THIRD DIVISION

G.R. No. 190814, October 09, 2013

MICHELLE LANA BROWN-ARANETA, FOR HERSELF AND REPRESENTING HER MINOR

DAUGHTERS, ARABELLA MARGARITA B. ARANETA AND AVANGELINA MYKAELA B.
ARANETA, Petitioners, v. JUAN IGNACIO ARANETA, Respondent.

DECISION

VELASCO JR., J.:

The Case

Assailed and sought to be set aside in this Petition for Review on Certiorari under Rule 45 are
the May 11, 2009 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 105442 and its
Resolution2 of December 28, 2009 denying petitioner’s motion for reconsideration of said
decision.

The assailed decision ordered the dismissal of Civil Case No. 08-023 of the Regional Trial Court
(RTC), Branch 207 in Muntinlupa City and nullified all the issuances it made in that case, a
petition for protection order under Republic Act No. (RA) 9262, otherwise known as the Anti-
Violence Against Women and Their Children Act of 2004, commenced by petitioner Michelle
Lana Brown-Araneta (Michelle) against respondent Juan Ignacio Araneta (Juan Ignacio) before
that court.

The Facts

On April 14, 2000, Juan Ignacio and Michelle were married in Las Vegas, Nevada, USA. The
union produced two (2) children, namely: Arabella Margarita (Ara) and Avangelina Mykaela
(Ava), born on February 22, 2003 and April 15, 2005, respectively. After a little over seven years
of disharmonious relationship, husband and wife separated. Since the couple’s estrangement
and de facto separation, Ara and Ava have remained in Michelle’s custody.

In November 2007 before the RTC of Makati City, Juan Ignacio filed, pursuant to A.M. No. 03-
04-04-SC3or The Rule on Custody of Minors and Writ of Habeas Corpus in Relation to Custody
of Minors (Rule on Custody of Minors), a Petition for the Custody of the Minors Arabella
Margarita Araneta and Avangelina Mykaela Araneta (Petition for Custody), with prayer for
visitation rights against Michelle and her mother, Glenda B. Santos (Santos). Docketed as SP
PROC. Case No. M-6543, this petition was eventually raffled to Branch 60 of the Makati City
RTC (Makati RTC), presided over by Judge Marissa Macaraig-Guillen (Judge Macaraig-
Guillen).

Juan Ignacio invoked, as main basis for his petition, his right as father of Ava and Ara to have
custody of and to exercise parental authority over them, albeit both were below seven (7) years
of age. In this regard, he claimed that, apart from refusing to communicate with him, both
Michelle and Santos have completely barred him from seeing or getting in touch with his
daughters despite repeated requests. He thus prayed the court to:chanroblesvirtualawlibrary
1. Immediately issue a Provisional Order granting [him] visitation rights with respect to the
minors [Ava and Ara] x x x during the pendency of these proceedings;

2. Immediately issue an ex parte Hold Departure Order preventing the departure of [both]
minors x x x from the country; and
3. After appropriate proceedings, render judgment granting [him] joint custody, or alternatively,
granting him permanent visitation rights, over [both] his legitimate children x x x.4
To facilitate service of summons, Juan Ignacio, via a Motion and Urgent Manifestation of
November 27, 2007, would inform the Makati RTC that Michelle and Santos may have
transferred to No. 408 Anonas Street, Ayala Alabang Village, Muntinlupa City (Anonas
residence), an address different from what he provided in his basic petition, referring to the
Molave Drive residence in the same village. In her Officer’s Return dated December 10,
2007,5 process server Linda Fallorin stated the following: (1) she initially attempted to serve the
summons upon Michelle and Santos on December 7, 2007 at the Anonas residence, only to be
told by one Roberto Anonas, who refused to receive the summons, that both were out at that
time; and (2) on December 10, 2007, she was finally able to serve the summons upon Michelle
and Santos by substituted service through the driver of Santos’ husband.

In her Answer,6 Santos disclaimed knowledge of Michelle’s present address, or her

whereabouts, adding in this regard that the adverted Molave Drive residence was being rented
out. As to be expected, Santos traversed Juan Ignacio’s insinuation that she has conspired with
Michelle to keep Ara and Ava out of his reach, or worse, hide them from him. And in an obvious
bid to deny Juan Ignacio of visitation rights, Santos raised the question of the court’s jurisdiction
over Michelle and then rattled off negative habits and character traits of Juan Ignacio as
husband and father.

On December 18, 2007, Juan Ignacio moved for the issuance of provisional visitorial order.
After a hearing on this motion, the Makati RTC issued on December 21, 2007 an
Order7 allowing Juan Ignacio to visit her daughters on Christmas Day and New Year’s Day. The
visiting grant came after the court, taking stock of the Officer’s Return, declared that it has
acquired jurisdiction over the person of Michelle, but despite being given the opportunity to file a
responsive pleading, she has failed to do so.

Christmas and New Year’s Day 2008 came and went, but Juan Ignacio was unable to see his
little girls in those days for reasons of little materiality to this narration.

On January 2, 2008, Michelle filed in SP PROC. Case No. M-6543 a Motion to Admit
Answer and an Answer (with Affirmative Defenses and With Very Urgent Ex-Parte Motion
for Issuance of Protection Order).8cralawlibrary

In her Motion to Admit Answer, Michelle acknowledged learning from her mother about the
delivery of the summons and a copy of the petition for custody to their Anonas Residence. She,
however, disregarded said summons thinking, so she claimed, that it was improperly served
upon her person. It was, she added, only upon learning of the issuance of the provisional order
of visitation rights that she gathered enough courage to come out to present her
side.9cralawlibrary

In her Answer, on the other hand, Michelle owned up sole responsibility for the decision not to
allow her husband to see their daughters. In support of her plea for the dismissal of his petition
for custody, the denial of visitation rights pendente lite, and in the meanwhile the ex
parte issuance in her favor of a temporary protection order (TPO),10 she recounted in lurid
details incidents characterizing the painful life she and her children allegedly had to endure from
her husband whom she tagged as a drug user, sexual pervert, emotionally unstable and
temperamental, among other names. In her words, Juan Ignacio’s “wild, decadent, irresponsible
lifestyle makes him unfit to exercise parental authority and even enjoy visitation
rights.”11cralawlibrary

During the January 4, 2008 hearing on Michelle’s prayer for a TPO, Judge Macaraig-Guillen
expressed her bent to maintain her jurisdiction over SP PROC. Case No. M-6543 and her
disinclination to issue the desired TPO. In her Order of even date, she directed that the ensuing
observations she earlier made be entered into the records:chanroblesvirtualawlibrary
1. She is not inclined to issue a [TPO] in favor of respondent at this time because she initially
questioned the jurisdiction of this Court over her person and only resorted to this Urgent Ex-
Parte Motion for a Protective Order after she realized that the Court had every intention of
maintaining jurisdiction over this case x x x. It was emphasized that the Court does not issue
Protective Orders over a person who has not bothered to appear in Court x x x. Until the
respondent herself shows up in order to recognize the jurisdiction of this Court over her and in
order to substantiate the allegations in her Urgent Motion, there is no basis for this Court to
address the matters contained in the said Urgent Ex-Parte Motion.

2. Secondly, x x x even assuming for the sake of argument that the petitioner is, as respondent
described him to be, temperamental, violent, a habitual drug user and a womanizer, these
qualities cannot, per se, prevent him from exercising visitation rights over his children because
these are rights due to him inherently, he being their biological father.12
During the same hearing, the Makati RTC granted Juan Ignacio visitation rights on one (1)
Saturday and Sunday in January 2008 considering that he was unable to see his children on the
days granted under the December 21, 2007 Order.

Subsequently, by its Order of January 21, 2008, as would later be effectively reiterated by
another Order13 of March 7, 2008, the Makati RTC resolved to deny admission of Michelle’s
answer to the petition for custody and declared her in default, pertinently disposing
thusly:chanroblesvirtualawlibrary
WHEREFORE, in view of the foregoing, respondent Araneta’s Motion to Admit Answer of
January 2, 2008 is herein DENIED for lack of merit.

Because of respondent Araneta’s failure to file her responsive pleading within the reglementary
period, x x x respondent Araneta is herein declared in DEFAULT in this proceedings.

As a consequence of this ruling, x x x the petitioner is allowed to present evidence ex-parte to

substantiate the allegation in his Petition x x x.14
On January 21, 2008 also, Michelle interposed a Motion to Withdraw Urgent Ex-Parte Motion for
Protective Order, there pointing out that no right of Juan Ignacio, if any, will be affected if the
said urgent motion is withdrawn or expunged from her answer. And obviously to sway the
Makati RTC’s mind of the resulting insignificance of such withdrawal, if approved, Michelle cited
the ensuing observation thus made by the court during the hearing on January 4,
2008:chanroblesvirtualawlibrary
COURT:chanroblesvirtualawlibrary

Well, I agree, she should really appear but whether or not she should really appear here and
substantiate her allegations for the issuance of a protective order as far as I am concerned is
irrelevant insofar as the enforcement of petitioner’s visitation rights are concerned, this case is
for custody, this is not a case for the issuance of protective orders that is only a counter
manifestation that she is seeking.15
It is upon the foregoing set of events and proceedings that Michelle, on March 25, 2008,
instituted, pursuant to RA 9262, a Petition For Temporary and Permanent Protection
Order16 (Petition for Protection Order) before the RTC in Muntinlupa City, docketed as Civil
Case No. 08-023. Thereat, Michelle claimed, among other things, that in the course of their
marriage, Juan Ignacio made her and their children engage in sexual acts inimical to their
emotional, physical and psychological development and well-being; that he engaged in
perverted sexual acts with friends, victimizing her and the children; that he has consistently
failed and refused to support their family; and that he has a violent temper and was consistently
harassing and threatening her to get sole custody of the children. Michelle volunteered the
information that, per her therapist, she is suffering from Battered Woman’s
Syndrome.17cralawlibrary

In the verification portion of her petition for protection order, Michelle stated that “[t]here is x x x
a pending petition for the custody of our children in the [RTC] Br. 60, Makati City, x x x Civil
Case No. M-6543.”18cralawlibrary

The following events and proceedings then transpired:chanroblesvirtualawlibrary

1. On March 31, 2008, the Muntinlupa RTC granted Michelle’s prayer for a TPO which, at its
most basic, ordered Juan Ignacio (1) to stay away at a specified distance from Michelle and the
children, inclusive of their present residence and other places they frequent; and (2) to desist
from calling or otherwise communicating with Michelle.

(2) On April 14, 2008, Juan Ignacio filed in Civil Case No. M-6543 a “Motion to Dismiss
[Petition] with Prayer to Lift [TPO]”19 anchored on several grounds, foremost of which are the
following: (a) litis pendentia, Juan Ignacio noting in this regard that the Makati RTC is competent
to grant in its SP PROC. Case No. M-6543 the very same reliefs Michelle seeks in Civil Case
No. M-6543, pursuant to Sections 17 and 18 of the Rule on Custody of Minors;20 (b) in view of
item (a) above, the Makati RTC, having first assumed jurisdiction over identical subject matters,
issues and parties, does so to the exclusion of the Muntinlupa RTC; and (c) Michelle’s act of
filing her petition for protection order before the Muntinlupa RTC constitutes, under the
premises, forum shopping, a practice proscribed owing to the possibility of different courts
arriving at conflicting decisions. Juan Ignacio would in fact stress that the TPO thus issued by
the Muntinlupa RTC directing him to stay at least a kilometer away from his children already
conflicted with the Makati RTC-issued provisional orders granting him visitation rights over
them.

(3) By Order of May 12, 2008, the Muntinlupa RTC, conceding the exclusionary effect of the
assumption at the first instance by the Makati RTC of jurisdiction on the issue of custody on Ava
and Ara and the likelihood of the issuance by either court of clashing decisions, partially granted
Juan Ignacio’s motion to dismiss and accordingly modified the TPO issued on March 31, 2008.
As thus modified, the protection order, or to be precise, the reliefs provided in favor of Michelle
in said TPO shall exclude from its coverage the orders issued by the Makati RTC in the exercise
of its jurisdiction on the pending custody case.

In another Order of June 30, 2008, the Muntinlupa RTC denied Juan Ignacio’s Motion for
Reconsideration of the earlier May 12, 2008 Order on the ground that such a motion is a
prohibited pleading.21cralawlibrary

(4) Meanwhile, Michelle, in connection with certain orders of the Makati RTC in the custody
case, denying her motion to admit answer and its jurisdictional issue pronouncements, went to
the CA on certiorari via a petition docketed as CA-G.R. SP No. 103392.

On August 28, 2008, in CA-G.R. SP No. 103392, the CA rendered a judgment finding partly for
Michelle, as petitioner, it being the appellate court’s determination that the substituted service of
summons upon her in the custody suit was defective and irregular. Accordingly, the period
within which Michelle was to file an answer, so the CA declared, did not start to run and, hence,
the denial by the Makati RTC of her motion to admit answer in the custody case and corollarily,
its holding that she is in default, by virtue of its Orders dated January 21, 2008 and March 7,
2008, were unwarranted and ought to be nullified. Neither of the parties appealed the foregoing
Decision. The CA Decision, thus, became final. The fallo of the said CA Decision
reads:chanroblesvirtualawlibrary
WHEREFORE, the foregoing considered, the instant petition is hereby PARTLY GRANTED.
Accordingly, the assailed Orders of 21 January 2008 and 7 March 2008
are REVERSED and SET ASIDE while the Orders of 29 February 2008 and 31 March 2008, in
so far as the denial of petitioner’s Motion for Inhibition is concerned, are AFFIRMED. No costs.

SO ORDERED.22
Partly, the CA wrote:chanroblesvirtualawlibrary
x x x [T]he pivotal issue x x x is whether the [Makati RTC] had acquired jurisdiction over the
person of the petitioner, and if so, whether the disposition of the respondent [Makati RTC] judge
in declaring her in default has factual and legal basis. Admittedly, the summons and the copy of
the petition were not personally served upon the petitioner as explicitly required under Section 5
of A.M. No. 03-04-04-SC x x x.

Indeed, the records would show that the summons and the petition were served upon the
petitioner x x x by substituted service as they were received by x x x a certain Nilo Santos at
said Anonas residence, an address belatedly supplied by private respondent himself. However,
x x x petitioner had actually been informed of such substituted service sometime in the second
week of December 2007 and that she had opted to simply disregard the same since she had
thought that such service is invalid x x x.

Despite the fact that she had known of the existence of the petition a quo and the fact that the
service of summons had been made upon her by substituted service, petitioner made a decision
whether it be an informed one or not, not to move for its dismissal on the ground of lack of
jurisdiction over her person x x x. It was only upon the issuance of the Provisional Order that
she had opted to participate in the proceeding by filing her responsive pleading to the petition.
Unfortunately though, the respondent [Makati RTC] judge denied her motion to admit and
declared her in default on the basis of its disquisition that the failure of the petitioner to file her
responsive pleading is not due to excusable negligence or other circumstances beyond her
control.

Still and all, it cannot be denied that the trial court, previous to or at the time the petitioner had
filed her responsive pleading, has yet to acquire jurisdiction over the person of the latter. The
Rule on Custody of Minors specifically requires that service of summons be made
personally on the respondent and yet the trial court served the same upon the person of the
petitioner by substituted service without proof of exhaustion of means to personally serve the
same or the impossibility thereof to warrant the extraordinary method of substituted service.

Surely, while the Rule on Custody of Minors provides that the Rules of Court shall
apply suppletorily in custody proceedings, the express provision requiring personal service and
the very nature of custody cases should have caused the respondent judge x x x to adhere to
the evident intention of the rules, that is to have both parties in a custody case participate
therein.

Regrettably, the respondent judge, relying on the Officer’s Return x x x, precipitately declared x
x x that the trial court had already acquired jurisdiction over the person of the petitioner. x x x

Sadly though, respondent judge, in grave abuse of discretion, assumed jurisdiction over the
person of the petitioner and proceeded to act on the petition. Worse, x x x the respondent judge
denied the motion to admit filed by the petitioner and declared the latter in default. While the
petitioner had already submitted herself to the jurisdiction of the trial court by way of her
voluntary act of filing a responsive pleading to the petition a quo, the period to file said
responsive pleading, as already stated, in so far as the petitioner is concerned has yet to
commence, and thus, the filing of her motion to admit answer cannot plausibly be considered as
to have been filed beyond the reglementary period. In this light, the denial of said motion and
the issuance of the default order are unwarranted and are reversible errors of jurisdiction x x
x.23 (Emphasis added.)
(5) From the adverse May 12, 2008 and June 30, 2008 Orders of the Muntinlupa RTC in Civil
Case No. M-6543, Juan Ignacio also repaired to the CA on a petition for certiorari. Docketed
as CA-G.R. SP. No. 105442, the petition prayed that the Muntinlupa RTC be enjoined from
further taking cognizance of Michelle’s protection order petition as the said case will infringe or
intrude upon the Makati RTC’s disposition of the custody case.24cralawlibrary

Michelle opposed and sought the dismissal of the certiorari petition on the ground that it is a
prohibited pleading under Sec. 22(j) of RA 9262.

Eventually, the CA issued, on May 11, 2009, the assailed Decision which, on one hand, found
Michelle guilty of forum shopping, a sufficient cause for summary dismissal of a case, but
viewed, on the other, Juan Ignacio’s petition for certiorari as a prohibited pleading which,
ordinarily, would then render it dismissible. In the veritable clash under the premises of the
effects of forum shopping and the rule on prohibited pleading, the CA nonetheless ruled for
Juan Ignacio, as petitioner, pertinently disposing as follows:chanroblesvirtualawlibrary
ACCORDINGLY, the petition is GIVEN DUE COURSE. Civil Case No. 08-023 is ORDERED
DISMISSED and all issuances made by [RTC], Branch 207, Muntinlupa City, are declared void.
The [RTC] Branch 60, Makati City is DIRECTED to proceed with the case with dispatch.25
The CA extricated itself from the foregoing legal bind on the basis of the following ratiocination
and the plausible suppositions interjected thereat:chanroblesvirtualawlibrary
In resolving the present petition, the Court had to consider two (2) things. First, pursuant to
Section 22 (j) of A.M. No. 04-10-11-SC, a petition for certiorari against any interlocutory order
issued by a family court is a prohibited pleading. Accordingly, if this Court were to strictly
follow [said] Section 22 (j) x x x, then the present petition for certiorari must be dismissed.
Second, the Private Respondent had first moved that the Makati RTC issue a TPO and that
when her motion was denied, she filed a petition before the Muntinlupa RTC asking that the said
court issue a TPO. In short, the Private Respondent committed forum-shopping. And when
forum-shopping is committed, the case(s) must be dismissed with prejudice.

Thus, it falls upon this Court to balance the conflict.

This Court notes that the Muntinlupa RTC tried to balance out the conflicting jurisdictional issues
with the Makati RTC by stating in its first assailed Order that the reliefs provided in favor of
[herein private respondent] in the [TPO] x x x are modified, to exclude from its coverage
those Orders issued by the Makati Court in the exercise of its jurisdiction on the pending
custody case. Be that as it may, the Muntinlupa RTC itself recognized the jurisdiction of the
Makati RTC and that the case before it would, in fact, impinge upon the jurisdiction of the latter
court when it stated that the disposition on the matter by this Court may result in the
possibility of conflicting decisions/orders. In short, the Muntinlupa RTC itself
acknowledges the fact that any future issuances, including its eventual decision on the
petition before it, would affect the custody case pending before the Makati RTC and
might even result to conflicting decisions. Thus, in the interest of judicial stability, it is
incumbent upon this Court to ensure that this eventuality will not come to pass.

xxxx

To test the argument that a petition for certiorari is an absolutely prohibited pleading, let us push
the present case to its logical extreme.

What if a woman claiming to be a battered wife leaves one of her children with her parents and
another with a sibling of hers? She then went to another place, transferred residency, and filed a
petition for TPO. Her parents [and sibling], who reside in another locality, likewise files a petition
for TPO in behalf of the grandchild [and nephew/niece entrusted] in their custody. x x x What if
the family courts refuse consolidation? Is the man devoid of any remedy and would have to
spend his time shuttling between three (3) localities since a petition for certiorari is a prohibited
pleading?

What if the woman went to another locality purposely in order to find a friendly venue x x x?
Again, if we are to strictly construe Section 22 (j) of A.M. No. 04-10-11-SC that man would just
have to bear the consequences since he cannot seek the extraordinary writ of certiorari. Or,
what if both of the spouses do not reside within the court’s jurisdiction, but the judge refuses to
grant a motion to dismiss due to his zeal? What remedy would a man have since he cannot
resort to a petition for certiorari?

The rules are not sacrosanct. If they go in the way of the smooth and orderly administration of
justice, then magistrates should apply their best judgment. If not, courts would be so hideously
bound or captives to the stern and literal provisions of the law that they themselves would,
wittingly or otherwise, become administrators of injustice.

On the one hand, this Court hereby notes that Private Respondent herself recognizes the
jurisdiction of the Makati RTC to issue a TPO. It was only after the Makati RTC denied her
prayer for a TPO when she filed a petition before the Muntinlupa RTC asking for the
issuance of a TPO. It is thus highly disturbing that the Private Respondent sought another
forum in order to try to obtain a favorable judgment. Thus, as aptly pointed out by the Petitioner,
some sort of forum-shopping was committed.

On the other hand, if the Court were to dismiss the present petition on the ground that a petition
for certiorari is a prohibited pleading, it would have to close its eyes to the fact that the Private
Respondent wilfully committed forum-shopping. To dismiss the present petition would, in effect,
“reward” her for this negative act. This, the Court cannot countenance.

xxxx

Accordingly, x x x Civil Case No. 08-023 must not be allowed to proceed any further.
Imperatively, to ensure that the jurisdiction of the Makati RTC remains unshackled, all of the
issuances of the Muntinlupa RTC should, by all means, be nullified. 26 (Emphasis added.)
The CA denied Michelle’s motion for reconsideration per its equally assailed Resolution of
December 28, 2009.

Aggrieved, Michelle, for herself and for her minor daughters, filed the instant recourse, her
submissions revolving on the twin issues of forum shopping and the prohibition under Sec. 22 of
the Rule on Violence Against Women and Children27 against the filing of petitions for certiorari
to defeat TPOs issued to promote the protection of victims of violence against women and their
children.

