REPUBLIC OF THE PHILIPPINES

SUPREME COURT
FIRST DIVISION
MANILA

RODA B. TOLENTINO, G.R. NO. 261226

Petitioner,

-versus-

FRANCISCO GODINEZ
And PATTERSON Y. NGO,
Respondents.
x……………………………..x

VERY RESPECTFUL COMMENT

AND VIGOROUS OPPOSITION
TO THE PETITION

RESPONDENT PATTERSON Y. NGO, by and through counsel, and to

this Honorable Supreme Court, by way of Comment, most respectfully states:

PREFATORY

It is a most basic and elementary rule that a Petition for Review on Certiorari
under Rule 45 is not a matter of right for the Petitioner but essentially
discretionary on the part of the High Court.

Petitioner and alleged Third-Party Claimant, RODA B. TOLENTINO, has

not shown any shred of special reason at all to engender a review by this

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Honorable Supreme Court of the Honorable Court of Appeals’ Decision sustaining
the judgment of RTC Paranaque as well as its subsequent Resolution denying the
Motion for Reconsideration in CA GR SP. NO. 159644.

Thusly:

Section 6. Review discretionary. - A

review is not a matter of right, but of sound
judicial discretion, and will be granted only
when there are special and important reasons
therefor. The following, while neither
controlling nor fully measuring the court’s
discretion, indicate the character of the
reasons which will be considered:

(a) When the court a quo has

decided a question of
substance, not theretofore
determined by the Supreme
Court, or has decided it in a
way probably not in accord
with law or with the
applicable decisions of the
Supreme Court; or

(b) When the court a quo has so

far departed from the
accepted and usual course
of judicial proceedings, or
so far sanctioned such
departure by a lower court,

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 as to call for an exercise of
the power of supervision.
(4a)1

The assailed Decision of the Honorable Court of Appeals sought to be

reviewed contains the following disposition:

“WHEREFORE, in CA G.R. CV No.

11257, the trial court’s Decision dated
November 29, 2018 is AFFIRMED. In CA
G.R. SP No. 159644, the Petition is
DENIED for lack of merit.”

“SO ORDERED.”

Too, the assailed Resolution of the Honorable Court of Appeals wrote finis
to the Motion For Reconsideration with the following decretal portion:

“WHEREFORE, the motion for

reconsideration, is denied for lack of merit.

“SO ORDERED.”

In fine, Petitioner cannot now insist that the foregoing twin dispositions of
the Honorable Court of Appeals, made the subjects of the instant Petition for

1
Section 6, Rule 45 of the Rules of Court.

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Review, are not in in accordance with law and not in conformity with prevailing
jurisprudence.

ERRONEOUS ALLEGATIONS
OF PETITIONER AS TO RESPONDENT
PATTERSON Y. NGO’S LEGAL COUNSEL

To set the record straight, Petitioner erroneously misleads this Honorable

Court in claiming under the heading, “THE PARTIES,” that herein Respondent
PATTERSON Y. NGO’s legal representation is YFLIM & ASSOCIATES and that
Respondent Francisco Godinez is represented by A.M. BURIGSAY LAW
OFFICE AND ASSOCIATES.

With due respect, it is the other way around. Petitioner has unduly confused
the respondents’ respective counsels.

For the record, A.M. BURIGSAY LAW OFFICE AND ASSOCIATES is

the counsel of record of Respondent Patterson Y. Ngo.

BRIEF STATEMENT OF THE ANTECEDENT FACTS

LEADING TO THE PRESENT PETITION

Respondent-Plaintiff instituted an Accion Publiciana or Action to Recover

Possession of the subject property against herein Respondent-Defendant Francisco
Godiunez. Here, it is now being belatedly claimed by the alleged Third Party

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Claimant, herein Petitioner long after the issuance of the writ of execution pending
appeal.

In its Decision dated November 29, 2018, the Regional Trial Court of
Paranaque held that Patterson Ngo, herein Respondent-Plaintiff deserved to be
respected and restored to his lawful possession of the subject property because his
evidence established that he acquired the subject property from Danilo L. Bergado,
paid real property taxes thereon from 1996 up to 2011 and took possession of the
same, while Respondent-Defendant, Francisco Godinez’s evidence failed to prove
his claim of prior physical possession.

RTC Paranaque has long rendered the decision when the herein Petitioner
filed her Third Party Claim.

In view of this, the Honorable Court of Appeals sustained Ngo and found the
assertions of Petitioner in her Motion to Quash Execution Pending Appeal bereft of
legal bases.

