Memorandum

literally, to be remembered
A paper that explains and summarized
specific points of law for a judge, for
another attorney or for a client

Memorandum: When required

and Purpose
After presentation of evidence
In writing
For purposes of expounding further points of
law
That cannot be established by testimonial
evidence for lack of competence or by
documentary evidence
That need citations of jurisprudence and facts of
judicial notice

Memorandum: Form
1. Form for other pleadings in the case:
Caption, title, body, date/signature
Not a motion, so no notice of hearing;
only Respectfully Submitted
Copy furnished to opposing counsel

Memorandum: Form
2. Body: Content
Prefatory Statement
Statement of Salient/Relevant Fact
Statement of the Legal Issue Involved
State the Issue/s subject of the Memo
Discussion of the Legal Issue Involved

Discussion with jurisprudence and facts of judicial

notice

Conclusion

Republic of the Philippines

REGIONAL TRIAL COURT
Ninth Judicial Region
Branch 16
Zamboanga City
ROMEO R. MONTAGUE,
Plaintiff,
-versus-

JULIET J. CAPULET
Defendant.
X-------------------------------/

CIVIL CASE NO. 6614

FOR: SPECIFIC PERFORMANCE
WITH APPLICATION FOR
PRELIMINARY MANDATORY
INJUNCTION AND DAMAGES

MEMORANDUM
FOR PRELIMINARY MANDATORY INJUNCTION
PLAINTIFF through counsel, to this Honorable Court, respectfully avers, to wit:

PREFATORY STATEMENT
This Memorandum shall delve solely on the legal issue in this
case, the factual matters having already been established during the
hearing from the testimonies of the witnesses and their respective
documentary evidence.
STATEMENT OF THE SOLE LEGAL ISSUE
The only issue in this case is whether or not plaintiff is entitled
to the use of the easement of Road Right of Way (RROW) known as
Road Lot 111-AA, and conversely, whether or not the defendant has
the right to close said RROW, not only preventing the plaintiff but also
the public from enjoying such easement.

THE SALIENT FACTS

Road Lot 111-AA, embraced in Transfer Certificate of Title No. T-123,456 and registered in
the name of defendant, is a stretch of unpaved road between two (2) rows of lots, some with
houses and others without, leading on one end towards the Culianan Road and on the other end,
towards Road Lot 2-F, embraced in Transfer Certificate of Title No. T-789,101 registered in the
name of the plaintiff.
In defendants title is a Memorandum, annotated pursuant to Section 22 of Presidential
Decree No. 957 (1976), to the effect that, . . . no portion of any street, passageway . . . so
delineated in the plan shall be closed . . . by the registered owner without the permission of the
National Housing Authority and the conformity or consent of the duly organized homeowners
association, or in the absence f the latter, by the majority of the lot buyers in the subdivision.
The plan referred to in the Memorandum is subdivision plan Psd-09-2468, approved in 1994
for 12 lots.
Within the vicinity of Road Lot 111-AA live several residents, among them the plaintiff.
There is no homeowners subdivision association in the area.
Aside from Road Lot 111-AA, there is no other road leading towards Culianan Highway.

DISCUSSION: THE LEGAL ISSUE

The legal issue is whether the easement is a legal easement or a voluntary one, as defined
under Article 619 of the Civil Code . A legal easement, under Article 634, is one that is imposed by
law, intended for either public use or the interest of private persons.
Under Article 635, matters concerning legal easements established for public or communal
use are governed by the special laws and regulations related thereto. In the case at bar, the
establishment of a road, which came to be known as Road Lot 111-AA, was a pre-requisite for the
approval of subdivision plan Psd-09-2468, there being more than nine (9) resultant subdivided
lots. This much was testified to by the defendant during his testimony, by way of clarifying his
answer to Question No. 15 of his Judicial Affidavit.
Hence, there is no question whatsoever that Road Lot 111-AA is not a voluntary easement,
but a legal one. And precisely for this reason, the Memorandum was annotated on its title.
Hence, even if the road lot is a private lot, the public is not excluded from passing through it.

Therefore, as a legal easement, the rights of the servient and dominant estates are
governed by Book II, Title VII, Chapter 2, Sections 1 and 3, of the Civil Code.

