Republic of the Philippines

REGIONAL TRIAL COURT

Branch 60
First Judicial Region
Baguio City

LOURDES BAYENG, herein Civil Case No. 8812-R

represented by STEVE BAYENG,
Plaintiff, For:

-versus- ACCION REINDIVICATORA,

with PRAYER for the ISSUANCE
MARCIAL AKIA & SHERIFF of TEMPORARY RESTRAINING
PATRICK ANDREW D. ORDER, PRELIMINARY
PUTIYON, INJUNCTION and DAMAGES
Defendants.
x-------------------------------------------
--x

DECISION
“Law is the most historically oriented, or if you like the most
backward-looking, the most ‘past-dependent,’ of the professions. It
venerates tradition, precedent, pedigree, ritual, custom, ancient
practices, ancient texts, archaic terminology, maturity, wisdom,
seniority, gerontocracy, and interpretation conceived of as a method of
recovering history. It is suspicious of innovation, discontinuities,
‘paradigm shifts,’ and the energy and brashness of youth. These
ingrained attitudes are obstacles to anyone who wants to re-orient law
in a more pragmatic direction. But, by the same token, pragmatic
jurisprudence must come to terms with history” -Friedrich Nietzsche.

Preliminary Statements:

It is said that justice is at the heart of a democratic society. It means

laws should apply equally to all, and that everyone should have the right to a
fair trial and the courts should not only be courts of law but courts of justice,
equity and fair play. In the determination of his civil rights and obligation,
everyone is entitled to a fair and public hearing within a reasonable time by
any independent and impartial tribunal established by law.

The Antecedents:

Plaintiff Lourdes Bayeng, herein represented by Steve Bayeng

(Bayeng) filed his COMPLAINT for ACCION REINDIVICATORA, with
prayer for the issuance of Temporary Restraining Order, Preliminary
Injunction and Damages against MARCIAL AKIA (Akia) and SHERIFF
ANDREW D PUTIYON (Putiyun) on 01 December 2016. 1

1 DECISION
Civil Case No. 8812-12
 Summons was then served to the defendants requiring them to answer
the complaint. DEFENDANTS filed their ANSWER thereto on 10 February
2017, alleging therein special and affirmative defenses.

The case was originally raffled with the RTC Branch 5 which issued
the Order dated 9 December 2016 stating that the application for the
issuance of the Temporary Restraining Order and Preliminary Injunction are
deemed withdrawn because of the undertaking by the defendant to maintain
status quo.

There being no settlement of the case reached by the parties during the
proceedings before the Philippine Mediation Center (PMC) and Judicial
Dispute Resolution, the case was re-raffled before this court.

The pre-trial conference was scheduled and on October 04, 2017 after
which, the court issued the Pre-trial Order stating the issues for resolution.

The plaintiff and defendant submitted their respective memorandum

after the trial of this case.

Hence, this DECISION.

The Original Complaint (Forcible Entry, Civil Case no. 13067)

On September 3, 2007,the Heirs of Rufito Akia filed a case of

Forcible Entry (Civil Case No. 13067) against herein Plaintiff, defendant in
Civil Case No. 13067. The complaint in that forcible entry case alleged that
sometimes in September 2006, Lourdes Bayeng, through force, stealth, and
strategy, entered and started to occupy portions of the land covered by
Certificate of Ancestral Claim No. CAR-CALC-OO41, specifically the
whole of Lot 3 and the Southern Portion of Lot 2 with the total area of more
or less One (1) Hectare. Accordingly, Rufito Akia was issued Certificate of
Ancestral Land Claim No. CAR-CALC. After Rufito’s demise on
September 3, 2003, his heirs, the herein defendant Akia remained in
possession of said parcel of land, utilizing the same as vegetable garden and
introducing thereon additional ripraps and stone walls and stonewalls.

However, their possession was disturbed sometime in the third week

of September 2006 when now plaintiff Bayeng, through force, stealth, and
strategy, entered and started to occupy portions of the land, specifically the
whole of the lot 3 and the southern portion of Lot 2 or a total area of one (1)
hectare, more or less. Now defendant demanded from plaintiff Bayeng to
vacate their land but to no avail. They even sought the assistance of
barangay authorities, however, no amicable settlement was reached.