Michelle presently argues that the assailed Decision of the CA is based on an erroneous
appreciation of the facts of the case. To her, there was no forum shopping when she filed her
Petition for Protection Order in the Muntinlupa RTC while the custody case was pending in the
Makati RTC. Her stated reason: the absence in both cases of identity of parties and rights
asserted, on top of which the reliefs sought and prayed for are different and not founded on the
same set of facts.

To downplay the application of the litis pendentia principle, she argues that it was impossible for
her to apply for and secure a protective order under RA 9262 in the custody case before the
Makati RTC being, first, a respondent, not a petitioner in the Makati case; and second, the
venue for an application for protection order is, under RA 9262, the place where the woman or
the offended party resides, which in her case is Muntinlupa.28cralawlibrary

Michelle would invite attention to her having withdrawn her motion for protective order in the
custody case before the Makati RTC before she filed her Petition for Protective Order with the
Muntinlupa RTC. Additionally, she points to the CA’s Decision of August 28, 2008 in CA-G.R.
SP No. 103392 (2008 CA Decision), which held that the Makati RTC did not acquire jurisdiction
over her so that all issuances of the Makati RTC were void. All these, Michelle claims, argue
against the existence of litis pendentia.

The Issue

The issue to be resolved in this case is whether or not petitioner, in filing her Petition for
Protection Order before the Muntinlupa RTC, violated the rule on forum shopping, given the
pendency of the respondent’s Petition for Custody before the Makati RTC and considering
incidentally that she filed said petition for protection order after the Makati RTC had denied her
application for protection order in the custody case.

The Court’s Ruling

Before anything else, however, the Court wishes to point out disturbing developments in this
proceeding which ought not to be swept under the rug on the simplistic pretext that they may not
be determinative of the outcome of this case. But first, some basic premises on record.

First, as correctly stated in this petition, Michelle withdrew her Ex Parte Motion for Issuance of
Protective Order in the custody case prior to her filing of her Petition for Protection Order with
the Muntinlupa RTC. It should be made clear, however, that she filed said motion to withdraw on
January 21, 2008, or afterthe Makati RTC, in its Order dated January 4, 2008, had, for all
intents and purposes, denied the said ex parte motion. To recapitulate, the Makati RTC judge
made it of record that she was not inclined to issue a protective order in favor of a person, i.e.,
petitioner Michelle, who has not bothered to appear in court, even assuming, she adds, that the
person against whom the protection order is directed, i.e., Juan Ignacio, is prone to violence, a
drug user and a womanizer.

Second, there is absolutely nothing in the 2008 CA Decision declaring that all issuances of the
Makati RTC were void. In order to bolster her position that the rule against forum shopping was
not breached in this case, Michelle matter-of-factly alleged in this recourse that since in the
2008 CA Decision it was ruled that the Makati RTC did not acquire jurisdiction over her person
due to the irregularity in the service of summons, then “all the issuances or orders of [the Makati
RTC in the custody case] were void;”29 and “[t]herefore, there was no litis pendentia to begin
with since the RTC of Makati City Branch 60 had no jurisdiction from the start.” 30cralawlibrary

For perspective, the 2008 CA Decision did not rule that the Makati RTC did not acquire
jurisdiction over Michelle. Quite the contrary. As a matter of record, the CA in that disposition
found and thus declared Michelle to have voluntarily submitted herself to the jurisdiction of the
Makati RTC when she filed her Answer in SP. PROC. Case No. 6543 on January 2, 2008. But
to be precise about things, the CA in that 2008 Decision found, as having been tainted with of
grave abuse of discretion, only that part of the Makati RTC’s disposition denying Michelle’s
motion to admit answer for belated filing and the consequent default order. Along this line, the
CA merely nullified the Makati RTC’s Orders dated January 21, 2008 and March 7, 2008 which
declared Michelle in default and denied her motion for reconsideration, respectively. The
ensuing excerpts of the 2008 CA Decision speak for themselves:chanroblesvirtualawlibrary
Sadly though, respondent judge, in grave abuse of discretion, assumed jurisdiction over the
person of the petitioner and proceeded to act on the petition. Worse, without due regard to the
plain intention of the rule in ensuring the adjudication of the controversy surrounding a custody
case based on its merits, the respondent judge denied the motion to admit filed by the petitioner
and declared the latter in default. While the petitioner had already submitted herself to the
jurisdiction of the trial court by way of her voluntary act of filing a responsive pleading to
the petition a quo, the period to file said responsive pleading, as already stated, in so far
as the petitioner is concerned has yet to commence, and thus, the filing of her motion to
admit answer cannot plausibly be considered as to have been filed beyond the
reglementary period. In this light, the denial of said motion and the issuance of the
default order are unwarranted and are reversible errors of jurisdiction, therefore
correctible by a writ of certiorari. (Emphasis supplied.)

xxxx

WHEREFORE, the foregoing considered, the instant petition is hereby PARTLY GRANTED.
Accordingly, the assailed Orders of 21 January 2008 and 7 March 2008
are REVERSED and SET ASIDE while the Orders of 29 February 2008 and 31 March 2008, in
so far as the denial of petitioner’s Motion for Inhibition is concerned, are AFFIRMED. No costs.

SO ORDERED.31
Withal, the Court finds it downright offensive and utterly distasteful that petitioner raised the
following as one of the issues in this appellate proceeding:chanroblesvirtualawlibrary
Whether or not the petitioners are guilty of forum-shopping when the Petition for Custody of
private respondent Araneta was dismissed by the Court of Appeals on the ground that the RTC
of Makati City Branch 60 did not acquire jurisdiction because the summons was not served
personally upon herein Petitioner Michelle Lana Brown Araneta.32 (Emphasis supplied.)
Petitioner’s above posture smacks of bad faith, taken doubtless to deceive and mislead the
Court. Indeed, nothing in either the body or the fallo of the 2008 CA Decision would yield the
conclusion that the petition for custody is being dismissed, as petitioner unabashedly would
have the Court believe.

Was there forum shopping? Did petitioner forum shop?

A circumstance of forum shopping occurs when, as a result or in anticipation of an adverse

decision in one forum, a party seeks a favorable opinion in another forum through means other
than appeal or certiorari by raising identical causes of action, subject matter and issues. Stated
a bit differently, forum shopping is the institution of two or more actions involving the same
parties for the same cause of action, either simultaneously or successively, on the supposition
that one or the other court would come out with a favorable disposition.33 An indicium of the
presence of, or the test for determining whether a litigant violated the rule against, forum
shopping is where the elements of litis pendentia are present or where a final judgment in one
case will amount to res judicata in the other case.34cralawlibrary

Litis pendentia,35 as a ground for the dismissal of a civil suit, refers to that situation wherein
another action is pending between the same parties for the same cause of action, such that the
second action becomes vexatious and unnecessary.36 For the bar of litis pendentia to be
invoked, the concurring requisites must be present: (1) identity of parties, or at least such
parties as represent the same interests in both actions; (2) identity of rights asserted and relief
prayed for, the relief being founded on the same facts; and (3) the identity of the two preceding
particulars is such that any judgment rendered in the pending case, regardless of which party is
successful would amount to res judicata in the other.37cralawlibrary

Thus, it has been held that there is forum shopping (1) whenever as a result of an adverse
decision in one forum, a party seeks a favorable decision (other than by appeal or certiorari) in
another; or (2) if, after he has filed a petition before the Supreme Court, a party files another
before the CA since in such case said party deliberately splits appeals “in the hope that even as
one case in which a particular remedy is sought is dismissed, another case (offering a similar
remedy) would still be open”; or (3) where a party attempts to obtain a preliminary injunction in
another court after failing to obtain it from the original court.38cralawlibrary

The evil sought to be avoided by the rule against forum shopping is the rendition by two
competent tribunals of two separate and contradictory decisions. Unscrupulous party litigants,
taking advantage of a variety of competent tribunals, may repeatedly try their luck in several
different fora until a favorable result is reached. To avoid the resultant confusion, the Court
adheres to the rules against forum shopping, and a breach of these rules results in the dismissal
of the case.39cralawlibrary

Considering the above doctrinal pronouncements on forum shopping, We find all the badges of
this deplorable, docket-clogging practice present in this case.

As a result or in anticipation of an adverse ruling of the Makati RTC, petitioner sought the
favorable opinion of the Muntinlupa RTC

As discussed above, the presiding judge of the Makati RTC, in the custody case, made of
record that she was not inclined to issue a protection order in favor of Michelle because she did
not bother to appear in Court and that the allegations against Juan Ignacio cannot, per se,
prevent him from exercising visitation rights over his children. After this adverse ruling, Michelle
sought the favorable opinion of the Muntinlupa RTC by filing an independent Petition for
Protection Order.

The cases have identical parties

Clearly, the Petition for Custody and the Petition for Protection Order have the same parties
who represent the same interests. The fact that Ava and Ara, who are parties in the Petition for
Protection Order, are not impleaded in the Petition for Custody is of no moment because they
are precisely the very subjects of the Petition for Custody and their respective rights are
represented by their mother, Michelle. In a long line of cases on forum shopping, the Court has
held that absolute identity of the parties is not required, it being enough that there is substantial
identity of the parties40 or at least such parties represent the same interests in both actions. It
does not matter, as here, that in the Petition for Custody, Juan Ignacio is the petitioner and
Michelle is the respondent while in the Petition for Protection Order, their roles are reversed.
That a party is the petitioner in one case and at the same time, the respondent in the other case
does not, without more, remove the said cases from the ambit of the rules on forum shopping.
So did the Court hold, for example in First Philippine International Bank v. Court of Appeals, that
forum shopping exists even in cases like this where petitioners or plaintiffs in one case were
impleaded as respondents or defendants in another.41 Moreover, this Court has constantly held
that the fact that the positions of the parties are reversed, i.e., the plaintiffs in the first case are
the defendants in the second case or vice versa, does not negate the identity of parties for
purposes of determining whether the case is dismissible on the ground of litis
pendentia.42cralawlibrary

The rights asserted and reliefs prayed for are based on the same facts

Further, the rights asserted and reliefs prayed for in Civil Case No. 08-023 are practically based
on the same facts and are so intertwined with that in SP. PROC. Case No. 6543, such that any
judgment rendered in the pending cases, regardless of which party is successful, will amount
to res judicata.

In the custody case, Juan Ignacio mainly asserted his right, as father, to visit his children and
enjoy joint custody over them. He prayed for a judgment granting him joint custody, or
alternatively, permanent visitation rights over Ava and Ara.

In disposing of the custody case, the Makati RTC is expected, following the rationale behind the
issuance of the Rule on Custody of Minors, to consider, among others, the best interest of the
children,43 any threat or danger of physical, mental, sexual or emotional violence which
endangers their safety and best interest, their health, safety and welfare,44 any history of child or
spousal abuse by the person seeking custody,45 habitual use of alcohol, dangerous drugs or
regulated substances,46 marital misconduct,47and the most suitable physical, emotional,
spiritual, psychological and educational environment for the holistic development and growth of
the minor.48cralawlibrary

Michelle’s answer and motion for issuance of protection order in the custody case contained
allegations of psychological, sexual, emotional and economic abuse she and her children
suffered at the hands of Juan Ignacio to defeat his asserted right to have joint custody over Ava
and Ara and as argument that the grant of visitation rights in his favor will not be in the best
interest of the children. These allegations of abuse were in substance the very same ones she
made in her Petition for Protection Order.

Juan Ignacio’s rights and reliefs prayed for are dependent on and, to be sure, would be
predicated on the question of whether or not granting him the desired custody or at least
visitations rights over the children are in their best interest. In deciding this issue, the Makati
RTC will definitely have to reckon with and make a finding on Michelle’s allegations of
psychological, sexual, emotional and economic abuse.

Similarly, the Muntinlupa RTC must necessarily consider and make a determination based on
the very same facts and allegations on whether or not Michelle shall be entitled to the relief she
prayed for in her own petition, in particular, a permanent protection order against Juan Ignacio.

Elements of litis pendentia are present and any judgment in the pending cases would
amount to res judicata

Any judgment rendered in the pending cases, regardless of which party is successful, would
amount to res judicata. Consider: If the Makati RTC were to grant Juan Ignacio’s petition for
custody, this would necessarily mean that it would be in the best interest of the children if he
were allowed to visit and spend time with them and that granting Juan Ignacio visitation rights
would not pose any danger or threat to the children.

On the other hand, a grant by the Muntinlupa RTC of Michelle’s prayer for a permanent
protection order would presuppose at the minimum that it would be to the children’s best interest
if Juan Ignacio is directed to keep away from them, necessary implying that he is unfit even to
visit Ara and Ava. Conversely, if Juan Ignacio’s Petition for Custody were denied, then it would
mean that the Makati RTC gave weight and credence to Michelle’s allegations of abuse and
found them to be in the best interest of the children to bar Juan Ignacio from visiting them. Thus,
the Muntinlupa RTC should have no ground to deny Michelle’s Petition for Protection Order
pending before it.

The evil sought to be avoided by the rule against forum shopping is present in this case

The grave mischief sought to be avoided by the rule against forum shopping, i.e., the rendition
by two competent tribunals of two separate and contradictory decisions, is well-nigh palpable in
this case. If the Muntinlupa RTC were to rule that Michelle was entitled to a Protection Order,
this would necessarily conflict with any order or decision from the Makati RTC granting Juan
Ignacio visitation rights over Ava and Ara. As aptly pointed out by Juan Ignacio in his Comment
such a conflict had already occurred, as the TPO issued by the Muntinlupa RTC actually
conflicted with the Orders issued by the Makati RTC granting Juan Ignacio temporary visitation
rights over his children. There now exists an Order from the Muntinlupa RTC which, among
others, directed Juan Ignacio to stay at least one (1) kilometer away from Ava and Ara, even as
the Makati RTC recognized, in two (2) separate Orders, that he had the right, albeit temporarily
to see his children.49cralawlibrary

In fact, Michelle was very much aware of the possible conflicts between the orders of Makati
RTC and Muntinlupa RTC. In her Opposition (to Urgent Motion for Immediate Enforcement of
Visitation Orders dated December 21, 2007 and January 4, 2008), she recognized that the
granting of visitation rights in favor of Juan Ignacio would conflict the TPO and, therefore, the
Makati Court would be rendering a conflicting decision with that of the Muntinlupa RTC,
viz:chanroblesvirtualawlibrary
x x x There is therefore, no conflict of jurisdiction in this case but since the petitioner filed a
Petition for Certiorari in the Court of Appeals, which includes the issue of custody, we submit
that the matter of custody pendente lite including visitation, should not and can not be
resolved by this Honorable Court without conflicting with the Temporary Protection
Order of a co-equal court, the RTC of Muntinlupa City. x x x

xxxx

If the petitioner is granted visitation rights, the Honorable Court, with due respect would be
allowing him to violate the TPO against him; the Honorable Court would then be rendering a
conflicting decision.50 (Emphasis supplied.)
No less than the Muntinlupa RTC itself recognized the resulting aberration of its orders
conflicting with that/those of the Makati RTC. As it were, the former, in its Order of May 12,
2008, resolving Juan Ignacio’s Motion to Dismiss with Prayer to Lift Temporary Protection
Order, categorically stated that there may be orders in the protection order case that would
possibly conflict with the orders issued by the Makati RTC in the custody case. So it was that to
address these possible conflicts, the Muntinlupa RTC partially granted Juan Ignacio’s Motion to
Dismiss by modifying the reliefs provided under the TPO by excluding from its coverage those
orders issued by the Makati RTC in the exercise of its jurisdiction over the custody case.
Pursuant to the foregoing Order of the Muntinlupa RTC, the December 21, 2007 and January 4,
2008 Orders of the Makati RTC, granting Juan Ignacio visitation rights on Christmas Day and
New Year’s Day and one (1) Saturday and Sunday in January 2008, are not covered by the
reliefs under the TPO. Hence, despite the TPO directing Juan Ignacio to stay at least one (1)
kilometer away from Ava and Ara, Juan Ignacio would still have the right to see his children by
virtue of the orders issued by the Makati RTC granting him temporary visitation rights. The said
Muntinlupa RTC Order reads:chanroblesvirtualawlibrary
Based on the pleadings filed, this (Muntinlupa) Court holds that since the Makati Court first
acquired jurisdiction over the issue of custody, the latter continues to exercise it, so that any
disposition on the matter by this Court may result in the possibility of conflicting
decisions/orders.

Wherefore, this Court partially grants respondent’s Motion to Dismiss insofar as those matters
covered by A.M. No. 03-04-04-SC, Rule on Custody of Minors and Writ of Habeas corpus in
Relation to Custody of Minors are concerned, which are within the jurisdiction of the Makati
Court, but continues to take cognizance on matters not included therein (A.M. No. 03-04-04-SC)
but within the protective mantle of R.A. No. 9262.

Consequently, the reliefs provided in favor of the petitioner in the Temporary Protection Order
dated March 31, 2008 are modified, to exclude from its coverage those Orders issued by the
Makati Court in the exercise of its jurisdiction on the pending custody case.

The motions to lift the temporary protection order (except on those matter stated above) and to
cite petitioner in contempt of court are denied for lack of merit.51 (Emphasis supplied.)
Verily, the Muntinlupa RTC was aware that its issuances and its eventual final disposition on the
Petition for Protection Order would affect the custody case before the Makati RTC, if not totally
clash with the latter court’s decision. We agree with the CA’s ensuing
observation:chanroblesvirtualawlibrary
This Court notes that the Muntinlupa RTC tried to balance out the conflicting jurisdictional issues
with the Makati RTC by stating in its first assailed Order that the reliefs provided in favor of
[herein private respondent] in the [TPO] dated March 31, 2008 are modified, to exclude
from its coverage those Orders issued by the Makati Court in the exercise of its
jurisdiction on the pending custody case. Be that as it may, the Muntinlupa RTC itself
recognized the jurisdiction of the Makati RTC and that the case before it would, in fact, impinge
upon the jurisdiction of the latter court when it stated that the disposition on the matter by this
Court may result in the possibility of conflicting decisions/orders. In short, the Muntinlupa
RTC itself acknowledges the fact that any future issuances, including its eventual
decision on the petition before it, would affect the custody case pending before the
Makati RTC and might even result to conflicting decisions. Thus, in the interest of judicial
stablility, it is incumbent upon this Court to ensure that this eventuality will not come to pass. 52
Civil Case No. 08-023 should, thus, be dismissed with prejudice for being a clear case of forum
shopping.

WHEREFORE, premises considered, the appealed May 11, 2009 Decision and the December
28, 2009 Resolution of the Court of Appeals in CA-G.R. SP. No. 105442, particularly insofar as
these ordered the dismissal of subject Civil Case No. 08-023 and the nullification of the orders
made in that case, are hereby AFFIRMED.

No costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. NO. 156797 July 6, 2010

IN RE: RECONSTITUTION OF TRANSFER CERTIFICATES OF TITLE NOS. 303168 AND

303169 AND ISSUANCE OF OWNER'S DUPLICATE CERTIFICATES OF TITLE IN LIEU OF
THOSE LOST, ROLANDO EDWARD G. LIM, Petitioner.

DECISION

BERSAMIN, J.:

Petitioner Rolando Edward Lim (Lim) seeks to reverse the decision rendered on November 23,
2000 in LRC Case No. Q-11099 (98) by the Regional Trial Court (RTC), Branch 226, in Quezon
City,1 dismissing his petition for judicial reconstitution of Transfer Certificate of Title (TCT) No.
303168 and TCT No. 303169 of the Registry of Deeds for Quezon City, and for the issuance of
owner’s duplicate copies of said TCTs upon a finding that Lim was guilty of forum-shopping. The
RTC likewise denied Lim’s motion for reconsideration.

We hold that the dismissal was unwarranted and arbitrary for emanating from an erroneous
application of the rule against forum shopping. Thus, we undo the dismissal and reinstate the
application for judicial reconstitution.

Antecedents
On December 29, 1998, Lim filed in the RTC his petition for judicial reconstitution of TCT No.
303168 and TCT No. 303169 of the Registry of Deeds for Quezon City, and for the issuance of
owner’s duplicate copies of said TCTs. He alleged that he was a registered co-owner of the
parcels of land covered by the TCTs, and that he was filing the petition for the beneficial interest
of all the registered owners thereof; that the original copies of the TCTs kept in the custody of
the Registry of Deeds for Quezon City had been lost or destroyed as a consequence of the fire
that had burned certain portions of the Quezon City Hall, including the Office of said Registry of
Deeds, on July 11, 1988; that the originals of the owner’s duplicates of the TCTs kept in his
custody had also been lost or destroyed in a fire that had gutted the commercial establishment
located at 250 Villalobos Street, Quiapo, Manila on February 24, 1998; and that no co-owner’s,
mortgagee’s, or lessee’s TCTs had ever been issued.

The petition prayed thus:

(1) to declare null and void, the originals of the OWNER'S DUPLICATE of TRANSFER
CERTIFICATE OF TITLE nos. 303168 and 303169 which are lost;

(2) xxx after due adjudication and hearing, order and direct the Register of Deeds for
Quezon City to reconstitute the original copy of Transfer Certificate Title Nos. 303168
and 303169 in the name of the registered owners, in exactly the same terms and
conditions and on the basis of (i) the copies of the same Certificates of Title as
previously issued by the Register of Deeds for Quezon City attached to the petition and
(ii) the separate relocation plans and technical descriptions pertaining to the real estate
properties covered by the Transfer Certificates of Title No. 303168 and 303169, duly
approved by the Lands Management Services of the Department of Environmental and
Natural Resources and once accomplished;

(3) the Registry of Deeds for Quezon City be further ordered and directed to issue
OWNER’S DUPLICATES of the reconstituted Certificates of Title to the Petitioner in lieu
of the ones that were lost and/or destroyed.2

On April 27, 1999, the RTC issued an order, setting the petition for hearing on September 3,
1999. As the RTC required, a copy of the order was published in the Official Gazette on July 19,
1999 and July 26, 1999; and posted at the main entrance of the Quezon City Hall, and in other
specified places. The Office of the Register of Deeds for Quezon City, the Land Registration
Authority (LRA), the Department of Environment and Natural Resources, the Office of the City
Attorney of Quezon City, the Office of the City Prosecutor of Quezon City, the Office of the
Solicitor General, and the owners of the adjoining properties were each similarly duly furnished
a copy of the order.

