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Republic of the Philippines

REGIONAL TRIAL COURT


12th Judicial Region
Branch 02
Iligan City

AYEWKHO NGA Civil Case No. 0002


Plaintif
For: ANNULMENT
/CANCELLATION OF
TITLES, RECONVEYANCE
AND DAMAGES
versus

AYEW KEW and DELI KEW


Defendants

x----------------------------------------------x

MEMORANDUM
For the Plaintif

COMES NOW THE PLAINTIFF, through the


undersigned counsel, unto this Honorable Court most
respectfully submits and presents this Memorandum in
the above-titled case and aver that:

STATEMENT OF THE CASE

On June 19, 2017, plaintiff filed a Complaint for


Annulment/Cancellation of Titles, Reconveyance and
Damages against herein defendant.

On June 20, 2017, defendant received summons


issued by the Honorable Court to file an answer.

On June 24, 2017, defendant filed his answer


against the plaintiff.

On September 17, 2017, preliminary conference


was held in the presence of the plaintiff, defendant,
and their respective counsels.

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Accordingly, after presentation of evidences, the
Honorable Court ordered the parties to submit their
respective Memoranda fifteen days (15) days from
notice, otherwise, the case is deemed submitted for
decision.

STATEMENT OF FACTS

The plaintiff is the lawful purchaser of a lot with


Lot No. 45081 covered by Transfer Certificate of Title
No. 8372 situated in Purok 1, Barangay Tibanga, Iligan
City consisting of Two Thousand (2,000) square meters
by virtue of a Deed of Absolute Sale docketed as Doc.
No. 165; Page No. 40; Book No. VI, Series of 2014 in
the notarial book of Notary Public, Atty. Reen Dos.

The the said adverse claim was annotated over


Lot 45081 under entry no. 30456.

The previous owner, Mr. Ma-owt Kew died without


an issue on August 9, 2015 leaving his children, Ayew
Kew and Deli Kew as heirs.

It is a clear fact that before Mr. Ma-owt Kew died


on August 9, 2015, he executed a Deed of Absolute
Sale on December 29, 2014. By virtue of the subject
sale, plaintiff attempted for several times to get the
duplicate copy of the title for the eventual transfer to
his name however, defendants deliberately refused to
surrender the subject title;

That in order to protect plaintiffs rights and


interest over the subject property, an Affidavit of
Adverse Claim was filed at the Register of Deeds City
of Iligan subscribed before the notary public on March
15, 2016. The said adverse claim was annotated over
Lot 8372 under entry no. 30456;

The plaintiff was surprised when she received


information that defendants subdivided the subject
property without his knowledge and with prejudice on
his part who has rights and interest over the subject
property, worst, the transfer certificate of title subject
to the sale was cancelled and defendants Ayew Kew
and Deli Kew, both single were issued a Certificate of

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Title No. T-21382 on March 12, 2016. Plaintiffs
adverse claim is still carried over on the said title.

Defendants were issued a separate title, to wit: T-


21383 to Ayew Kew, and T-21384 to Deli Kew on June
16, 2016. Defendants continued to introduce
improvements on the subject lot belonged to the
plaintiff and collecting rental thereon despite plaintiff's
opposition. This prompted plaintiff to file a complaint
before the Office of the Lupong Tagapamayapa but it
failed.

The defendants contend that the consent of Ma-


owt Kew was obtained through fraud. Ma-owt Kew is
unable to read and this fact is known to the people who
knew him. Ma-owt Kew was led to believe that he was
entering into a contract of lease as evidenced by the
fact that the alleged consideration for the land was a
meager ten thousand pesos (Php 10,000.00) in the
Plaintiffs supposed Deed of Absolute Sale. Given that
Ma-owt Kews consent was obtained through fraud, the
plaintiff does not have any grounds whatsoever to
submit an Affidavit of Adverse Claim.

Moreover, the defendants posit are still the owner


of the land in dispute and has not yet transferred the
same to anyone. Therefore it was just right for them to
refuse the plaintiffs demand to have a duplicate copy
of the title for the eventual transfer to his name.
Defendants were issued a Certificate of Title No. T-
21382 on March 12, 2016. Eventually, defendants were
issued separate titles to wit: T- 21383 to Ayew Kew, and
T-21384 to Deli Kew on June 16, 2016.

STATEMENT OF ISSUES

1. Whether or not the plaintiff is the rightful owner of


the lot.
2. Whether or not the Certificates of Title issued to the
defendants be annulled.

ARGUMENTS

1. The sale entered into by Ma-owt Kew and the herein


plaintiff was valid as evidenced by a signed Deed of
Absolute Sale between the two parties.

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2. By virtue of such sale, a Certificate of Title evincing
the transfer of ownership from the seller to the
buyer is but fitting. However, due to the continued
refusal of the children of the seller, such transfer
was not effectuated as they claim that there was no
contract of sale that transpired between the parties.

3. The Deed of Absolute Sale speaks of the fact that


indeed there was a sale between the two parties and
the consideration thereof, although meager, stands
as a valid consideration of the same.

