REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION

REGIONAL TRIAL COURT
MAKATI CITY
Branch 59

DELMA B.GALANG
by herself and in behalf of
APOLINAR M. BARANGOT,JR
DELIA B. MAPA represented by
JONARD M. MAPA
VIRGINIO BARANGOT
MARLE BARANGOT
ROSEVILE B. BARANGOT,
Plaintiffs;

-versus- Civil Case No. 14-127

FOR: ANNULMENT OF
PARTITION AGREEMENT

VIRGILIO M. BARANGOT
Defendant.
x------------------------------------------------------------x

ANSWER WITH AFFIRMATIVE AND SPECIAL DEFENSES,

AND COMPULSORY COUNTER CLAIM
WITH MOTION TO DISMISS

Defendant, VIRGILIO M. BARANGOT, through the undersigned

counsel, unto this Honorable Court most respectfully file/s this
Answer with Affirmative and Special defenses, compulsory Counter
Claim and Motion to Dismiss and in support thereof aver/s:

1. On March 10, 2014 herein defendant Virgilio M.

Barangot received the Summons with the attached complaint of the
plaintiffs Thus, herein defendant has fifteen (15) days from March 10,
2014 or until March 25, 2014 within which to file his answer Hence,
this Answer of the defendant is seasonably filed on time;

2. The allegations contained in paragraph 1,3,4 detailing the

plaintiff personal circumstances is being denied for lack of
knowledge or information sufficient to form a belief as to the truth or
falsity thereof;

1
 3. Defendant partially admits the allegations contained in
paragraphs 2, 5, 6, 8, 9 of the Complaint with respect to the personal
circumstances of the defendants only. However, as to other
allegations the same are being objected for being self serving and this
will be further averred in the affirmative defenses and motion to
dismiss;

4. Defendant specifically and vehemently denies the

allegations contained in paragraph 7 of the complaint being
assumption and conclusion of the plaintiffs because the truth was
during the life time of Apolinar Barangot he executed a waiver/
transfer of right in favor of herein defendant Virgilio Barangot;

5. Defendant specifically and vehemently denies the

allegations contained in paragraphs 10 and 11 of the complaint
because the truth was, plaintiffs knew about the sale of the
proportionate share of Marcialito and Franklin Barangot to Loreto
Dela Cruz, and the waiver executed by Apolinar Barangot in favor of
herein defendant Virgilio Barangot, as this was admitted by the
plaintiffs in par. 8 in the compliant;

6. Defendant herein specifically and vehemently denies the

allegations contained in paragraph 11 of the complaint because the
truth was herein defendant Virgilio Barangot has no personal
knowledge about the partition agreement; plaintiffs are the ones who
commissioned an agent to prepare and make all necessary papers for
the supposed partition or distribution of the property;

7. Defendant specifically and vehemently denies all the

allegations contained in paragraphs 13 to 19 including the prayer for
being self-serving, concocted lies, sham, misleading , for lack of
knowledge or information sufficient to form a belief as the truth or
falsity thereof or for being conclusions of law.

AFFIRMATIVE AND SPECIAL DEFENSES

8. Defendant herein reiterates and incorporates by way of

special and affirmative defenses all the foregoing allegations in so far
as they are material and connected there with and further states that;

2
 9. Contrary to the mere allegations of the plaintiffs and for
the Honorable Court to have an overview of the factual setting of the
case, that during the life time of Apolinar H. Barangot, he was an
active member of the Philippine Armed Forces, that because of his
dedication in the military service which is known for discipline and
integrity, he wanted that someday one of his children soon follow his
steps in the military, however out of 9 children only the eldest son
now defendant herein Virgilio Barangot has followed and enlisted
himself in the military service;

9a. That because of his admiration to his eldest son, in

enlisting in the military service Apolinar H. Barangot executed
a waiver of rights in favor of his eldest son defendant Virgilio
Barangot, a 44.74 square meter portion from the 286 square
meters which originally belong to Apolinar H. Barangot their
late father, under Original na titulo Blg.7247 leaving an area of
241.26 square meters left. Nonetheless, herein defendant paid
the 44.74 square meters to the heirs of Apolinario Barangot his
siblings;