On October 15, 1999, when the petition was called for hearing, no oppositors appeared despite
notice. Whereupon, Lim was allowed to present evidence ex parte before the Branch Clerk of
Court whom the RTC appointed as commissioner for that purpose.

On November 4, 1999, Lim formally offered his documentary exhibits to prove: (a) his
compliance with the jurisdictional requirements; (b) his authority to represent the registered co-
owners of the parcels of land covered by the TCTs; (c) his and his wife’s co-ownership of the
parcels of land; (d) the facts and circumstances surrounding the loss of the originals of the
owner’s duplicate copies; and (e) the fact that the TCTs were among the records burned during
the fire that razed the Quezon City Hall.

On August 23, 2000, the RTC received the report from the LRA that relevantly stated:

xxx
(2) Our record shows that Transfer Certificates of Title Nos. 303168 and 303169, covering Lot 7,
Block 586 and Lot 5, Block 585 respectively, both of the subdivision plan Psd-38199 are also
applied for reconstitution of titles under Administrative Reconstitution Proceedings, (Republic
Act 6732). The aforesaid TCTs are included in Administrative Reconstitution Order No. Q-577
(98) dated November 3, 1998, however, they were not reconstituted administratively, it
appearing that their owner's duplicate were likewise lost.3

xxx

On the basis of the LRA report, the RTC dismissed Lim’s petition on November 23, 2000, viz:

In view of the report of the LRA that the subject titles are also applied for reconstitution of titles
under Administrative Reconstitution Proceedings, the Court resolves to dismiss the instant
petition, it appearing that there is forum-shopping in the instant case, considering further the
strict requirements of the law on the reconstitution of titles.

Petitioner failed to disclose that he also applied for administrative reconstitution and in fact
stated in his Petition that:

xxx xxx xxx

4. To the best of the Petitioner's knowledge, no such action or proceeding is pending in

the Supreme Court, the Court of Appeals, or any other tribunal or agency; and

5. If the Petitioner should thereafter learn that a similar action or proceeding has been
filed or is pending before the Supreme Court, the Court of Appeals or any other tribunal
or agency, the Petitioner undertakes to report that fact within five (5) days therefrom to
this Court wherein the original pleading and Sworn Certification contemplated herein has
been filed.

xxx xxx xxx

WHEREFORE, premises considered, the instant action is hereby DISMISSED. 4

Lim’s motion for reconsideration filed on January 3, 2001 was denied for lack of merit.

Hence, this appeal directly to the Court via petition for review on certiorari.

Issues

Lim poses several questions of law, namely: 5

I.

Whether or not the subsequent filing by the petitioner of his petition for judicial reconstitution of
the originals of Transfer Certificates of Title Nos. 303168 and 303169 after the said loss of the
exclusive sources from which certificates of title may be administratively reconstituted under
Republic Act No. 6732 is the proper legal alternative under Section 110 of Presidential Decree
No. 1529 and is in accordance with the procedure under Republic Act No. 26;

II.
Whether or not under the stated facts and circumstances, petitioner can be deemed to have
engaged in forum shopping;

III.

Whether or not under the stated facts and circumstances, the non-disclosure by the petitioner of
the previous filing of the application for administrative reconstitution of the originals of Transfer
Certificates of Title Nos. 303168 and 303169 in his Certification against Forum Shopping
incorporated in the petition for judicial reconstitution is a violation of Section 5, RULE 7 of the
1997 Rules of Civil Procedure; and

IV.

Whether or not the petitioner, who had no fault at all in the destruction of the original certificates
of title safekept in the Registry of Deeds for Quezon City may be unjustly deprived of his
proprietary right to obtain and possess reconstituted certificates of title over the real estate
properties covered by Transfer Certificates of Title Nos. 303168 and 303169 specially where he
complied with all the strict requirements of judicial reconstitution under Presidential Decree No.
1529 and in accordance with the procedure under and requirements of Republic Act No. 26.

The foregoing issues may be restated thus: Did the RTC correctly dismiss the petition of Lim on
the ground of forum shopping?

Ruling

Forum shopping is the act of a party litigant against whom an adverse judgment has been
rendered in one forum seeking and possibly getting a favorable opinion in another forum, other
than by appeal or the special civil action of certiorari, or the institution of two or more actions or
proceedings grounded on the same cause or supposition that one or the other court would
make a favorable disposition.6 Forum shopping happens when, in the two or more pending
cases, there is identity of parties, identity of rights or causes of action, and identity of reliefs
sought.7 Where the elements of litis pendentia are present, and where a final judgment in one
case will amount to res judicata in the other, there is forum shopping.8 For litis pendentia to be a
ground for the dismissal of an action, there must be: (a) identity of the parties or at least such as
to represent the same interest in both actions; (b) identity of rights asserted and relief prayed
for, the relief being founded on the same acts; and (c) the identity in the two cases should be
such that the judgment which may be rendered in one would, regardless of which party is
successful, amount to res judicata in the other.9

For forum shopping to exist, both actions must involve the same transaction, same essential
facts and circumstances and must raise identical causes of action, subject matter and issues.
Clearly, it does not exist where different orders were questioned, two distinct causes of action
and issues were raised, and two objectives were sought.10

The petition has merit.

Lim was not guilty of forum shopping, because the factual bases of his application for the
administrative reconstitution of the TCTs and of his petition for their judicial reconstitution, and
the reliefs thereby sought were not identical.

When he applied for the administrative reconstitution in the LRA on July 21,1988,11 he still had
his co-owner’s duplicate copies of the TCTs in his possession, but by the time the LRA resolved
his application on November 3, 1998, allowing the relief prayed for,12 his co-owner’s duplicate
copies of the TCTs had meanwhile been destroyed by fire on February 24, 1998, a fact that he
had duly reported in an affidavit dated May 29, 1998 presented on June 1, 1998 to the Office of
the Register of Deeds for Quezon City.13 The loss by fire was corroborated by the certification
issued by the Chief of Fire District I of Manila to the effect that the commercial establishment for
Cheer-up Foods Corporation, the petitioner’s company, had been gutted by fire on February 24,
1998.14 Thus, the intervening loss of the owner’s duplicate copies that left the favorable ruling of
the LRA no longer implementable gave rise to his need to apply for judicial reconstitution in the
RTC pursuant to Section 12 of Republic Act No. 26.15

The RTC should have easily discerned that forum shopping did not characterize the petitioner’s
resort to judicial reconstitution despite the previous proceeding for administrative reconstitution.
Although the bases for the administrative reconstitution were the owner’s duplicate copies of
TCT No. 303168 and TCT No. 303169, those for judicial reconstitution would be other
documents that "in the judgment of the court, are sufficient and proper

basis for reconstituting the lost or destroyed certificate of title."16 The RTC should have also
noted soon enough that his resort to judicial reconstitution was not because his earlier resort to
administrative reconstitution had been denied (in fact, the LRA had resolved in his favor), 17 but
because the intervening loss to fire of the only permissible basis for administrative reconstitution
of the TCTs mandated his resort to the RTC.18 Indeed, he came to court as the law directed him
to do, unlike the litigant involved in the undesirable practice of forum shopping who would go
from one court to another to secure a favorable relief after being denied the desired relief by
another court.19

Neither did the petitioner’s omission from the petition for judicial reconstitution of a reference to
the application for administrative reconstitution in the LRA justify the dismissal of the petition.
The petition for judicial reconstitution and the application for administrative reconstitution
addressed different situations and did not have identical bases. Besides, only the RTC could
grant or deny any relief to him at that point.1avvph!1

The motu proprio dismissal of the petition for judicial reconstitution by the RTC although the
Government did not file a motion to dismiss grounded on the petitioner’s supposed failure to
comply with the contents of the required certification was yet another glaring error of the RTC. A
violation of the rule against forum-shopping other than a willful and deliberate forum shopping
did not authorize the RTC to dismiss the proceeding without motion and hearing. Specifically,
the submission of a false certification of non-forum shopping did not automatically warrant the
dismissal of the proceeding, even if it might have constituted contempt of court, for Section 5,
RULE 7, of the 1997 Rules of Civil Procedure, has been clear and forthright, to wit:

Section 5. Certification against forum shopping.--The plaintiff or principal party shall certify
under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore
commenced any action or filed any claim involving the same issues in any court, tribunal or
quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending
therein; (b) if there is such other pending action or claim, a complete statement of the present
status thereof; and (c) if he should thereafter learn that the same or similar action or claim has
been filed or is pending, he shall report that fact within five (5) days therefrom to the court
wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of
the complaint or other initiatory pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false
certification or non-compliance with any of the undertakings therein shall constitute indirect
contempt of court, without prejudice to the corresponding administrative and criminal actions. If
the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the
same shall be ground for summary dismissal with prejudice and shall constitute direct contempt,
as well as cause for administrative sanctions.1avvphi1

In Young v Keng Seng,20 which involved a false certification of non-forum shopping, the Court
cogently held that:

The foregoing certification is obviously inaccurate, if not downright false, because it does not
disclose the filing of the First Case. Had this violation been appropriately brought up in the
Motion to Dismiss, it could have resulted in the abatement of the Second case.

Nonetheless, strengthening our ruling on the First issue, we hold that substantial justice requires
the resolution of the present controversy on its merits.

By its outright and undiscerning application of the sanction against forum shopping, the RTC
plunged into an unwanted limbo the petitioner’s and his co-owners’ ownership of the realties. A
modicum of care and discernment could have avoided such a prejudicial result. We now put an
end to such limbo by cautioning all judges to exercise care and discernment in their
enforcement of the rule against forum shopping, that they may not unduly trench on the valuable
rights of litigants.

WHEREFORE, the decision dated November 23, 2000 is set aside.

The petition for the judicial reconstitution of the petitioner’s Transfer Certificate of Title No.
303168 and Transfer Certificate of Title No. 303169 of the Registry of Deeds for Quezon City,
and for the issuance of the owner’s duplicate copies thereof, is reinstated.

The Regional Trial Court, Branch 226, in Quezon City is directed to forthwith resume
proceedings thereon, and to render its decision on the merits as soon as practicable.

No pronouncement on costs of suit.

SO ORDERED.

FIRST DIVISION

G.R. No. 191699, April 19, 2016

WILLIAM GO QUE CONSTRUCTION AND/OR WILLIAM GO QUE, Petitioner, v. COURT OF

APPEALS AND DANNY SINGSON, RODOLFO PASAQUI,1 LENDO LOMINIQUI,2 AND JUN
ANDALES, Respondents.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for certiorari3 are the Resolutions dated November 12, 2009 4 and
February 5, 20105 of the Court of Appeals (CA) in CA-G.R. SP No. 109427, holding that the
photocopies of the identification cards (ID) submitted by private respondents Danny Singson
(Singson), Rodolfo Pasaqui (Pasaqui), and Lendo Lominiqui (Lominiqui), as well as their Joint
Affidavit6 attesting to the identity of private respondent Jun Andalos (Andales) and the fact that
he was a co-petitioner in the case, served as competent evidence of private respondents'
identities and, thus, cured the defect in the Verification/Certification of Non-Forum Shopping of
their petition for certiorari before the CA.

The Facts

Private respondents filed complaints7 for illegal dismissal against petitioner William Go Que
Construction and/or William Go Que (petitioner) before the National Labor Relations
Commission (NLRC), National Capital Region-North Sector Arbitration Branch, claiming that
they were hired as steelmen on various dates, and were regular employees of petitioner until
their illegal dismissal on June 3, 2006. Moreover, they alleged that petitioner failed to pay their
monetary benefits, such as service incentive leave pay, holiday pay, and 13 th month pay.8

For his part, petitioner averred that private respondents were hired as project employees, and
were informed of the specific period or phase of construction wherein their services were
needed. Sometime in May 2006, petitioner learned that some workers were getting excess and
cutting unused steel bars, and selling them to junk shops, prompting him to announce that he
will bring the matter to the proper authorities. Thereafter, private respondents no longer reported
for work, and were identified by the other workers as the thieves.9

Meanwhile, petitioner filed a complaint for theft against private respondents and a certain Jimmy
Dulman before the Office of the City Prosecutor, Quezon City.10 After preliminary investigation,
the investigating prosecutor found probable cause against them 11 and filed the corresponding
Information12 before the Regional Trial Court of Quezon City, docketed as Criminal Case No. Q-
07-149245.

The LA Ruling

In a Decision13 dated March 23, 2007, the Labor Arbiter (LA) found petitioner to have illegally
dismissed private respondents, and declared them to be regular employees entitled to
reinstatement to their former positions without loss of seniority rights and backwages. 14

The LA rejected petitioner's claim that private respondents were contractual or project
employees, considering that petitioner: (a) failed to present any written contract duly signed by
private respondents containing details such as the work or service to be rendered, the place of
work, the wage rate, and the term or duration of employment; (b) continuously employed private
respondents to perform the same tasks for a period of two (2) to eight (8) years; and (c) failed to
comply with the mandatory requirement of submitting termination reports to the appropriate
Department of Labor and Employment (DOLE). The LA likewise rejected petitioner's claim that
private respondents have abandoned their jobs in the absence of written notice requiring them
to explain why they should not be dismissed on the ground of abandonment. 15

On the other hand, the LA denied private respondents' monetary claims for lack of factual
basis.16

Aggrieved, petitioner appealed17 to the NLRC, arguing, among others, that Andales should not
have been included as party litigant, considering the apparent falsification of his signature in the
complaint and Verification18 attached to their Position Paper,19 and the fact that he could not be
contacted.20

The NLRC Ruling

In a Decision21 dated December 8, 2008 (December 8, 2008 Decision), the NLRC reversed and
set aside the LA ruling, holding that private respondents were validly dismissed as they stole
from petitioner. It noted the Resolution of the Quezon City Prosecutor's Office finding probable
cause for theft against the private respondents and that the latter abandoned their employment
after they were identified by their former co-workers as the thieves. However, considering
petitioner's failure to accord them procedural due process, the NLRC ordered him to pay each
of the private respondents the amount of P5,000.00 as nominal damages.22

Dissatisfied, private respondents moved for reconsideration,23 which the NLRC denied in a
Resolution24dated March 31, 2009, prompting them to elevate their case to the CA via a petition
for certiorari,25docketed as CA-G.R. SP No. 109427,26 with Motion to Litigate as
Pauper27 (motion).

The CA Proceedings

In a Resolution28 dated July 3, 2009, the CA granted private respondents' motion but noted that
the Affidavit of Service29 and the Verification/Certification of Non-Forum Shopping30 contained a
defective jurat. Thus, private respondents were directed to cure the defects within five (5) days
from notice.31

Meanwhile, the NLRC issued an entry of judgment32 in the case on July 15, 2009.

Petitioner filed an Urgent Manifestation33 before the CA pointing out the variance and
dissimilarities in the signatures of private respondents as appearing in the annexes to their
petition for certiorari.34

Private respondents submitted their Manifestation and Compliance 35 dated July 21, 2009,
wherein they admitted that Andales could not be located as he was purportedly on vacation in
Samar,36 but they attached (a) a verification37 dated December 7, 2006 bearing their signatures
including Andales's; (b) a photocopy38 of private subdivision IDs of Singson, Pasaqui, and
Lominiqui; and (c) a photocopy of the driver's license39 of the affiant in the Affidavit of Service.

In a Resolution40 dated August 13, 2009, the CA required private respondents anew to submit a
Verification/Certification of Non-Forum Shopping with a properly accomplished jurat indicating
competent evidence of their identities.

On September 10, 2009, private respondents submitted a Manifestation and Compliance and
Submission of Joint Affidavit41 wherein Singson, Pasaqui, and Lominiqui stated that: (a) they
personally knew Andales who used to be their co-worker42 and one of the original complainants
in the illegal dismissal case; (b) Andales is in the province and is not in a position to submit his
ID; (c) despite Andales's absence and failure to submit his ID, he should be maintained as a
petitioner before the CA; and (d) they had already submitted their IDs.43

Thereafter, in a Resolution44 dated November 12, 2009, the CA held that the photocopies of the
IDs submitted by Singson, Pasaqui, and Lominiqui, as well as their Joint-Affidavit45 attesting to
the identity of Andales who was unable to submit his ID, served as competent evidence of
private respondents' identities and cured the defect in the Affidavit of Service, and
Verification/Certification of Non-Forum Shopping. Without giving due course to the petition, the
CA directed petitioner to submit his Comment within ten (10) days from receipt of the
Resolution, and private respondents to file their Reply within five (5) days from receipt of the
said Comment.46

Unperturbed, petitioner moved for reconsideration,47 which the CA denied in a

Resolution48 dated February 5, 2010; hence, the instant petition.

On June 15, 2010, Singson and Pasaqui, assisted by their counsel, Atty. Ricardo M. Perez
(Atty. Perez), amicably settled with petitioner, and executed a Satisfaction of Judgment/Release
of Claim49 in the latter's favor, and, thereafter, filed the corresponding Motion to Withdraw
Petition50 (motion to withdraw) before the CA. On the other hand, the adjudged amount in favor
of Lominiqui and Andales were deposited with the NLRC51 because of their inability to show up
and receive the amounts.

In a Resolution52 dated July 15, 2010, the CA partially granted the motion to withdraw and
dismissed the petition insofar as Singson and Pasaqui are concerned.

On the other hand, the NLRC issued an Order 53 dated July 20, 2010 directing the release of the
surety bond posted by petitioner.

Subsequently, the CA issued a Resolution54 dated November 4, 2010 suspending the

proceedings in view of the pendency of the petition for certiorari before the Court.

The Issue Before the Court

The issue for the Court's resolution is whether or not the CA acted with grave abuse of
discretion in refusing to dismiss the petition for certiorari before it on the ground of non-
compliance with the requirements of verification and certification against forum shopping.

The Court's Ruling

The petition is meritorious.

At the outset, it should be pointed out that in a Resolution55 dated July 15, 2010, the CA had
already dismissed the petition for certiorari in CA-G.R. SP No. 109427 with respect to private
respondents Singson and Pasaqui on account of the Satisfaction of Judgment/Release of
Claim56 they executed in petitioner's favor subsequent to the filing of the instant case. Notably,
Singson and Pasaqui, thru their counsel, Atty. Perez, moved that the instant petition be
dismissed, without prejudice to the claims of the other private respondents, Lominiqui and
Andales, who are "on the run."57 The settled rule is that legitimate waivers resulting from
voluntary settlements of laborers' claims should be treated and upheld as the law between the
parties.58 In view of the foregoing developments, there is no longer any justiciable controversy
between petitioner and private respondents Singson and Pasaqui, rendering the instant case
moot and academic, and dismissible59 with respect to them.

On the other hand, private respondents Lominiqui and Andales do not appear to have any
proper representation before the Court in view of Atty. Perez's denial of any subsisting lawyer-
client relationship with them. In fact, it was disclosed that they were reportedly in hiding for fear
of being arrested.60 Thus, in a Resolution61 dated July 24, 2013, they were deemed to have
waived the filing of their comment to the instant petition since the notices addressed to them
were returned unserved.

The foregoing circumstances notwithstanding, the Court delved on the merits of the instant
petition, and found the same to be well taken.

The instant controversy revolves on whether or not the CA gravely abused its discretion in
holding that private respondents substantially complied with the requirements of a valid
verification and certification against forum shopping.

Section 4, RULE 7 of the Rules of Civil Procedure states that "[a] pleading is verified by an
affidavit that the affiant has read the pleading and that the allegations therein are true and
correct of his personal knowledge or based on authentic records." "A pleading required to be
verified which x x x lacks a proper verification, shall be treated as an unsigned pleading."

On the other hand, Section 5, RULE 7 of the Rules of Civil Procedure provides that "[t]he
plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading
asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed
therewith: (a) that he has not theretofore commenced any action or filed any claim involving the
same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no
such other action or claim is pending therein; (b) if there is such other pending action or claim, a
complete statement of the present status thereof; and (c) if he should thereafter learn that the
same or similar action or claim has been filed or is pending, he shall report that fact within five
(5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been
filed." "Failure to comply with the foregoing requirements shall not be curable by mere
amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of
the case without prejudice, unless otherwise provided x x x."

In this case, it is undisputed that the Verification/Certification against Forum

Shopping62 attached to the petition for certiorari in CA-G.R. SP No. 109427 was not
accompanied with a valid affidavit/properly certified under oath. This was because
the jurat thereof was defective in that it did not indicate the pertinent details regarding the
affiants' (i.e., private respondents) competent evidence of identities.

Under Section 6, Rule II of A.M. No. 02-8-13-SC63 dated July 6, 2004, entitled the "2004 Rules
on Notarial Practice" (2004 Rules on Notarial Practice), & jurat refers to an act in which an
individual on a single occasion:

(a) appears in person before the notary public and presents an instrument or document;

(b) is personally known to the notary public or identified by the notary public through
competent evidence of identity as defined by these Rules;

(c) signs the instrument or document in the presence of the notary; and

(d) takes an oath or affirmation before the notary public as to such instrument or document.

Under Section 12, Rule II of the 2004 Rules on Notarial Practice, "competent evidence of
identity" as used in the foregoing provision refers to the identification of an individual based on:

(a) at least one current identification document issued by an official agency bearing the
photograph and signature of the individual, such as but not limited to, passport, driver's
license, Professional Regulations Commission ID, National Bureau of Investigation clearance,
police clearance, postal ID, voter's ID, Barangay certification, Government Service and
Insurance System (GSIS) e-card, Social Security System (SSS) card, Philhealth card, senior
citizen card, Overseas Workers Welfare Administration (OWWA) ID, OFW ID, seaman's book,
alien certificate of registration/immigrant certificate of registration, government office ID,
certification from the National Council for the Welfare of Disabled Persons (NCWDP),
Department of Social Welfare and Development (DSWD) certification; or

(b) the oath or affirmation of one credible witness not privy to the instrument, document
or transaction who is personally known to the notary public and who personally knows the
individual, or of two credible witnesses neither of whom is privy to the instrument, document or
transaction who each personally knows the individual and shows to the notary public
documentary identification.

