RULE 13 | SECTION 13
malversation and an administrative case for dishonesty
EN BANC
[G.R. No. 193706. March 12, 2013.]
EBRENCIO F. INDOYON, JR., Municipal Treasurer, Lingig,
Surigao del Sur, petitioner, vs. COURT OF APPEALS,
Twenty-Second Division, Cagayan de Oro
City, respondent.
DECISION
SERENO, C.J p:
This is a Petition for Certiorari filed under Rule 65 of
the Revised Rules of Court asking this Court to determine
once again whether the Court of Appeals, Cagayan de Oro
City (CA) committed grave abuse of discretion in
dismissing petitioner's Rule 43 Petition for Review
on Certiorari. The Petition assails the 05 June 2009 and
16 July 2010 Resolutions in CA-G.R. SP No. 02855-MIN
of the CA. 1
FACTS
Petitioner Ebrencio F. Indoyon, Jr., was the municipal
treasurer of the Municipality of Lingig, Surigao del Sur,
with Salary Grade 24. 2 On 8 August 2005, upon
examination of his cash and accounts covering the
period 22 June 2005 to 8 August 2005, the Commission
on Audit (COA) — through State Auditor III Lino A.
Baustista (Auditor Bautista) — discovered that petitioner
had incurred a cash shortage in the amount of
P1,222,648.42. 3
In an undated letter to petitioner, Auditor Bautista
demanded the immediate production of the missing
funds and the submission of a written explanation of the
shortage. 4
On 19 September 2005, petitioner replied with a letter
addressed to the provincial auditor of Surigao del Sur,
admitting therein that the former had personally used the
amount of P652,000 to put up a project to supplement
his income, and that he had allowed other municipal
officials and employees to use as cash advances his
collections as municipal treasurer. 5 ISDCHA
On 15 March 2006, a Formal Charge for Violation of COA
Rules and Regulations was filed against petitioner before
the Bureau of Local Government Finance, Department of
Finance (BLGF-DOF), CARAGA Administrative Region,
Butuan City. The case was docketed as ADM Case No.
BLGF-08-0108. 6
Meanwhile, a letter-complaint dated 6 December 2006
was sent by the Regional Legal and Adjudication-
Commission on Audit to the Deputy Ombudsman, Office
of the Ombudsman-Mindanao (Ombudsman). It
recommended the filing of a criminal case for
and grave misconduct against petitioner. 7
In its Decision dated 2 October 2008, the BLGF-DOF
found petitioner guilty of "simple neglect of duty." The
dispositive portion of the Decision reads:
PREMISES CONSIDERED, [r]espondent Indoyon is hereby
found guilty of Simple Neglect of Duty. Considering the
evidence that Respondent has taken undue advantage of
his position, the penalty imposed is the maximum period
which is six (6) months suspension from the service
without pay. Let copies hereof be furnished the parties
concerned and this Bureau advised accordingly.
Let the copies hereof be furnished the parties concerned
and this Bureau advised accordingly.
SO ORDERED. 8 (Emphasis supplied)
On 27 November 2008, petitioner filed a Request for
Reconsideration of the BLGF-DOF Decision seeking a
modification of the administrative penalty by the
reduction thereof from suspension to the imposition of a
fine. 9 The request was partially granted in a Resolution
dated 2 February 2009. Thus, instead of a six-month
suspension, a fine in an amount equivalent to the six-
month salary of petitioner was imposed on
him. 10 DTaAHS
Meanwhile, on 30 April 2008, the Ombudsman rendered
a Decision in Case No. OMB-M-A-07-024-A finding
petitioner guilty of serious dishonesty and grave
misconduct and imposing upon him the penalty of
dismissal from the service. 11 On 13 March 2009, he filed
a Motion for Reconsideration of the Decision, alleging
that the jurisdiction over the same administrative
Complaint filed before the Ombudsman had first been
acquired by the BLGF-DOF. 12 Petitioner alleged that the
two administrative cases were one and the same
because of their identity of issues, facts and parties. The
Ombudsman, however, maintained that the two cases
were not identical and accordingly denied petitioner's
Motion for Reconsideration. 13
To enjoin the implementation of the Ombudsman's
Decision, petitioner filed a Petition for Review
on Certiorari under Rule 43 with Prayer for the Issuance
of a Temporary Restraining Order and/or Writ of
Preliminary injunction before the CA. The case was
docketed as CA-G.R. SP No. 02855-MIN. 14 In a
Resolution dated 5 June 2009, the Petition was
dismissed on the ground that it suffered not just one
technical infirmity, but several technical infirmities that
violated various circulars and issuances of this Court. 15
Petitioner's Motion for Reconsideration, 16 praying for
the relaxation of the procedural rules in the interest of
substantial justice, was denied by the CA in a Resolution
dated 16 July 2010. 17
In the meantime, on 24 February 2010, the BLGF-DOF
sent a letter to the ICO-Regional Director, BLGF-DOF,
Caraga, directing the implementation of the
Ombudsman's Decision dated 30 April 2008 dismissing
petitioner from the service. 18
Hence this Petition.
The Solicitor General filed his Comment on 21 February
2011 and petitioner his Reply on 29 March 2011.
ISSUE
The issue for resolution is whether the CA committed
grave abuse of discretion in dismissing petitioner's Rule
43 Petition for Review on Certiorari on the ground of
noncompliance with the Rules of Court and Supreme
Court circulars. AacCIT
THE COURT'S RULING
The Petition is dismissed for being devoid of merit.
Discussion
This Petition invokes the liberality of the Court and
considerations of substantial justice in seeking to
overturn the Resolutions of the CA. For noncompliance
with the Rules of Court and Supreme Court circulars, the
Petition filed by petitioner with the CA was properly
dismissed. And yet, in the instant Petition, he once again
ignores the Rules of Court and a circular issued by this
Court.
Under Section 1, Rule 45 of the Rules of Court, the proper
remedy to question the CA's judgment, final order or
resolution, as in the present case, is a petition for review
on certiorari. The petition must be filed within fifteen (15)
days from notice of the judgment, final order or
resolution appealed from; or of the denial of petitioner's
motion for reconsideration filed in due time after notice
of the judgment.
By filing a special civil action for certiorari under Rule 65,
petitioner therefore clearly availed himself of the wrong
remedy. Under Supreme Court Circular 2-90, 19 an
appeal taken to this Court or to the CA by a wrong or an
inappropriate mode merits outright dismissal. 20 On this
score alone, the instant Petition may be dismissed.