This can be easily gleaned from the assailed from the afore-mentioned
Decision and the subsequently assailed Resolution denying Petitioner’s Motion For
Reconsideration.

ISSUE
FOR RESOLUTION

The lone issue being brought to the fore is whether or not the Court of
Appeals committed reversible error when it issued the assailed Decision in

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sustaining the decision of the Court a quo and when, thereafter, it issued a
Resolution denying the Motion for Reconsideration of the Petitioner.

ARGUMENTS AND DISQUISITION

The Honorable Court of Appeals has

correctly sustained RTC Paranaque’s
Decision and it has correctly ruled
that Petitioner’s Motion for
Reconsideration is bereft of legal
bases.

The instant Petition is devoid of merit and it has no legal bases.

The Honorable Court of Appeals pointed out that Petitioner has belatedly
filed her third party claim long after the trial court had rendered its Decision dated
November 29, 2018 and issued Special Order dated February 1, 2019 granting
execution pending appeal.

Too, it had squarely ruled on the issue of possession and it has squarely held
that the court a quo has properly granted the writ of execution pending appeal.

There is clear identity of the property

and, as both ruled by the trial court
and the Honorable Court of Appeals,

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Respondent-Plaintiff Ngo had
correctly identified the real property
subject of the Action for Recovery of
Possession and that he has
ESTABLISHED that he has the better
right of possession.

The property being identified by Respondent-Plaintiff Ngo and from which

he was dispossessed of possession necessitating the institution of the accion
publiciana suit is the same property which is now being claimed by Petitioner after
she sat idly and waited deviously for the result of the litigation against Respondent-
Defendant Godinez.

Obviously, she has long mulled and calculated her ploy to frustrate the
restoration of possession of the property to herein Respondent-Plaintiff, waiting for
Respondent- Defendant Godinez to exhaust all his remedies against Respondent-
Plaintiff before she opted to join the fray with a belated Third Party Claim.

The instant Petition asserts, at this very late stage, that the property
impleaded by Respondent- Plaintiff Ngo is not the property of Respondent-
Defendant Godinez but the property of Petitioner. This is pure prevarication.

There can be no question that there is no erroneous identification of the

subject property. The property subject matter of the Action Publiciana instituted
before the court a quo, RTC Branch 274 of Paranaque, is the same property now
being belatedly claimed to be owned by the alleged Third Party Claimant, herein
Petitioner.

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 Point in fact, the Petitioner has, without doubt, conceded that, as early as
February 19, 2019, she discovered that the Court Sherriff served and posted a copy
of the Writ of Execution and the Notice to Immediately Pay and Vacate has in fact
been posted at the gate of Lot 13, Block 2, Tel Aviv Street, Multinational Village,
Paranaque City “directing all occupants to vacate and surrender its possession
within five (5) days from receipt thereof. “ 2

RTC Paranaque ruled that Respondent-Plaintiff Ngo has the better right of
possession. This was duly affirmed by the Court of Appeals. Perforce and as a
legal consequence, petitioners and all persons claiming rights of and that are
found occupying the subject property are ORDERED to vacate the premises.

Of vital importance, Petitioner never disputed the fact that Godinez was the
occupant of the same property. As a last ditch-effort to frustrate the restoration of
possession to Respondent-Plaintiff Ngo, it is only now that Petitioner is belatedly
claiming ownership.

Crystal, the Honorable Supreme Court is now being asked to review the
findings of facts by the lower court and the consequent Decision and Resolution of
the Court of Appeals which all sustained the findings of facts of the lower court.

This is not clearly the province of a Petition for Review on Certiorari being
brought to the Honorable Supreme Court.

2
Please see Third Party Claim, Sub-Paragraph No. 2 thereof.

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 There is simply no reversible error that can be attributed to the Court of
Appeals and the trial court which are in the optimal positions to determine the facts
and resolve the issue of who among the parties has the better right to material
possession only and not on the issue of ownership.

Neither does the instant Petition fall under the exceptions 3 which would
warrant the Honorable Supreme Court to review the findings of facts:

“ (1) [W]hen the findings are

grounded entirely on speculation, surmises
or conjectures; (2) when the inference made
is manifestly mistaken, absurd or
impossible; (3) when there is grave abuse of
discretion; (4) when the judgment is based
on a misapprehension of facts; (5) when the
findings of fact are conflicting; (6) when in
making its findings the Court of Appeals
went beyond the issues of the case, or its
findings are contrary to the admissions of
both the appellant and the appellee; (7)
when the findings are contrary to the trial
court; (8) when the findings are conclusions
without citation of specific evidence on
which they are based; (9) when the facts set
forth in the petition as well as in the
petitioner’s main and reply briefs are not
disputed by the respondent; (10) when the
findings of fact are premised on the
supposed absence of evidence and

3
C&S Fishfarm Corp. v. Court of Appeals, 442 Phil. 279, 288 (2002).

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 contradicted by the evidence on record; and
(11) when the Court of Appeals manifestly
overlooked certain relevant facts not
disputed by the parties, which, if properly
considered, would justify a different
conclusion.