2 DECISION
Civil Case No. 8812-12
 In her answer in the forcible entry case, Bayeng countered that now
defendant Akia have no cause of action against her considering that the
property that she is occupying is outside the area claimed by Rufito. She has
applied for Recognition of Ancestral claim over the premises that she is
occupying and such application was given due course per DENR Baguio
City Resolution No. BC-021F. Furthermore, there is no forcible entry to
speak of as her occupation of the subject land began a long time ago and
with Rufito’s knowledge.

The forcible entry case was then referred to the Philippine Mediation
Center (PMC). There, the parties agreed to conduct a joint relocation survey,
but the said survey was not completed within the timeframe for the court
annexed-mediation. Thus, the PMC reported that the mediation failed and it
was only on August 7, 2008 that the DENR submitted to the court the joint
relocation survey result. The result showed that a portion of the vegetable
garden of Bayeng is inside the land claimed by the defendant. Said survey
was signed by Aliver E. Mangonon, Geodetic Engineer Akia and Davis L.
Siao, CENRO-Baguio City Representative. However, plaintiff’s
representative, Geodetic Engineer Agustin N. Pisilen, refused to sign the
survey result. After hearing the case for forcible entry, Branch 2 of the
Municipal Trial Court in Cities (MTCC) rendered a decision, the dispositive
portion of which reads as follows:

“WHEREFORE, the instant complaint is granted in part.

Defendant Lourdes Bayeng, her assign, representative and all person
deriving right from her, are ordered to vacate the premises subject of
the civil case, that is Lot 2 and 3, Swo-131102-000451, covered by the
Certificate of Ancestral Land Claim No. CAR-CALC-0041 and
surrender the same to the plaintiffs, Heirs of Rufito Akia, their assigns,
representatives or other person deriving right from them. Defendant
shall pay plaintiff P5,000.00 as attorney fees and the cost of suit. There
is no award on the reasonable compensation of the subject premises.
Defendant’s counterclaim is dismissed.”1

On October 17, 2008, Ms. Bayeng filed her Notice of Appeal,

appealing the decision to the Regional Trial Court. She contended that she
was denied due process since she was not given opportunity to seek
reconsideration of the Municipal Trial Court of Cities (MTCC) order
submitting the case for resolution. She further contended that that the MTCC
should not have relied on the joint relocation survey since her representative,
Engr. Pisilen, refused to sign the same on the ground that it did not reflect
the true results of the relocation survey. Ms. Bayeng also reiterated that her
possession thereof dates back years prior to filling of the complaint. Hence,
a forcible entry is not the proper remedy.

1
MTCC Decision, Case Record

3 DECISION
Civil Case No. 8812-12
 On March 24, 2009, the RTC affirmed in toto the MTCC’s decision in
the forcible entry case. After the scrutiny of the records, the RTC said it
finds no reason to depart from the factual finding of the MTCC stating that
the DENR would not have issued to Rufito said certificate of ancestral land
claim if he was not in physical possession of the subject lot since time
immemorial.

The decision in the forcible entry case was further elevated to the
Court of Appeals, but on March 08, 2011, the Court of Appeals denied Ms.
Bayeng’s petition for review. The RTC’s decision was hereby affirmed. On
December 14, 2012, MTCC - Branch 2 presided by Hon. Judge Glenda T.
Soriano issued a Writ of Execution commanding the sheriff (herein
defendant Andrew Putiyon) to cause the execution of the aforesaid decision
and collect his fees for the service of the writ and to likewise submit a report
of the proceedings taken. Due to financial constraint, Marcial Akia, herein
defendant was able to have the said Writ of Execution be implemented only
on November 7, 2016. However, plaintiff resisted the lawful implementation
of the said Writ of Execution in Civil Case no. 13067.

The Pre-Trial Conference:

As to the issue for resolution, herein plaintiff and defendants, through

their respective counsels, agreed and stipulated on the following inter-related
issues:

1. Whether or not the Writ of Execution may be enforced;

2. Whether or not the plaintiff can recover ownership and possession
of the subject land;
3. Whether or not the monuments set by the defendants were on the
land of the plaintiff; and
4. As between the parties, who is entitled to her claim for damages.

The Trial

Plaintiff Steve Bayeng presented and offered the following evidence

to prove ownership of the subject land:

Documentary evidence:
1. Approved Survey Plan Swo-131102-000352 in the of Lourdes Bayeng
(Exhibit “B”);
2. Tax Declaration ARP No. 01-03001-008520 in the name of Lourdes
Bayeng (Exhibit “C”); and
3. Agreement dated September 27, 1995 (Exhibit “H”).