In Ybanez v. Court of Appeals, 21 we have said that the
Court cannot tolerate this ignorance of the law on
appeals. It has in fact reproached litigants who have
sought to delegate to this Court the task of determining
under which rule their petitions should fall. In the cited
case, we emphasized that paragraph 4 (e) of Supreme
Court Circular 2-90 specifically warns litigants' counsels
to follow to the letter the requisites prescribed by law on
appeals. This provision reads:
Duty of counsel. — It is therefore incumbent upon every
attorney who would seek review of a judgment or order
promulgated against his client to make sure of the nature
of the errors he proposes to assign, whether these be of
fact or law; then upon such basis to ascertain carefully
which Court has appellate jurisdiction; and finally, to
follow scrupulously the requisites for appeal prescribed
by law, ever aware that any error or imprecision in
compliance may well be fatal to his client's
cause. AHacIS
The inexcusability of this disregard for the rules becomes
even more glaring, considering that petitioner has
previously shown grave indifference to technical rules
before the CA. As already explained above, the assailed
CA Resolution properly dismissed his Petition for failure
to comply with procedural rules. He should have learned
his lesson from that experience instead of repeating the
same disregard for the rules before this Court.
We reiterate that under Supreme Court Circular 2-90, the
filing of an improper remedy of special civil action
for certiorari under Rule 65, when the proper remedy
should have been to file a petition for review
on certiorari under Rule 45, merits the outright dismissal
of a Petition such as this one.
We remind petitioner, as we have consistently reminded
countless other litigants, that the invocation of
substantial justice is not a magic potion that will
automatically compel this Court to set aside technical
rules. 22 This principle is especially true when a litigant,
as in the present case, shows a predilection for utterly
disregarding the Rules.
In any event, even if we were to be liberal and overlook
our own Circular 2-90, we rule that there was no grave
abuse of discretion on the part of the CA in dismissing,
for technical infirmities, the Petition for Review
on Certiorari filed by petitioner under Rule 43.
At the outset, we emphasize that a writ of certiorari is an
extraordinary prerogative writ that is never demandable
as a matter of right. 23 To warrant the issuance thereof,
the abuse of discretion must have been so gross or
grave, as when there was such capricious and whimsical
exercise of judgment equivalent to lack of jurisdiction; or
the exercise of power was done in an arbitrary or
despotic manner by reason of passion, prejudice, or
personal hostility. The abuse must have been committed
in a manner so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to
perform the duty enjoined or to act at all in contemplation
of law. 24
Applying the above definition to the instant case, we find
that there is no basis to ask this Court to hold the CA
guilty of grave abuse of discretion when the latter was
simply implementing the rules that we ourselves have set
forth in several circulars. We quote hereunder the
pertinent part of the assailed CA Resolution: STCDaI
However, the Petition suffers from several infirmities
rendering the Petition fatally defective.
First, no Affidavit of Service was attached to the Petition,
in violation of Supreme Court Revised Circular Nos. 1-88
and 19-91, and of Section 13 of Rule 13 of the Rules of
Court. They respectively read:
Supreme Court Revised Circular Nos. 1-88:
"(2) Form and Service of petition
A petition file (under) Rule 45, or under Rule 65, or in a
motion for extension may be denied outright if it is not
clearly legible, or there is no proof of service on the lower
court, tribunal, or office concerned and on the adverse
party in accordance with Section 3, 5 and 10 of Rule 13,
attached to the petition or motion for extension when
filed." (Emphasis in the original)
Supreme Court Revised Circular Nos. 19-91:
"Effective September 15, 1991, henceforth, a petition or
motion for extension filed before this Court shall be
dismissed/denied outright if there is no such proof of
service in accordance with Sections 3 and 5 in relation to
Section 10 of Rule 13 of the Rules of Court attached to
the petition/motion when filed." (Emphasis in the
original)
Section 13 of Rule 13 of the Rules of Court:
"Sec. 13. Proof of Service. —
Proof of personal service shall consist of a written
admission of the party served, or the official return of the
server, or the affidavit of the party serving, containing a
full statement of the date, place and manner of service. If
the service is by ordinary mail, proof thereof shall consist
of an affidavit of the person mailing of facts showing
compliance with section 7 of this Rule. If service is made
by registered mail, proof shall be made by such affidavit
and the registry receipt issued by the mailing office. The
registry return card shall be filed immediately upon its
receipt by the sender, or in lieu thereof the unclaimed
letter together with the certified or sworn copy of the
notice given by the postmaster to the addressee."
(Emphasis in the original) aEIcHA
Second, The office of the Ombudsman is impleaded as
nominal party in the Petition for Review, which is not in
accordance with Section 6 of Rule 43 of the Rules of
Court, stating as follows:
"SEC. 6. Contents of the Petition. — The petition for
review shall (a) state the full names of the parties to the
case, without impleading the court or agencies either as
petitioners or respondents." (Emphasis in the original)
Last, the Court of Origin, as well as the Case Number and
the Title of the action are not indicated in the Caption of
the Petition. This is in contravention of Supreme Court
Circular No. 28-91, which requires that:
"1. Caption of petition or complaint. The caption of the
petition or complaint must include the docket number of
the case in the lower court of quasi-judicial agency
whose order or judgment is sought to be reviewed.
xxx xxx xxx
"3. Penalties.
(a)Any violation of this Circular shall be a cause for the
summary dismissal of the, multiple petition or
complaint; . . . .
IN VIEW OF ALL THESE, the Petition is DISMISSED.
SO ORDERED." 25 (Emphasis in the original)
There is no question that the CA was simply applying the
rules laid down by this Court. In fact, petitioner does not
question the proper application of the technical rules by
the CA. It is precisely for this reason that he is merely
invoking the liberal application of those rules. We also
note that not only one but several rules have not been
complied with. IaAHCE
We emphasize that an appeal is not a matter of right, but
of sound judicial discretion. Thus, an appeal may be
availed of only in the manner provided by law and the
rules. 26 Failure to follow procedural rules merits the
dismissal of the case, especially when the rules
themselves expressly say so, as in the instant case.
While the Court, in certain cases, applies the policy of
liberal construction, this policy may be invoked only in
situations in which there is some excusable formal
deficiency or error in a pleading, but not when the
application of the policy results in the utter disregard of
procedural rules, as in this case. 27
We dread to think of what message may be sent to the
lower courts if the highest Court of the land finds fault
with them for properly applying the rules. That action will
surely demoralize them. More seriously, by rendering for
naught the rules that this Court itself has set, it would be
undermining its own authority over the lower courts.
Finally, we note that for a proper invocation of the remedy
of certiorari under Rule 65 of the Revised Rules of Court,
one of the essential requisites is that there be no appeal
or any plain, speedy, and adequate remedy in the ordinary
course of law.
As already discussed earlier, the proper remedy of
petitioner should have been to file a petition for review
on certiorari. We cannot help but suspect that his failure
to avail himself of that remedy within the reglementary
period of 15 days was the reason he filed, instead, the
present special civil action. A special civil action provides
for a longer period of 60 days from notice of the assailed
judgment, order or resolution. We note that the instant
Petition was filed 35 days after that notice, by which time
petitioner had therefore lost his appeal under Rule 45.