Under Article 649, any affected person who has no adequate outlet to a public
highway is entitled to demand a right of way through the neighboring estates. Indeed,
in this case, the right of way is already established; it is only a matter of whether the
defendant has the right to close it or not.
Plaintiff maintains that defendant has no such right, because the easement is in
fact compulsory, being a legal one, under the last paragraph of Article 649, the
isolation of plaintiff not being due to any act of his own.
Article 650 also provides that the easement of RROW shall be at the point least
prejudicial to the servient estate. This is already the case with Road Lot 111-AA.
Moreover, this RROW is permanent.
Based on the foregoing, there is absolutely NO QUESTION whatsoever that Road
Lot 111-AA is a legal and permanent easement available for passage by the public, and
which CANNOT be closed by any party, except only by way of donation to the
government. Thus, defendants argument that he closed the road because of the
recent spate of thefts and robberies in the area, does not hold water. Neither does
his contention that, anyway, plaintiff has other means of access to the main highway,
through a passageway or a bridge. Nor his contention that the road had never been
used anyway.

Jurisprudence
The case of WOODRIDGE SCHOOL, INC. AND MIGUELA JIMENEZ-JAVIER, G.R.
No. 157285, February 16, 2007, is edifying. In said case, a subdivision owner
prevented a school from passing through its private road, arguing that the road is
a private subdivision road since it was never donated to the government, and that
further, the school had another access to the main road.
The Supreme Court very clearly resolved the issue, thus:
Since no donation has been made in favor of any local government and the
title to the road lot is still registered in the name of ARB, the disputed property
remains private.
This is not to say that ARB may readily exclude petitioners from passing
through the property. As correctly pointed out by the Court of Appeals, the
circumstances clearly make out a case of legal easement of right of way. It is an
easement which has been imposed by law and not by the parties and it has "for
(its) object either public use or the interest of private persons."[Emphasis ours.]

Finally, defendants citation of COSTABELLA CORPORATION V. CA, KATIPUNAN

LUMBER CO., INC, ET AL, (G.R. No. 80511 January 25, 1991) is misplaced.
In that case, the principal issue was whether or not the petitioner had acquired
an ancient right of way through prescription. Obviously, in that case, there was no
road lot to speak of, only an informal passageway, over which the petitioner now
claims, it had acquired a right of way by the mere passage of time. Hence, petitioner
prayed that a formal easement of right of way be now established in its favor.
In the case at bar, petitioner is not demanding for easement of right of way; he is
demanding for the enforcement of an existing right of way.

CONCLUSION
The facts as they are, and the present law as it is, dictate that the defendant
MUST open Road Lot 111-AA to the plaintiff and the nearby affected residents, and
that he KEEPS it open, without any restrictions.
RESPECTFULLY SUBMITTED.

Final Writing Assignment

The Case:

ABC Corporation, a commercial lessor, leased the 2nd and 3rd floors of
its building in downtown Cotabato City to XYZ Corporation, who used the
premises as a pension house. Under the contract, XYZ paid ABC a security
deposit of P1-Million to answer for unpaid rentals, bills and other damages
due to the lessor at the end of the lease, with the sole exception of those
caused by force majeure.

On August 5, 2014, a powerful bomb exploded in one of the rooms

on the 2nd floor, totally damaging the 1st and 2nd floors. The ensuing
investigation showed that two men checked into the pension house, one
carrying a black backpack the day before the explosion. The suspects were
never identified or charged.
Thereafter, XYZ demanded the return of its security deposit. ABC
refused claiming that the damage was caused by the inadequate security
system of XYZ, and hence, it was an act of man. XYZ on the other hand,
argued that the explosion is a terrorist attack, and hence, beyond its control
to prevent.

Final Writing Assignment

Salient Facts:

The Lease Contract states that the same will automatically terminate
once the premises are no longer tenantable.
XYZ has a contract with 999 Security Agency for a 24-hour security detail.
The bomb was assembled inside the pension house.
The pension house, room boy and a guard were injured in the blast.
It cost ABC P1-Million to repair the building.

Issue:

Whether or not XYZ is entitled to the return

of its security deposit.

Whether or not the explosion is a force majeure.

Notes
Submit on Wednesday, October 8
No extensions allowed
No more Final Exams