Evidently, not being documents of identification issued by an official agency, the photocopies of
the IDs64of private respondents Singson, Pasaqui, and Lominiqui from La Vista Association,
Inc., R.O. Barra Builders & Electrical Services, and St. Charbel Executive Village, respectively,
do not constitute competent evidence of their identities under Section 12 (a), Rule II of the 2004
Rules on Notarial Practice. In the same vein, their Joint-Affidavit65 identifying Andales and
assuring the CA that he was a party-litigant is not competent evidence of Andales's identity
under Section 12 (b), Rule II of the same rules, considering that they (i.e., Singson, Pasaqui,
and Lominiqui) themselves are privy to the instrument, i.e., the Verification/Certification of Non-
Forum Shopping, in which Andales's participation is sought to be proven. To note, it cannot be
presumed that an affiant is personally known to the notary public; the jurat must contain a
statement to that effect.66 Tellingly, the notarial certificate of the Verification/Certification of Non-
Forum Shopping67 attached to private respondents' petition before the CA did not state whether
they presented competent evidence of their identities, or that they were personally known to the
notary public, and, thus, runs afoul of the requirements of verification and certification against
forum shopping under Section 1,68 Rule 65, in relation to Section 3,69 Rule 46, of the Rules of
Court.

In Fernandez v. Villegas70 (Fernandez), the Court pronounced that non-compliance with the
verification requirement or a defect therein "does not necessarily render the pleading fatally
defective. The court may order its submission or correction or act on the pleading if the
attending circumstances are such that strict compliance with the Rule may be dispensed with in
order that the ends of justice may be served thereby."71 "Verification is deemed substantially
complied with when one who has ample knowledge to swear to the truth of the allegations in the
complaint or petition signs the verification, and when matters alleged in the petition have been
made in good faith or are true and correct."72 Here, there was no substantial compliance with
the verification requirement as it cannot be ascertained that any of the private respondents
actually swore to the truth of the allegations in the petition for certiorari in CA-G.R. SP No.
109427 given the lack of competent evidence of any of their identities. Because of this, the fact
that even one of the private respondents swore that the allegations in the pleading are true and
correct of his knowledge and belief is shrouded in doubt.

For the same reason, neither was there substantial compliance with the certification against
forum shopping requirement. In Fernandez, the Court explained that "non-compliance therewith
or a defect therein, unlike in verification, is generally not curable by its subsequent submission
or correction thereof, unless there is a need to relax the Rule on the ground of 'substantial
compliance' or presence of'special circumstances or compelling reasons.'" 73 Here, the CA did
not mention - nor does there exist - any perceivable special circumstance or compelling reason
which justifies the rules' relaxation. At all events, it is uncertain if any of the private respondents
certified under oath that no similar action has been filed or is pending in another forum.

In fact, on both procedural aspects, the CA failed to address the evident variance in the
signatures74 of the remaining private respondents, i.e., Lominiqui and Andales, in their petition
for certiorari and their previous pleadings. Earlier, petitioner had already questioned Andales's
participation in the case as he was already missing when the complaint was filed, and his
signature in the Verification attached to private respondents' Position Paper did not match those
in the payroll documents.75 In sum, the authenticity of the signatures of Lominiqui and Andales,
and their participation in the instant case were seriously put into question.

Case law states that "[v]erification is required to secure an assurance that the allegations in the
petition have been made in good faith or are true and correct, and not merely speculative." 76 On
the other hand, "[t]he certification against forum shopping is required based on the principle that
a party-litigant should not be allowed to pursue simultaneous remedies in different fora." 77 The
important purposes behind these requirements cannot be simply brushed aside absent any
sustainable explanation justifying their relaxation. In this case, proper justification is especially
called for in light of the serious allegations of forgery as to the signatures of the remaining
private respondents, i.e., Lominiqui and Andales. Thus, by simply treating the insufficient
submissions before it as compliance with its Resolution78 dated August 13, 2009 requiring anew
the submission of a proper verification/certification against forum shopping, the CA patently and
grossly ignored settled procedural rules and, hence, gravely abused its discretion. All things
considered, the proper course of action was for it to dismiss the petition.
As a final word, it is well to stress that "procedural rules are not to be disdained as mere
technicalities that may be ignored at will to suit the convenience of a party, x x x. Justice has to
be administered according to the Rules in order to obviate arbitrariness, caprice, or
whimsicality."79 Resort to the liberal application of procedural rules remains the exception rather
than the rule; it cannot be made without any valid reasons underpinning the said course of
action. To merit liberality, the one seeking such treatment must show reasonable cause
justifying its non-compliance with the Rules, and must establish that the outright dismissal of the
petition would defeat the administration of substantial justice.80 Procedural rules must, at all
times, be followed, save for instances when a litigant must be rescued from an injustice far
graver than the degree of his carelessness in not complying with the prescribed
procedure.81 The limited exception does not obtain in this case.chanrobleslaw

WHEREFORE, the petition is GRANTED. The Resolutions dated November 12, 2009 and
February 5, 2010 of the Court of Appeals in CA-G.R. SP No. 109427 are
hereby REVERSED and SET ASIDE. Accordingly, the petition for certiorari in CA-G.R. SP No.
109427 is DISMISSED.

SO ORDERED.cralawlawlibrary

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 154704 June 1, 2011

NELLIE VDA. DE FORMOSO and her children, namely, MA. THERESA FORMOSO-
PESCADOR, ROGER FORMOSO, MARY JANE FORMOSO, BERNARD FORMOSO and
PRIMITIVO MALCABA, Petitioners,
vs.
PHILIPPINE NATIONAL BANK, FRANCISCO ARCE, ATTY. BENJAMIN BARBERO, and
ROBERTO NAVARRO,Respondents.

DECISION

MENDOZA, J.:

Assailed in this petition are the January 25, 2002 Resolution1 and the August 8, 2002
Resolution2 of the Court of Appeals (CA) which dismissed the petition for certiorari filed by the
petitioners on the ground that the verification and certification of non-forum shopping was
signed by only one of the petitioners in CA G.R. SP No. 67183, entitled "Nellie P. Vda. De
Formoso, et al. v. Philippine National Bank, et al."

The Factual and

Procedural Antecedents

Records show that on October 14, 1989, Nellie Panelo Vda. De Formoso (Nellie) and her
children namely: Ma. Theresa Formoso-Pescador, Roger Formoso, Mary Jane Formoso,
Bernard Formoso, and Benjamin Formoso, executed a special power of attorney in favor of
Primitivo Malcaba (Malcaba) authorizing him, among others, to secure all papers and
documents including the owner’s copies of the titles of real properties pertaining to the loan with
real estate mortgage originally secured by Nellie and her late husband, Benjamin S. Formoso,
from Philippine National Bank, Vigan Branch (PNB) on September 4, 1980.

On April 20, 1990, the Formosos sold the subject mortgaged real properties to Malcaba through
a Deed of Absolute Sale. Subsequently, on March 22, 1994, Malcaba and his lawyer went to
PNB to fully pay the loan obligation including interests in the amount of ₱2,461,024.74.

PNB, however, allegedly refused to accept Malcaba’s tender of payment and to release the
mortgage or surrender the titles of the subject mortgaged real properties.

On March 24, 1994, the petitioners filed a Complaint for Specific Performance against PNB
before the Regional Trial Court of Vigan, Ilocos Sur (RTC) praying, among others, that PNB be
ordered to accept the amount of ₱2,461,024.74 as full settlement of the loan obligation of the
Formosos.

After an exchange of several pleadings, the RTC finally rendered its decision3 on October 27,
1999 favoring the petitioners. The petitioners’ prayer for exemplary or corrective damages,
attorney’s fees, and annual interest and daily interest, however, were denied for lack of
evidence.

PNB filed a motion for reconsideration but it was denied for failure to comply with Rule 15,
Section 5 of the 1997 Rules of Civil Procedure. PNB then filed a Notice of Appeal but it was
dismissed for being filed out of time.

The petitioners received their copy of the decision on November 26, 1999, and on January 25,
2001, they filed their Petition for Relief from Judgment4 questioning the RTC decision that there
was no testimonial evidence presented to warrant the award for moral and exemplary damages.
They reasoned out that they could not then file a motion for reconsideration because they could
not get hold of a copy of the transcripts of stenographic notes. In its August 6, 2001 Order, the
RTC denied the petition for lack of merit.5

On September 7, 2001, the petitioners moved for reconsideration but it was denied by the RTC
in its Omnibus Order of September 26, 2001.6

Before the Court of Appeals

On November 29, 2001, the petitioners filed a petition for certiorari before the CA challenging
the RTC Order of August 6, 2001 and its Omnibus Order dated September 26, 2001.

In its January 25, 2002 Resolution, the CA dismissed the petition stating that:

The verification and certification of non-forum shopping was signed by only one (Mr. Primitivo
Macalba) of the many petitioners. In Loquias v. Office of the Ombudsman, G.R. No. 139396,
August 15, 2000, it was ruled that all petitioners must be signatories to the certification of non-
forum shopping unless the one who signed it is authorized by the other petitioners. In the case
at bar, there was no showing that the one who signed was empowered to act for the rest.
Therefore, it cannot be presumed that the one who signed knew to the best of his knowledge
whether his co-petitioners had the same or similar claims or actions filed or pending. The ruling
in Loquias further declared that substantial compliance will not suffice in the matter involving
strict observance of the Rules. Likewise, the certification of non-forum shopping requires
personal knowledge of the party who executed the same and that petitioners must show
reasonable cause for failure to personally sign the certification. Utter disregard of the Rules
cannot just be rationalized by harping on the policy of liberal construction.

Aggrieved, after the denial of their motion for reconsideration, the petitioners filed this petition
for review anchored on the following

GROUNDS

THE COURT OF APPEALS PATENTLY ERRED IN RULING THAT ALL THE PETITIONERS
MUST SIGN THE VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING IN A
PETITION FOR CERTIORARI WHEREIN ONLY QUESTIONS OF LAW ARE INVOLVED.

ALTERNATIVELY, THE COURT OF APPEALS PATENTLY ERRED IN DISMISSING THE

WHOLE PETITION WHEN AT THE VERY LEAST THE PETITION INSOFAR AS PETITIONER
MALCABA IS CONCERNED BEING THE SIGNATORY THEREOF SHOULD HAVE BEEN
GIVEN DUE COURSE.

THE COURT OF APPEALS PATENTLY ERRED IN GIVING MORE WEIGHT ON

TECHNICALITIES WHEN THE PETITION BEFORE IT WAS CLEARLY MERITORIOUS.7

The petitioners basically argue that they have substantially complied with the requirements
provided under the 1997 Rules of Civil Procedure on Verification and Certification of Non-Forum
Shopping. The petitioners are of the view that the rule on Verification and Certification of Non-
Forum Shopping that all petitioners must sign should be liberally construed, since only
questions of law are raised in a petition for certiorari and no factual issues that require personal
knowledge of the petitioners.

The petitioners further claim that they have a meritorious petition because contrary to the ruling
of the RTC, their Petition for Relief clearly showed that, based on the transcript of stenographic
notes, there was enough testimonial evidence for the RTC to grant them damages and
attorney’s fees as prayed for.

On the other hand, PNB counters that the mandatory rule on the certification against forum
shopping requires that all of the six (6) petitioners must sign, namely: Nellie Vda. De Formoso
and her children Ma. Theresa Formoso-Pescador, Roger Formoso, Mary Jane Formoso, and
Bernard Formoso, and Primitivo Malcaba. Therefore, the signature alone of Malcaba on the
certification is insufficient.

PNB further argues that Malcaba was not even a party or signatory to the contract of loan
entered into by his co-petitioners. Neither was there evidence that Malcaba is a relative or a co-
owner of the subject properties. It likewise argues that, contrary to the stance of the petitioners,
the issue raised before the CA, as to whether or not the petitioners were entitled to moral and
exemplary damages as well as attorney’s fees, is a factual one.

Finally, PNB asserts that the body of the complaint filed by the petitioners failed to show any
allegation that Macalba alone suffered damages for which he alone was entitled to reliefs as
prayed for. PNB claims that the wordings of the complaint were clear that all the petitioners
were asking for moral and exemplary damages and attorney’s fees.

OUR RULING

The petition lacks merit.

Certiorari is an extraordinary, prerogative remedy and is never issued as a matter of right.
Accordingly, the party who seeks to avail of it must strictly observe the rules laid down by
law.8 Section 1, Rule 65 of the 1997 Rules of Civil Procedure provides:

SECTION 1. Petition for certiorari.- When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court, alleging the facts with certainty and praying that
judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or resolution
subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and
a sworn certification of non-forum shopping as provided in the third paragraph of Section 3,
Rule 46. [Emphasis supplied]

Under Rule 46, Section 3, paragraph 3 of the 1997 Rules of Civil Procedure, as amended,
petitions for certiorari must be verified and accompanied by a sworn certification of non-forum
shopping.

SECTION 3. Contents and filing of petition; effect of non-compliance with requirements. – The
petition shall contain the full names and actual addresses of all the petitioners and respondents,
a concise statement of the matters involved, the factual background of the case, and the
grounds relied upon for the relief prayed for.

In actions filed under Rule 65, the petition shall further indicate the material dates showing when
notice of the judgment or final order or resolution subject thereof was received, when a motion
for new trial or reconsideration, if any, was filed and when notice of the denial thereof was
received.

It shall be filed in seven (7) clearly legible copies together with proof of service thereof on the
respondent with the original copy intended for the court indicated as such by the petitioner, and
shall be accompanied by a clearly legible duplicate original or certified true copy of the
judgment, order, resolution, or ruling subject thereof, such material portions of the record as are
referred to therein, and other documents relevant or pertinent thereto. The certification shall be
accomplished by the proper clerk of court or his duly authorized representative, or by the proper
officer of the court, tribunal, agency or office involved or by his duly authorized representative.
The other requisite number of copies of the petition shall be accompanied by clearly legible
plain copies of all documents attached to the original.

The petitioner shall also submit together with the petition a sworn certification that he has
not theretofore commenced any other action involving the same issues in the Supreme Court,
the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is
such other action or proceeding, he must state the status of the same; and if he should
thereafter learn that a similar action or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or
agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency
thereof within five (5) days therefrom.

The petitioner shall pay the corresponding docket and other lawful fees to the clerk of court and
deposit the amount of ₱500.00 for costs at the time of the filing of the petition.
The failure of the petitioner to comply with any of the foregoing requirements shall be
sufficient ground for the dismissal of the petition. [Emphases supplied]

The acceptance of a petition for certiorari as well as the grant of due course thereto is, in
general, addressed to the sound discretion of the court. Although the Court has absolute
discretion to reject and dismiss a petition for certiorari, it does so only (1) when the petition fails
to demonstrate grave abuse of discretion by any court, agency, or branch of the government; or
(2) when there are procedural errors, like violations of the Rules of Court or Supreme
Court Circulars.9 [Emphasis supplied]

In the case at bench, the petitioners claim that the petition for certiorari that they filed before the
CA substantially complied with the requirements provided for under the 1997 Rules of Civil
Procedure on Verification and Certification of Non-Forum Shopping.

The Court disagrees.

Sections 4 and 5 of RULE 7 of the 1997 Rules of Civil Procedure provide:

SEC. 4. Verification. – Except when otherwise specifically required by law or rule, pleadings
need not be under oath, verified or accompanied by affidavit.

A pleading is verified by an affidavit that the affiant has read the pleadings and that the
allegations therein are true and correct of his personal knowledge or based on authentic
records.

A pleading required to be verified which contains a verification based on "information and belief"
or upon "knowledge, information and belief" or lacks a proper verification, shall be treated as an
unsigned pleading.

SEC. 5. Certification against forum shopping. – The plaintiff or principal party shall certify under
oath in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn
certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore
commenced any action or filed any claim involving the same issues in any court, tribunal or
quasi-judicial agency and, to the best of his knowledge, no such other action or claim is pending
therein; (b) if there is such other pending action or claim, a complete statement of the present
status thereof; and (c) if he should thereafter learn that the same or similar action or claim has
been filed or is pending, he shall report that fact within five (5) days therefrom to the court
wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of
the complaint or other initiatory pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after hearing. The submission of a false
certification or non-compliance with any of the undertakings therein shall constitute indirect
contempt of court, without prejudice to the corresponding administrative and criminal actions. If
the acts of the party or his counsel clearly constitute willful and deliberate forum shopping, the
same shall be ground for summary dismissal with prejudice and shall constitute direct contempt,
as well as a cause for administrative sanctions. x x x.

In this regard, the case of Oldarico S. Traveno v. Bobongon Banana Growers Multi-Purpose
Cooperative,10 is enlightening:

Respecting the appellate court’s dismissal of petitioners’ appeal due to the failure of some of
them to sign the therein accompanying verification and certification against forum-shopping, the
Court’s guidelines for the bench and bar in Altres v. Empleo, which were culled "from
jurisprudential pronouncements," are instructive:

For the guidance of the bench and bar, the Court restates in capsule form the jurisprudential
pronouncements already reflected above respecting non-compliance with the requirements on,
or submission of defective, verification and certification against forum shopping:

1) A distinction must be made between non-compliance with the requirement on or

submission of defective verification, and non-compliance with the requirement on or
submission of defective certification against forum shopping.

2) As to verification, non-compliance therewith or a defect therein does not necessarily

render the pleading fatally defective. The Court may order its submission or correction or
act on the pleading if the attending circumstances are such that strict compliance with
the Rule may be dispensed with in order that the ends of justice may be served thereby.

3) Verification is deemed substantially complied with when one who has ample
knowledge to swear to the truth of the allegations in the complaint or petition signs the
verification, and when matters alleged in the petition have been made in good faith or
are true and correct.

4) As to certification against forum shopping, non-compliance therewith or a defect

therein, unlike in verification, is generally not curable by its subsequent submission or
correction thereof, unless there is a need to relax the Rule on the ground of "substantial
compliance" or presence of "special circumstances or compelling reasons."

5) The certification against forum shopping must be signed by all the plaintiffs or
petitioners in a case; otherwise, those who did not sign will be dropped as parties to the
case. Under reasonable or justifiable circumstances, however, as when all the plaintiffs
or petitioners share a common interest and invoke a common cause of action or
defense, the signature of only one of them in the certification against forum shopping
substantially complies with the Rule.

6) Finally, the certification against forum shopping must be executed by the party-
pleader, not by his counsel. If, however, for reasonable or justifiable reasons, the party-
pleader is unable to sign, he must execute a Special Power of Attorney designating his
counsel of record to sign on his behalf.

The petition for certiorari filed with the CA stated the following names as petitioners: Nellie
Panelo Vda. De Formoso, Ma. Theresa Formoso-Pescador, Roger Formoso, Mary Jane
Formoso, Bernard Formoso, Benjamin Formoso, and Primitivo Malcaba.

Admittedly, among the seven (7) petitioners mentioned, only Malcaba signed the verification
and certification of non-forum shopping in the subject petition. There was no proof that Malcaba
was authorized by his co-petitioners to sign for them. There was no special power of attorney
shown by the Formosos authorizing Malcaba as their attorney-in-fact in filing a petition for
review on certiorari. Neither could the petitioners give at least a reasonable explanation as to
why only he signed the verification and certification of non-forum shopping. In Athena
Computers, Inc. and Joselito R. Jimenez v. Wesnu A. Reyes, the Court explained that:

The verification of the petition and certification on non-forum shopping before the Court of
Appeals were signed only by Jimenez. There is no showing that he was authorized to sign the
same by Athena, his co-petitioner.
Section 4, RULE 7 of the Rules states that a pleading is verified by an affidavit that the affiant
has read the pleading and that the allegations therein are true and correct of his knowledge and
belief. Consequently, the verification should have been signed not only by Jimenez but also by
Athena’s duly authorized representative.

In Docena v. Lapesura, we ruled that the certificate of non-forum shopping should be

signed by all the petitioners or plaintiffs in a case, and that the signing by only one of
them is insufficient. The attestation on non-forum shopping requires personal knowledge
by the party executing the same, and the lone signing petitioner cannot be presumed to
have personal knowledge of the filing or non-filing by his co-petitioners of any action or
claim the same as similar to the current petition.

The certification against forum shopping in CA-G.R. SP No. 72284 is fatally defective, not
having been duly signed by both petitioners and thus warrants the dismissal of the
petition for certiorari. We have consistently held that the certification against forum shopping
must be signed by the principal parties. With respect to a corporation, the certification against
forum shopping may be signed for and on its behalf, by a specifically authorized lawyer who has
personal knowledge of the facts required to be disclosed in such document.

While the Rules of Court may be relaxed for persuasive and weighty reasons to relieve a litigant
from an injustice commensurate with his failure to comply with the prescribed procedures,
nevertheless they must be faithfully followed. In the instant case, petitioners have not shown
any reason which justifies relaxation of the Rules. We have held that procedural rules are not to
be belittled or dismissed simply because their non-observance may have prejudiced a party’s
substantive rights. Like all rules, they are required to be followed except for the most persuasive
of reasons when they may be relaxed. Not one of these persuasive reasons is present here.

In fine, we hold that the Court of Appeals did not err in dismissing the petition for certiorari in
view of the procedural lapses committed by petitioners.11 [Emphases supplied]

Furthermore, the petitioners argue that the CA should not have dismissed the whole petition but
should have given it due course insofar as Malcaba is concerned because he signed
the certification. The petitioners also contend that the CA should have been liberal in the
application of the Rules because they have a meritorious case against PNB.

The Court, however, is not persuaded.

The petitioners were given a chance by the CA to comply with the Rules when they filed their
motion for reconsideration, but they refused to do so. Despite the opportunity given to them to
make all of them sign the verification and certification of non-forum shopping, they still failed to
comply. Thus, the CA was constrained to deny their motion and affirm the earlier resolution. 12

Indeed, liberality and leniency were accorded in some cases.13 In these cases, however, those
who did not sign were relatives of the lone signatory, so unlike in this case, where Malcaba is
not a relative who is similarly situated with the other petitioners and who cannot speak for them.
In the case of Heirs of Domingo Hernandez, Sr. v. Plaridel Mingoa, Sr., 14 it was written:

In the instant case, petitioners share a common interest and defense inasmuch as they
collectively claim a right not to be dispossessed of the subject lot by virtue of their and their
deceased parents’ construction of a family home and occupation thereof for more than 10 years.
The commonality of their stance to defend their alleged right over the controverted lot thus gave
petitioners xxx authority to inform the Court of Appeals in behalf of the other petitioners that they
have not commenced any action or claim involving the same issues in another court or tribunal,
and that there is no other pending action or claim in another court or tribunal involving the same
issues.