4. There was no fraud to speak of in the execution of


the said contract of sale because seller voluntarily
signed the Deed of Absolute Sale and was witnessed
by his wife at the time of the execution. As the
defendants claimed for his illiteracy, this is
immaterial because the Deed was explained to him
by his wife at the time of the execution and the
Acknowledgment Receipt was framed in the Visayan
language- a language known and understood by the
seller, Ma-owt Kew.

5. The continued refusal of the children of the seller,


herein defendants, is a clear depiction of bad faith
on their part.

6. The lawful ownership of the parcel of land, by virtue


of a Deed of Absolute Sale, belongs to the plaintiff
and the titles issued in favor of the defendants
should be outrightly be cancelled and annulled.

DISCUSSIONS

1. It is fitting to put an emphasis on the basic tenet of


contract of sale which puts into motion a transfer of
ownership of the object of the sale. Article 1458
provided that:

By the contract of sale, one of the contracting


parties obligates himself to transfer ownership of
and to deliver a determinate thing, and the other
to pay therefor a price certain in money or its
equivalent.

A contract of sale may be absolute or conditional.

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2. In the case of Sps. Vivencio Babasa and Elena
Cantos Babasa vs. CA, et.al. GR No. 124045, May 21,
1993, the Supreme Court held that a deed of absolute
sale is absolute in nature although denominated a
conditional sale absent such a stipulation. In such
cases, ownership of the thing sold passes to the vendee
upon the constructive or actual delivery thereof.

3. Needless to say, under our Civil Code, in


particular Article. 1470 provides that:

Gross inadequacy of price does not affect a


contract of sale, except as it may indicate a defect
in the consent or that the parties really intended a
donation or some other act or contract.

In ordinary sale, the sale remains valid even if the


price is very low. In the case at bar, the defendant
claimed that the meager amount of P 10, 000 was
mistakenly relied to by the deceased owner as
contract of lease and not of sale. This is bereft of
merit for the law expressed in Article 1470 is
clear and unambiguous in regards to this matter.

4. Because of the refusal on the part of the


defendants to surrender the title subject to the sale,
the same raises an issue that such possession is only
disputable presumption of ownership. Thus, the true
owner, herein plaintiff, has to resort to judicial process
to recover ownership of his property, only if the
possessor, herein defendants, does not want to
surrender the property to him, after request or
demand has been made as held in the case of Supia vs.
Quintero, 59 Phil. 312.

5. While it is true that the Certificate of Title once


issued is incontrovertible and indefeasible after a
period of 1 year from the entry of the decree of
registration in Land Registration Act, such period is
not yet applicable in the case at bar. The registration
made by the defendants was in March 12, 2016 and
June 16, 2016. The complaint was filed by the plaintiff
on June 19, 2017 which is within the 1-year period
where the same can question the validity of the title.

6. Moreover, the indefeasibility of the Certificate of


Title cannot be relied upon by any person if the

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acquisition and the registration thereof is attended by
fraud and bad faith. In this case, the defendant knew
from the very beginning that subject property was sold
by their deceased father as evidenced by a Deed of
Absolute Sale.

7. In the case of Esconde vs. Barlongay GR No. L-


67583, July 31, 1987, an caction for reconveyance does
not aim or purport to reopen the registration
proceedings and set aside the decree of registration
but only to show that the person who secured the
registration of the questioned property is not the real
owner thereof. The action, while respecting the decree
as incontrovertible, seeks to transfer or reconvey the
land from the registered owner to the rightful owner.

CONCLUSION

With the laws and jurisprudence presented, the


defendant, through his counsel believes that the
defendants claimed is groundless as there was no
fraud at the time of the execution of the deed of
absolute sale despite the meager consideration and
that the Transfer Certificate of Titles in favor of the
defendants should be annulled and cancelled and such
a reconveyance of the property be effected in favor of
the plaintiff.

PRAYER

WHEREFORE, premises considered, it is most


respectfully prayed that judgment be rendered:

1. Cancelling TCT No. T-21382 and TCT T-21383,


both in the name of Ayew Kew, and T- 21384 in the
name of Deli Kew;

2. To leave the premises including the improvements


made thereon;

3. To effect reconveyance of TCT No. 8372 in favor


of the plaintiff; and

4. Ordering defendants to pay attorneys fees in the


amount of P70,000, P2,500.00 per appearance and
10,000 as cost of the suit

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Plaintiff further pray for such other relief and remedies
deemed just and proper.

Iligan City, Philippines.

(SGD) ATTY. JUICY


WINTERMELON
Unit 1, XYZ Building, Quirino Ave.,
Iligan City
IBP NO. 854908, 12/02/17, Iligan
City
PTR NO. 3621460, 12/02/17, Iligan
City
ROLL ATTORNEY NO. 32747
MCLE Comp. No. IV-0004785,
1/2/17

EXPLANATION

In compliance with Section 11, Rule 13 of the Revised


Rules of Court, personal service of copy of Trial
Memorandum could not be effected except by service
through registered mail due to distance and personnel
constraints.

ATTY. JUICY WINTERMELON

Copy Furnished:

ATTY. HAKUNA MATATA


Counsel for the Defendants,
Iligan City

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