In Republic of the Philippines v. Court of Appeals, 28 we
dismissed a Rule 65 Petition on the ground that the
proper remedy for the petitioner therein should have been
an appeal under Rule 45 of the Rules of Court. In that
case, we stressed how we had time and again reminded
members of the bench and the bar that a special civil
action for certiorari under Rule 65 lies only when there is
no appeal or any plain, speedy and adequate remedy in
the ordinary course of law. Thus, certiorari cannot be
allowed when a party to a case fails to appeal a judgment
despite the availability of that remedy. Certiorari is not a
substitute for a lost appeal. 29 DTSaIc
WHEREFORE, premises considered, the instant Petition
is DISMISSED. The 05 June 2009 and 16 July 2010
Resolutions of the Court of Appeals, Cagayan de Oro City
in CA-G.R. SP No. 02855-MIN are hereby AFFIRMED.
SO ORDERED.
||| (Indoyon, Jr. v. Court of Appeals, G.R. No. 193706,
[March 12, 2013], 706 PHIL 200-213)
RULE 14 | SECTION 14
FIRST DIVISION
[G.R. No. 170943. September 23, 2008.]
PEDRO T. SANTOS, JR., petitioner, vs. PNOC
EXPLORATION CORPORATION, respondent.
DECISION
CORONA, J p:
This is a petition for review 1 of the September 22, 2005
decision 2 and December 29, 2005 resolution 3 of the
Court of Appeals in CA-G.R. SP No. 82482. HDCTAc
On December 23, 2002, respondent PNOC Exploration
Corporation filed a complaint for a sum of money against
petitioner Pedro T. Santos, Jr. in the Regional Trial Court
of Pasig City, Branch 167. The complaint, docketed as
Civil Case No. 69262, sought to collect the amount of
P698,502.10 representing petitioner's unpaid balance of
the car loan 4 advanced to him by respondent when he
was still a member of its board of directors.
Personal service of summons to petitioner failed
because he could not be located in his last known
address despite earnest efforts to do so. Subsequently,
on respondent's motion, the trial court allowed service of
summons by publication.
Respondent caused the publication of the summons in
Remate, a newspaper of general circulation in the
Philippines, on May 20, 2003. Thereafter, respondent
submitted the affidavit of publication of the advertising
manager of Remate 5 and an affidavit of service of
respondent's employee 6 to the effect that he sent a copy
of the summons by registered mail to petitioner's last
known address.
When petitioner failed to file his answer within the
prescribed period, respondent moved that the case be set
for the reception of its evidence ex parte. The trial court
granted the motion in an order dated September 11,
2003.
Respondent proceeded with the ex parte presentation
and formal offer of its evidence. Thereafter, the case was
deemed submitted for decision on October 15, 2003.
On October 28, 2003, petitioner filed an "Omnibus Motion
for Reconsideration and to Admit Attached Answer". He
sought reconsideration of the September 11, 2003 order,
alleging that the affidavit of service submitted by
respondent failed to comply with Section 19, Rule 14 of
the Rules of Court as it was not executed by the clerk of
court. He also claimed that he was denied due process
as he was not notified of the September 11, 2003 order.
He prayed that respondent's evidence ex parte be
stricken off the records and that his answer be admitted.
Respondent naturally opposed the motion. It insisted
that it complied with the rules on service by publication.
Moreover, pursuant to the September 11, 2003 order,
petitioner was already deemed in default for failure to file
an answer within the prescribed period.
In an order dated February 6, 2004, the trial court denied
petitioner's motion for reconsideration of the September
11, 2003 order. It held that the rules did not require the
affidavit of complementary service by registered mail to
be executed by the clerk of court. It also ruled that due
process was observed as a copy of the September 11,
2003 order was actually mailed to petitioner at his last
known address. It also denied the motion to admit
petitioner's answer because the same was filed way
beyond the reglementary period.
Aggrieved, petitioner assailed the September 11, 2003
and February 6, 2004 orders of the trial court in the Court
of Appeals via a petition for certiorari. He contended that
the orders were issued with grave abuse of discretion. He
imputed the following errors to the trial court: taking
cognizance of the case despite lack of jurisdiction due to
improper service of summons; failing to furnish him with
copies of its orders and processes, particularly the
September 11, 2003 order, and upholding technicality
over equity and justice.
During the pendency of the petition in the Court of
Appeals, the trial court rendered its decision in Civil Case
No. 69262. It ordered petitioner to pay P698,502.10 plus
legal interest and costs of suit. 7
Meanwhile, on September 22, 2005, the Court of Appeals
rendered its decision 8 sustaining the September 11,
2003 and February 6, 2004 orders of the trial court and
dismissing the petition. It denied
reconsideration. 9 Thus, this petition.
Petitioner essentially reiterates the grounds he raised in
the Court of Appeals, namely, lack of jurisdiction over his
person due to improper service of summons, failure of
the trial court to furnish him with copies of its orders and
processes including the September 11, 2003 order and
preference for technicality rather than justice and equity.
In particular, he claims that the rule on service by
publication under Section 14, Rule 14 of the Rules of
Court applies only to actions in rem, not actions in
personam like a complaint for a sum of money. He also
contends that the affidavit of service of a copy of the
summons should have been prepared by the clerk of
court, not respondent's messenger.
The petition lacks merit.
PROPRIETY OF
SERVICE BY PUBLICATION
Section 14, Rule 14 (on Summons) of the Rules of Court
provides:
SEC. 14. Service upon defendant whose identity or
whereabouts are unknown. — In any action where the
defendant is designated as an unknown owner, or the
like, or whenever his whereabouts are unknown and
cannot be ascertained by diligent inquiry, service may, by
leave of court, be effected upon him by publication in a
newspaper of general circulation and in such places and
for such times as the court may order. (emphasis
supplied) STcEIC
Since petitioner could not be personally served with
summons despite diligent efforts to locate his
whereabouts, respondent sought and was granted leave
of court to effect service of summons upon him by
publication in a newspaper of general circulation. Thus,
petitioner was properly served with summons by
publication.
Petitioner invokes the distinction between an action in
rem and an action in personam and claims that
substituted service may be availed of only in an action in
rem. Petitioner is wrong. The in rem/in
personam distinction was significant under the old rule
because it was silent as to the kind of action to which the
rule was applicable. 10 Because of this silence, the Court
limited the application of the old rule to in rem actions
only. 11
This has been changed. The present rule expressly
states that it applies "[i]n any action where the defendant
is designated as an unknown owner, or the like, or
whenever his whereabouts are unknown and cannot be
ascertained by diligent inquiry." Thus, it now applies to
any action, whether in personam, in rem or quasi in
rem. 12
Regarding the matter of the affidavit of service, the
relevant portion of Section 19, 13 Rule 14 of the Rules of
Court simply speaks of the following:
. . . an affidavit showing the deposit of a copy of the
summons and order for publication in the post office,
postage prepaid, directed to the defendant by registered
mail to his last known address.