Testimonial Evidence:

4 DECISION
Civil Case No. 8812-12
 1. Testimony of Steve Bayeng; and
2. Engr. Armando Banagen.

For the Defendant Marcial Akia, he submitted the following

documentary and testimonial evidence, among others:

1. Decision of Baguio City, MTCC-2 decision dated September 28,

2008 (Exhibit “I”);
2. Decision of Baguio City, RTC Branch 60 dated March 24, 2009
(Exhibit “10”);
3. Blue Print copy of the Approved Plan Swo.-131102-000451 of
Rufito Akia (Exhibit “3”);
4. Certificate of Ancestral Claim no. CAR-CALC-0041 issued in the
name of Rufito Akia, Sr. (Exhibit “4”);
5. Certificate Ancestral Land Titles (CALT) nos. CAR-BAG-12-03-
0035 (Exhibit “5”);
6. Survey Plan (Exhibit 7);
7. Testimony of Marcial Akia;

THE RESOLUTION OF THE COURT

After careful evaluation and consideration of the facts and

circumstances surrounding these case, and more convincingly the evidence
presented, this court holds that Rufito Akia and his heirs have better proof of
ownership over the subject parcel of land. Thus, this court finds no reason to
disturb the decision rendered by the MTCC, Branch 2, Baguio City in the
Civil Case no. 13067.

The main question to be resolved in this case is who between the

parties have a better proof of and right of ownership over the subject parcel
of land. Both contending parties claim they have superior right over the
disputed land.

1.
Whether or not the Writ of Execution may be enforced

The decision of the Court of Appeals was promulgated On March 08,

2011 and on December 14, 2012, MTCC-2 presided by Hon. Judge Glenda
T. Soriano, issued a Writ of Execution commanding the sheriff (herein
defendant Andrew Putiyon) to cause the execution of the aforesaid decision
and collect his fees for the service of the writ and to likewise submit a report
of the proceedings taken.

Marcial Akia, herein defendant, was able to have the said Writ of
Execution be implemented only on November 7, 2016.However, plaintiff
resisted the lawful implementation of the said Writ of Execution in Civil
Case no. 13067. The lifetime of the writ shall continue in effect during the

5 DECISION
Civil Case No. 8812-12
period within which the judgment may be enforced by motion, hence the
writ is enforceable within the five- year period from entry of judgment as
provided for in Sec. 6 of Rule 39 of the Rules of Court because within that
period, the writ may be enforced by motion.

Section 6, Rule 39, Rules of Court, provides that:

Sec. 6. Execution by motion or by independent action.

A final and executory judgment or order may be executed on

motion within five (5) years from the date of its entry. After the lapse of
such time, and before it is barred by the statute of limitations, a
judgment may be enforced by action. The revived judgment may also
be enforced by motion within five (5) years from the date of its entry
and thereafter by action before it is barred by the statute of limitations.

There are two modes of executing a final and executory

judgement, to wit:

a. Execution by motion if the enforcement of the judgment is

sought within five years from the date of its entry; and
b. Execution by independent action if the five-year period has
elapsed and before it is barred by the statute of limitations (Sec.
6, Rule 39, and Rules of Court).

In the instant case, the Decision in the ejectment case (Civil Case
No. 13067) became final and executory with the finality of the Court of
Appeals Decision affirming the same on March 08, 2011. Marcial Akia
moved for the issuance of a Writ of Execution, which was heard on
December 03, 2012 and granted on December 14, 2012. So there was
already a Writ of Execution as early as December 14, 2012. The pivotal
issue therein is whether the decision is implemented and executed only
after the five-year period.

The rule is that the court could issue a writ of execution by motion
within five years from finality of the decision. A writ of execution issued
after the expiration of that period is null and void. There is a need for the
interested party to file an independent action for revival of judgment.
The reason is that after the lapse of the five-year period, the judgment is
reduced to a mere right of action, which judgment must be enforced, as
all ordinary action by institution of a complaint in the regular form. Such
action must be filed within 10 years from the date the judgment became
final2. There was already a Writ of Execution issued by the MTCC-2 as
early as December 14, 2012 so the only thing left is to implement said
Decision. Defendant Akia tried to have the Writ of Execution actually
enforced only on November 07, 2016 or after four years from issuance of
said writ.
2
Terry vs. People, G.R. No. 136203, 314 SCRA 669

6 DECISION
Civil Case No. 8812-12
 It was held that if the writ of execution was issued and the levy
made within five years from entry of the judgment, the auction sale may
be made even after five (5) years3.