Here, all the petitioners are immediate relatives who share a common interest in the land
sought to be reconveyed and a common cause of action raising the same arguments in support
thereof. There was sufficient basis, therefore, for Domingo Hernandez, Jr. to speak for and in
behalf of his co-petitioners when he certified that they had not filed any action or claim in
another court or tribunal involving the same issues. Thus, the Verification/Certification that
Hernandez, Jr. executed constitutes substantial compliance under the Rules. [Emphasis
supplied]

The same leniency was accorded to the petitioner in the case of Oldarico S. Traveno v.
Bobongon Banana Growers Multi-Purpose Cooperative,15 where it was stated:

The same leniency was applied by the Court in Cavile v. Heirs of Cavile, because the lone
petitioner who executed the certification of non-forum shopping was a relative and co-owner of
the other petitioners with whom he shares a common interest. x x x16

Considering the above circumstances, the Court does not see any similarity at all in the case at
bench to compel itself to relax the requirement of strict compliance with the rule regarding the
certification against forum shopping.

At any rate, the Court cannot accommodate the petitioners’ request to re-examine the testimony
of Malcaba in the transcript of stenographic notes of the April 25, 1999 hearing concerning his
alleged testimonial proof of damages for obvious reasons.

Primarily, Section 1, Rule 45 of the Rules of Court categorically states that the petition filed shall
raise only questions of law, which must be distinctly set forth. A question of law arises when
there is doubt as to what the law is on a certain state of facts, while there is a question of fact
when the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of
law, the same must not involve an examination of the probative value of the evidence presented
by the litigants or any of them. The resolution of the issue must rest solely on what the law
provides on the given set of circumstances. Once it is clear that the issue invites a review of the
evidence presented, the question posed is one of fact.17

In this case, the petition clearly raises a factual issue.1avvphil As correctly argued by PNB, the
substantive issue of whether or not the petitioners are entitled to moral and exemplary damages
as well as attorney’s fees is a factual issue which is beyond the province of a petition for review
on certiorari.

Secondly, even if the Court glosses over the technical defects, the petition for relief cannot be
granted. A perusal of the Petition for Relief of Judgment discloses that there is no fact
constituting fraud, accident, mistake or excusable negligence which are the grounds therefor.
From the petition itself, it appears that the petitioners’ counsel had a copy of the transcript of
stenographic notes which was in his cabinet all along and only discovered it when he was
disposing old and terminated cases.18 If he was only attentive to his records, he could have filed
a motion for reconsideration or a notice of appeal in behalf of the petitioners.

WHEREFORE, the petition is DENIED.

SO ORDERED.
 SECOND DIVISION

[G.R. NO. 157867 : December 15, 2009]

METROPOLITAN BANK & TRUST COMPANY, Petitioner, v. HON. SALVADOR ABAD

SANTOS, Presiding Judge, RTC, Br. 65, Makati City and MANFRED JACOB DE
KONING, Respondents.

DECISION

BRION, J.:

This Petition for Review on Certiorari, 1 seeks to reverse and set aside the decision dated
November 21, 2002 and subsequent ruling on motion for reconsideration of the Court of
Appeals (CA) in CA-G.R. SP No. 62325.2The CA decision affirmed the order of the Regional
Trial Court (RTC) of Makati City, Branch 65,3 dismissing the petition filed by Metropolitan Bank
& Trust Company (Metrobank) for the issuance of a writ of possession of a condominium unit it
had previously foreclosed. This dismissal was based on the finding that the petition contained a
false certification against forum shopping.

FACTUAL ANTECEDENTS

Respondent Manfred Jacob De Koning (De Koning) obtained a loan from Metrobank in the
principal amount of Two Million, Nineteen Thousand Pesos (P2,019,000.00), evidenced by
promissory note No. TLS/97-039/382599 dated July 24, 1997. To secure the payment of this
loan, De Koning executed a real estate mortgage (REM) in favor of Metrobank dated July 22,
1996 over a condominium unit and all its improvements. The unit is located at Unit 1703
Cityland 10 Tower 1, H.V. Dela Costa Street, Makati City, and is covered by Condominium
Certificate of Title No. 10681.

When De Koning failed to pay his loan despite demand, Metrobank instituted extrajudicial
foreclosure proceedings against the REM. Metrobank was the highest bidder at the public
auction of the condominium unit held on November 24, 1998 and a Certificate of Sale was
issued in the bank's favor. Metrobank duly registered this Certificate of Sale with the Registry of
Deeds for Makati City on January 18, 2000.

The redemption period lapsed without De Koning redeeming the property. Thus, Metrobank
demanded that he turn over possession of the condominium unit. When De Koning refused,
Metrobank filed on July 28, 2000 with the RTC Makati, Branch 65, an ex parte petition for a writ
of possession over the foreclosed property, pursuant to Act No. 3135, as amended.

On August 1, 2000, the lower court issued an order setting the ex parte hearing of Metrobank's
petition and directing that a copy of the order be given to De Koning to inform him of the
existence of the proceedings.

During the scheduled ex parte hearing on August 18, 2000, De Koning's counsel appeared and
manifested that he filed a motion to dismiss on the ground that Metrobank's petition violated
Section 5, RULE 7 of the Rules of Court (Rules)4 which requires the attachment of a certification
against forum shopping to a complaint or other initiatory pleading. According to De Koning,
Metrobank's petition for the issuance of a writ of possession involved the same parties, the
same issues and the same subject matter as the case he had filed on October 30, 1998 with the
RTC of Makati,5 to question Metrobank's right to foreclose the mortgage. De Koning also had a
pending petition for certiorari with the CA,6 which arose from the RTC case he filed. When
Metrobank failed to disclose the existence of these two pending cases in the certification
attached to its petition, it failed to comply with the mandatory requirements of the Rules so that
its petition should be dismissed.

The RTC agreed with De Koning and dismissed Metrobank's petition in its September 18, 2000
order on the ground De Koning cited, i.e.,for having a false certification of non-forum shopping.
The lower court denied Metrobank's motion for reconsideration. Metrobank thus elevated the
matter to the CA on a petition for certiorari on January 5, 2001.

The CA affirmed the dismissal of Metrobank's petition. It explained that Section 5, RULE 7 of
the Rules is not limited to actions, but covers any "initiatory pleading" that asserts a claim for
relief. Since Metrobank's petition for writ of possession is an initiatory pleading, it must perforce
be covered by this rule. Thus, Metrobank's failure to disclose in the verification and certification
the existence of the two cases filed by De Koning, involving the issue of Metrobank's right to
foreclose on the property, rendered the petition dismissible.

The CA denied Metrobank's subsequent motion for reconsideration. Hence, this Petition for
Review on Certiorari, raising the following issues:

ISSUES

I.

THE COURT OF APPEALS AND THE LOWER COURT, CONTRARY TO THE APPLICABLE
DECISIONS OF THIS HONORABLE COURT, RULED THAT THE EX PARTE PETITION FOR
THE ISSUANCE OF A WRIT OF POSSESSION IS AN INITIATORY PLEADING ASSERTING A
CLAIM.

II.

THE COURT OF APPEALS, IN UPHOLDING THE RULING OF THE LOWER COURT,

DELIBERATELY IGNORED THE FACT THAT THE PETITION FOR THE ISSUANCE OF A
WRIT OF POSSESSION IS EX PARTE IN NATURE.

III.

THE COURT OF APPEALS COMMITTED A MISAPPREHENSION OF FACTS.

Metrobank claims that an ex parte petition for the issuance of a writ of possession is not an
initiatory pleading asserting a claim. Rather, it is a mere incident in the transfer of title over the
real property which was acquired by Metrobank through an extrajudicial foreclosure sale, in
accordance with Section 7 of Act No. 3135, as amended. Thus, the petition is not covered by
Section 5, RULE 7 of the Rules and a certification against forum shopping is not required.

Metrobank further argues that considering the ex parte nature of the proceedings, De Koning
was not even entitled to be notified of the resulting proceedings, and the lower court and the CA
should have disregarded De Koning's motion to dismiss.

Lastly, Metrobank posits that the CA misapprehended the facts of the case when it affirmed the
lower court's finding that Metrobank's petition and the two cases filed by De Koning involved the
same parties. There could be no identity of parties in these cases for the simple reason that,
unlike the two cases filed by De Koning, Metrobank's petition is a proceeding ex parte which did
not involve De Koning as a party. Nor could there be an identity in issues or subject matter since
the only issue involved in Metrobank's petition is its entitlement to possess the property
foreclosed, whereas De Koning's civil case involved the validity of the terms and conditions of
the loan documents. Furthermore, the extra-judicial foreclosure of the mortgaged property and
De Koning's petition for certiorari with the CA involved the issue of whether the presiding judge
in the civil case acted with grave abuse of discretion when he denied De Koning's motion to set
for hearing the application for preliminary injunction.

De Koning, in opposition, maintains that Metrobank's petition was fatally defective for violating
the strict requirements of Section 5, RULE 7 of the Rules. As noted by both the lower court and
the CA's ruling that Metrobank failed to disclose the two pending cases he previously filed
before the RTC and the CA, which both involved the bank's right to foreclose and, ultimately,
the bank's right to a writ of possession by virtue of foreclosure.

De Koning also asserts that Metrobank should have appealed the lower court's decision and not
filed a special civil action for certiorari since the order being questioned is one of dismissal and
not an interlocutory order. According to De Koning, since the filing of a petition
for certiorari cannot be a substitute for a lost appeal and does not stop the running of the period
of appeal, the questioned RTC order has now become final and executory and the present
petition is moot and academic.

THE COURT'S RULING

We find Metrobank's petition meritorious.

Procedural Issue

Section 1, Rule 65 of the Rules, clearly provides that a Petition for Certiorari is available only
when "there is no appeal, or any plain, speedy and adequate remedy in the ordinary course of
law." A Petition for Certiorari cannot coexist with an appeal or any other adequate remedy. The
existence and the availability of the right to appeal are antithetical to the availment of the special
civil action for certiorari. As we have long held, these two remedies are "mutually exclusive."7

Admittedly, Metrobank's petition for certiorari before the CA assails the dismissal order of the
RTC and, under normal circumstances, Metrobank should have filed an appeal.

However, where the exigencies of the case are such that the ordinary methods of appeal may
not prove adequate - - either in point of promptness or completeness, so that a partial if not a
total failure of justice could result - a writ of certiorari may still be issued.8 Other exceptions,
Justice Florenz D. Regalado listed are as follows:

(1) where the appeal does not constitute a speedy and adequate remedy (Salvadades v.
Pajarillo, et al., 78 Phil. 77), as where 33 appeals were involved from orders issued in a single
proceeding which will inevitably result in a proliferation of more appeals (PCIB v. Escolin, et
al., L-27860 and 27896, Mar. 29, 1974); (2) where the orders were also issued either in excess
of or without jurisdiction (Aguilar v. Tan, L-23600, Jun 30, 1970, Cf. Bautista, et al. v. Sarmiento,
et al., L-45137, Sept. 231985); (3) for certain special consideration, as public welfare or public
policy (See Jose v. Zulueta, et al. -16598, May 31, 1961 and the cases cited therein); (4) where
in criminal actions, the court rejects rebuttal evidence for the prosecution as, in case of acquittal,
there could be no remedy (People v. Abalos, L029039, Nov. 28, 1968); (5) where the order is a
patent nullity (Marcelo v. De Guzman, et al., L-29077, June 29, 1982);and (6) where the
decision in the certiorari case will avoid future litigations (St. Peter Memorial Park, Inc. v.
Campos, et al., L-38280, Mar. 21, 1975).9 [Emphasis supplied.]

Grave abuse of discretion may arise when a lower court or tribunal violates or contravenes the
Constitution, the law or existing jurisprudence.10 As will be discussed in greater detail below, the
RTC decision dismissing Metrobank's petition was patently erroneous and clearly contravened
existing jurisprudence. For this reason, we cannot fault Metrobank for resorting to the filing of a
petition for certiorari with the CA to remedy a patent legal error in the hope of obtaining a
speedy and adequate remedy.

Nature of a petition for a writ of possession

A writ of possession is defined as "a writ of execution employed to enforce a judgment to

recover the possession of land. It commands the sheriff to enter the land and give its
possession to the person entitled under the judgment."11

There are three instances when a writ of possession may be issued: (a) in land registration
proceedings under Section 17 of Act No. 496; (b) in judicial foreclosure, provided the debtor is in
possession of the mortgaged realty and no third person, not a party to the foreclosure suit, had
intervened; and (c) in extrajudicial foreclosure of a real estate mortgage under Section 7 of Act
No. 3135, as amended by Act No. 4118.12 The present case falls under the third
instance.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

The procedure for obtaining a writ of possession in extrajudicial foreclosure cases is found in
Section 7 of Act No. 3135, as amended by Act No. 4118, which states:

Section 7. In any sale made under the provisions of this Act, the purchaser may petition the
Court of First Instance of the province or place where the property or any part thereof is
situated, to give him possession thereof during the redemption period, furnishing bond in an
amount equivalent to the use of the property for a period of twelve months, to indemnify the
debtor in case it be shown that the sale was made without violating the mortgage or without
complying with the requirements of this Act. Such petition shall be made under oath and filed in
form of an ex parte motion in the registration or cadastral proceedings if the property is
registered, or in special proceedings in the case of property registered under the Mortgage Law
or under section one hundred and ninety-four of the Administrative Code, or of any other real
property encumbered with a mortgage duly registered in the office of any register of deeds in
accordance with any existing law, and in each case the clerk of the court shall, upon the filing of
such petition, collect the fees specified in paragraph eleven of section one hundred and fourteen
of Act Numbered Four hundred and ninety-six, as amended by Act Numbered Twenty-eight
hundred and sixty-six, and the court shall, upon approval of the bond, order that a writ of
possession issue, addressed to the sheriff of the province in which the property is situated, who
shall execute said order immediately.

Based on this provision, a writ of possession may issue either (1) within the one year
redemption period, upon the filing of a bond, or (2) after the lapse of the redemption period,
without need of a bond.13 In order to obtain a writ of possession, the purchaser in a
foreclosure sale must file a petition, in the form of an ex parte motion, in the registration
or cadastral proceedings of the registered property.The reason why this pleading, although
denominated as a petition, is actually considered a motion is best explained in Sps. Arquiza v.
CA,14where we said:

The certification against forum shopping is required only in a complaint or other initiatory
pleading. The ex parte petition for the issuance of a writ of possession filed by the respondent is
not an initiatory pleading. Although the private respondent denominated its pleading as a
petition, it is, nonetheless, a motion. What distinguishes a motion from a petition or other
pleading is not its form or the title given by the party executing it, but rather its purpose. The
office of a motion is not to initiate new litigation, but to bring a material but incidental matter
arising in the progress of the case in which the motion is filed. A motion is not an independent
right or remedy, but is confined to incidental matters in the progress of a cause. It relates to
some question that is collateral to the main object of the action and is connected with and
dependent upon the principal remedy. An application for a writ of possession is a mere incident
in the registration proceeding. Hence, although it was denominated as a "petition," it was in
substance merely a motion. Thus, the CA correctly made the following observations:

Such petition for the issuance of a writ of possession is filed in the form of an ex
parte motion, inter alia, in the registration or cadastral proceedings if the property is
registered. Apropos, as an incident or consequence of the original registration or cadastral
proceedings, the motion or petition for the issuance of a writ of possession, not being an
initiatory pleading, dispels the requirement of a forum-shopping certification. Axiomatic is that
the petitioner need not file a certification of non-forum shopping since his claims are not
initiatory in character (Ponciano v. Parentela, Jr., 331 SCRA 605 [2000]) [Emphasis supplied.]

The right to possess a property merely follows the right of ownership. Thus, after the
consolidation of title in the buyer's name for failure of the mortgagor to redeem, the writ of
possession becomes a matter of right and its issuance to a purchaser in an extrajudicial
foreclosure is merely a ministerial function.15 Sps. Arquiza v. CA further tells us:16

Indeed, it is well-settled that an ordinary action to acquire possession in favor of the purchaser
at an extrajudicial foreclosure of real property is not necessary. There is no law in this
jurisdiction whereby the purchaser at a sheriff's sale of real property is obliged to bring a
separate and independent suit for possession after the one-year period for redemption has
expired and after he has obtained the sheriff's final certificate of sale. The basis of this right to
possession is the purchaser's ownership of the property. The mere filing of an ex parte motion
for the issuance of the writ of possession would suffice, and no bond is required. [Emphasis
supplied.]

Since a petition for a writ of possession under Section 7 of Act No. 3135, as amended, is neither
a complaint nor an initiatory pleading, a certificate against non-forum shopping is not required.
The certificate that Metrobank attached to its petition is thus a superfluity that the lower court
should have disregarded.

No intervention allowed in ex parte proceedings

We also find merit in Metrobank's contention that the lower court should not have allowed De
Koning to intervene in the proceedings.

A judicial proceeding, order, injunction, etc., is ex parte when it is taken or granted at the
instance and for the benefit of one party only, and without notice to, or contestation by, any
person adversely interested.17

Given that the proceeding for a writ of possession, by the terms of Section 7 of Act No. 3135, is
undoubtedly ex parte in nature, the lower court clearly erred not only when it notified De Koning
of Metrobank's ex parte petition for the writ of possession, but also when it allowed De Koning to
participate in the proceedings and when it took cognizance and upheld De Koning's motion to
dismiss.

As we held in Ancheta v. Metropolitan Bank and Trust Company, Inc.:18

In GSIS v. Court of Appeals, this Court discussed the inappropriateness of intervening in a

summary proceeding under Section 7 of Act No. 3135:

The proceedings in which respondent Knecht sought to intervene is an ex parte proceeding

pursuant to Sec. 7 of Act No. 3135, and, as pointed out by petitioner, is a "judicial proceeding
brought for the benefit of one party only, and without notice to, or consent by any person
adversely interested (Stella v. Mosele, 19 N.E., 2d. 433, 435, 299 III App. 53; Imbrought v.
Parker, 83 N.E. 2d 42, 43, 336 III App. 124; City Nat. Bank & Trust Co. v. Aavis Hotel
Corporation, 280 III App. 247), x x x or a proceeding wherein relief is granted without an
opportunity for the person against whom the relief is sought to be heard" (Restatement, Torts, S
674, p. 365, Rollo).

xxx

Intervention is defined as "a proceeding in a suit or action by which a third person is permitted
by the court to make himself a party, either joining plaintiff in claiming what is sought by the
complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something
adversely to both of them; the act or proceeding by which a third person becomes a party in a
suit pending between others; the admission, by leave of court, of a person not an original party
to pending legal proceedings, by which such person becomes a party thereto for the protection
of some right of interest alleged by him to be affected by such proceedings" (33 C.J., 477, cited
in Eulalio Garcia, et al. v. Sinforoso David, et al., 67 Phil. 279, at p. 282).

Action, under Rule 2, Sec. 1, is defined as an ordinary suit in a court of justice, by which one
party prosecutes another for the enforcement or protection of a right, or the prevention or
redress of a wrong.

From the aforesaid definitions, it is clear that intervention contemplates a suit, and is therefore
exercisable during a trial and, as pointed out by petitioner is one which envisions the
introduction of evidence by the parties, leading to the rendition of the decision in the case (p.
363, Rollo). Very clearly, this concept is not that contemplated by Sec. 7 of Act No. 3135,
whereby, under settled jurisprudence, the Judge has to order the immediate issuance of a writ
of possession 1) upon the filing of the proper motion and 2) the approval of the corresponding
bond. The rationale for the mandate is to allow the purchaser to have possession of the
foreclosed property without delay, such possession being founded on his right of ownership. A
trial which entails delay is obviously out of the question. [Emphasis supplied.]

WHEREFORE, premises considered, we GRANT the petition. The Decision of the Court of
Appeals in CA-G.R. SP No. 62325 dated November 21, 2002, as well as the orders of the
Regional Trial Court of Makati City, Branch 65 in LRC Case No. M-4068 dated September 18,
2000 and October 23, 2000, is REVERSED and SET ASIDE. LRC Case No. M-4068 is ordered
remanded to the Regional Trial Court of Makati City, Branch 65, for further proceedings and
proper disposition. Costs against respondent Manfred Jacob De Koning.

SO ORDERED.

THIRD DIVISION

G.R. No.195445, December 07, 2016

ANGELINA DE GUZMAN, GILBERT DE GUZMAN, VIRGILIO DE GUZMAN, JR., AND

ANTHONY DE GUZMAN, Petitioners, v. GLORIA A. CHICO, Respondent.

DECISION

JARDELEZA, J.:

Before us is a petition for review1 under Rule 45 of the Rules of Court. Petitioners seek the
review of the January 31, 2011 Decision2 of the Court of Appeals (CA) in CA-G.R. SP No.
114103 for being contrary to law and jurisprudence. The CA affirmed the Order 3 of the Regional
Trial Court (RTC), Branch 59, Makati City in LRC Case No. M-5188 dated January 19, 2010
which denied the petitioners' Urgent Motion to Cite Petitioner in Contempt and to Nullify
Proceedings, and the Order4 of the RTC dated April 19, 2010 which denied petitioners' Motion
for Reconsideration.

