Page |1

CA-G.R. CV No. 001235

Republic of the Philippines

COURT OF APPEALS

Cagayan de Oro City

-o0o-

RICHARD BELLA

Plaintiff-Appellant

-versus-

JASMINE ABUBAKAR

Defendant/Appellee

RTC CIVIL CASE NO. 1234

RTC9 Branch 17, Zamboanga City

RE: COLLECTION OF SUM OF MONEY

X-------------------------------x

BRIEF FOR THE PLAINTIFF-APPELLANT

---------------------------------
Page |2

TABLE OF CONTENTS

Page

ASSIGNMENT OF ERROR ……………………………………………. 3

STATEMENT OF THECASE ……………………………………………. 3

STATEMENT OF FACTS ………………………………………………… 4

ARGUMENT---

ASSIGNMENT OF ERROR …………………………………………… 5

PRAYER…………………………………………………………………….. 6

Article 1156
Article 1191
Article 1231
Article 1245
Article 1305
Article 1306
of the New Civil Code

ASSIGNMENT OF ERROR
Page |3

THE LOWER COURT ERRED IN DISMISSING THE COMPLAINT

FOR OF LACK OF CAUSE OF ACTION DESPITE THE FACT THAT
DEFENDANT FAILED TO COMPLIED HER OBLIGATION
AND THE APPELLANT PROVIDED SUFFICIENT
EVIDENCE TO PROVE HIS CLAIM AGAINST HEREIN DEFENDANT

STATEMENT OF THE CASE

On January 3, 2019 herein Plaintiff represented by Atty. Hilary Duff filed with the
Regional Trial Court 9 Branch 17, Zamboanga City the instant complaint against
Jasmine Abubakar, praying among others, that judgment be rendered in his favor and
order defendant to pay the following: (1) The sum of One Million Pesos (1,000,000) plus
interest at the rate of ten percent (10%) per month as stipulated in the promissory note;
(2) Moral and exemplary damages at the sum discretion of the court; (3) Attorney’s fees
amounting to One Hundred Thousand Pesos (P100,000) and appearance fee of Three
Thousand Five Hundred Pesos (P3,500) per hearing; (4) Litigation expenses amounting
to Twenty Thousand Pesos (P20,000).

Plaintiff alleged as his cause of action that on January 1, 2005, the defendant
borrowed from the plaintiff a sum of money amounting to One Million Pesos (1,000,000)
with an agreed interest of ten percent (10%) per month, payable within six (6) months
as evidenced by a promissory note. That as shown in the promissory note, the
indebtedness of the defendant became due and demandable on July 1, 2005. That the
six-month period had elapsed and despite repeated demands both written and verbal to
which defendant personally received, defendant failed, neglected and refused to fulfill
obligations without just and valid grounds to the continued damage and prejudice of the
plaintiff. That the plaintiff, in order to comply herein respondent to pay her obligations,
brought the matter to the Barangay for mediation and compromise. However,
respondent failed to appear which prompted the former to issue a Certificate to file an
Action.

That on February 9, 2019 defendant filed her Answer with Affirmative Defenses
(with Motion to Dismiss for Lack of Cause of Action). On February 20, 2019 both
parties filed their respective memorandum. The case was referred to mediation and the
pre-trial conference was set on February 22, 2019 at 8:30 a.m. Pre-trial conference
pushed through and the marking of respective exhibits was set on February 25, 2019 at
2:00 in the afternoon before the Branch Clerk of Court. A pre-trial order was issued on
March 1, 2019.
Page |4

On March 4, 2019 the lower court granted the Motion to Dismiss for Lack of
Cause of Action. The lower court found in its March 4, 2019 Order that “the money
allegedly borrowed by the herein Defendant was not a debt, but as payment of the
Plaintiff’s previous debt amounting to 1,000,000.00 in favor of the Defendant. Thus
herein Plaintiff has no cause of action on the debt made last January 1, 2005. Attached
is the certified true copy of the three page March 1, 2019 Order as Annex A for the
Plaintiff-Appellant for the Court of Appeals’ file copy.