While the rule is that the execution of a judgment can no longer be

effected by mere motion after five years from the date of entry of the
judgment, the court in certain instances allowed execution of the
judgment by mere motion despite the lapse of five-year timeline. In
many instances the delays in the execution of the judgment were through
causes clearly attributable to the judgment debtor as when he employs
legal maneuvers to block the enforcement of the judgment. 4Delays
attributable to the defendant have the effect of suspending the running of
the prescriptive period for the enforcement of the judgment.5

Plaintiff filed on May 26, 2014 a Motion for Clarification as to

what particular portion thereof to be vacated by her, this motion stayed
the implementation of the execution, hence the execution cannot be
implemented because the plaintiff filed said motion challenging the
assailed judgment.

It has been held that in computing the time limit for enforcing a
final judgment, the time during which the execution is stayed should be
excluded, and the said time will be extended by any delay occasioned by
the debtor as when the writ of execution cannot be enforced within the
five year period because the debtor filed petitions in the Court of Appeal
and in the Supreme Court challenging the trial court’s judgment as well
as the writ of execution. Such petition suspended or interrupted the
further enforcement of a writ.6

Consequently, the five-year period had not lapsed when the

defendant tried to implement the writ of execution because the five-year
period stayed when the plaintiff a filed a Motion for Clarification on
May 26, 2014 to determine as to what particular portion thereof to be
vacated by her. This motion stayed the implementation of the Decision
because the defendant cannot fully implement the writ of execution
while waiting for the resolution of the Motion for Clarification. Such
delay is attributable to herein plaintiff and even as the defendant was
able to secure a writ of execution as early December 14, 2012.

There are instances where the court allowed execution by motion

even after the lapse of five years upon meritorious grounds. These
exemption have one common denominator, and that is, the delay is

3
Vda. De Quiambao vs. Manila Motor Co. G.R. No. L-17384, (SCRA 444, 450)
4
Camacho vs. CA, GR. NO 118339 ( 287 SCRA 611)
5
Republic vs. CA,G.R. No. 110020 (260 SCRA 344)

6
Yau vs. Silverio and Macapagal vs. Gako, GR NO. 158848 ( 543 SCRA 520, 529)

7 DECISION
Civil Case No. 8812-12
caused or occasioned by action of the judgment debtor and/or is incurred
for his benefit or advantage. 7

It is well to state, in the light of the factual background of this

case, that:

“xxx. Laches is the “failure of or neglect for an unreasonable and

unexplained length of time to do that which by exercising due
diligence, could or should have been done earlier, or to assert a
right within reasonable time, warranting a presumption that the
party entitled thereto has either abandoned it or declined to assert
it.”

Fundamentally, “laches is an equitable doctrine; its application

is controlled by equitable consideration.”

The Hon. Supreme Court pronounced countless times:

Concomitantly, it is better rule that courts, under the

principle of equity, will not be guided or bound strictly by the
statute of limitations or the doctrine of laches, when to do so,
manifest wrong or injustice would result.

At the mercy of being repetitious, this court states: First, it is

undeniable that defendant Akia was long time ago declared the equitable
owner of Lot 2 and Lot 3, SWO-131102-00451, covered by Certificate of
Ancestral Land Claim No. CAR-CALC-0041 by virtue of that final and
executory DECISION of the 2nd MCTC in that Forcible Entry Case (Civil
Case No. 6802-R).

It is acknowledged that while a Writ of Execution was issued by the

nd
2 MCTC supposedly to implement the March 8, 2011 Court of Appeals
Decision and to place herein defendant in possession of Lot 2 and Lot 3,
SWO-131102-00451, he was not placed in actual control and physical
possession of said lot.

It is also undisputed that in his attempt to take possession of Lot 2 and

Lot 3, SWO-131102-00451 after he was declared the equitable owner of the
same, defendant never slept on his rights. He continuously pursued legal
actions and remedies to be placed in actual physical possession and control
of what is rightfully him.

