SECOND DIVISION

[G.R. No. 151369, March 23 : 2011]

ANITA MONASTERIO!E AND T"E S!O#SES ROM#$O TAN AND EDIT"A
!ETAN, !ETITIONERS, VS. %OSE %#AN TONG, "EREIN RE!RESENTED
&' "IS ATTORNE'IN(ACT, %OSE '. ONG, RES!ONDENT.
D E C I S I O N
!ERA$TA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court seeking the reversal and nullification of the Decision
[1]
and Order,
[]
respectivel!
dated Octo"er 4, ##1 and $anuar! 1%, ##, of the Regional &rial Court 'R&C( of
)loilo Cit!, Branch 4*
&he instant petition ste++ed fro+ an action for e,ect+ent filed "! herein respondent
$ose $uan &ong '&ong( through his representative $ose -* Ong 'Ong( against herein
petitioners .nita /onasterio01e '.nita( and the spouses Ro+ulo &an and 2ditha 1e0&an
'3pouses &an(* &he suit was filed with the /unicipal &rial Court in Cities '/&CC(,
Branch 4, )loilo Cit! and docketed as Civil Case 5o* ###'6(*
)n the Co+plaint, it was alleged that &ong is the registered owner of two parcels of land
known as 7ot 5os* 4# and 41 and covered "! &ransfer Certificate of &itle '&C&( 5os* &0
6866 and &06181, together with the i+prove+ents thereon, located at Barangay
9auswagan, Cit! 1roper, )loilo Cit!: herein petitioners are occup!ing the house standing
on the said parcels of land without an! contract of lease nor are the! pa!ing an! kind of
rental and that their occupation thereof is si+pl! "! +ere tolerance of &ong: that in a
letter dated Dece+"er 1, 1666, &ong de+anded that respondents vacate the house the!
are occup!ing, "ut despite their receipt of the said letter the! failed and refused to vacate
the sa+e: &ong referred his co+plaint to the Lupon of Barangay Kauswagan, to no
avail*
[4]
)n their .nswer with Defenses and Counterclai+, herein petitioners alleged that &ong is
not the real owner of the disputed propert!, "ut is onl! a du++! of a certain alien
na+ed Ong 3e ;u, who is not <ualified to own the said lot and, as such, &ong=s
ownership is null and void: petitioners are the true and lawful owners of the propert! in
<uestion and "! reason thereof the! need not lease nor pa! rentals to an!"od!: a case
docketed as C.0>*R* C? 5o* 58@8 'R&C Civil Case 5o* #1%1( involving herein
petitioner 1e and respondent is pending "efore the Court of .ppeals 'C.( where the
ownership of the su",ect propert! is "eing litigated: respondent should wait for the
resolution of the said action instead of filing the e,ect+ent case: petitioners also clai+ed
that there was, in fact, no proper barangay conciliation as &ong was "ent on filing the
e,ect+ent case "efore conciliation proceedings could "e validl! +ade*
[4]
On /arch 16, ##1, the /&CC rendered ,udg+ent in favor of herein respondent, the
dispositive portion of which reads as followsA
BC2R2;OR2, ,udg+ent is rendered, finding the defendants .nita /onasterio01e, and
3pouses Ro+ulo &an and 2ditha 1e0&an to "e unlawfull! withholding the propert! in
litigation, i.e., 7ot* 5os* 4# and 41 covered "! &C& 5os* &06866 and 6181, respectivel!,
together with the "uildings thereon, located at Brg!* 9auswagan, )loilo Cit! 1roper, and
the! are here"! ordered together with their fa+ilies and privies, to vacate the pre+ises
and deliver possession to the plaintiff andDor his representative*
&he defendants are likewise ordered to pa! plaintiff reasona"le co+pensation for the use
and occupanc! of the pre+ises in the a+ount of 115,###*## per +onth starting $anuar!,
### until the! actuall! vacate and deliver possession to the plaintiff and attorne!=s fees
in the a+ount of 1#,###*##*
Costs against the defendants*
3O D2C)D2D*
[5]
.ggrieved "! the a"ove0<uoted ,udg+ent, petitioners appealed the decision of the
/&CC with the R&C of )loilo Cit!*
)n its presentl! assailed Decision, the R&C of )loilo Cit!, Branch 4 affir+ed in its
entiret! the appealed decision of the /&CC*
Cence, the instant petition for review on certiorari*
.t the outset, it "ears e+phasis that in a petition for review on certiorari under Rule 45
of the Rules of Court, onl! <uestions of law +a! "e raised "! the parties and passed
upon "! this Court*
[8]
)t is a settled rule that in the eEercise of this Court=s power of
review, it does not in<uire into the sufficienc! of the evidence presented, consistent with
the rule that this Court is not a trier of facts*
[@]
)n the instant case, a perusal of the errors
assigned "! petitioners would readil! show that the! are raising factual issues the
resolution of which re<uires the eEa+ination of evidence* Certainl!, issues which are
"eing raised in the present petition, such as the <uestions of whether the issue of
ph!sical possession is alread! included as one of the issues in a case earlier filed "!