Service of summons by publication is proved by the
affidavit of the printer, his foreman or principal clerk, or
of the editor, business or advertising manager of the
newspaper which published the summons. The service
of summons by publication is complemented by service
of summons by registered mail to the defendant's last
known address. This complementary service is
evidenced by an affidavit "showing the deposit of a copy
of the summons and order for publication in the post
office, postage prepaid, directed to the defendant by
registered mail to his last known address."
The rules, however, do not require that the affidavit of
complementary service be executed by the clerk of court.
While the trial court ordinarily does the mailing of copies
of its orders and processes, the duty to make the
complementary service by registered mail is imposed on
the party who resorts to service by publication.
Moreover, even assuming that the service of summons
was defective, the trial court acquired jurisdiction over
the person of petitioner by his own voluntary appearance
in the action against him. In this connection, Section 20,
Rule 14 of the Rules of Court states:
SEC. 20. Voluntary appearance. — The defendant's
voluntary appearance in the action shall be equivalent to
service of summons. The inclusion in a motion to
dismiss of other grounds aside from lack of jurisdiction
over the person of the defendant shall not be deemed a
voluntary appearance. (emphasis supplied)
Petitioner voluntarily appeared in the action when he filed
the "Omnibus Motion for Reconsideration and to Admit
Attached Answer". 14 This was equivalent to service of
summons and vested the trial court with jurisdiction over
the person of petitioner.
ENTITLEMENT TO
NOTICE OF PROCEEDINGS
The trial court allowed respondent to present its
evidence ex parte on account of petitioner's failure to file
his answer within the prescribed period. Petitioner
assails this action on the part of the trial court as well as
the said court's failure to furnish him with copies of
orders and processes issued in the course of the
proceedings.
The effects of a defendant's failure to file an answer
within the time allowed therefor are governed by
Sections 3 and 4, Rule 9 (on Effect of Failure to Plead) of
the Rules of Court:
SEC. 3. Default; declaration of. — If the defending party
fails to answer within the time allowed therefor, the court
shall, upon motion of the claiming party with notice to
the defending party, and proof of such failure, declare the
defending party in default. Thereupon, the court shall
proceed to render judgment granting the claimant such
relief as his pleading may warrant, unless the court in its
discretion requires the claimant to submit evidence.
Such reception of evidence may be delegated to the clerk
of court.
SEC. 4. Effect of order of default. — A party in default
shall be entitled to notice of subsequent proceedings but
not to take part in the trial. (emphasis supplied)
If the defendant fails to file his answer on time, he may
be declared in default upon motion of the plaintiff with
notice to the said defendant. In case he is declared in
default, the court shall proceed to render judgment
granting the plaintiff such relief as his pleading may
warrant, unless the court in its discretion requires the
plaintiff to submit evidence. The defaulting defendant
may not take part in the trial but shall be entitled to notice
of subsequent proceedings.
In this case, even petitioner himself does not dispute that
he failed to file his answer on time. That was in fact why
he had to file an "Omnibus Motion for Reconsideration
and to Admit Attached Answer". But respondent moved
only for the ex parte presentation of evidence, not for the
declaration of petitioner in default. In its February 6, 2004
order, the trial court stated: ADSTCa
The disputed Order of September 11, 2003 allowing the
presentation of evidence ex-parte precisely ordered that
"despite and notwithstanding service of summons by
publication, no answer has been filed with the Court
within the required period and/or
forthcoming.["] Effectively[,] that was a finding that the
defendant [that is, herein petitioner] was in default for
failure to file an answer or any responsive pleading within
the period fixed in the publication as precisely the
defendant [could not] be found and for which reason,
service of summons by publication was ordered. It is
simply illogical to notify the defendant of the Order of
September 11, 2003 simply on account of the reality that
he was no longer residing and/or found on his last known
address and his whereabouts unknown — thus the
publication of the summons. In other words, it was
reasonable to expect that the defendant will not receive
any notice or order in his last known address. Hence, [it
was] impractical to send any notice or order to
him. Nonetheless, the record[s] will bear out that a copy
of the order of September 11, 2003 was mailed to the
defendant at his last known address but it was not
claimed. (emphasis supplied)
As is readily apparent, the September 11, 2003 order did
not limit itself to permitting respondent to present its
evidence ex parte but in effect issued an order of default.
But the trial court could not validly do that as an order of
default can be made only upon motion of the claiming
party. 15 Since no motion to declare petitioner in default
was filed, no default order should have been issued.
To pursue the matter to its logical conclusion, if a party
declared in default is entitled to notice of subsequent
proceedings, all the more should a party who has not
been declared in default be entitled to such notice. But
what happens if the residence or whereabouts of the
defending party is not known or he cannot be located? In
such a case, there is obviously no way notice can be sent
to him and the notice requirement cannot apply to him.
The law does not require that the impossible be
done. 16 Nemo tenetur ad impossibile. The law obliges
no one to perform an impossibility. 17 Laws and rules
must be interpreted in a way that they are in accordance
with logic, common sense, reason and practicality. 18
Hence, even if petitioner was not validly declared in
default, he could not reasonably demand that copies of
orders and processes be furnished him. Be that as it may,
a copy of the September 11, 2003 order was nonetheless
still mailed to petitioner at his last known address but it
was unclaimed.
 CORRECTNESS OF
NON-ADMISSION OF ANSWER
Petitioner failed to file his answer within the required
period. Indeed, he would not have moved for the
admission of his answer had he filed it on time.
Considering that the answer was belatedly filed, the trial
court did not abuse its discretion in denying its
admission.
Petitioner's plea for equity must fail in the face of the
clear and express language of the rules of procedure and
of the September 11, 2003 order regarding the period for
filing the answer. Equity is available only in the absence
of law, not as its replacement. 19 Equity may be applied
only in the absence of rules of procedure, never in
contravention thereof.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
||| (Santos, Jr. v. PNOC Exploration Corp. , G.R. No.
170943, [September 23, 2008], 587 PHIL 713-724)
RULE 15 | SECTION 4, 5
SECOND DIVISION
[G.R. No. 216566. February 24, 2016.]
MAGELLAN AEROSPACE
CORPORATION, petitioner, vs. PHILIPPINE AIR
FORCE, respondent.
DECISION
MENDOZA, J p:
In this petition 1 for review on certiorari under Rule 45 of
the Rules of Court, petitioner Magellan Aerospace
Corporation (MAC) seeks the review of the November 18,
2013 Decision 2 and January 26, 2015 Resolution 3 of
the Court of Appeals (CA) in CA-G.R. CV No. 96589,
insofar as they sustained the February 14, 2011
Order 4 of the Regional Trial Court, Branch 211,
Mandaluyong City (RTC), in dismissing the
complaint 5 filed by MAC against the respondent,
Philippine Air Force (PAF).