Plaintiffs filed their Motion for Reconsideration to the March 4, 2019 Order and
defendants their Comment/Opposition (to the Plaintiffs’ MR). That on March 11, 2019
the lower court issued an order denying the motion for reconsideration thus, this appeal
was taken as a due course by the plaintiffs-appellants. Attached is the one-page March
11, 2019 Order as Annex B for the Plaintiffs-Appellants for the Court of Appeals’ file
copy.

STATEMENT OF FACTS

On January 1, 2005, the defendant borrowed from the plaintiff a sum of money
amounting to One Million Pesos (1,000,000) with an agreed interest of ten percent
(10%) per month, payable within six (6) months. The Defendant never mentioned about
the debt as payment of the previous debt made by the Plaintiff, there was no agreement
between the parties and even if the debt is true, the same was already paid by the
Plaintiff by virtue of a Property located at Tumaga, Zamboanga City transferred in favor
on the herein Defendant as evidenced by a Contract of Absolute Sale duly executed
and notarized dated March 6, 2000.
Demands were made against the Defendant but the same remain unheeded and
even when the Plaintiff brought the action in the Barangay for conciliation, Defendant
failed to neither appear nor submit her answer, Plaintiff sought the issuance of a
certificate to file action in year 2019 and filed a civil case at the Regional Trial Court 9
Branch 17, Zamboanga City for Collection of Sum of Money.

ARGUMENTS

ASSIGNMENT OF ERROR
Page |5

THE LOWER COURT ERRED IN DISMISSING THE COMPLAINT

FOR OF LACK OF CAUSE OF ACTION DESPITE THE FACT THAT
DEFENDANT FAILED TO COMPLIED HER OBLIGATION
AND THE APPELLANT PROVIDED SUFFICIENT
EVIDENCE TO PROVE HIS CLAIM AGAINST HEREIN DEFENDANT

The complaint is an action for Collection of Sum of Money from the debt duly
executed by the herein Defendant. The same was not denied and questioned. The
ground for the Dismissal of the case was made in Grave abuse of discretion by the
lower court considering that sufficient evidence to prove that there was no mention in
the contract between the parties that the said debt would be considered as payment of
the previous debt made by the Plaintiff.
The previous debt is put of the issue in this case by two reasons: (1) the previous
debt even if true, the Defendant failed to file an action against the Plaintiff for the
collection of such debt. It is a separate action and should not be incorporated in this civil
case; (2) even if the debt is true, the same was already paid by the Plaintiff in a form of
Real Property transferred in favor of the Defendant as evidenced by the Deed of
Absolute Sale.
In Art 1245 of the New Civil Code (NCC) – Dation in payment, whereby property
is alienated to the creditor in satisfaction of a debt in money, shall be governed by the
law of sales.

Art. 1191. The power to rescind obligation is implied in reciprocal one, in case
one of the obligors should not comply with what is incumbent upon him. The injured
party may choose between the fulfillment and the rescission of the obligation, with the
payment of damages in either case…”

In the present case, the Defendant did not deny nor argued the validity of the
contract executed on January 1, 2005 instead made a manifestation that the said credit
was in a form of payment from a previous debt to which filing of action has already
lapsed and the same obligation has already extinguished.

PRAYER

IN VIEW OF THE FOREGOING premises, the Plaintiffs-Appellants respectfully

pray that the Order dated March 4, 2019 of the Regional Trial Court Branch 17 of
Page |6

Zamboanga City be nullified and trial shall ensue and judgment be made on merits of
the case.

Submitted this 13th day of March 2019 from Zamboanga City to Cagayan de Oro
City, Philippines.

COCO MARTINI BAYOT

Counsel for Plaintiff-Appellant
Roll No. 48765
PTR No. 3843377, 1/11/2012, Z.C.
IBP No. 848779, 1/06/2012, Neg. Occ.
MCLE Compliance III-001831,1/12/2018
MCLE Compliance IV-0001242, 6/27/2018
c/o BAYOT LAW OFFICE
3rd Floor, JV Bldg., San Jose Panigayan St.,
7000 Zamboanga City
Tel. No. (062) 9915490

Copy furnished to:

ATTY. ANGELINA LOCSINO

Counsel for Defendant-Appellee
LOCSINO LAW OFFICE
G/F Blanco Building
Valderroza St., Zamboanga City