petitioner .nita and her hus"and, as well as whether respondent co+plied with the law
and rules on barangay conciliation, are factual in nature*
/oreover, the appeal under Rule 45 of the said Rules conte+plates that the R&C
rendered the ,udg+ent, final order or resolution acting in its original ,urisdiction*
[%]
)n
the present case, the assailed Decision and Order of the R&C were issued in the eEercise
of its appellate ,urisdiction*
&hus, petitioners pursued the wrong +ode of appeal when the! filed the present petition
for review on certiorari with this Court* )nstead, the! should have filed a petition for
review with the C. pursuant to the provisions of 3ection 1,
[6]
Rule 4 of the Rules of
Court*
On the foregoing "ases alone, the instant petition should "e denied*
)n an! case, the instant petition would still "e denied for lack of +erit, as discussed
"elow*
)n their first assigned error, petitioners contend that the R&C erred in holding that the
law authoriFes an attorne!0in0fact to eEecute the re<uired certificate against foru+
shopping in "ehalf of his or her principal* 1etitioners argue that &ong hi+self, as the
principal, and not Ong, should have eEecuted the certificate against foru+ shopping*
&he Court is not persuaded*
)t is true that the first paragraph of 3ection 5,
[1#]
Rule @ of the Rules of Court, re<uires
that the certification should "e signed "! the Gpetitioner or principal part!G hi+self* &he
rationale "ehind this is "ecause onl! the petitioner hi+self has actual knowledge of
whether or not he has initiated si+ilar actions or proceedings in different courts or
agencies*
[11]
Cowever, the rationale does not appl! where, as in this case, it is the
attorne!0in0fact who instituted the action*
[1]
3uch circu+stance constitutes reasona"le
cause to allow the attorne!0in0fact to personall! sign the Certificate of 5on0;oru+
3hopping* )ndeed, the settled rule is that the eEecution of the certification against foru+
shopping "! the attorne!0in0fact is not a violation of the re<uire+ent that the parties
+ust personall! sign the sa+e*
[14]
&he attorne!0in0fact, who has authorit! to file, and
who actuall! filed the co+plaint as the representative of the plaintiff, is a part! to the
e,ect+ent suit*
[14]
)n fact, 3ection 1,
[15]
Rule @# of the Rules of Court includes the
representative of the owner in an e,ect+ent suit as one of the parties authoriFed to
institute the proceedings* )n the present case, there is no dispute that Ong is respondent=s
attorne!0in0fact* Cence, the Court finds that there has "een su"stantial co+pliance with
the rules proscri"ing foru+ shopping*
1etitioners also aver that the certificate against foru+ shopping attached to the
co+plaint in Civil Case 5o* ###'6( falsel! stated that there is no other case pending
"efore an! other tri"unal involving the sa+e issues as those raised therein, "ecause at
the ti+e the said co+plaint was filed, Civil Case 5o* #1%1 was, in fact, still pending
with the C. 'C.0>*R* C? 5o* 58@8(, where the ver! sa+e issues of e,ect+ent and
ph!sical possession were alread! included*
Corollaril!, petitioners clai+ that the /&CC has no ,urisdiction over Civil Case 5o*
###'6( on the ground that the issue of ph!sical possession raised therein was alread!