9b. While defendant is in the active service in the

Armed Forces, defendant applied for 80 square meters parcel of
land belonging to the government,so that soon he can construct
a house of his own, later his application was approved and he
was awarded an 80 square meters lot from the government
being Cembo Makati was a former military reservation and the
land therein was awarded to the enlisted active members of the
Philippines Armed Forces;

9c. Subsequently thereafter the 80 square meters lot

which he applied to the Philippine government was awarded to
him, he then added the 44.74 square meters lot conveyed to him
by his father to the 80 square meters lot which he acquired from
the Philippine Government making defendant land area a total
of 125 square meters;

9d. That since the 44.74 square meter parcel of land that
was conveyed to him by his father was without title, defendant
opted then to consolidate the 44.74 square meters that was
conveyed to him by his father and the 80 square meter lot
which was awarded to him by the Philippine Government, this
was duly notarized by Atty. Lope M. Velasco dated December
17,1997 under Doc. No. 105, Page No. 21, Book No. 32, series of
1997. Copy of which is hereto attached as ANNEX “A”;
3
 10. The doctrine of proprietary estoppel against the
plaintiffs applies in this case:

Proprietary estoppel is a legal claim,

especially connected to English law,which
may arise in relation to rights to use the
property of the owner, and may even be
effective in connection with disputed transfers
of ownership. Proprietary estoppel transfers
rights if;

a. someone is given a clear assurance that they

will acquire a right over property,

b. they reasonably rely on the assurance; and

c. they act substantially to their detriment on

the strength of the assurance

If these elements of assurance, reliance and

detriment are present, the usual remedy will
be that the property will be transferred to the
claimant, the case of Dillwyn vs. Llwellyn
(1862) 4 De GF&J 517).

10a. Through defendant has all the opportunity to

transfer the title of the aliquot portion in his name if he desires
because of the clear assurance of his father Apolinar Barangot
but, defendant however did not do so for the fact that he
wanted the partition be made simultaneously with the shares of
other siblings;

10b. That in November 2010 , through the initiative of

the plaintiffs, an Extrajudicial Settlement of Estate of Apolinar
Barangot among heirs with deed of Absolute Sale was
instituted, this was done to deter any questions that it may arise
over the partition of the property in the future, they also further
agree that in lieu of the affidavit of waiver/transfer of rights
executed by Apolinar Barangot to his eldest son Virgilio
Barangot way back in 1997; a deed of sale shall be executed in
defendant's favor as consideration for all the expenses in taking
care of their mother, since plaintiffs elder brother herein
defendant Virgilio Barangot, took care all the needs and

4
 expenses of their mother during her twilight years until her
death on November 14, 2011. The death certificate of the
mother is already attached to the complaint.

10c. That because of the said agreement with

understanding that the waiver/transfer of rights executed by
Apolinar Barangot be replaced in lieu of the deed of sale to be
executed by the parties, the parties then agree for the institution
of Extrajudicial Settlement of Estate with deed of Absolute Sale
to the eldest son defendant Virgilio Barangot as it is now
appearing on the instrument which is one of a sale, this was
duly signed by all the parties and notarized by notary public
Atty. Rogelio A. Agoot in November 9, 2010;

11. Then thereafter defendant believing in good faith, the

44.74 square meters parcel of land was titled in herein defendant's
name, this then canceled the original title in the name of Apolinar H.
Barangot and TCT No. 006-2012000085 was issued in favor of
defendant Virgilio Barangot.

12. That since the 44.74 square meter lot was already
conveyed through sale to herein defendant Virgilio Barangot and
Seventy(70) square meter lot was sold to Spouse Loreto Dela Cruz by
Marcialito and Franklin Barangot, leaving a remaining balance of
171.26 square meters, this remaining portion should only be divided
into 7 equal share namely: Delia, Virginio, Marle, Roseville, Delma,
Apolinar & Virgilio all surnamed Barangot, the name Marcialito and
Franklin Barangot should have been excluded because they already
conveyed the Seventy(70) square meter respective shares to Spouses
Loreto Dela Cruz.