The Facts

The subject of this case is a property situated at 7-A 32 A. Bonifacio Street, Bangkal, Makati
City, previously registered under the name of petitioners, and covered by Transfer Certificate of
Title (TCT) No. 164900.5

On May 24, 2006, the property was sold at a public auction of tax delinquent properties
conducted by the City Government of Makati City pursuant to Sections 254 to 260 of the Local
Government Code. Respondent was the winning bidder at the public auction, and the City
Government of Makati executed a Certificate of Sale in her favor on even date. 6

Petitioners failed to redeem the property within the one-year period. Thus, on July 12, 2007,
respondent filed with the RTC of Makati City an application for new certificate of title under
Section 757 in relation to Section 1078 of Presidential Decree (PD) No. 1529 or the Property
Registration Decree (LRC Case No. M-4992).9 On December 28, 2007, after hearing, the RTC
ordered that the title over the property be consolidated and transferred in the name of
respondent. The Register of Deeds of Makati consequently cancelled TCT No. 164900 and
issued a new one, TCT No. T-224923, in favor of respondent.10Afterwards, in the same court,
respondent moved for the issuance of a writ of possession. The motion was, however, denied
by the court for failure to set the motion for hearing.11

On January 14, 2009, respondent, once again, filed (for the same property), an Ex
Parte Petition for the Issuance of a Writ of Possession12 (LRC Case No. M-5188) with the RTC
of Makati City. This ex partepetition was raffled to Branch 59 (court a quo).13

On April 1, 2009, the court a quo issued an Order14 granting respondent's ex parte petition and
ordered the issuance of a writ of possession in her favor. The writ was subsequently issued on
August 7, 2009.15

On August 28, 2009, petitioners filed an urgent motion to cite respondent in contempt, and to
nullify the proceedings on the ground that LRC Case No. M-5188 contained a defective/false
verification/certification of non-forum shopping.16

On September 11, 2009, respondent filed her comment/opposition. She alleged that petitioner's
objection to the certification against forum shopping was deemed waived for failure to timely
object thereto. She also claimed that forum shopping does not exist.17

On January 19, 2010, the court a quo issued an Order18 denying petitioners' motion. It ruled that
the ex parte petition for the issuance of a writ of possession filed by respondent in LRC Case
No. M-5188, although denominated as a petition, is not an initiatory pleading, and, thus, does
not require a certificate of non-forum shopping. Thus, in the same Order, the court a quo ruled
that petitioners' motion to present respondent and her counsel as witnesses is without
merit.19 Petitioner filed a motion for reconsideration, but it was denied in an Order20 dated Apri1
19, 2010.

Aggrieved, petitioners filed a special civil action for certiorari before the CA to annul the January
19, 2010 and April 19, 2010 Orders of the court a quo. They averred that it acted with grave
abuse of discretion in issuing the assailed orders. 21 Petitioners further alleged that the tax
auction sale proceeding is governed by Sections 246 to 270 of the Local Government Code,
and not by Act No. 313522 as relied upon by respondent.23

On January 31, 2011, the CA rendered a Decision dismissing the petition and affirming the
challenged Orders of the court a quo, to wit:

WHEREFORE, the instant petition is DISMISSED for lack of merit. The challenged ordersdated
January 19, 2010 and April 19, 2010 are hereby AFFIRMED.24

The CA ruled that there is no forum shopping. Prior to the filing of the ex parte petition in LRC
Case No. M-5188, RTC Branch 62 has already denied respondent's motion for issuance of a
writ of possession in LRC Case No. M-4992. The CA added that there can be no forum
shopping because the issuance of a writ of possession is a ministerial function and is summary
in nature, thus, it cannot be said to be a judgment on the merits but simply an incident in the
transfer of title.25

The CA also said that a certificate of non-forum shopping is required only in complaints or other
initiatory pleadings. A petition or motion for issuance of a writ of possession is not a complaint or
initiatory pleading which requires a verification and certificate of non-forum shopping.26

Lastly, the CA rejected petitioners' argument that the tax auction sale proceeding is governed by
Sections 246 to 270 of the Local Government Code, and not by Act No. 3135. It explained that
the issue was raised by petitioners for the first time on appeal, and the decision finding the
respondent as the lawful and registered owner of the property by virtue of the public auction has
long become final and executory and beyond the ambit of judicial review.27

Petitioners appealed the Decision of the CA to this Court by way of a petition for review
on certiorari.

Petitioners' Arguments

Petitioners aver that the CA committed reversible error in:

(a) Ruling that because of Section 7 of Act No. 3135, a certification of non-forum shopping
was unnecessary in the ex parte petition, and thus it was unnecessary to examine
respondent Chico and her counsel on said certification; and

(b) Not ruling conformably with Article 433 of the Civil Code and the cases of Factor v.
Martel, Jr.,28Serra Serra v. Court of Appeals,29 and Maglente v. Baltazar-Padilla30 that:

(i) The certification of non-forum shopping was required in the ex-parte petition;

(ii) All proceedings in LRC Case No. M-5188 should have been in the nature of
an accion reivindicatoria; and
 (iii) Consequently, said proceedings were void, being summary and in the nature of
proceedings for an ex parte motion.31

Respondent's Arguments

In her Comment,32 respondent insists that a certification of non-forum shopping is not necessary
in this case because an ex parte petition for the issuance of a writ of possession is not an
action, complaint, or an initiatory pleading. She avers that although denominated as a petition,
the ex parte petition is actually in the nature of a motion, whose office is not to initiate new
litigation, but to bring a material but incidental matter arising in the progress of the case, in this
case, the registration proceedings.33Respondent also denies committing forum shopping, and
instead posits that it is petitioners who are guilty of forum shopping. Respondent notes that in
this petition, petitioners' arguments center on the alleged nullity of the writ of possession itself
which is likewise subject of another petition before the Court of Appeals docketed as CA-G.R
SP No. 110654.34

Respondent likewise argues that Article 433 of the New Civil Code has no application to a buyer
of property in a tax delinquency sale. Respondent contends that the cases petitioner cited do
not involve actions pertaining to tax delinquency sales, and that they could not, in fact, identify a
particular provision of law or jurisprudence saying that a buyer in a tax delinquency sale has to
file an independent action to be able to take possession of the property he bought in a tax
delinquency sale.35

The Court's Ruling

We deny the petition.

No certificate against forum shopping

is required in a petition or motion for
issuance of a writ of possession.

We affirm the ruling of the CA that a certificate against forum shopping is not a requirement in
an ex parte petition for the issuance of a writ of possession. An ex parte petition for the issuance
of writ of possession is not a complaint or other initiatory pleading as contemplated in Section
5,36 RULE 7 of the 1997 Rules of Civil Procedure.37

The non-initiatory nature of an ex parte motion or petition for the issuance of a writ of
possession is best explained in Arquiza v. Court of Appeals.38 In that case we ruled that the ex
parte petition for the issuance of a writ of possession filed by the respondent is not an initiatory
pleading. Although the private respondent denominated its pleading as a petition, it is,
nonetheless, a motion. What distinguishes a motion from a petition or other pleading is not its
form or the title given by the party executing it, but rather its purpose.39 A petition for the
issuance of a writ of possession does not aim to initiate new litigation, but rather issues as an
incident or consequence of the original registration or cadastral proceedings. As such, the
requirement for a forum shopping certification is dispelled.40

We also cannot subscribe to petitioners' narrow view that only cases covered by foreclosure
sales under Act No. 3135 are excused from the requirement of a certificate against forum
shopping.

Based on jurisprudence, a writ of possession may be issued in the following instances: (a) land
registration proceedings under Section 17 of Act No. 496, otherwise known as The Land
Registration Act; (b) judicial foreclosure, provided the debtor is in possession of the mortgaged
realty and no third person, not a party to the foreclosure suit, had intervened; (c) extrajudicial
foreclosure of a real estate mortgage under Section 7 of Act No. 3135, as amended by Act No.
4118; and (d) in execution sales.41

We note that there is no law or jurisprudence which provides that the petition for the issuance of
a writ of possession depends on the nature of the proceeding in which it is filed. Thus, we find
no logical reason for petitioners' contention that only cases covered by Act No. 3135 are exempt
from the requirement of a certificate against forum shopping. As explained in the previous
paragraphs, by its very nature, a writ of possession is a mere incident in the transfer of title. It is
an incident of ownership, and not a separate judgment. It would thus be absurd to require that a
petition for the issuance of this writ to be accompanied by a certification against forum shopping.

The issuance of a writ of possession is

warranted.

Petitioners cite the rulings in Factor v. Martel, Jr., Serra Serra v. Court of Appeals, and Maglente
v. Baltazar-Padilla to justify their position that respondent availed of the wrong remedy when
she filed an ex parte petition for issuance of a writ of possession. Petitioners contend that this is
a departure from the proper procedure which required the filing of an appropriate case
for accion reivindicatoria.

Respondent, on the other hand, argues that the cases petitioner cited do not involve actions
pertaining to tax delinquency sales. Respondent adds that petitioners could not, in fact, identify
a particular provision of law or jurisprudence saying that a buyer in a tax delinquency sale has to
file an independent action to be able to take possession of the property he brought in a tax
delinquency sale.

We agree with respondent.

Factor involves the issuance of a writ of possession pursuant to an original action for
registration; Serra Serra involves a petition for reconstitution; while Maglente involves an action
for interpleader. These rulings cannot apply in this case. For one, none of them contemplate the
present situation where the action is between, on the one hand, the previous registered owner
of the parcel of land; and on the other, the buyer in a tax delinquency sale. Second, none of
these cases involves the right of a purchaser in a tax delinquency sale for the issuance of a writ
of possession after the redemption period.

Contrary therefore, to petitioners' contentions, the CA did not err in upholding the writ of
possession in this case. In St. Raphael Montessori School, Inc. v. Bank of the Philippine
Islands,42 an action involving the application of Act No. 3135, this Court recognized that the writ
of possession was warranted not merely on the basis of the law, but ultimately on the right to
possess as an incident of ownership. The right to possess a property merely follows the right of
ownership, and it would be illogical to hold that a person having ownership of a parcel of land is
barred from seeking possession.43 Precisely, the basis for the grant of the writ of possession in
this case is respondent's ownership of the property by virtue of a tax delinquency sale in her
favor, and by virtue of her absolute right of ownership arising from the expiration of the period
within which to redeem the property.44

In Cloma v. Court of Appeals,45 the City of Pasay sold the property of Spouses Cloma at public
auction for tax delinquency. Private respondent Nocom was declared the winning bidder of the
sale, for which he was issued a certificate of sale. The spouses failed to redeem the property
within the prescribed period, and a final deed of sale was issued in favor of Nocom. Thus,
Nocom filed a petition invoking Section 75 of PD No. 1529 (as in this case),46 which was
granted. Accordingly, Nocom applied for a writ of possession over the property, and was
eventually granted by the trial court. The spouses argued that the trial court cannot issue the
writ of possession. This Court rejected this argument, citing Section 2 of PD No. 1529. This
Court said:

Section 2 of PD 1529 also clearly rejects the thesis of petitioners that the trial court cannot issue
a writ of possession to effectuate the result of a tax sale, thus:

"Sec 2. Nature of registration of proceedings; jurisdiction of courts. — x x x Courts of First

Instance shall have exclusive jurisdiction over all applications for original registration of title, to
land, including improvements and interests therein, and over all petitions filed after original
registration of title, with power to hear and determine all questions arising upon suchapplications
or petitions. x x x" (Emphasis in the original.)47

More, respondent's ownership over the property is affirmed by the final and executory judgment
in LRC Case No. M-4992.48 To be clear, a writ of possession is defined as a writ of
execution employed to enforce a judgment to recover the possession of land, commanding the
sheriff to enter the land and give its possession to the person entitled under the judgment. 49

In the same vein, we note the finding of the court a quo in granting the ex parte petition for the
issuance of writ of possession of respondent, thus:

Facts of the case reveal that the Regional Trial Court of Makati City, Branch 62, rendered a
Decision under LRC Case No. M-4992 which granted Chico's Petition for Application for a New
Certificate of Title under Sec. 75 in relation to Sec. 107 of the Property Registration Decree.
Said Decision became final and executory on 27 February 2008.

Sec. 6, Rule 135 of the Rules of Court succinctly provides that when by law jurisdiction is
conferred on a court or judicial officer, all ancilliary writs, processes and other means necessary
to carry it into effect may be employed by such court or officer, and if the procedure to be
followed in the exercise of such jurisdiction is not specifically pointed out by law or by these
rules, any suitable process or mode of proceeding may be adopted which appears conformable
to the spirit of said law or rules.50

The reason for the premature issuance of the writ of possession in Republic (Department of
Transportation and Communication [DOTC]) v. City of Mandaluyong51 does not obtain in this
case. In Republic, the Metro Rail Transit Corporation failed to pay the real property taxes due to
the City of Mandaluyong, hence a public auction was conducted. For lack of bidders, the real
properties were forfeited in favor of the city. The period for the redemption of the real properties
expired, thus a final deed of sale was issued in the city's favor. By virtue of this final deed of
sale, the city filed an ex partepetition for the issuance of a writ of possession, which the regional
trial court granted. The DOTC questioned the propriety of the issuance of the writ of possession.
While this Court held that a writ of possession is a mere incident in the transfer of title, and
which may arise from ownership by virtue of a tax delinquency sale, we nonetheless ruled that
the issuance of the writ was premature. The reason being, there was still a pending issue on
whether the auction sale should proceed, in the first place.52

This impediment does not exist in this case precisely because title has already been
consolidated, and a new certificate of title has already been issued in the name of respondent in
LRC Case No. M-4992. More, unlike in Republic, records of this case already established that
the Decision in LRC Case No. M-4992 has long become final and executory, as evidenced by
the Entry of Judgment issued on March 3, 2008.53Hence, the issuance of a writ of possession is
warranted. As the trial court ruled, "[a]ll things considered, the petitioner is now the lawful
registered owner of the subject property and by virtue of law, is entitled to the issuance of a
Transfer Certificate of Title in her name."54
Finally, petitioners cannot attack the validity of the proceedings in LRC Case No. M-4992.
Having become final and executory, the judgment in LRC Case No. M-4992 can only be nullified
in a petition for annulment of judgment, which petitioner did not do. The general rule is that a
final and executory judgment can no longer be disturbed, altered, or modified in any respect,
and that nothing further can be done but to execute it. A final and executory decision may,
however, be invalidated via a petition for relief or a petition to annul the same under Rules 38 or
47, respectively, of the Rules of Court.55

WHEREFORE, the petition is DENIED. The Decision dated January 31, 2011 of the Court of
Appeals in CA-G.R. SP No. 114103 is hereby AFFIRMED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 162924 February 4, 2010

MID-PASIG LAND DEVELOPMENT CORPORATION, Petitioner,

vs.
MARIO TABLANTE, doing business under the name and style ECRM ENTERPRISES;
ROCKLAND CONSTRUCTION COMPANY; LAURIE LITAM; and MC HOME DEPOT,
INC., Respondents.

DECISION

NACHURA, J.:

Assailed in the instant petition are the two (2) Resolutions1 of the Court of Appeals (CA) dated
November 20, 2003 and March 22, 2004, dismissing the petition for certiorari before it on
technical grounds and denying the motion for reconsideration thereof, respectively.

The background facts are as follows:

Petitioner is the registered owner of a piece of land situated in Pasig City, bounded by Meralco
Avenue, Ortigas Avenue, Doña Julia Vargas Avenue, and Valle Verde Subdivision. On
December 6, 1999, petitioner, represented by its Chairman and President, Ronaldo Salonga,
and ECRM Enterprises, represented by its proprietor, Mario P. Tablante, executed an
agreement whereby the former would lease to the latter an area, approximately one (1) hectare,
of the aforesaid land, for a period of three (3) months, to be used as the staging area for the
Home and Garden Exhibition Fair. On March 6, 2000, the date of the expiration of the Lease
Agreement, Tablante assigned all his rights and interests under the said agreement to
respondents Laurie M. Litam and/or Rockland Construction Company, Inc. (Rockland) under a
Deed of Assignment of the same date. Petitioner eventually learned that respondent Tablante
had executed a Contract of Lease with respondent MC Home Depot, Inc. on November 26,
1999 over the same parcel of land. Thereafter, respondent MC Home Depot, Inc. constructed
improvements on the land and subdivided the area into fifty-nine (59) commercial stalls, which it
leased to various entities. Upon the expiration of the lease on March 6, 2000, petitioner
demanded that respondents vacate the land. A final demand was made in a letter dated
December 20, 2000.2

In order to forestall ejectment from the premises, respondent Rockland filed a case for Specific
Performance with the Regional Trial Court (RTC), Branch 266, Pasig City, on January 11, 2001,
compelling petitioner to execute a new lease contract for another three (3) years, commencing
in July 2000. This was docketed as Civil Case No. 68213. Petitioner moved to dismiss the
complaint on the ground that it was anticipatory in nature.

Consequently, on August 22, 2001, petitioner filed Civil Case No. 8788 for unlawful detainer
against herein respondents, raffled to the Municipal Trial Court (MTC), Pasig City, Branch 70.
Simultaneously, petitioner filed a supplemental motion to dismiss Civil Case No. 68213, on the
ground of litis pendentia. Petitioner’s motion to dismiss was denied. The denial was questioned
and eventually elevated to the Supreme Court.3

Meantime, on April 29, 2002, the MTC rendered judgment in the unlawful detainer (ejectment)
case. In the main, the trial court ruled that the issue did not involve material or physical
possession, but rather, whether or not ECRM had the right to exercise an option to renew its
lease contract. The MTC stated that, considering that this issue was incapable of pecuniary
estimation, jurisdiction over the case was vested in the RTC. The trial court, therefore, disposed,
as follows:

WHEREFORE, judgment is hereby rendered DISMISSING the complaint for lack of merit. In the
meantime, the plaintiff is hereby ordered to pay the defendants attorney’s fees and expenses of
litigation in the amount of TWENTY THOUSAND PESOS (₱20,000.00). 4

On appeal, the RTC, Pasig City, Branch 160, affirmed in toto. In its decision dated July 10,
2003, the RTC ruled that:

Relative to the issue raised by the appellant that the lower court erred in finding it had no
jurisdiction over the subject matter of this case as the question of whether or not ECRM under
the provisions of the lease agreement (pars. 3 and 13) has the right to exercise an option to
renew its lease contract is one incapable of pecuniary estimation and therefore jurisdiction is
vested in the Regional Trial Court. Republic Act No. 7691 grants Metropolitan Trial Courts the
exclusive jurisdiction over cases of forcible entry and unlawful detainer. Since it has been
sufficiently established under the facts obtaining that the contract of lease has been renewed
before the expiration of the lease period, and the appellant has consented to the renewal and
assignment of the lease, it necessarily follows that the issue on whether the lower court erred in
finding that it did not have jurisdiction over the subject matter raised by the appellant, deserves
scant consideration and this court need not delve into it anymore. 5

A petition for certiorari was consequently filed with the CA.

In the assailed resolution dated November 20, 2003, the CA resolved to dismiss the petition on
the following grounds:

1) The verification and certification against non-forum shopping was signed by a certain
Antonio A. Merelos as General Manager of the petitioner-corporation without attaching
therewith a Corporate Secretary’s certificate or board resolution that he is authorized to
sign for and on behalf of the petitioner; and

2) Lack of pertinent and necessary documents which are material portions of the record
as required by Section 2, Rule 42 of the Rules of Civil Procedure.6
The motion for reconsideration was denied;7 hence, the instant petition assigning the following
errors:

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN HOLDING THAT THE

VERIFICATION AND CERTIFICATION AGAINST FORUM-SHOPPING IN THE PETITION
FAILED TO ATTACH THE BOARD RESOLUTION SHOWING THE AUTHORITY OF THE
AFFIANT.

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN HOLDING THAT THE

PETITION LACKED THE PERTINENT AND NECESSARY DOCUMENTS REQUIRED BY THE
RULES.

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN DISMISSING THE

PETITION THUS EFFECTIVELY UPHOLDING THE DECISION OF THE REGIONAL TRIAL
COURT, TO WIT: (a) THAT THE LEASE AGREEMENT WAS UNILATERALLY RENEWED
AND THAT PETITIONER IS ESTOPPED FROM DENYING SUCH UNILATERAL RENEWAL;
(b) THAT RESPONDENTS TABLANTE/ECRM, ROCKLAND AND MC HOME DEPOT COULD
VALIDLY OCCUPY THE PROPERTY IN THE ABSENCE OF ANY VALID LEASE
AGREEMENT CONSENTED TO BY PETITIONER; (c) PETITIONER [IS] LIABLE FOR
ATTORNEY’S FEES AND COSTS OF SUIT.8

The petition is granted.

In Cagayan Valley Drug Corporation v. Commissioner of Internal Revenue, 9 the Court had
occasion to explain that:

It must be borne in mind that Sec. 23, in relation to Sec. 25 of the Corporation Code, clearly
enunciates that all corporate powers are exercised, all business conducted, and all properties
controlled by the board of directors. A corporation has a separate and distinct personality from
its directors and officers and can only exercise its corporate powers through the board of
directors. Thus, it is clear that an individual corporate officer cannot solely exercise any
corporate power pertaining to the corporation without authority from the board of directors. This
has been our constant holding in cases instituted by a corporation.

In a slew of cases, however, we have recognized the authority of some corporate officers to
sign the verification and certification against forum shopping. In Mactan-Cebu International
Airport Authority v. CA, we recognized the authority of a general manager or acting general
manager to sign the verification and certificate against forum shopping; x x x.

In sum, we have held that the following officials or employees of the company can sign the
verification and certification without need of a board resolution: (1) the Chairperson of the Board
of Directors, (2) the President of a corporation, (3) the General Manager or Acting General
Manager, (4) Personnel Officer, and (5) an Employment Specialist in a labor case.1avvphi1 Commented [U1]:

While the above cases do not provide a complete listing of authorized signatories to the
verification and certification required by the rules, the determination of the sufficiency of the
authority was done on a case to case basis. The rationale applied in the foregoing cases is to
justify the authority of corporate officers or representatives of the corporation to sign the
verification or certificate against forum shopping, being "in a position to verify the truthfulness
and correctness of the allegations in the petition." 10

From the foregoing, it is thus clear that the failure to attach the Secretary’s Certificate, attesting
to General Manager Antonio Merelos’s authority to sign the Verification and Certification of Non-
Forum Shopping, should not be considered fatal to the filing of the petition. Nonetheless, the
requisite board resolution was subsequently submitted to the CA, together with the pertinent
documents.11 Considering that petitioner substantially complied with the rules, the dismissal of
the petition was, therefore, unwarranted. Time and again, we have emphasized that dismissal of
an appeal on a purely technical ground is frowned upon especially if it will result in unfairness.
The rules of procedure ought not to be applied in a very rigid, technical sense for they have
been adopted to help secure, not override, substantial justice. For this reason, courts must
proceed with caution so as not to deprive a party of statutory appeal; rather, they must ensure
that all litigants are granted the amplest opportunity for the proper and just ventilation of their
causes, free from the constraint of technicalities.12

After a finding that the CA erred in dismissing the petition before it, a remand of the case is in
order. However, a perusal of the records reveals that this is no longer necessary in light of
relevant developments obtaining in the case at bar.