The life of the law is to render justice, so the Hon. Supreme Court
said. After defendant failed to get justice after failure of the Court Sheriff to
fully implement the Writ of Execution dated December 14, 2012, this court,
abiding with the principle that courts are courts of equity, justice and
7
(Republic vs. Court of Appeals,; Rizal Commercial Banking Corporation vs. Serra, G.R. No. 203241 July 10, 2013)

8 DECISION
Civil Case No. 8812-12
fairness, and taking the extra mile to exercise equity jurisdiction, will give
him one in this case. To allow this case and await another legal action by
defendant Akia, or for him to file separate action to revive the judgment
which is aimed to get the same result, is injustice, plain and simple.

In Villamor vs. Heirs of Tolang, the Hon. Supreme Court, citing

another relevant case, pronounced:

“xxx. It is, thus, sad to note that until now, the decision in this case
which become final way back on June 24, 1985, is yet to be properly
executed even as the original prevailing parties had already passed to
the great beyond without seeing the dawn of their toils and efforts, all
because of petitioners frivolous maneuvers, fair or foul. x x x”

So it is that in Rovels Enterprises, Inc. vs. Ocampo, we stressed:

“Every litigation must come to an end once a judgment becomes

final, executory and unappeasable. This is a fundamental and
immutable legal principle. For just as a losing party has the right to
file an appeal within the prescribed period, the winning party also has
the correlative right to enjoy the finality of the resolution of his case by
the execution and satisfaction of the judgment, which is the life of the
law. Any attempt to thwart this rigid rule and deny the prevailing
litigant his right to savor the fruit of his victory, must immediately is
struck down. xxx.”

2.
The issue of ownership and possession of the subject land.

The matter of prior possession was already settled with finality in the
Decision of the Court of Appeals dated March 08, 2011.

Let us consider the discussions of this court(Regional Trial Court,

Branch 60) in its Decision in the Ejectment case (Heirs of Rufino Akia vs.
Lourdes Bayeng) rendered on March 24, 2009, upon which the plaintiff
supposedly contend that said decision is barred by prescription.

This court (RTC Branch-60), stated in its Decision in that Ejectment

case:

“xxx. The appellant insisted that there is no encroachment as far as the

property claimed by the appellees is concerned to warrant the finding of
the lower court that there is forcible entry. The memorandum of the
Technical Action Officer of Special Reform Council, DENR addressed to
DENR Secretary, particularly paragraph 10, shows that there is no
encroachment as it states, “it can be gleaned that there is no overlapping
of ancestral claims”. Furthermore, a certification dated May 07, 1998
(Attached as Annex “B” of the memorandum of the defendant) issued by

9 DECISION
Civil Case No. 8812-12
 CENRO and Chairman, CSTFAL of the DENR states that there is no
overlapping. xxx.8

“xxx. Plaintiff explained that when the Joint Relocation Survey

Committer conducted the survey, the defendant and her representative
Engr. Agustin Pisilen were present. It was the duty of the defendant to
make objection if she has knowledge of any during the survey. After the
survey is conducted and the committee submitted his report to the
lower court, the defendant is already stopped from denying the
legitimacy of the result of the joint relocation survey. The DENR report
on the joint relocation survey absent any clear and direct evidence to
the contrary enjoys the presumption of validity and regularity. The
absence of Engr. Pisilen’s signature in the report and plan does not
render the results voidable or questionable. Engr. Pisilen does not
deny his participation. He was just complaining because his proposed
use of battle grass tree as common point was not utilized. The survey
team used Corner 2 of PSU 34151 because the fact the monument is
proven to be stable, reliable and undisturbed, being a common corner
of the three (3) approved surveys. The plaintiff submitted that
defendant failed to adduce evidence to show that the DENR report did
not reflect the genuine result of joint relocation survey… xxx. 9