included "! agree+ent of the parties in Civil Case 5o* #1%1* .s such, petitioners assert
that respondent is "arred fro+ filing the e,ect+ent case, "ecause in doing so he splits his
cause of action and indirectl! engages in foru+ shopping*
&he Court does not agree*
&he Court takes ,udicial notice of the fact that the disputed properties, along with three
other parcels of land, had "een the su",ect of two earlier cases filed "! herein petitioner
.nita and her hus"and ;rancisco against herein respondent and so+e other persons* &he
first case is for specific perfor+ance andDor rescission of contract and reconve!ance of
propert! with da+ages* )t was filed with the then Court of ;irst )nstance 'C;)( of )loilo
Cit! and docketed as Civil Case 5o* 1#%54* &he case was dis+issed "! the C;)* On
appeal, the )nter+ediate .ppellate Court ').C( upheld the decision of the trial court*
Bhen the case was "rought to this Court,
[18]
the decision of the ).C was affir+ed*
3u"se<uentl!, the Court=s ,udg+ent in this case "eca+e final and eEecutor! per 2ntr! of
$udg+ent issued on /a! @, 1661*
3u"se<uentl!, in 166, the 3pouses 1e filed a case for nullification of contract,
cancellation of titles, reconve!ance and da+ages with the R&C of )loilo Cit!* &his is the
case presentl! cited "! petitioners* 2ventuall!, the case, docketed as Civil Case 5o*
#1%1, was dis+issed "! the lower court on the ground of res judicata* &he R&C held
that Civil Case 5o* 1#%54 serves as a "ar to the filing of Civil Case 5o* #1%1, "ecause
"oth cases involve the sa+e parties, the sa+e su",ect +atter and the sa+e cause of
action* On appeal, the C. affir+ed the dis+issal of Civil Case 5o* #1%1* Cerein
petitioner .nita assailed the ,udg+ent of the C. "efore this Court, "ut her petition for
review on certiorari was denied via a Resolution
[1@]
dated $anuar! , ##4* On $une 5,
##4, the said Resolution "eca+e final and eEecutor!* &he Court notes that the case was
disposed with finalit! without an! showing that the issue of e,ect+ent was ever raised*
Cence, respondent is not "arred fro+ filing the instant action for e,ect+ent*
)n an! case, it can "e inferred fro+ the ,udg+ents of this Court in the two
afore+entioned cases that respondent, as owner of the su",ect lots, is entitled to the
possession thereof* 3ettled is the rule that the right of possession is a necessar! incident
of ownership*
[1%]
1etitioners, on the other hand, are conse<uentl! "arred fro+ clai+ing
that the! have the right to possess the disputed parcels of land, "ecause their alleged
right is predicated solel! on their clai+ of ownership, which is alread! effectivel!
de"unked "! the decisions of this Court affir+ing the validit! of the deeds of sale
transferring ownership of the su",ect properties to respondent*
1etitioners also contend that respondent should have filed an accion publiciana and not
an unlawful detainer case, "ecause the one0!ear period to file a case for unlawful
detainer has alread! lapsed*
&he Court does not agree*
3ections 1 and , Rule @# of the Rules of Court provideA
3ection 1* Who may institute proceedings and when* 0 3u",ect to the provisions of the
neEt succeeding section, a person deprived of the possession of an! land or "uilding "!
force, inti+idation, threat, strateg!, or stealth, or a lessor, vendor, vendee, or other
person against who+ the possession of an! land or "uilding is unlawfull! withheld after
the eEpiration or ter+ination of the right to hold possession, "! virtue of an! contract,
eEpress or i+plied, or the legal representatives or assigns of an! such lessor, vendor,
vendee, or other person, +a!, at an! ti+e within one '1( !ear after such unlawful
deprivation or withholding of possession, "ring an action in the proper /unicipal &rial
Court against the person or persons unlawfull! withholding or depriving of possession,
or an! person or persons clai+ing under the+, for the restitution of such possession,
together with da+ages and costs*
3ection * Lessor to proceed against lessee only after demand* 0 Hnless otherwise
stipulated, such action "! the lessor shall "e co++enced onl! after de+and to pa! or
co+pl! with the conditions of the lease and to vacate is +ade upon the lessee, or "!
serving written notice of such de+and upon the person found on the pre+ises, or "!