The Antecedents
On September 18, 2008, PAF contracted Chervin
Enterprises, Inc. (Chervin) for the overhaul of two T76
aircraft engines in an agreement denominated as
"Contract for the Procurement of Services and Overhaul
of Two (2) OV10 Engines." 6 Due to its lack of technical
capability to effect the repair and overhaul required by
PAF, Chervin commissioned MAC to do the work for
US$364,577.00. MAC, in turn, outsourced the overhaul
service from another subcontractor, National Flight
Services, Inc. (NFSI). Eventually, the engines were
overhauled and delivered to the PAF. Satisfied with the
service, PAF accepted the overhauled engines. 7
On December 15, 2008, MAC demanded from Chervin the
payment of US$264,577.00 representing the balance of
the contract price. In a letter to the Trade Commission of
the Canadian Embassy, dated December 21, 2009, PAF
confirmed that it had already released to Chervin the
amount of P23,760,000.00, on November 7, 2008, as
partial payment for the overhaul service, and that it
withheld the amount of P2,376,000.00 as retention
fund. 8
Notwithstanding the release of funds to Chervin, MAC
was not paid for the services rendered despite several
demands. Unpaid, MAC demanded from PAF the release
of the retained amount. In a letter, dated March 3, 2010,
however, PAF rejected the demand and informed MAC
that the amount could not be released as it was being
held in trust for Chervin. 9
On July 6, 2010, MAC filed a complaint 10 for sum of
money before the RTC against Chervin together with its
Managing Director, Elvi T. Sosing (Sosing), and the PAF.
It prayed that Chervin be ordered to pay the amount of
US$264,577.00, plus 12% legal interest from January 15,
2009 until full payment; that in the event of failure of
Chervin to pay the amount claimed, PAF be ordered to
pay the said amount with interest and to release the
retained amount of P2,376,000.00 plus attorneys fees
and litigation expenses amounting to P500,000.00; and
that the defendants pay the costs of suit. MAC alleged
that Chervin merely acted as an agent of PAF.
On August 24, 2010, PAF moved to dismiss the complaint
averring that its contract with Chervin was one for repair
and overhaul and not for agency; that it was never privy
to any contract between Chervin and MAC; and that it
already paid Chervin on January 22, 2009, and on July 13,
2010 in full settlement of its obligations. 11
Chervin also asked the RTC to dismiss the complaint
against them asserting that MAC had no capacity to sue
because of its status as a non-resident doing business
in the Philippines without the required license, and that
no disclosure was made that it was suing on an isolated
transaction which would mean that the real party-in-
interest was not MAC, but NFSI. 12
On February 14, 2011, the RTC granted both motions to
dismiss and ordered the dismissal of the complaint filed
by MAC. The decretal portion of the said order reads:
WHEREFORE, finding defendants CHERVIN
ENTERPRISES, INC. AND ELVI T. SOSING, and public
defendant PHILIPPINE AIR FORCE's motions to be
impressed with merit, the same are hereby GRANTED.
SO ORDERED. 13
Aggrieved, MAC appealed before the CA. CAIHTE
On November 18, 2013, the CA partly granted MAC's
appeal by reversing the RTC order of dismissal of the
complaint against Chervin and Sosing. It, however,
affirmed the dismissal of the complaint against PAF. The
CA explained that MAC failed to show that PAF had a
correlative duty of paying under the overhauling contract
as it was obvious that the contract was executed only
between MAC and Chervin. Thus, the CA disposed:
We PARTIALLY GRANT the appeal, and REVERSE the
Order dated 14 February 2011 of the Regional Trial Court,
Branch 211, Mandaluyong City, insofar as it dismissed
the Complaint against defendants-appellees Chervin
Enterprises, Inc., and Elvi T. Sosing. We REMAND the
case to the RTC for the continuation of proceedings
against said defendants-appellees.
IT IS SO ORDERED. 14
MAC moved for a partial reconsideration of the decision
but its motion was denied by the CA in its January 26,
2015 Resolution.
Persistent, MAC filed this petition citing the following:
GROUNDS IN SUPPORT OF THE PETITION
I. THE COURT OF APPEALS ERRED IN RULING THAT THE
COMPLAINT DOES NOT STATE A CAUSE OF ACTION
AGAINST RESPONDENT PAF, WHEN THE COMPLAINT
CLEARLY AND SUFFICIENTLY ALLEGED ULTIMATE
FACTS THAT WILL SHOW AND SUPPORT SUCH CAUSE
OF ACTION.
II. THE COURT OF APPEALS DECIDED IN A MANNER
CONTRARY TO LEGAL PRECEDENT WHEN IT RULED
THAT THERE WAS NO AGENCY RELATIONSHIP
BETWEEN RESPONDENT PAF AND CHERVIN/SOSING,
AND DISMISSED THE COMPLAINT BASED ON FAILURE
TO STATE A CAUSE OF ACTION.
III. THE COURT OF APPEALS DECIDED IN A MANNER
CONTRARY TO LAW AND LEGAL PRECEDENT WHEN IT
FAILED TO CONSIDER THAT RESPONDENT PAF'S
MOTION TO DISMISS VIOLATED THE MANDATORY RULE
ON NOTICE FOR MOTIONS AND SHOULD NOT HAVE
BEEN TAKEN COGNIZANCE BY THE RTC IN THE FIRST
PLACE. 15
MAC prays that its complaint against PAF be reinstated
and that this Court rule that (1) the CA erred in finding
that the complaint against PAF failed to sufficiently state
a cause of action; (2) the conclusion of the CA that no
agency relationship existed between PAF and Chervin is
premature as such conclusion can only be had after the
trial on the merits is conducted; and (3) PAF violated the
three-day notice rule relative to the motion to dismiss
filed before the RTC.
The Court's Ruling
The Court denies the petition.
Cause of action is defined as an act or omission by which
a party violates a right of another. 16 In pursuing that
cause, a plaintiff must first plead in the complaint a
"concise statement of the ultimate or essential facts
constituting the cause of action." 17 In particular, the
plaintiff must show on the face of the complaint that
there exists a legal right on his or her part, a correlative
obligation of the defendant to respect such right, and an
act or omission of such defendant in violation of the
plaintiff's rights. 18
Such a complaint may, however, be subjected to an
immediate challenge. Under Section 1 (g), Rule 16 of
the Rules of Court (Rules), the defendant may file a
motion to dismiss "[w]ithin the time for but before filing
the answer to the complaint or pleading asserting a
claim" anchored on the defense that the pleading
asserting the claim stated no cause of action. 19
In making such challenge, the defendant's issue is not
whether a plaintiff will ultimately prevail, but whether the
claimant is entitled to offer evidence to support the
claims. 20 It has nothing to do with the merits of the
case. "Whether those allegations are true or not is beside
the point, for their truth is hypothetically admitted by the
motion." 21 The inquiry is then limited only into the
sufficiency, not the veracity of the material
allegations. 22 Thus, if the allegations in the complaint
furnish sufficient basis on which it can be maintained, it
should not be dismissed regardless of the defense that
may be presented by the defendants. 23 Conversely, the
dismissal of the complaint is permitted if the allegations
stated therein fail to show that plaintiff is entitled to
relief.