“xxx. The court does not see error on the lower court in relying in the
assailed DENR report. The purpose of having a committee of surveyor
is to see to it that each of the parties is represented. The respective
parties are entitled to give their own choice of surveyor to ensure that
their rights are better protected by those who are experts and well-
learned in the field of surveying. The court does not see any prejudice
created against the defendant by the substitution of Engr. Begano.
Whether or not Engr. Begano or Engr. Mangonon or any other
geodetic engineer will represent the plaintiff, the surveyor appointed
will always act for the interest of the plaintiffs. Stated in another
manner, the engineer representing the plaintiff will always act in their
favor and against the interest of the defendant. The choice on who will
represent the plaintiffs in the survey belongs to the plaintiff alone. It is
their discretion to change their engineer as they deem it fit to protect
their interest. The same applies to the defendant. In fact one of the
reason why Engr. Pisilen did not sign the survey report is because
portion of the vegetable garden of Lourdes Bayeng will fall within the
claim of Rufito Akia, therefore detrimental to his client’s interest. Even
if it was Engr. Begano who represented the plaintiff, his suggestion
would not differ from that of Engr. Mangonon, since both Engr.
Begano and Mangonon surveyed the Akia properties in September
1999 as stated in letter of the former (Annex “B” of the plaintiff
memorandum), there is a great probability of using the same common
point-Corner 2 of PSU-34151 rather than the battle grass (Corner 17
of Bayeng).”10

8. Regional Trial Court Decision dated March 24, 2009

9Regional Trial Court Decision dated March 24, 2009

10Regional Trial Court Decision dated March 24, 2009

10 DECISION
Civil Case No. 8812-12
 “xxx. What affirms the validity of the contested survey report is the
approval of Engr. Davis L. Siao, the committee chairman and
representative from the DENR-CAR, CENRO. The purpose of having a
surveyor from the government as a Survey Committee chairman is to
ensure that the survey would be conducted in accordance with
established laws, rules, and regulation. Likewise, the government
surveyors’ presence in committee would ensure that one member would
not be unbiased to the respective interest of the opposing parties. By
attaching his signature to the said survey report, he attests and affirms
the truthfulness and correctness of the survey conducted. Absent any
clear and convincing evidence that Engr. Siao acted with bias and
prejudice towards one party, the prima facie presumption is that he
performed his governmental function with regularity xxx”. 11

The CA likewise affirmed said joint relocation survey result in its

Decision on March 8, 2011, thus:

“xxx. The joint relocation survey report sufficiently established that

petitioner’s vegetable garden encroached on portion of lot 2 and 3 of
respondent. She cannot feign ignorance in the result of the joint
relocation survey as records show that her representative Engr. Pisilen
was present during the survey. The Survey’s credibility cannot be
destroyed merely on account of Engr. Pisilen’s refusal to sign it.
Notably, the third member of the survey team, Engr. Davis L. Siao of
CENRO-Baguio City was an impartial surveyor.”xxx 12

Very clear are the foregoing discussions that herein plaintiff are in bad
faith in her possession of subject Lots 2 and 3, SWO 131102-00451, from
the time they were made very aware of the finality of the 08 March 2011
DECISION in the FORCIBLE ENTRY case. The plaintiff cannot now
invoke prescription to convert her possession in bad faith to good faith,
especially so that defendant Akia never stopped availing of legal remedies to
oust her from their possession in bad faith.

To reiterate, Lourdes Bayeng appealed the Decision of the MTCC,

Branch 2 to the Regional Trial Court of Baguio City. In its Decision dated
March 24, 2009, the RTC affirmed in toto the assailed decision of MTCC.
Not satisfied, she went to the Court of Appeals to seek nullification of the
RTC decision. In its Decision dated March 08, 2011, the CA denied the
petition of Ms. Bayeng and affirmed the questioned RTC decision. With that
alone, the fact of prior possession and ownership was decided already in
favor of Rufito Akia because Lourdes Bayeng failed to appeal the adverse
decision to the Supreme Court.

It is well settled rule that “a certificate of title serves as evidence of

an indivisible and incontrovertible title to the property in favor of the person
whose name appears therein.13The certificate of title thus becomes the best
11Ibid

12
Ibid
13
Court of Appeal decision dated March 08, 2011.

11 DECISION
Civil Case No. 8812-12
proof ownership of a parcel of land.14Hence, anyone who deals with property
registered under the torrens system may rely on the title and need no go
beyond it. It goes without saying that, absence of proof of title over the
subject land is fatal to the cause of the plaintiff.

Without a title over the subject land, plaintiff cannot claim ownership
over it. Prior ownership belongs to the defendant Akia, thus he can claim
possession and ownership.

3.
Whether or not the monuments set by the defendant were
on the land of the plaintiff.

The plaintiff claimed that the defendant set monuments on her

property.

The Transcript of Stenographic Notes (TSN) of the testimony of

defendant Marcial Akia15during the cross-examination, thus:

“x x x -
ATTY TADEO:
Q: Okay, in short, where you placed the monuments is inside your
property.
A: Yes.