Factual findings of the trial court are conclusive on the parties and not
reviewable by this Honorable Supreme Court, more so when the CA affirms the
factual findings of the trial court.4

This case does not fall under any of the exceptions, thus, the factual finding
of the lower courts, that the new registered owners of the subject premises are
respondents, must be respected and upheld by this Court.

The bottom line is that Petitioner’s issue of ownership is not properly within
the purview of an accion publiciana which is only concerned of the better right of
possession.

The three types of possessory actions sanctioned in our jurisdiction are

accion interdictal, accion publiciana and accion reivindicatoria.

Jurisprudence teaches us that action interdictal is a mere summary action

that seeks the recovery of physical possession where the ousting of possession has
not yet lasted for more than one year.5
4
Malison v. Court of Appeals; G.R. No. 147776, July 10, 2007, 527 SCRA 109.
5
Martinez vs. Heirs of Remberto Lim, GR NO. 234655.

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 In such cases, the issue involved is mere material possession or possession
de facto, not de jure possession. The action can either be forcible entry or unlawful
detainer.6

The action instituted by herein Respondent-Plaintiff is one for accion

publiciana.

It is a plenary action merely to recover the right of possession and the

threshold issue is who has the better right of possession. Clearly, the goal of
Respondent-Plaintiff Ngo is to recover possession, not ownership.

Based on the foregoing disquisition, the Honorable Court a quo and the
Honorable Court of Appeals committed no reversible error can be attributed and
none that can be made correctible in the instant Petition for Review.

Hence, by all means, the present Petition should be denied for utter lack of
merit.

PRAYER
FOR RELIEFS

6
Ibid.

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 WHEREFORE, BECAUSE OF THE FOREGOING PREMISES, it is
respectfully prayed that the Petition for Review be DENIED for utter lack of
merit.

OTHER RELIEFS, just and equitable under the premises, are also prayed
for.

RESPECTFULLY SUBMITTED this 25TH day of September 2023 at the

City of Manila, Philippines.

A. M. BURIGSAY LAW OFFICE

& ASSOCIATES
Counsel for Respondent Patterson Y. Ngo
Room 310, Trinity Building
Kalaw Avenue, Ermita,
Manila City

By:

ARNOLD M. BURIGSAY
IBP No. 260805 January 5, 2023
PTR NO. 0862689
January 4, 2023; Manila
Roll No. 43265
MCLE No. VII- 0028015
April 14, 2023; Pasig City
Tel No. 564-49-00/6646124
[email protected]

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 Copy furnished:

THE PRESIDING JUDGE

Regional Trial Court, Branch 274
Paranaque City

ATTY. MICHAEL D. PECSON

PECSON, LUNA AND MATIBAG
Counsel for Petitioner
RODA B. TOLENTINO
Acacia Grove, Multinational Avenue
Corner Judea St., Multinational Village
Paranaque City 1709

ATTY. ANDY LIM

Counsel for Respondent
FRANCISCO GODINEZ
Unit B 1554 San Marcelino St.
Ermita, Manila

THE HONORABLE COURT

OF APPEALS
Ermita, Manila

EXPLANATION

Copies of the foregoing COMMENT were served upon all adverse parties
through registered mail as lack of manpower and the considerable distance
between the offices of the undersigned and the other parties’ counsel render
personal service impracticable.

ARNOLD M. BURIGSAY

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Republic of the Philippines)
In the City of Manila )SS
X………………………………X

SWORN DECLARATION
IN ACCORDANCE WITH THE
EFFICIENT USE OF PAPER RULE

I, ATTY. ARNOLD M. BURIGSAY, hereby declare that the

pleading/document hereto submitted via e-mail are the complete and true copies of
the hard copies of the pleading/documents filed with the Supreme Court.

ATTY. ARNOLD M. BURIGSAY

Counsel for Respondent Patterson Y. Ngo

SUBSCRIBED AND SWORN TO BEFORE ME this 25th day of

September 2023, affiant personally exhibiting to me his IPB ID bearing Roll No.
43265 with machine copies thereof hereto attached to this Affidavit.

Doc No.___
Page No.___
Book No.____
Series of 2023

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