The case of SPOUSES ROGELIO F. LOPEZ AND TEOTIMA G. LOPEZ vs. SPOUSES SAMUEL R. ESPINOSA AND ANGELITA S. ESPINOSA, G.R. No. 184225, September 4, 2009 presents various issues, including the nature of forcible entry, the concept of abandonment, vigilance of a party, and prohibited issues on appeal, thus:
1. In Dy v. Mandy Commodities Co., Inc., the Court held that there is forcible entry or desahucio when one is deprived of physical possession of land or building by means of force, intimidation, threat, strategy or stealth. The basic inquiry centers on who has the prior possession de facto. The plaintiff must prove that he was in prior possession and that he was deprived thereof.
2. While petitioners hold title to the subject property where the house was located, the sole issue in forcible entry cases is who had prior possession de facto of the disputed property. In Dy, the Court held that these are summary proceedings intended to provide an expeditious means of protecting actual possession or right of possession of property. Title is not involved; that is why it is a special civil action with a special procedure.
3. The Court of Appeals correctly held that respondents did not abandon their house. Abandonment requires (a) a clear and absolute intention to renounce a right or claim or to desert a right or property; and (b) an external act by which that intention is expressed or carried into effect. The intention to abandon implies a departure, with the avowed intent of never returning, resuming or claiming the right and the interest that have been abandoned. There is none in this case.
4. It bears stressing that the instant case was preceded by the filing of actions for recovery of possession and malicious mischief before the Office of the Punong Barangay. Likewise, upon discovery of petitioners’ acts of intrusion, respondents immediately filed a complaint for forcible entry and damages before the Municipal Trial Court in Cities. The Certification to File Action dated August 26, 2002 shows that no settlement or conciliation was reached. It is clear from the foregoing that respondents have not been remiss in asserting their rights and that petitioners’ claims over the subject property have not gone unchallenged.
5. The Court affirms the award of Php85,200.00 representing the value of improvements and attorney’s fees. The issue on the propriety of the award was raised for the first time on motion for reconsideration before the Court of Appeals. Well-settled is the rule that issues not raised below cannot be raised for the first time on appeal.