Q: And not inside the property of Lourdes Bayeng?

A: Yes.

Q: Are you sure of that?

A: I am sure because this portion is our lot. We are supposed to start
putting monuments.

Q: You are sure you did not place four monuments?

A: We put maybe three (3).

Q: Why do you have to place monument when the survey plan is

correctly identified already with concrete monument even.
A: So that we will know the boundaries. x x x”

Engr. Armando Banagen testified for the plaintiff, thus:

“xxx -
11.
Q: What processes did you undertake in verifying her property’s
boundaries and assessing whether defendant Marcial Akia
encroached the property of Lourdes Bayeng?
A: I conducted with my men an actual survey over the land of
Bayeng using as reference documents the approved survey plan

14
Federated Realty Corporation vs. Court of Appeal, G. R. no 127967”), Halili vs. Court of Industrial Relations, G.R. No.
24864),
15
Transcript of Stenographic Notes (TSN) of the testimony of defendant Marcial Akia.

12 DECISION
Civil Case No. 8812-12
 of Uyano Lucas who is the adjacent property owner of Rufito
Akia.
12.
Q: I am showing you Exhibit “B” and “F” can you tell me what are
these?
A: These are the survey plans of Bayeng (referring to Exhibit “B”)
and of Akia (referring to Exhibit “F”) which was some of the
references I used in surveying the lot of Lourdes Bayeng.

13.
Q: What did you do after you surveyed the property of Lourdes
Bayeng, if any?
A: I prepared a sketch plan showing the boundaries, new concrete
monuments and improvements as seen on the property of Lourdes
Bayeng.

14.
Q: When did you prepare the sketch plan you just mentioned?
A: I prepared it on November 18, 2016.

15.
Q: I am showing you Exhibit “M” is this sketch plan you are referring
to?
A: Yes, sir. That is the sketch plan I prepared for Lourdes Bayeng.

16.
Q: As result of your survey, were there any concrete monuments of
Marcial Akia that sat inside and outside the property of Lourdes
Bayeng, if any?

x xx”

19.
Q: After surveying the property of Lourdes Bayeng what is your
assessment, if any?
A: My assessment based on the two approved survey plan which I
used that resulted to the sketch plan I prepared in 2016 shows
that Marcial Akia encroached and went beyond his actual
property when he placed a six concrete monuments inside
Lourdes Bayeng’s lot.

20.
Q: Where are these concrete monuments seated?
A: They are seated inside the lot of Lourdes Bayeng outside of Lots 2
and 3 of the Survey Plan of Rufito Akia. x xx”

This court notes that the survey plan prepared by Engr. Banagen was
done at the instance of Lourdes Bayeng without informing the Heirs of
Uyano Lucas and Heirs of Rufito Akia.

On cross-examination, Engr. Banagen testified, thus:

“ATTY LIMOS:
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Civil Case No. 8812-12
 Q: So you will agree to me that this was not a relocation survey?
A: No, because relocation survey means there should be a surveyor
of the other.

Q: Now this survey that you conducted was commissioned by

Lourdes Bayeng, correct?16
A: Yes, Sir.

Q: It was not commissioned by the heirs of Uyano Lucas, correct?

A: Yes, Sir.

Q: It was not also commissioned by the heirs of Rufito Akia, correct?

A: Yes.

Q: Because this was merely upon the instance of Lourdes Bayeng,

you did not inform the heirs of Uyano Lucas about the survey?
A: No.

Q: You did not also inform the heirs of Rufito Akia about the survey?
A: No.
xxx
Q: As a seasoned geodetic engineer, you will agree with me that the
result of your survey cannot bind the heirs of Uyano Lucas?
A: It doesn’t because the boundaries are existing already.

Q: Also because Uyano Lucas did not commission this survey,

correct?
A: Yes.

Q: You will agree with me that the result of said survey cannot bind
the Heirs of Rufito Akia, correct?
A: Yes.19 x x x”

A careful perusal of the testimonies would show that the survey

conducted by Engr. Banagen would not bind the parties because the said
survey was done after the judgment of the Court of Appeal was final and
executory hence bereft of probative value. In fact, even the surveyor Engr.
Banagen admitted when he testified that the survey conducted by him does
not bind the heirs of Akia. On the other hand, the joint relocation survey conducted
has been held by the courts as accurate.