Accordingly, the survival of the complaint against a Rule
16 challenge depends upon the sufficiency of the
averments made. In determining whether an initiatory
pleading sufficiently pleads, the test applied is whether
the court can render a valid judgment in accordance with
the prayer if the truth of the facts alleged is admitted. 24
In this case, MAC seeks the Court's attention to the
following allegations in the complaint as cited in the
petition:
5. On or about 18 September 2008, defendant PAF
contracted defendant Chervin for the overhaul of two (2)
T76 aircraft engines, with serial numbers GE-00307 and
GE-00039, respectively.
6. Defendant Chervin did not and does not have the
capacity, technical skilled personnel or tools to directly
perform the overhaul of aircraft engines. In order to
perform the overhaul services, defendant Chervin and its
Managing Director/Proprietor, defendant Sosing, acting
for and on behalf or for the benefit of defendant PAF,
commissioned plaintiff to perform the services and to
overhaul the subject aircraft engines for the price of
US$364,577.00. DETACa
xxx xxx xxx
10. Meanwhile, on or about 7 November 2008, defendant
PAF released the amount of Twenty Three Million Seven
Hundred Sixty Thousand Pesos (P23,760,000.00) to its
agents, defendants Chervin and Sosing, as payment of
90% of the total price of the overhaul services. Defendant
PAF retained a 10% retention fund in the amount of Two
Million Three Hundred Seventy Six Thousand Pesos
(P2,376,000.00). A copy of defendant PAF's letter dated
21 December 2009 to Trade Commissioner of the
Canadian Embassy, affirming the PAF's release and
retention of the aforestated sums of money, is attached
hereto as Annex "I".
11. However, notwithstanding defendant PAF's release
of funds covering 90% payment for the repair of the
subject aircraft engines, defendant PAF's agents —
defendants Chervin and Sosing — did not pay plaintiff for
the services rendered, leaving an indebtedness to
plaintiff in the amount of Two Hundred Sixty Four
Thousand Five Hundred Seventy Seven US Dollars
(US$264,577.00).
xxx xxx xxx
18. Meanwhile, plaintiff also sent to defendant PAF — as
the principal of defendants Chervin and Sosing, and the
beneficiary of plaintiffs overhaul and repair services
which were commissioned by defendants Chervin and
Sosing for and on its behalf — a demand letter dated 26
January 2010, demanding the release of the 10%
retention amount of Two Million Three Hundred Seventy
Six Thousand Pesos (P2,376,000.00) directly to plaintiff,
as partial payment of the amount owed to it. A copy of
plaintiff's demand letter to defendant PAF is attached
hereto as Annex "M".
19. However, in a reply letter dated 3 March 2010,
defendant PAF rejected plaintiff's demand, alleging that
'the amount of retention money (P2,376,000.00) withheld
by the PAF is kept in trust for Chervin Enterprises who is
the owner thereof. A copy of defendant PAF's reply letter
dated 3 March 2010 is attached hereto as Annex "N".
20. As defendants Chervin's and Sosing's principal,
defendant PAF must comply with all the obligations
which its agents, defendants Chervin and Sosing, may
have contracted within the scope of their authority
(Article 1910, Civil Code of the Philippines). These
obligations include paying plaintiff in full for the overhaul
and repair services performed on defendant PAF's
aircraft engines, which services were commissioned by
defendants Chervin and Sosing for and on behalf of
defendant PAF.
21. Hence, as the principal of defendants Chervin and
Sosing, and the beneficiary of plaintiff's overhaul and
repair services, defendant PAF must be made
answerable for defendants Chervin's and Sosing's failure
to pay plaintiff. Therefore, as an alternative cause of
action in the event that the First Cause of Action is not
and/or cannot be fully satisfied by defendants Chervin
and Sosing, defendant PAF must be held liable for the
outstanding amount of Two Hundred Sixty Four
Thousand Five Hundred Seventy Seven US Dollars
(US$264,577.00), plus 12% legal interest thereon from 15
January 2009 until full payment is received. 25
In essence, MAC asserts that the allegations stating that
Chervin "acted for and in behalf" of a "principal," PAF, in
tapping its services for the overhaul of the aircraft
engines, completed with the requirements of sufficiency
in stating its cause of action against PAF. MAC claims
that its allegation of Chervin being "mere agents" of PAF
in the overhaul contract, establishes clearly, under the
premise of admitting them as true for purposes of a Rule
16 challenge, its entitlement to recover from PAF, the
latter being the "principal" and "beneficiary."
The Court is not persuaded.
The standard used in determining the sufficiency of the
allegations is not as comprehensive as MAC would want
to impress.
The assumption of truth (commonly known as
hypothetical admission of truth), accorded under the test,
does not cover all the allegations pleaded in the
complaint. Only ultimate facts or those facts which the
expected evidence will support 26 are considered for
purposes of the test. 27 It does not cover legal
conclusions or evidentiary facts.
The reason for such a rule is quite simple. The standard
requires that "[e]very pleading shall contain in a
methodical and logical form, a plain, concise and direct
statement of the ultimate facts on which the party
pleading relies for his claim or defense, as the case may
be, omitting the statement of mere evidentiary
facts." 28 Thus, trial courts need not overly stretch its
limits in considering all allegations just because they
were included in the complaint. Evidently, matters that
are required and expected to be sufficiently included in a
complaint and, thus, accorded the assumption of truth,
exclude those that are mere legal conclusions,
inferences, evidentiary facts, or even unwarranted
deductions.
In this case, the averment that Chervin acted as PAF's
mere agents in subsequently contracting MAC to
perform the overhauling services is not an ultimate fact.
Nothing can be found in the complaint that can serve as
a premise of PAF's status as the principal in the contract
between Chervin and MAC. No factual circumstances
were alleged that could plausibly convince the Court that
PAF was a party to the subsequent outsourcing of the
overhauling services. Not even in the annexes can the
Court find any plausible basis for the assertion of MAC
on PAF's status as a principal. Had MAC went beyond
barren words and included in the complaint essential
supporting details, though not required to be overly
specific, this would have permitted MAC to substantiate
its claims during the trial and survive the Rule 16
challenge. In short, factual circumstances serving as
predicates were not provided to add to MAC's barren
statement concerning PAF's liability.