posting such notice on the pre+ises if no person "e found thereon, and the lessee fails to
co+pl! therewith after fifteen '15( da!s in the case of land or five '5( da!s in the case of
"uildings*
Respondent alleged in his co+plaint that petitioners occupied the su",ect propert! "! his
+ere tolerance* Bhile tolerance is lawful, such possession "eco+es illegal upon de+and
to vacate "! the owner and the possessor "! tolerance refuses to co+pl! with such
de+and*
[16]
Respondent sent petitioners a de+and letter dated Dece+"er 1, 1666 to
vacate the su",ect propert!, "ut petitioners did not co+pl! with the de+and* . person
who occupies the land of another at the latter=s tolerance or per+ission, without an!
contract "etween the+, is necessaril! "ound "! an i+plied pro+ise that he will vacate
upon de+and, failing which a su++ar! action for e,ect+ent is the proper re+ed!
against hi+*
[#]
Hnder 3ection 1, Rule @# of the Rules of Court, the one0!ear period
within which a co+plaint for unlawful detainer can "e filed should "e counted fro+ the
date of de+and, "ecause onl! upon the lapse of that period does the possession "eco+e
unlawful*
[1]
Respondent filed the e,ect+ent case against petitioners on /arch 6, ###,
which was less than a !ear fro+ Dece+"er 1, 1666, the date of for+al de+and* Cence,
it is clear that the action was filed within the one0!ear period prescri"ed for filing an
e,ect+ent or unlawful detainer case*
5either is the Court persuaded "! petitioners= argu+ent that respondent has no cause of
action to recover ph!sical possession of the su",ect properties on the "asis of a contract
of sale "ecause the thing sold was never delivered to the latter*
)t has "een esta"lished that petitioners validl! eEecuted a deed of sale covering the
su",ect parcels of land in favor of respondent after the latter paid the outstanding
account of the for+er with the 1hilippine ?eterans Bank*
.rticle 146% of the Civil Code provides that when the sale is +ade through a pu"lic
instru+ent, the eEecution thereof shall "e e<uivalent to the deliver! of the thing which is
the o",ect of the contract, if fro+ the deed the contrar! does not appear or cannot clearl!
"e inferred* )n the instant case, petitioners failed to present an! evidence to show that
the! had no intention of delivering the su",ect lots to respondent when the! eEecuted the
said deed of sale* Cence, petitioners= eEecution of the deed of sale is tanta+ount to a
deliver! of the su",ect lots to respondent* &he fact that petitioners re+ained in
possession of the disputed properties does not prove that there was no deliver!, "ecause
as found "! the lower courts, such possession is onl! "! respondent=s +ere tolerance*
7astl!, the Court does not agree with petitioners= assertion that the filing of the unlawful
detainer case was pre+ature, "ecause respondent failed to co+pl! with the provisions of
the law on barangay conciliation* .s held "! the R&C, Barangay 9auswagan Cit!
1roper, through its Pangkat 3ecretar! and Chair+an, issued not one "ut two certificates
to file action after herein petitioners and respondent failed to arrive at an a+ica"le
settle+ent* &he Court finds no error in the pronounce+ent of "oth the /&CC and the
R&C that an! error in the previous conciliation proceedings leading to the issuance of
the first certificate to file action, which was alleged to "e defective, has alread! "een
cured "! the /&CC=s act of referring "ack the case to the Pangkat Tagapagkasundo of
Barangay Kauswagan for proper conciliation and +ediation proceedings* &hese
su"se<uent proceedings led to the issuance anew of a certificate to file action*
)"ERE(ORE, the instant petition is DENIED* &he assailed Decision and Order of
the Regional &rial Court of )loilo Cit!, Branch 4, are A((IRMED*
SO ORDERED.
Carpio, (Chairperson), Nachura, Brion,
*
a*+ Abad, JJ., co*c,r.