4.
On the Award of Damages

A person’s right to litigate should not be penalized by holding him

liable for damages. This is especially true when the filing of the case (like in
this case) is to enforce what one believes to be his rightful claim against
another although found to be erroneous.17
16
Transcript of Stenographic Notes (TSN) of the testimony of Engr. Banagen.

17
J Marketing Corporation v. Felicidad Sia, Jr., G.R. No. 127823, January 29, 1998.

14 DECISION
Civil Case No. 8812-12
 As for exemplary damages, particularly, claimed by the parties,
Article 2229 of the Civil Code thus provides that “exemplary or corrective
damages are imposed, by way of example or correction for the public good,
in addition to the moral, temperate, liquidated or compensatory damages.”

Thus, in the pronouncement the Supreme Court in Mendoza v.

Spouses Gomez,18the conditions when exemplary damages may be awarded
are: First, they may be imposed by way of example or correction only in
addition, among others, to compensatory damages, and cannot be recovered
as a matter of right, their determination depending upon the amount of
compensatory damages that may be awarded to the claimant. Second, the
claimant must first establish his right to moral, temperate, liquidated or
compensatory damages. Third, the wrongful act must be accompanied by
bad faith, and the award would be allowed only if the guilty party acted in a
wanton fraudulent, reckless, oppressive or malevolent manner.

Given the determination of this court that the allegation of plaintiff

Bayeng that defendant encroached her property was not sufficiently
established, this court finds no basis as to award exemplary damages to the
latter.

Attorney’s Fees

Both parties in this case now claim for attorney’s fees against the
other, grounded on their being compelled to litigate. In relation thereto, Art.
2208 of the Civil Code pertinently states:

In the absence of stipulation, attorney’s fees and expenses of

litigation, other than judicial costs, cannot be recovered, except:
xxx

“(11) in any other case where the court deems it just and equitable that
attorney’s fee and expenses of litigation should be recovered. x x x”

It has been said by the Hon. Supreme Court that it is not a sound
policy to set a premium on the right to litigate. The court may award
attorney’s fees only in the instances mentioned in Article 2208 of the Civil
Code. The award of attorney’s fees is the exception rather than the rule.

The institution, however, of the Accion Reindivicatoria by Lourdes

Bayeng is predicated upon her belief that she is the owner of the disputed
land despite the finality of the decision of the MTCC, Branch 2, thus causing
the defendant to engage the services of a counsel in order to protect his
rights.

18
G.R. No. 160110, June 18, 2011

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Civil Case No. 8812-12
 WHEREFORE, in the light of all the premises, judgment is hereby
rendered, as follows:

1. Declaring defendant as the true and lawful owner and possessor of Lots
2 and 3, SWO-131102-00451 covered by certificate of Ancestral Land
Claim No. CAR-CALC-0041 situated at Asin, Road, Baguio City, thus
reiterating or affirming the final and executory DECISION of the MCTC,
Branch 2 rendered on September 26, 2008 in Civil Case No.13067, for
Ejectment Case, entitled “ Heirs of Rufito Akia vs. Lourdes Bayeng”;

2. Declaring defendant Marcial Akia entitled to immediate actual physical

possession of Lots 2 and 3, SWO-131102-00451 covered by certificate of
Ancestral Land Claim No. CAR-CALC-0041 situated at Asin Road, Baguio
City;

3. Directing the entire plaintiff and their predecessor-in-interest, or anyone

acting in their behalf, to immediately vacate the premises of the land in
question, which are Lots 2 and 3, SWO-131102-00451 covered by certificate
of Ancestral Land Claim No. CAR-CALC-0041 situated at Asin Road,
Baguio City, and further directing them to immediately cease and desist
from cultivating any portion thereof; and

4. Directing the plaintiff to pay to defendant Marcial Akia One Hundred

Thousand Pesos (Php100,000.00) as attorney’s fee, and further directing the
plaintiff to pay the defendant Marcial Akia Twenty Five Thousand pesos
(Php25,000.00) as exemplary damages.

There is no pronouncement as to costs.

Furnish copies of this DECISION to all the parties and their

respective counsels.

IT IS SO ORDERED.

DONE IN CHAMBERS, this 26th day of October 2019 at Baguio

City.

RUFUS GAYO MALECDAN, JR.

Presiding Judge

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