What MAC entirely did was to state a mere conclusion of
law, if not, an inference based on matters not stated in
the pleading. To clarify, a mere allegation that PAF, as a
principal of Chervin, can be held liable for non-payment
of the amounts due, does not comply with the ultimate
fact rule. Without the constitutive factual predicates, any
assertion could never satisfy the threshold of an ultimate
fact.
Not being an ultimate fact, the assumption of truth does
not apply to the aforementioned allegation made by MAC
concerning PAF. Consequently, the narrative that PAF
can be held liable as a principal in the agreement
between Chervin and MAC cannot be considered in the
course of applying the sufficiency test used in Section 1
(g) Rule 16. It, therefore, produces no link to the alleged
PAF's correlative duty to pay the amounts being claimed
by MAC — a necessary element of a cause of action that
must be found in the pleading.
Lacking that essential link, and after hypothetically
admitting the truth of all the allegations other than those
that are ought to be excluded for not being ultimate facts,
it is demonstrable that the CA correctly ruled for the
dismissal of the complaint on the ground of MAC's failure
to state its cause of action against PAF.
The foregoing discussion makes plain that the CA did not
act prematurely in dismissing the complaint. To reiterate,
in a motion to dismiss filed under Section 1 (g) of Rule
16, the issue is not whether the plaintiff is entitled to
relief. Instead, the issue is simply whether the plaintiff, on
the basis of the allegations hypothetically admitted as
true, can be permitted to substantiate the claims during
the trial. The trial court only passes upon the issue on the
basis of the allegations in the complaint assuming them
to be true and does not make any inquiry into the truth of
the allegations or a declaration that they are false. 29
Perhaps, the CA might have been misunderstood as,
indeed, the tenor of its decision apparently gave an
untimely conclusion that no agency relationship existed.
Be that as it may, this Court affirms the findings of the CA
— that the order of dismissal of MAC's complaint against
PAF is proper.
Proceeding now to whether PAF violated the three-day
notice rule relative to its motion to dismiss filed before
the RTC, it has been repeatedly held that the three 3-day
notice requirement in motions under Sections 4 and 5,
Rule 15 of the Rules of Court as mandatory for being an
integral component of procedural due process. 30 Just
like any other rule, however, this Court has permitted its
relaxation subject, of course, to certain conditions.
Jurisprudence provides that for liberality to be applied, it
must be assured that the adverse party has been
afforded the opportunity to be heard through pleadings
filed in opposition to the motion. In such a way, the
purpose behind the three-day notice rule is deemed
realized. In Anama v. Court of Appeals, 31 the Court
explained: ATICcS
In Somera Vda. De Navarro v. Navarro, the Court held that
there was substantial compliance of the rule on notice of
motions even if the first notice was irregular because no
prejudice was caused the adverse party since the motion
was not considered and resolved until after several
postponements of which the parties were duly notified.
Likewise, in Jehan Shipping Corporation v. National Food
Authority, the Court held that despite the lack of notice of
hearing in a motion for reconsideration, there was
substantial compliance with the requirements of due
process where the adverse party actually had the
opportunity to be heard and had filed pleadings in
opposition to the motion. The Court held:
This Court has indeed held time and again, that under
Sections 4 and 5 of Rule 15 of the Rules of Court,
mandatory is the requirement in a motion, which is
rendered defective by failure to comply with the
requirement. As a rule, a motion without a notice of
hearing is considered pro forma and does not affect the
reglementary period for the appeal or the filing of the
requisite pleading. 32
Here, the Court agrees with the observations of the OSG, [Emphases Supplied]
representing PAF. Indeed, it is a matter of record that
Were the above stated rules adhered to? As the Court has
during the August 21, 2010 scheduled hearing, MAC's
counsel did not object to receiving the copy of PAF's no time and resources to probe into the matter, it is in the
interest of the public that separate investigations be
motion to dismiss on the same day. What that counsel
conducted by the Office of the Ombudsman and the
did instead was to ask for a period of 15 days within
Commission on Audit to find out if the provisions in
which to file its comment/opposition to the said motion
which the RTC granted. On September 14, 2010, MAC the Government Procurement Reform Act (Procurement
Law) and its implementing rules and regulations on
filed its Opposition. 33
subcontracting and participation of foreign suppliers of
Clearly, MAC was afforded the opportunity to be heard as services were complied with.
its opposition to the motion to dismiss was considered
by the RTC in resolving the issue raised by PAF. If warranted by any initial finding of irregularities,
appropriate charges should be filed against the
Objectively speaking, the spirit behind the three (3)-day
responsible officers.
notice requirement was satisfied.
WHEREFORE, the petition is DENIED.
One Final Note

The Court has observed that Chervin was allowed and The Office of the Ombudsman and the Commission on
Audit are hereby ordered to investigate and find out if the
considered qualified to bid despite the fact that it had no
provisions in the Procurement Law and its implementing
technical capability to provide the services required by
rules and regulations on subcontracting and
the PAF. It is quite disturbing that after Chervin's initial
subcontracting agreement with MAC, another layer of participation of foreign bidders were complied with and
subcontractor entered the scene so that the overhaul and file the appropriate charges, if warranted.
repair could be completed. Moreover, it appears that the SO ORDERED.
subcontractors engaged by Chervin are foreign entities.
||| (Magellan Aerospace Corp. v. Philippine Air Force, G.R.
These arrangements appear to be non-compliant with No. 216566, [February 24, 2016], 781 PHIL 788-803)
the rules on subcontracting particularly on disclosure
and the limits on the participation of foreign entities. RULE 17 | SECTION 1
Under the Government Procurement Policy
SECOND DIVISION
Board (GPPB) Manual of Procedures for the
Procurement of Goods and Services, subcontracting [A.C. No. 8037. February 17, 2016.]
rules are laid down as follows:
RE: DECISION DATED AUGUST 19, 2008, 3RD DIVISION,
Generally, a supplier may be allowed to subcontract a COURT OF APPEALS IN CA-G.R. SP No. 79904 [HON.
portion of the contract or project. However, the supplier DIONISIO DONATO T. GARCIANO, ET AL. V. HON.
should not be allowed to subcontract a material or PATERNO G. TIAMSON, ETC., ET
significant portion of the contract or project, which AL.], petitioner, vs. ATTY. JOSE DE G.
portion must not exceed twenty percent (20%) of the total FERRER, respondent.
