SECOND DIVISION
[G.R. No. 243073. February 13, 2019.]
EUTIQUIA1P. AMIT, petitioner, vs.SEGUNDA BALATE, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated13 February 2019which reads as follows:
"G.R. No. 243073 — Eutiquia P. Amit versus Segunda Balate
After reviewing the instant Petition and its annexes, inclusive of the Court of Appeals (CA), Nineteenth Division's assailed Decision 2 dated February 28, 2018 and Resolution 3 dated October 3, 2018 in CA-G.R. SP No. 10777, the Court resolves to DENY the instant Petition for failure of petitioner Eutiquia P. Amit (petitioner Eutiquia) to sufficiently show that the CA committed any reversible error that warrants the exercise of the Court's discretionary appellate jurisdiction.
Petitioner Eutiquia persistently argues in her Petition that the bare allegation of "mere tolerance" in petitioner Eutiquia, et al.'s Complaint, without any accompanying allegation as to how and when the supposed tolerance occurred, was enough to vest the Municipal Trial Court in Cities with jurisdiction to hear their complaint for unlawful detainer (Complaint).
The argument is erroneous.
The Court has consistently held that in order to vest the court jurisdiction to effect the ejectment of an occupant, it is necessary that the complaint should embody such a statement of facts as brings the party clearly within the class of cases for which the statutes provide a remedy; the jurisdictional facts must appear on the face of the complaint. When the complaint fails to aver facts constitutive of unlawful detainer, as where it does not state how entry was effected or how and when dispossession started, the remedy should either be an accion publiciana or an accion reivindicatoria in the proper court. 4 The Court has consistently ruled that acomplaint which fails to positively aver any overt act on the plaintiff's part indicative of permission to occupy the land, or any showing of such fact during the trial is fatal for a case for unlawful detainer. 5
In Jose v. Alfuerto, 6 in holding that the therein petitioner's insistence that he properly alleged that the therein respondents occupied the premises by mere tolerance was incorrect, the Court explained that when there is no allegation in the complaint nor any supporting evidence on record that shows when the defendant entered the property or who had granted them permission to enter, the complaint for unlawful detainer must be dismissed; "[w]ithout these allegations and evidence, the bare claim regarding 'tolerance' cannot be upheld." 7 CAIHTE
In the instant case, there is no dispute that petitioner Eutiquia, et al., failed to make any allegation in their Complaint as to the surrounding circumstances of their alleged tolerance of respondent Segunda Balate's occupation of the portion of the subject property. Petitioner Eutiquia, et al., relied on their bare and unsupported allegation of mere tolerance. Such reliance proved to be fatal to their Complaint.
SO ORDERED. (HERNANDO, J., designated additional Member per S.O. No. 2630 dated December 18, 2018)"
Very truly yours,
(SGD.) MARIA LOURDES C. PERFECTODivision Clerk of CourtBy:TERESITA AQUINO TUAZONDeputy Division Clerk of Court
Footnotes
1. Also spelled as "Equtiqua" and "Equitiqua" in some parts of the rollo.
2.Rollo, pp. 65-72. Penned by Associate Justice Edward B. Contreras, with Associate Justices Edgardo L. Delos Santos and Louis P. Acosta concurring.
3.Id. at 73-74.
4.Spouses Valdez v. Court of Appeals, 523 Phil. 39, 48 (2006).
5.Jose v. Alfuerto, 699 Phil. 307, 320-321 (2012), citing Sarona v. Villegas, 131 Phil. 365, 371-372 (1968).
6.Id.
7.Id. at 318.