants to pay the plaintiff the amount of P100,000.00 as

moral damages.

3. Ordering the defendants to pay the plaintiff the amount P50,000.00 as

exemplary damages.

4. Ordering the defendants to pay the plaintiff the amount of P30,000.00 as

Attorney”s fees.

5. Ordering the defendants to pay the plaintiff the amount of P20,000.00 as

Litigation Expenses.
6. Such other relief as this Honorable Court may deem just and equitable in the

premises.

RESPECTFULLY SUBMITTED.

Bacolod City, Philippines. June 18, 2004.

(SGD.) PACIFICO M. MAGHARI, III

Counsel for the Plaintiff
PTR No. 1570677 B. C. Jan. 5, 2004
IBP No. 597997 B. C. Dec. 22, 2003
ROLL OF ATTORNEY’S NO. 44869

C/O DIAZ MAGHARI MAGASPAG CUAYCONG

AND ASSOCIATES LAW OFFICE
Door 3, 2nd Floor, ACLER Building,
Lizares Ave., Bacolod City
 VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPINGG

I, ELIZABETH C. FERNANDEZ, of legal age, single, Filipino and a resident of

Bacolod City, Philippines, after having been duly sworn to in accordance with law do hereby
depose and say:
(1) That I am the plaintiff in the above-entitled case;
(2) That I have caused the preparation and filing of the foregoing Complaint;
(3) That I have read the contents of the foregoing Complaint and I attest that the
allegations thereof are true and correct to the best of my knowledge and belief;
(4) Pursuant to the Supreme Court Administrative Circular No. 04-94, I hereby
certify that:
(a) I have not therefore commenced any other action or proceeding involving
the same issued in the Supreme Court, the Court of Appeals, or any
Tribunal or Agency;
(b) To the best of my knowledge, no such action is pending before the
Supreme Court, the Court of Appeals, or any other Tribunal or Agency;
(c) If I should hereafter learn that a similar action or proceeding has been
filed or is pending before the Supreme Court, the Court of Appeals, or
any other Tribunal or Agency, I undertake to report that fact within five (5)
days therefrom to this Honorable Court.

IN WITNESS WHEREOF, I have hereunto affixed my signature this ____ day of

June, 2004 in the City of Bacolod, Philippines.

(SGD.) ELIZABETH C. FERNANDEZ

Affiant

SUBSCRIBED AND SWORN , to before me this 23 rd day of June, 2004 in the City of
Bacolod, Philippines, the affiant exhibiting to me her Community Tax Certificate No.
06415003 issued at Bacolod City on March 10, 2004.

(SGD.) PACIFICO M. MAGHARI, III

NOTARY PUBLIC
UNTIL DECEMBER 31, 2005
PTR No. 1570677 B. C. Jan. 5, 2004
IBP No. 597997 B. C. Dec. 22, 2003
ALL ISSUED IN BACOLOD CITY
TIN NO. 130-021-730
ROLL OF ATTORNEY’S NO. 44869

Doc. No. 348

Page No. 70
Book No. III
Series of 2004.