13. With the kind indulgence of this Honorable Court, herein

defendant had no hand unto the questioned partition agreement; It
was the plaintiffs themselves who commissioned an agent to work
out for the necessary papers in the preparation for distribution and
partition of the property;

14. However, in the partition agreement made by the

Plaintiffs, defendant wonders why the name Marcialito and Franklin
Barangot, still appeared and claimed a portion of 15.89 square meters
each from the remaining balance of 171.26 of the property despite of
selling their respective aliquot shares to Spouses Dela Cruz;

5
 15. Their names should have been omitted or stricken out in
the partition agreement made by the plaintiffs because they already
conveyed their rights and interest to Spouses Loreto Dela Cruz in the
amount of Seven Hundred Thousand Pesos(700,000.00);

16. This only shows that the plaintiffs who caused the
preparation for the distribution of the property have no full
knowledge of the past history of the property's subject matter of this
case or pretending to know when in truth and in fact they were the
ones who commissioned an agent for the same;

17. Plaintiffs discovery of the cancellation of Original na

titulo Blg.7247 covering their inherited estate is not surprising
because the truth, plaintiffs new beforehand that the said lot was
already conveyed long before the death of their father to their elder
brother herein defendant Virgilio Barangot since 1997.

18. That a period of Seventeen(17) long years had lapse from

the time Apolinar Barangot conveyed the 44.74 square meters to his
son Virgilio Barangot to assert their right against the herein
defendant, their action is already barred by prescription and latches;

19. Considering further, that Plaintiffs had consented in the

Extrajudicial Settlement of Estate with Deed of Absolute Sale dated
November 9, 2010 plaintiffs are in estoppel to question the legality of
the document;

Estoppel- in its broadest sense is a legal

term referring to a series of legal and
equitable doctrines that preclude "a person
from denying or asserting anything to the
contrary of that which has, in
contemplation of law, been established as
the truth, either by the acts of judicial or
legislative officers, or by his own deed, acts,
or representations, either express or
implied." 28 Am Jur 2d Estoppel and
Waiver § 1

20. Moreover the signature of the plaintiffs to the agreement

was also duly notarized by a notary public Atty. Pio Kenneth I. Dasal
dated November 14, 2011 under Doc. No. 95, Page No. 23, Book No.
14, series of 2011. Assuming for the sake of arguments that there was

6
infirmity on the signature of the plaintiffs they should have sought
the National Bureau of Investigation documentation examination
department for the examination of the documents to determine
whether their signatures are not theirs, plaintiff's have the onus
probandi that such documents is spurious;

21. It is basic that in civil cases, "the necessity of proof always

lies with the person who lays charges ("actori incumbit onus
probandi"). the burden of proof rest on the plaintiffs to establish
based on the preponderance of evidence. Case of Aznar vs
Citibank,519 SCRA 287;

MOTION TO DISMISS

22. Based on the above stated factual setting of the case, it

would be greatly unjust and grossly unfair that herein defendant be
liable for plaintiffs when in the first place herein defendant have no
knowledge about the preparation of the partition agreement made by
the plaintiffs, this is clear evident that plaintiffs complaint a. Have no
cause of action against the herein defendant Virgilio Barangot,
because of the fact that the land subject matter of controversy was
extrajudicially conveyed through a waiver of right executed by
herein defendant father Apolinario Barangot way back in 1997.

23. Much more, b.Prescription and latches or statutes of

limitation sets in, the period mandated by law for the plaintiffs to
assert their right against the herein defendant Virgilio Barangot is
already barred , it is very clear in law that, ownership and other real
rights over immovable property are acquired by ordinary
prescription through possession of ten years .