Petitioner, in its Memorandum dated October 28, 2005, alleged that respondents’ possessory
claims had lapsed and, therefore, had become moot and academic. Respondent Rockland
prayed that a three-year lease period be granted to it in order that it would be able to plan its
activities more efficiently. Since the claimed "lease contract" had already expired as of July or
August 2003, there appears no reason why respondents should continue to have any claim to
further possession of the property.13

Respondent Rockland also stated in its Memorandum dated March 16, 2006 that it was no
longer in possession of the subject property considering that:

50. In a Resolution dated 17 September 2004, in the case of "Rockland Construction Company,
Inc. vs. Mid-Pasig Land Development Corporation, et al.," docketed as SCA No. 2673, and the
Omnibus Order dated 12 November 2004, affirming the aforesaid Resolution, Branch 67 Pasig
City Regional Trial Court Presiding Judge Mariano M. Singzon awarded possession (albeit
erroneously) of subject property to Pasig Printing Corporation, an intervenor in the SCA case.

51. At present, petitioner does not have a cause of action against herein respondent Rockland.
Respondent is not unlawfully withholding possession of the property in question as in
fact respondent is not in possession of the subject property. The issue of possession in this
ejectment case has therefore been rendered moot and academic. 14

This allegation was confirmed by respondent MC Home Depot, Inc. in its

Comment/Memorandum dated May 22, 2007 submitted to the Court. It stated therein that "the
passage of time has rendered the issue of possession moot and academic with respect to
respondent Rockland, as the three-year period has long been expired in 2003."15Furthermore,
respondent MC Home Depot, Inc. asserts that it is in rightful possession of the land on the
strength of a Memorandum of Agreement dated November 22, 2004 between the latter and
Pasig Printing Corporation. By petitioner’s admission that while it remains the registered owner
of the land, possession of the same had been adjudicated in favor of Pasig Printing Corporation,
another entity without any contractual relationship with petitioner, on the strength of an Order
from the RTC of Pasig City. Considering that Pasig Printing Corporation has the jus
possessionis over the subject property, it granted the MC Home Depot, Inc. actual occupation
and possession of the subject property for a period of four (4) years, renewable for another four
(4) years upon mutual agreement of the parties.16

WHEREFORE, the petition is GRANTED. The assailed Resolutions of the Court of Appeals are
REVERSED and SET ASIDE. However, in view of the developments which have rendered the
issue of the right of possession over the subject property moot and academic, the main case is
hereby considered CLOSED AND TERMINATED.
No pronouncement as to costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 151369 March 23, 2011

ANITA MONASTERIO-PE and the SPOUSES ROMULO TAN and EDITHA PE-
TAN, Petitioners,
vs.
JOSE JUAN TONG, herein represented by his Attorney-in-Fact, JOSE Y.
ONG, Respondent.

DECISION

PERALTA, 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 Decision1 and Order,2 respectively dated October
24, 2001 and January 18, 2002, of the Regional Trial Court (RTC) of Iloilo City, Branch 24.

The instant petition stemmed from an action for ejectment filed by herein respondent Jose Juan
Tong (Tong) through his representative Jose Y. Ong (Ong) against herein petitioners Anita
Monasterio-Pe (Anita) and the spouses Romulo Tan and Editha Pe-Tan (Spouses Tan). The
suit was filed with the Municipal Trial Court in Cities (MTCC), Branch 3, Iloilo City and docketed
as Civil Case No. 2000(92).

In the Complaint, it was alleged that Tong is the registered owner of two parcels of land known
as Lot Nos. 40 and 41 and covered by Transfer Certificate of Title (TCT) Nos. T-9699 and T-
9161, together with the improvements thereon, located at Barangay Kauswagan, City Proper,
Iloilo City; herein petitioners are occupying the house standing on the said parcels of land
without any contract of lease nor are they paying any kind of rental and that their occupation
thereof is simply by mere tolerance of Tong; that in a letter dated December 1, 1999, Tong
demanded that respondents vacate the house they are occupying, but despite their receipt of
the said letter they failed and refused to vacate the same; Tong referred his complaint to
the Lupon of Barangay Kauswagan, to no avail.3

In their Answer with Defenses and Counterclaim, herein petitioners alleged that Tong is not the
real owner of the disputed property, but is only a dummy of a certain alien named Ong Se Fu,
who is not qualified to own the said lot and, as such, Tong's ownership is null and void;
petitioners are the true and lawful owners of the property in question and by reason thereof they
need not lease nor pay rentals to anybody; a case docketed as CA-G.R. CV No. 52676 (RTC
Civil Case No. 20181) involving herein petitioner Pe and respondent is pending before the Court
of Appeals (CA) where the ownership of the subject property is being litigated; respondent
should wait for the resolution of the said action instead of filing the ejectment case; petitioners
also claimed that there was, in fact, no proper barangay conciliation as Tong was bent on filing
the ejectment case before conciliation proceedings could be validly made. 4
On March 19, 2001, the MTCC rendered judgment in favor of herein respondent, the dispositive
portion of which reads as follows:

WHEREFORE, judgment is rendered, finding the defendants Anita Monasterio-Pe, and

Spouses Romulo Tan and Editha Pe-Tan to be unlawfully withholding the property in
litigation, i.e., Lot. Nos. 40 and 41 covered by TCT Nos. T-9699 and 9161, respectively, together
with the buildings thereon, located at Brgy. Kauswagan, Iloilo City Proper, and they are hereby
ordered together with their families and privies, to vacate the premises and deliver possession
to the plaintiff and/or his representative.

The defendants are likewise ordered to pay plaintiff reasonable compensation for the use and
occupancy of the premises in the amount of ₱15,000.00 per month starting January, 2000 until
they actually vacate and deliver possession to the plaintiff and attorney's fees in the amount of
₱20,000.00.

Costs against the defendants.

SO DECIDED.5

Aggrieved by the above-quoted judgment, petitioners appealed the decision of the MTCC with
the RTC of Iloilo City.

In its presently assailed Decision, the RTC of Iloilo City, Branch 24 affirmed in its entirety the
appealed decision of the MTCC.

Hence, the instant petition for review on certiorari.

At the outset, it bears emphasis that in a petition for review on certiorari under Rule 45 of the
Rules of Court, only questions of law may be raised by the parties and passed upon by this
Court.6 It is a settled rule that in the exercise of this Court's power of review, it does not inquire
into the sufficiency of the evidence presented, consistent with the rule that this Court is not a
trier of facts.7 In the instant case, a perusal of the errors assigned by petitioners would readily
show that they are raising factual issues the resolution of which requires the examination of
evidence. Certainly, issues which are being raised in the present petition, such as the questions
of whether the issue of physical possession is already included as one of the issues in a case
earlier filed by petitioner Anita and her husband, as well as whether respondent complied with
the law and rules on barangay conciliation, are factual in nature.

Moreover, the appeal under Rule 45 of the said Rules contemplates that the RTC rendered the
judgment, final order or resolution acting in its original jurisdiction.8 In the present case, the
assailed Decision and Order of the RTC were issued in the exercise of its appellate jurisdiction.

Thus, petitioners pursued the wrong mode of appeal when they filed the present petition for
review on certiorari with this Court. Instead, they should have filed a petition for review with the
CA pursuant to the provisions of Section 1,9Rule 42 of the Rules of Court.

On the foregoing bases alone, the instant petition should be denied.

In any case, the instant petition would still be denied for lack of merit, as discussed below.

In their first assigned error, petitioners contend that the RTC erred in holding that the law
authorizes an attorney-in-fact to execute the required certificate against forum shopping in
behalf of his or her principal. Petitioners argue that Tong himself, as the principal, and not Ong,
should have executed the certificate against forum shopping.
The Court is not persuaded.

It is true that the first paragraph of Section 5,10 RULE 7 of the Rules of Court, requires that the
certification should be signed by the "petitioner or principal party" himself. The rationale behind
this is because only the petitioner himself has actual knowledge of whether or not he has
initiated similar actions or proceedings in different courts or agencies.11 However, the rationale
does not apply where, as in this case, it is the attorney-in-fact who instituted the action.12 Such
circumstance constitutes reasonable cause to allow the attorney-in-fact to personally sign the
Certificate of Non-Forum Shopping. Indeed, the settled rule is that the execution of the
certification against forum shopping by the attorney-in-fact is not a violation of the requirement
that the parties must personally sign the same.13 The attorney-in-fact, who has authority to file,
and who actually filed the complaint as the representative of the plaintiff, is a party to the
ejectment suit.14 In fact, Section 1,15 RULE 70 of the Rules of Court includes the representative
of the owner in an ejectment suit as one of the parties authorized to institute the proceedings. In
the present case, there is no dispute that Ong is respondent's attorney-in-fact. Hence, the Court
finds that there has been substantial compliance with the rules proscribing forum shopping.

Petitioners also aver that the certificate against forum shopping attached to the complaint in
Civil Case No. 2000(92) falsely stated that there is no other case pending before any other
tribunal involving the same issues as those raised therein, because at the time the said
complaint was filed, Civil Case No. 20181 was, in fact, still pending with the CA (CA-G.R. CV
No. 52676), where the very same issues of ejectment and physical possession were already
included.

Corollarily, petitioners claim that the MTCC has no jurisdiction over Civil Case No. 2000(92) on
the ground that the issue of physical possession raised therein was already included by
agreement of the parties in Civil Case No. 20181. As such, petitioners assert that respondent is
barred from filing the ejectment case, because in doing so he splits his cause of action and
indirectly engages in forum shopping.

The Court does not agree.

The Court takes judicial notice of the fact that the disputed properties, along with three other
parcels of land, had been the subject of two earlier cases filed by herein petitioner Anita and her
husband Francisco against herein respondent and some other persons. The first case is for
specific performance and/or rescission of contract and reconveyance of property with damages.
It was filed with the then Court of First Instance (CFI) of Iloilo City and docketed as Civil Case
No. 10853. The case was dismissed by the CFI. On appeal, the Intermediate Appellate Court
(IAC) upheld the decision of the trial court. When the case was brought to this Court,16 the
decision of the IAC was affirmed. Subsequently, the Court's judgment in this case became final
and executory per Entry of Judgment issued on May 27, 1991.

Subsequently, in 1992, the Spouses Pe filed a case for nullification of contract, cancellation of
titles, reconveyance and damages with the RTC of Iloilo City. This is the case presently cited by
petitioners. Eventually, the case, docketed as Civil Case No. 20181, was dismissed by the lower
court on the ground of res judicata. The RTC held that Civil Case No. 10853 serves as a bar to
the filing of Civil Case No. 20181, because both cases involve the same parties, the same
subject matter and the same cause of action. On appeal, the CA affirmed the dismissal of Civil
Case No. 20181. Herein petitioner Anita assailed the judgment of the CA before this Court, but
her petition for review on certiorari was denied via a Resolution17 dated January 22, 2003. On
June 25, 2003, the said Resolution became final and executory. The Court notes that the case
was disposed with finality without any showing that the issue of ejectment was ever raised.
Hence, respondent is not barred from filing the instant action for ejectment.
In any case, it can be inferred from the judgments of this Court in the two aforementioned cases
that respondent, as owner of the subject lots, is entitled to the possession thereof. Settled is the
rule that the right of possession is a necessary incident of ownership.18 Petitioners, on the other
hand, are consequently barred from claiming that they have the right to possess the disputed
parcels of land, because their alleged right is predicated solely on their claim of ownership,
which is already effectively debunked by the decisions of this Court affirming the validity of the
deeds of sale transferring ownership of the subject properties to respondent.

Petitioners also contend that respondent should have filed an accion publiciana and not an
unlawful detainer case, because the one-year period to file a case for unlawful detainer has
already lapsed.

The Court does not agree.

Sections 1 and 2, RULE 70 of the Rules of Court provide:

Section 1. Who may institute proceedings and when. – Subject to the provisions of the next
succeeding section, a person deprived of the possession of any land or building by force,
intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against
whom the possession of any land or building is unlawfully withheld after the expiration or
termination of the right to hold possession, by virtue of any contract, express or implied, or the
legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at
any time within one (1) year after such unlawful deprivation or withholding of possession, bring
an action in the proper Municipal Trial Court against the person or persons unlawfully
withholding or depriving of possession, or any person or persons claiming under them, for the
restitution of such possession, together with damages and costs.

Section 2. Lessor to proceed against lessee only after demand. – Unless otherwise stipulated,
such action by the lessor shall be commenced only after demand to pay or comply with the
conditions of the lease and to vacate is made upon the lessee, or by serving written notice of
such demand upon the person found on the premises, or by posting such notice on the
premises if no person be found thereon, and the lessee fails to comply therewith after fifteen
(15) days in the case of land or five (5) days in the case of buildings.

Respondent alleged in his complaint that petitioners occupied the subject property by his mere
tolerance. While tolerance is lawful, such possession becomes illegal upon demand to vacate
by the owner and the possessor by tolerance refuses to comply with such
demand.19 Respondent sent petitioners a demand letter dated December 1, 1999 to vacate the
subject property, but petitioners did not comply with the demand. A person who occupies the
land of another at the latter's tolerance or permission, without any contract between them, is
necessarily bound by an implied promise that he will vacate upon demand, failing which a
summary action for ejectment is the proper remedy against him.20 Under Section 1, RULE 70 of
the Rules of Court, the one-year period within which a complaint for unlawful detainer can be
filed should be counted from the date of demand, because only upon the lapse of that period
does the possession become unlawful.21 Respondent filed the ejectment case against
petitioners on March 29, 2000, which was less than a year from December 1, 1999, the date of
formal demand. Hence, it is clear that the action was filed within the one-year period prescribed
for filing an ejectment or unlawful detainer case.1avvphi1

Neither is the Court persuaded by petitioners' argument that respondent has no cause of action
to recover physical possession of the subject properties on the basis of a contract of sale
because the thing sold was never delivered to the latter.
It has been established that petitioners validly executed a deed of sale covering the subject
parcels of land in favor of respondent after the latter paid the outstanding account of the former
with the Philippine Veterans Bank.

Article 1498 of the Civil Code provides that when the sale is made through a public instrument,
the execution thereof shall be equivalent to the delivery of the thing which is the object of the
contract, if from the deed the contrary does not appear or cannot clearly be inferred. In the
instant case, petitioners failed to present any evidence to show that they had no intention of
delivering the subject lots to respondent when they executed the said deed of sale. Hence,
petitioners' execution of the deed of sale is tantamount to a delivery of the subject lots to
respondent. The fact that petitioners remained in possession of the disputed properties does not
prove that there was no delivery, because as found by the lower courts, such possession is only
by respondent's mere tolerance.

Lastly, the Court does not agree with petitioners' assertion that the filing of the unlawful detainer
case was premature, because respondent failed to comply with the provisions of the law
on barangay conciliation. As held by the RTC, Barangay Kauswagan City Proper, through
its Pangkat Secretary and Chairman, issued not one but two certificates to file action after
herein petitioners and respondent failed to arrive at an amicable settlement. The Court finds no
error in the pronouncement of both the MTCC and the RTC that any error in the previous
conciliation proceedings leading to the issuance of the first certificate to file action, which was
alleged to be defective, has already been cured by the MTCC's act of referring back the case to
the Pangkat Tagapagkasundo of BarangayKauswagan for proper conciliation and mediation
proceedings. These subsequent proceedings led to the issuance anew of a certificate to file
action.

WHEREFORE, the instant petition is DENIED. The assailed Decision and Order of the Regional
Trial Court of Iloilo City, Branch 24, are AFFIRMED.

SO ORDERED.

THIRD DIVISION

[G.R. No. 179488 : April 23, 2012]

COSCO PHILIPPINES SHIPPING, INC., PETITIONER, VS. KEMPER INSURANCE

COMPANY, RESPONDENT.

DECISION

PERALTA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to reverse
and set aside the Decision[1] and Resolution[2] of the Court of Appeals (CA), in CA-G.R. CV No.
75895, entitled Kemper Insurance Company v. Cosco Philippines Shipping, Inc. The CA
Decision reversed and set aside the Order dated March 22, 2002 of the Regional Trial Court
(RTC), Branch 8, Manila, which granted the Motion to Dismiss filed by petitioner Cosco
Philippines Shipping, Inc., and ordered that the case be remanded to the trial court for further
proceedings.cralaw

The antecedents are as follows:

Respondent Kemper Insurance Company is a foreign insurance company based in Illinois,

United States of America (USA) with no license to engage in business in the Philippines, as it is
not doing business in the Philippines, except in isolated transactions; while petitioner is a
domestic shipping company organized in accordance with Philippine laws.

In 1998, respondent insured the shipment of imported frozen boneless beef (owned by Genosi,
Inc.), which was loaded at a port in Brisbane, Australia, for shipment to Genosi, Inc. (the
importer-consignee) in the Philippines. However, upon arrival at the Manila port, a portion of the
shipment was rejected by Genosi, Inc. by reason of spoilage arising from the alleged
temperature fluctuations of petitioner's reefer containers.

Thus, Genosi, Inc. filed a claim against both petitioner shipping company and respondent
Kemper Insurance Company. The claim was referred to McLarens Chartered for investigation,
evaluation, and adjustment of the claim. After processing the claim documents, McLarens
Chartered recommended a settlement of the claim in the amount of $64,492.58, which Genosi,
Inc. (the consignee-insured) accepted.

Thereafter, respondent paid the claim of Genosi, Inc. (the insured) in the amount of $64,492.58.
Consequently, Genosi, Inc., through its General Manager, Avelino S. Mangahas, Jr., executed a
Loss and Subrogation Receipt[3] dated September 22, 1999, stating that Genosi, Inc. received
from respondent the amount of $64,492.58 as the full and final satisfaction compromise, and
discharges respondent of all claims for losses and expenses sustained by the property insured,
under various policy numbers, due to spoilage brought about by machinery breakdown which
occurred on October 25, November 7 and 10, and December 5, 14, and 18, 1998; and, in
consideration thereof, subrogates respondent to the claims of Genosi, Inc. to the extent of the
said amount. Respondent then made demands upon petitioner, but the latter failed and refused
to pay the said amount.

Hence, on October 28, 1999, respondent filed a Complaint for Insurance Loss and
Damages[4] against petitioner before the trial court, docketed as Civil Case No. 99-95561,
entitled Kemper Insurance Company v. Cosco Philippines Shipping, Inc. Respondent alleged
that despite repeated demands to pay and settle the total amount of US$64,492.58,
representing the value of the loss, petitioner failed and refused to pay the same, thereby
causing damage and prejudice to respondent in the amount of US$64,492.58; that the loss and
damage it sustained was due to the fault and negligence of petitioner, specifically, the
fluctuations in the temperature of the reefer container beyond the required setting which was
caused by the breakdown in the electronics controller assembly; that due to the unjustified
failure and refusal to pay its just and valid claims, petitioner should be held liable to pay interest
thereon at the legal rate from the date of demand; and that due to the unjustified refusal of the
petitioner to pay the said amount, it was compelled to engage the services of a counsel whom it
agreed to pay 25% of the whole amount due as attorney's fees. Respondent prayed that after
due hearing, judgment be rendered in its favor and that petitioner be ordered to pay the amount
of US$64,492.58, or its equivalent in Philippine currency at the prevailing foreign exchange rate,
or a total of P2,594,513.00, with interest thereon at the legal rate from date of demand, 25% of
the whole amount due as attorney's fees, and costs.

In its Answer[5] dated November 29, 1999, petitioner insisted, among others, that respondent
had no capacity to sue since it was doing business in the Philippines without the required
license; that the complaint has prescribed and/or is barred by laches; that no timely claim was
filed; that the loss or damage sustained by the shipments, if any, was due to causes beyond the
carrier's control and was due to the inherent nature or insufficient packing of the shipments
and/or fault of the consignee or the hired stevedores or arrastre operator or the fault of persons
whose acts or omissions cannot be the basis of liability of the carrier; and that the subject
shipment was discharged under required temperature and was complete, sealed, and in good
order condition.

During the pre-trial proceedings, respondent's counsel proffered and marked its exhibits, while
petitioner's counsel manifested that he would mark his client's exhibits on the next scheduled
pre-trial. However, on November 8, 2001, petitioner filed a Motion to Dismiss,[6] contending that
the same was filed by one Atty. Rodolfo A. Lat, who failed to show his authority to sue and sign
the corresponding certification against forum shopping. It argued that Atty. Lat's act of signing
the certification against forum shopping was a clear violation of Section 5, RULE 7 of the 1997
Rules of Court.

In its Order[7] dated March 22, 2002, the trial court granted petitioner's Motion to Dismiss and
dismissed the case without prejudice, ruling that it is mandatory that the certification must be
executed by the petitioner himself, and not by counsel. Since respondent's counsel did not
have a Special Power of Attorney (SPA) to act on its behalf, hence, the certification against
forum shopping executed by said counsel was fatally defective and constituted a valid cause for
dismissal of the complaint.

Respondent's Motion for Reconsideration[8] was denied by the trial court in an Order[9] dated
July 9, 2002.

On appeal by respondent, the CA, in its Decision[10] dated March 23, 2007, reversed and set
aside the trial court's order. The CA ruled that the required certificate of non-forum shopping is
mandatory and that the same must be signed by the plaintiff or principal party concerned and
not by counsel; and in case of corporations, the physical act of signing may be performed in
behalf of the corporate entity by specifically authorized individuals. However, the CA pointed out
that the factual circumstances of the case warranted the liberal application of the rules and, as
such, ordered the remand of the case to the trial court for further proceedings.

Petitioner's Motion for Reconsideration[11] was later denied by the CA in the Resolution[12] dated
September 3, 2007.

Hence, petitioner elevated the case to this Court via Petition for Review on Certiorari under Rule
45 of the Rules of Court, with the following issues:

THE COURT OF APPEALS SERIOUSLY ERRED IN RULING THAT ATTY. RODOLFO LAT
WAS PROPERLY AUTHORIZED BY THE RESPONDENT TO SIGN THE CERTIFICATE
AGAINST FORUM SHOPPING DESPITE THE UNDISPUTED FACTS THAT:

A) THE PERSON WHO EXECUTED THE SPECIAL POWER OF ATTORNEY (SPA)

APPOINTING ATTY. LAT AS RESPONDENT'S ATTORNEY-IN-FACT WAS MERELY AN
UNDERWRITER OF THE RESPONDENT WHO HAS NOT SHOWN PROOF THAT HE WAS
AUTHORIZED BY THE BOARD OF DIRECTORS OF RESPONDENT TO DO SO.