Endnotes:
I
Designated as an additional +e+"er in lieu of .ssociate $ustice $ose Catral /endoFa,
per 3pecial Order 5o* 6@5, dated /arch 1, #11*
[1]
1enned "! $udge Danilo 1* >alveF: rollo, pp* %506*
[ ]
ollo, pp* 64065*
[4]
!d. at 5608*
[4]
!d. at 840@#*
[5 ]
!d* at %40%4*
[8]
"ederico #arantilla$ #r. v. %ntonieta #arantilla$ Buenaventura emotigue$ substituted
by &ynthia emotigue$ 'oroteo #arantilla and Tomas #arantilla, >*R* 5o* 1544%8,
Dece+"er 1, #1#*
[@]
(mcor !ncorporated v. )ienes, >*R* 5o* 151#1, 3epte+"er %, ##6, 56% 3CR. 81@,
84*
[%]
)evilleno v. &arilo, >*R* 5o* 148454, 3epte+"er 14, ##@, 544 3CR. 4%5, 4%%,
citing *acawiwili +old *ining and 'evelopment &o.$ !nc. v. &ourt of %ppeals, 6@
3CR. 8# '166%(: see Regalado, emedial Law &ompendium, ?ol* ), 3iEth Revised
2dition, p* 54#*
[6]
3ec* 1* ,ow appeal taken- time for filing* 0 . part! desiring to appeal fro+ a decision
of the Regional &rial Court rendered in the eEercise of its appellate ,urisdiction +a! file
a verified petition for review with the Court of .ppeals, pa!ing at the sa+e ti+e to the
clerk of said court the corresponding docket and other lawful fees, depositing the
a+ount of 15##*## for costs, and furnishing the Regional &rial Court and the adverse
part! with a cop! of the petition* &he petition shall "e filed and served with fifteen '15(
da!s fro+ notice of the decision sought to "e reviewed or of the denial of petitioner=s
+otion for new trial or reconsideration filed in due ti+e after ,udg+ent* Hpon proper
+otion and the pa!+ent of the full a+ount of the docket and other lawful fees and the
deposit for costs "efore the eEpiration of the regle+entar! period, the Court of .ppeals
+a! grant an additional period of fifteen '15( da!s onl! within which to file the petition
for review* 5o further eEtension shall "e granted eEcept for the +ost co+pelling reason
and in no case to eEceed fifteen '15( da!s*
[1#]
3ec* 5* &ertification against forum shopping* 0 &he plaintiff or principal part! shall
certif! under oath in the co+plaint or other initiator! pleading asserting a clai+ for
relief, or in a sworn certification anneEed thereto and si+ultaneousl! filed therewithA 'a(
that he has not theretofore co++enced an! action or filed an! clai+ involving the sa+e
issues in an! court, tri"unal or <uasi0,udicial agenc! and, to the "est of his knowledge,
no such other action or clai+ is pending therein: '"( if there is such other pending action
or clai+, a co+plete state+ent of the present status thereof: and 'c( if he should
thereafter learn that the sa+e or si+ilar action or clai+ has "een filed or is pending, he
shall report that fact within five '5( da!s therefro+ to the court wherein his aforesaid
co+plaint or initiator! pleading has "een filed*
[11]
Wee v. 'e &astro, >*R* 5o* 1@84#5, .ugust #, ##%, 58 3CR. 865, @1, citing
*endo.a v. &oronel$ 4% 3CR. 454, 456 '##8(*
[1]
!d.
[14]
!d.
[14 ]
!d.
[15]
3ec* 1* Who may institute proceedings and when* 0 3u",ect to the provisions of the
neEt succeeding section, a person deprived of the possession of an! land or "uilding "!
force, inti+idation, threat, strateg!, or stealth, or a lessor, vendor, vendee, or other
person against who+ the possession of an! land or "uilding is unlawfull! withheld after
the eEpiration or ter+ination of the right to hold possession, "! virtue of an! contract,
eEpress or i+plied, or the legal representatives or assigns of an! such lessor, vendor,
vendee, or other person, +a! at an! ti+e within one '1( !ear after such unlawful
deprivation or withholding of possession, "ring an action in the proper /unicipal &rial
Court against the person or persons unlawfull! withholding or depriving of possession,
or an! person or persons clai+ing under the+, for the restitution of such possession,
together with da+ages and costs*
[18]
3ee Pe v. !ntermediate %ppellate &ourt, >*R* 5o* @4@%1, /arch 14, 1661, 165 3CR.
14@*
[1@]
1er >*R* 5o* 1556#%*
[1%]
*etro *anila Transit &orporation v. '.*. &onsortium$ !nc*, >*R* 5o* 14@564,
/arch @, ##@, 51@ 3CR. 84, 84#*
[16]
&anlas v. Tubil, >*R* 5o* 1%4%5, 3epte+"er 5, ##6, 8#1 3CR. 14@, 156*
[#]
)oriente v. (state of the Late %rsenio (. &oncepcion, >*R* 5o* 18#46, 5ove+"er
5, ##6, 8#5 3CR. 415, 46*
[1]
!d*