24. It is worth informing that herein defendant had been in

possession of the 44.74 square meter lot for more than 17 years, as a
matter of fact he already build a house which is already existing
thereon for more than 17 years, this is a clear evident that his
possession over the land in good faith had ripen into ownership.
25. c. by Proprietary estoppel, the execution of Waiver/
Transfer of rights by Apolinar Barangot in favor of herein defendant
Virgilio Barangot is also a clear indication that herein defendant was
given the absolute assurance that he will acquire the 44.74 square
meters lot from his father, relying so much on the assurance given,
herein defendant constructed a house over the lot given by his father
believing in good faith that the said lot is his own.

7
 COMPULSORY COUNTER CLAIM

26. Defendant re-pleads and incorporates by reference the

foregoing allegations insofar as relevant and material and by way of
Compulsory Counter Claim, further alleges the following:

27. Because of the unwarranted, unmeritorious and

malicious filing of the plaintiffs complaint, the latter suffers sleepless
nights wounded feelings, serious anxiety and other similar injuries
requiring the payment of moral damages in the amount of Two
Hundred Thousand Pesos (P200,000.00) in his favor;

28. In order to deter the filing of this baseless, malicious and

unfounded action of similar nature, plaintiffs should be adjudged to
pay exemplary damages in the amount of One Hundred Thousand
Pesos (P100,000.00);

29. Also because of the filing of the instant baseless and

unfounded complaint defendant was forced to engage the services of
the undersigned counsel to protect his interest which defendant paid
the amount of One Hundred Thousand Pesos (P100,000.00) as
acceptance fee and agreed to pay Three Thousand Five Hundred
Pesos (P3,500.00) per court appearance. In fact, no less than the
Honorable Supreme Court in the case of Terminal Facilities and
Services Corporation vs. Philippine Ports Authority, 378 SCRA 82,
held that “Attorney’s fees may be awarded when a party is
compelled to litigate or incur expenses to protect his interest by
reason of an unjustified act of the other party.”

PRAYER

WHEREFORE, premises considered, it is most respectfully

prayed unto this Honorable Court to DISMISS the complaint of the
plaintiffs for utter lack of merit and that the plaintiffs be ordered to
pay defendants jointly or severally:

a. To pay herein defendant the amount of Two Hundred

Thousand Pesos (P200,000.00) by was of moral damages;

8
 b. To pay herin defendant the amount of One Hundred
Thousand Pesos (P100,000.00) by was of exemplary
damages;

c. One Hundred Thousand Pesos (P100,000.00) representing

acceptance fee;

d. Three Thousand Five Hundred Pesos (P3,500.00); and

e. Cost of the suits.

Such other reliefs and remedies just and equitable under the
premises are likewise prayed for.

Makati City for Makati City, February 18, 2014.

BAYAUA & ASSOCIATES LAW OFFICES

Counsel for the Defendant
3 Floor Gonzalez Building,
rd

No. 1888 Orense Street,

Guadalupe Nuevo, Makati City
Tel Nos. (02) 750-4439; (02)881-7629
e-mail address: bayaualawoffice@gmail.com

By:

ATTY. JORICO F. BAYAUA

IBP Life Member O.R. No. 09572 / 01-13-11
PTR No. 4232925 / 01-07-14 / Makati City
Roll No. 47842
MCLE Compliance No. IV-0009973
December 5, 2012

COPY FURNISHED AND NOTICE OF HEARING:

PUBLIC ATTORNEYS OFFICE

16th Floor, Makati City Hall of Justice
J.P Rizal St., Brgy. Poblacion, Makati City

THE BRANCH CLERK OF COURT

9
Regional Trial Court
Branch ____
Makati City

Greetings!

Please submit the foregoing ANSWER with Affirmative

Defense and Special Defenses, Counter-Claim for the consideration
and approval of this Honorable Court.

JORICO FAVOR BAYAUA

EXPLANATION
(Pursuant to Section 11, Rule 13 of the Rules of Court)

The ANSWER as Affirmative Defense and Special Defenses,

Counter-Claim of the herein defendant was served to the plaintiff
counsel through registered mail with return card due to distance and
lack of personnel to effect personal service.

JORICO FAVOR BAYAUA

10