B) THE POWERS GRANTED TO ATTY. LAT REFER TO [THE AUTHORITY TO REPRESENT

DURING THE] PRE-TRIAL [STAGE] AND DO NOT COVER THE SPECIFIC POWER TO SIGN
THE CERTIFICATE.[13]

Petitioner alleged that respondent failed to submit any board resolution or secretary's certificate
authorizing Atty. Lat to institute the complaint and sign the certificate of non-forum shopping on
its behalf. Petitioner submits that since respondent is a juridical entity, the signatory in the
complaint must show proof of his or her authority to sign on behalf of the corporation. Further,
the SPA[14] dated May 11, 2000, submitted by Atty. Lat, which was notarized before the
Consulate General of Chicago, Illinois, USA, allegedly authorizing him to represent respondent
in the pre-trial and other stages of the proceedings was signed by one Brent Healy
(respondent's underwriter), who lacks authorization from its board of directors.

In its Comment, respondent admitted that it failed to attach in the complaint a concrete proof of
Atty. Lat's authority to execute the certificate of non-forum shopping on its behalf. However,
there was subsequent compliance as respondent submitted an authenticated SPA empowering
Atty. Lat to represent it in the pre-trial and all stages of the proceedings. Further, it averred that
petitioner is barred by lachesfrom questioning the purported defect in respondent's certificate of
non-forum shopping.

The main issue in this case is whether Atty. Lat was properly authorized by respondent to sign
the certification against forum shopping on its behalf.

The petition is meritorious.

We have consistently held that the certification against forum shopping must be signed by the
principal parties.[15] If, for any reason, the principal party cannot sign the petition, the one
signing on his behalf must have been duly authorized.[16] With respect to a corporation, the
certification against forum shopping may be signed for and on its behalf, by a specifically
authorized lawyer who has personal knowledge of the facts required to be disclosed in such
document.[17] A corporation has no power, except those expressly conferred on it by the
Corporation Code and those that are implied or incidental to its existence. In turn, a corporation
exercises said powers through its board of directors and/or its duly authorized officers and
agents. Thus, it has been observed that the power of a corporation to sue and be sued in any
court is lodged with the board of directors that exercises its corporate powers. In turn, physical
acts of the corporation, like the signing of documents, can be performed only by natural persons
duly authorized for the purpose by corporate by-laws or by a specific act of the board of
directors.[18]

In Philippine Airlines, Inc. v. Flight Attendants and Stewards Association of the Philippines
(FASAP),[19]we ruled that only individuals vested with authority by a valid board resolution may
sign the certificate of non-forum shopping on behalf of a corporation. We also required proof of
such authority to be presented. The petition is subject to dismissal if a certification was
submitted unaccompanied by proof of the signatory's authority.

In the present case, since respondent is a corporation, the certification must be executed by an
officer or member of the board of directors or by one who is duly authorized by a resolution of
the board of directors; otherwise, the complaint will have to be dismissed.[20] The lack of
certification against forum shopping is generally not curable by mere amendment of the
complaint, but shall be a cause for the dismissal of the case without prejudice.[21] The same rule
applies to certifications against forum shopping signed by a person on behalf of a corporation
which are unaccompanied by proof that said signatory is authorized to file the complaint on
behalf of the corporation.[22]

There is no proof that respondent, a private corporation, authorized Atty. Lat, through a board
resolution, to sign the verification and certification against forum shopping on its
behalf. Accordingly, the certification against forum shopping appended to the complaint is
fatally defective, and warrants the dismissal of respondent's complaint for Insurance Loss and
Damages (Civil Case No. 99-95561) against petitioner.

In Republic v. Coalbrine International Philippines, Inc.,[23] the Court cited instances wherein the
lack of authority of the person making the certification of non-forum shopping was remedied
through subsequent compliance by the parties therein. Thus,

[w]hile there were instances where we have allowed the filing of a certification against non-
forum shopping by someone on behalf of a corporation without the accompanying proof of
authority at the time of its filing, we did so on the basis of a special circumstance or compelling
reason. Moreover, there was a subsequent compliance by the submission of the proof of
authority attesting to the fact that the person who signed the certification was duly authorized.

In China Banking Corporation v. Mondragon International Philippines, Inc., the CA dismissed

the petition filed by China Bank, since the latter failed to show that its bank manager who signed
the certification against non-forum shopping was authorized to do so. We reversed the CA and
said that the case be decided on the merits despite the failure to attach the required proof of
authority, since the board resolution which was subsequently attached recognized the pre-
existing status of the bank manager as an authorized signatory.

In Abaya Investments Corporation v. Merit Philippines, where the complaint before the
Metropolitan Trial Court of Manila was instituted by petitioner's Chairman and President, Ofelia
Abaya, who signed the verification and certification against non-forum shopping without proof of
authority to sign for the corporation, we also relaxed the rule. We did so taking into
consideration the merits of the case and to avoid a re-litigation of the issues and further delay
the administration of justice, since the case had already been decided by the lower courts on
the merits. Moreover, Abaya's authority to sign the certification was ratified by the Board.[24]

Contrary to the CA's finding, the Court finds that the circumstances of this case do not
necessitate the relaxation of the rules. There was no proof of authority submitted, even
belatedly, to show subsequent compliance with the requirement of the law. Neither was there a
copy of the board resolution or secretary's certificate subsequently submitted to the trial court
that would attest to the fact that Atty. Lat was indeed authorized to file said complaint and sign
the verification and certification against forum shopping, nor did respondent satisfactorily explain
why it failed to comply with the rules. Thus, there exists no cogent reason for the relaxation of
the rule on this matter. Obedience to the requirements of procedural rules is needed if we are
to expect fair results therefrom, and utter disregard of the rules cannot justly be rationalized by
harking on the policy of liberal construction.[25]

Moreover, the SPA dated May 11, 2000, submitted by respondent allegedly authorizing Atty. Lat
to appear on behalf of the corporation, in the pre-trial and all stages of the proceedings, signed
by Brent Healy, was fatally defective and had no evidentiary value. It failed to establish Healy's
authority to act in behalf of respondent, in view of the absence of a resolution from respondent's
board of directors or secretary's certificate proving the same. Like any other corporate act, the
power of Healy to name, constitute, and appoint Atty. Lat as respondent's attorney-in-fact, with
full powers to represent respondent in the proceedings, should have been evidenced by a board
resolution or secretary's certificate.

Respondent's allegation that petitioner is estopped by laches from raising the defect in
respondent's certificate of non-forum shopping does not hold water.

In Tamondong v. Court of Appeals,[26] we held that if a complaint is filed for and in behalf of the
plaintiff who is not authorized to do so, the complaint is not deemed filed. An unauthorized
complaint does not produce any legal effect. Hence, the court should dismiss the complaint on
the ground that it has no jurisdiction over the complaint and the plaintiff.[27] Accordingly, since
Atty. Lat was not duly authorized by respondent to file the complaint and sign the verification
and certification against forum shopping, the complaint is considered not filed and ineffectual,
and, as a necessary consequence, is dismissable due to lack of jurisdiction.

Jurisdiction is the power with which courts are invested for administering justice; that is, for
hearing and deciding cases. In order for the court to have authority to dispose of the case on the
merits, it must acquire jurisdiction over the subject matter and the parties. Courts acquire
jurisdiction over the plaintiffs upon the filing of the complaint, and to be bound by a decision, a
party should first be subjected to the court's jurisdiction.[28] Clearly, since no valid complaint was
ever filed with the RTC, Branch 8, Manila, the same did not acquire jurisdiction over the person
of respondent.

Since the court has no jurisdiction over the complaint and respondent, petitioner is not estopped
from challenging the trial court's jurisdiction, even at the pre-trial stage of the proceedings. This
is so because the issue of jurisdiction may be raised at any stage of the proceedings, even on
appeal, and is not lost by waiver or by estoppel.[29]

In Regalado v. Go,[30] the Court held that laches should be clearly present for the
Sibonghanoy[31]doctrine to apply, thus:

Laches is defined as the "failure or neglect for an unreasonable and unexplained length of time,
to do that which, by exercising due diligence, could or should have been done earlier, it is
negligence or omission to assert a right within a reasonable length of time, warranting a
presumption that the party entitled to assert it either has abandoned it or declined to assert it.”

The ruling in People v. Regalario that was based on the landmark doctrine enunciated in Tijam
v. Sibonghanoy on the matter of jurisdiction by estoppel is the exception rather than the
rule. Estoppel by laches may be invoked to bar the issue of lack of jurisdiction only in cases in
which the factual milieu is analogous to that in the cited case. In such controversies, laches
should have been clearly present; that is, lack of jurisdiction must have been raised so belatedly
as to warrant the presumption that the party entitled to assert it had abandoned or declined to
assert it.

In Sibonghanoy, the defense of lack of jurisdiction was raised for the first time in a motion to
dismiss filed by the Surety almost 15 years after the questioned ruling had been rendered. At
several stages of the proceedings, in the court a quo as well as in the Court of Appeals, the
Surety invoked the jurisdiction of the said courts to obtain affirmative relief and submitted its
case for final adjudication on the merits. It was only when the adverse decision was rendered by
the Court of Appeals that it finally woke up to raise the question of jurisdiction.[32]

The factual setting attendant in Sibonghanoy is not similar to that of the present case so as to
make it fall under the doctrine of estoppel by laches. Here, the trial court's jurisdiction was
questioned by the petitioner during the pre-trial stage of the proceedings, and it cannot be said
that considerable length of time had elapsed for laches to attach.cralaw

WHEREFORE, the petition is GRANTED. The Decision and the Resolution of the Court of
Appeals, dated March 23, 2007 and September 3, 2007, respectively, in CA-G.R. CV No. 75895
are REVERSED and SET ASIDE. The Orders of the Regional Trial Court, dated March 22,
2002 and July 9, 2002, respectively, in Civil Case No. 99-95561, are REINSTATED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Baguio City

THIRD DIVISION

G.R. No. 201816 April 8, 2013

HEIRS OFF AUSTINO MESINA and GENOVEVA S. MESINA, rep. by NORMAN

MESINA, Petitioners,
vs.
HEIRS OF DOMINGO FIAN, SR., rep. by THERESA FIAN YRAY, ET AL., Respondents.

DECISION
VELASCO, JR. J.:

The Case

Before Us is a Petition for Review under Rule 45 of the Decision1 dated April 29, 2011 of the
Court of Appeals (CA) in CA-G.R. CV No. 01366 and its Resolution dated April 12, 2012
denying reconsideration.

The Facts

The late spouses Faustino and Genoveva Mesina (spouses Mesina), during their lifetime,
bought from the spouses Domingo Fian Sr. and MariaFian (spouses Fian) two parcels of land
on installment. The properties maybe described as follows:

Parcel 1 – A parcel of land, Cadastral Lot No. 6791-Rem. situated in the Brgy. Of Gungab,
Poblacion, Albuera, Leyte. x x x Containing an area of ONE THOUSAND SIX HUNDRED
THIRTY TWO (1,632) SQUARE METERS x x x.

Parcel 2 – A parcel of land, Cadastral Lot No. 6737-Rem, situated in the Brgy. of Gungab,
Poblacion, Albuera, Leyte. x x x Containing an area of THREE THOUSAND SEVEN HUNDRED
THIRTY (3,730) SQUARE METERS x x x.2

Upon the death of the spouses Fian, their heirs––whose names do not appear on the records,
claiming ownership of the parcels of land and taking possession of them––refused to
acknowledge the payments for the lots and denied that their late parents sold the property to the
spouses Mesina. Meanwhile, the spouses Mesina passed away.

Notwithstanding repeated demands, the Heirs of Fian refused to vacate the lots and to turn
possession over to the heirs of the spouses Mesina, namely: Norman S. Mesina (Norman),
Victor S. Mesina (Victor), Maria Divina S. Mesina (Maria) and Lorna Mesina-Barte (Lorna).
Thus, on August 8, 2005, Norman, as attorney-in-fact of his siblings Victor, Maria and Lorna,
filed an action for quieting of title and damages before the Regional Trial Court (RTC), Branch
14 in Baybay, Leyte against the Heirs of Fian, naming only Theresa Fian Yray (Theresa) as the
representative of the Heirs of Fian. The case, entitled Heirs of Sps. Faustino S. Mesina &
Genoveva S. Mesina, represented by Norman Mesina v. Heirs of Domingo Fian, Sr.,
represented by Theresa Fian Yray, was docketed as Civil Case No. B-05-08-20. The allegations
of the Complaint on the parties read:

1. Plaintiffs are the HEIRS OF SPS. FAUSTINO S. MESINO and GENOVEVA S. MESINA, and
represented in this instance by NORMAN MESINA as shown by the Special Power of Attorneys
x x x, of legal age, married, Filipino, and a resident of Poblacion Albuera, Leyte, where he may
be served with court orders, notices, and other processes, while defendants are the HEIRS OF
DOMINGO FIAN, SR., likewise of legal ages, Filipinos, and residents of Poblacion Albuera,
Leyte, and respresented in this instance of THERESA FIAN YRAY, where she may be served
with summons, court orders, notices, and other processes.3

Thereafter, or on September 5, 2005, respondent Theresa filed a Motion to Dismiss the

complaint, arguing that the complaint states no cause of action and that the case should be
dismissed for gross violation of Sections 1 and 2, Rule 3 of the Rules of Court, which state in
part:

Section 1. Who may be parties; plaintiff and defendant. – Only natural or juridical persons, or
entities authorized by law may be parties in a civil action. x x x
Section 2. Parties in interest. – A real party in interest is the party who stands to be benefited or
injured by the judgment in the suit, or the party entitled to the avails of the suit. x x x

She claims that the "Heirs of Mesina" could not be considered as a juridical person or entity
authorized by law to file a civil action. Neither could the "Heirs of Fian" be made as defendant,
not being a juridical person as well. She added that since the names of all the heirs of the late
spouses Mesina and spouses Fian were not individually named, the complaint is infirmed,
warranting its dismissal.

On November 24, 2005, petitioners filed their Opposition to the Motion to Dismiss.

Ruling of the RTC

Finding merit in the motion to dismiss, the RTC, on November 22, 2005, granted the motion and
dismissed the complaint, ruling that the Rules of Court is explicit that only natural or juridical
persons or entities authorized by law may be parties in a civil action. Also, nowhere in the
complaint are the Heirs of Fian individually named. The RTC Order reads:

Anent the Motion to Dismiss filed by defendant, Theresa Fian Yray through counsel, finding
merit in such motion, the same is granted.

The Rules of Court is explicit that only natural or juridical persons or entities authorized by law
may be parties in a civil action (Section 1, Rule 3, Revised Rules of Court). Certainly, the Heirs
of Faurstino s. Mesina and Genoveva S. Mesina, represented by Norman Mesina as plaintiffs as
well as Heirs of Domingo Fian, Sr. represented by Theresa Fian Yray as defendants, do not fall
within the category as natural or juridical persons as contemplated by law to institute or defend
civil actions. Said heirs not having been individually named could not be the real parties in
interest. Hence, the complaint states no cause of action.

Accordingly, the case is hereby dismissed.

SO ORDERED.4

On December 27, 2005, petitioners moved for reconsideration of the November 22, 2005 Order
of the RTC. The next day, or on December 28, 2005, respondent Theresa filed her Vehement
Opposition to the motion for reconsideration.

On February 29, 2006, the RTC issued its Resolution denying the motion for reconsideration.
The dispositive portion of the Resolution reads:

WHEREFORE, the motion prayed for must necessary fail.

SO ORDERED.5

Aggrieved, petitioners appealed to the CA.

Ruling of the CA

In affirming the RTC, the CA, on April 29, 2011, rendered its Decision, ruling that all the heirs of
the spouses Fian are indispensable parties and should have been impleaded in the complaint.
The appellate court explained that this failure to implead the other heirs of the late spouses Fian
is a legal obstacle to the trial court’s exercise of judicial power over the case and any order or
judgment that would be rendered is a nullity in view of the absence of indispensable parties. The
CA further held that the RTC correctly dismissed the complaint for being improperly verified.
The CA disposed of the appeal in this wise:

WHEREFORE, in view of all the foregoing, the appeal of petitioners is DENIED for lack of merit.
The assailed November 22, 2005 Order and February 28, 2006 Resolution both issued by the
Regional Trial Court, Branch 14 of Baybay, Leyte are AFFIRMED.

SO ORDERED.6

Petitioners filed their Motion for Reconsideration, which was denied by the CA in its Resolution
dated April 12, 2012.

Hence, this petition.

Assignment of Errors

Petitioner now comes before this Court, presenting the following assigned errors, to wit:

A. THE CA ERRED IN AFFIRMING THE ORDER AND RESOLUTION X X X OF RTC,

BAYBAY, LEYTE IN DISMISSING THE CASE ON THE GROUND THAT THE COMPLAINT
STATES NO CAUSE OF ACTION;

B. PETITIONERS HAVE SUBSTANTIALLY COMPLIED WITH THE RULE ON VERIFICATION

AND CERTIFICATION AGAINST FORUM SHOPPING; AND

C. CASES SHOULD BE DECIDED ON THE MERITS AND NOT ON MERE TECHNICALITIES. 7

The Court’s Ruling

The petition is meritorious.

As regards the issue on failure to state a cause of action, the CA ruled that the complaint states
no cause of action because all the heirs of the spouses Fian are indispensable parties; hence,
they should have been impleaded in the complaint.

The CA, affirming the RTC, held that the dismissal of the complaint is called for in view of its
failure to state a cause of action. The CA reasoned that:

Without the presence of all the heirs of spouses Fian as defendants, the trial court could not
validly render judgment and grant relief to petitioners. x x x The absence of an indispensable
party renders all subsequent actions of the court null and void for want of authority to act, not
only as to the absent parties but even as to those present. Hence, the court a quo correctly
ordered for the dismissal of the action on the ground that the complaint failed to name or
implead all the heirs of the late spouses Fian.8

Failure to state a cause of action refers to the insufficiency of the pleading. A complaint states a
cause of action if it avers the existence of the three essential elements of a cause of action,
namely:

(a) The legal right of the plaintiff;

(b) The correlative obligation of the defendant; and

(c) The act or omission of the defendant in violation of said right.9

By a simple reading of the elements of a failure to state a cause of action, it can be readily seen
that the inclusion of Theresa’s co-heirs does not fall under any of the above elements. The
infirmity is, in fact, not a failure to state a cause of action but a non-joinder of an indispensable
party.

Non-joinder means the "failure to bring a person who is a necessary party or in this case an
indispensable party into a lawsuit."10 An indispensable party, on the other hand, is a party-in-
interest without whom no final determination can be had of the action, and who shall be joined
either as plaintiff or defendant.11

As such, this is properly a non-joinder of indispensable party, the indispensable parties who
were not included in the complaint being the other heirs of Fian, and not a failure of the
complaint to state a cause of action.

Having settled that, Our pronouncement in Pamplona Plantation Company, Inc. v. Tinghil is
instructive as regards the proper course of action on the part of the courts in cases of non-
joinder of indispensable parties, viz:

The non-joinder of indispensable parties is not a ground for the dismissal of an action. At any
stage of a judicial proceeding and/or at such times as are just, parties may be added on the
motion of a party or on the initiative of the tribunal concerned. If the plaintiff refuses to implead
an indispensable party despite the order of the court, that court may dismiss the complaint for
the plaintiff’s failure to comply with the order. The remedy is to implead the non-party claimed to
be indispensable.12 x x x (Emphasis Ours.)

Thus, the dismissal of the case for failure to state a cause of action is improper. What the trial
court should have done is to direct petitioner Norman Mesina to implead all the heirs of
Domingo Fian, Sr. as defendants within a reasonable time from notice with a warning that his
failure to do so shall mean dismissal of the complaint.

Anent the issue on defective verification, Section 4, RULE 7 of the Rules of Court provides as
follows:

Sec. 4. Verification. – Except when otherwise specifically required by law or rule, pleadings
need not be under oath, verified or accompanied by affidavit.

A pleading is verified by an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his personal knowledge or based on authentic
records. (Emphasis Ours.)

The alleged defective verification states that:

I, NORMAN S. MESINA, legal age, married, Filipino, and a resident of Poblacion, Albuera,
Leyte, after having been duly sworn to in accordance with law, hereby depose and say that:

xxxx

2. The allegations herein are true and correct to the best of our knowledge;13 x x x

Both the RTC and the CA found said verification defective, since the phrase "or based on
authentic records," as indicated under the second paragraph of Sec. 4, RULE 7 as afore-
quoted, was omitted.
We do not agree.

That the verification of the complaint does not include the phrase "or based on authentic
records" does not make the verification defective. Notably, the provision used the disjunctive
word "or." The word "or" is a disjunctive article indicating an alternative.14 As such, "personal
knowledge" and "authentic records" need not concur in a verification as they are to be taken
separately.

Also, verification, like in most cases required by the rules of procedure, is a formal requirement,
not jurisdictional. It is mainly intended to secure an assurance that matters which are alleged
are done in good faith or are true and correct and not of mere speculation. Thus, when
circumstances so warrant, as in the case at hand, "the court may simply order the correction of
unverified pleadings or act on it and waive strict compliance with the rules in order that the ends
of justice may thereby be served."15

WHEREFORE, premises considered, the petition is GRANTED. The assailed April 29, 2011
Decision and April 12, 2012 Resolution of the CA in CA-G.R. CV No. 01366, and the November
22, 2005 Order and February 29,2006 Resolution of the RTC, Branch 14 in Baybay, Leyte,
dismissing the complaint in Civil Case No. 8-05-08-20, are hereby REVERSED and SET
ASIDE. Petitioner Norman Mesina is ORDERED to implead all the Heirs of Domingo Fian, Sr.
as defendants in said civil case within thirty (30) days from notice of finality of this Decision.
Failure on the part of petitioner Mesina to comply with this directive shall result in the dismissal
of Civil Case No. B-05-08-20. Upon compliance by petitioner Mesina with this directive, the
RTC, Branch 14 in Baybay, Leyte is ORDERED to undertake appropriate steps and
proceedings to expedite adjudication of the case.

SO ORDERED.