project cost. The bidding documents must specify what
are considered as significant/material component(s) of RESOLUTION
the project. All subcontracting arrangements must be LEONEN, J p:
disclosed at the time of bidding, and subcontractors
must be identified in the bid submitted by the supplier. This administrative complaint 1 originated from the
Any subcontracting arrangements made during project Court of Appeals Decision 2 dated August 19, 2008,
implementation and not disclosed at the time of the which summarily dismissed the Petition
bidding shall not be allowed. The subcontracting for Certiorari with prejudice and found petitioners 3 in
arrangement shall not relieve the supplier of any liability CA-G.R. SP No. 79904, as well as their counsel, Atty. Jose
or obligation under the contract. Moreover, De G. Ferrer (Atty. Ferrer), guilty of direct contempt of
subcontractors are obliged to comply with the provisions court. 4 They were further imposed a fine of
of the contract and shall be jointly and severally liable P2,000.00. 5 The Court of Appeals then ordered that a
with the principal supplier, in case of breach thereof, in copy of its Decision be furnished to the Integrated Bar of
so far as the portion of the contract subcontracted to it the Philippines for investigation and appropriate
is concerned. Subcontractors are also bound by the disciplinary action against Atty. Ferrer, respondent in the
same nationality requirement that applies to the present case. 6
principal suppliers. 34
On July 27, 2001, Dionisio Donato T. Garciano (Garciano),
then Mayor of Baras, Rizal, sought to appoint Rolando
Pilapil Lacayan (Lacayan) as Sangguniang Bayan
Secretary, replacing Nolasco Vallestero
(Vallestero). 7 The appointment was opposed by
Wilfredo Robles (Robles), then Vice Mayor of Baras, Rizal.
He said that the position is not vacant and that it is the
vice mayor, not the mayor, who has the authority 8 to
appoint the Sangguniang Bayan Secretary.
Garciano insisted and removed Vallestero's name from
the payroll. 9 Vallestero sued Garciano before the
Sandiganbayan. 10 Vallestero, Robles, and other
Sangguniang Bayan members also filed a "complaint
for mandamus and damages with preliminary
mandatory injunction" 11 against Garciano and other
municipal officials 12 (Garciano, et al.) before the
Regional Trial Court of Morong, Rizal. They sought for the
payment of their respective salaries. 13
On June 24, 2003, the Regional Trial Court 14 ordered
Garciano, et al. to release the funds and pay Vallestero's
salaries and other benefits. 15 Garciano, et al. did not
heed the Regional Trial Court's order; 16 hence, they
were found liable for indirect contempt. 17
Appealing the trial court's ruling, Garciano, et al., through
their counsel, Atty. Ferrer, filed a Petition
for Certiorari (First Petition) on October 9, 2003 before
the Court of Appeals. 18 This was raffled to the Eleventh
Division 19 and was docketed as CA-G.R. SP No.
79752. 20
On October 16, 2003, Garciano, et al., through Atty. Ferrer,
filed another Petition for Certiorari with a prayer for the
issuance of a writ of preliminary injunction and/or
temporary restraining order 21 (Second Petition) before
the Court of Appeals. This was raffled to the Third
Division 22 and was docketed as CA-G.R. SP No.
79904. 23
On the same day, Garciano, et al. filed before the Court of
Appeals Eleventh Division an Urgent Ex-Parte Motion to
Withdraw Petition Under Rule 17 Section 1 24 of the
Revised Rules of Court. 25 They allegedly moved to
withdraw the First Petition to avail themselves of other
remedies, especially since a comment had not yet been
filed. 26
On October 17, 2003, the Court of Appeals Third
Division 27 issued a temporary restraining order,
effective for 60 days and conditioned upon the posting of
a bond amounting to P100,000.00. 28
Meanwhile, in its Resolution dated October 24, 2003, the
Court of Appeals Eleventh Division granted Garciano, et
al.'s Motion to withdraw the First Petition. 29
In their Reply to the Comment on the Second Petition,
Garciano, et al. admitted filing the First Petition docketed
as CA-G.R. SP No. 79752, which was similar to the
Second Petition. 30 However, they maintained that the
withdrawal of the First Petition was made in good faith
and in order to correct the technical defect of the First
Petition, which was solely verified by Garciano. 31
Garciano, et al. insisted that they did not commit perjury
when they stated in the verification of their Second
Petition that there was no pending petition filed involving
the assailed Decision of the Regional Trial
Court. 32 Garciano, et al. also argued that when they
withdrew the First Petition, there was no adverse opinion
yet issued by the Eleventh Division. 33 Finally, they
claimed that the divisions of the Court of Appeals are not
different courts in relation to the other divisions, and both
divisions where the Petitions were filed are part and
parcel of one court. 34 Hence, there was no forum
shopping. AHDacC
In the Decision dated August 19, 2008, the Court of
Appeals Third Division dismissed the Second Petition
with prejudice due to the deliberate violation of the rule
against forum shopping. 35 The Court of Appeals found
that Garciano, et al., through Atty. Ferrer, filed two (2)
Petitions for Certiorari successively. 36 It also held that
the withdrawal of the First Petition was "intended to
camouflage the glaring and blatant irregularity
committed" 37 by Garciano, et al. through their
counsel. 38 If the withdrawal was, indeed, impelled by
the lack of verification of the other petitioners in the First
Petition, then Garciano, et al. should have called the
attention of the Eleventh Division instead of filing the
Second Petition. 39 The Court of Appeals held that when
the Second Petition was filed (and the existence of the
First Petition concealed), forum shopping had already
been committed. 40
The Court of Appeals further held that neither the
adjudication of cases pending before courts nor the
contents of these cases are taken judicial notice by the
courts, notwithstanding that both cases may have been
tried or are actually pending before the same
judge. 41 Rather, it is the party and the counsel's duty to
inform the court trying the case of any pendency of a
similar case filed before any court. 42 Violation of this
rule makes the parties and their counsel guilty of forum
shopping. 43 The Court of Appeals reiterated that the
rule against forum shopping seeks to avoid the issuance
of conflicting decisions by two (2) or more courts upon
the same issue. 44
The Court of Appeals concluded:
WHEREFORE, the petition is summarily Dismissed with
prejudice. Petitioners and Atty. Jose De G. Ferrer are
hereby found guilty of direct contempt of court for which
a maximum fine of P2,000.00 is imposed upon them,
payable within 5 days from receipt of this decision.
Let a copy of this decision be furnished to the Integrated
Bar of the Philippines for investigation and appropriate
disciplinary action against Atty. Jose De G.
Ferrer. 45 (Emphasis in the original)
In the Indorsement dated September 1, 2008, Alicia A.
Risos-Vidal, Director for Bar Discipline of the Integrated
Bar of the Philippines, forwarded the Notice of Judgment
of the Court of Appeals in CA-GR S.P. No. 79904 to the
Office of the Bar Confidant. 46
On November 19, 2008, this court resolved to note the
Indorsement and treat the Notice of Judgment as an
administrative complaint against Atty. Ferrer. 47
Atty. Ferrer was ordered to comment on the
administrative complaint. 48 In his Comment, he states
that he acted in good faith in the simultaneous filing of
the Second Petition and the urgent ex-parte Motion to
withdraw Garciano, et al.'s First Petition. 49 He alleges
that he withdrew the First Petition docketed as CA-G.R.
SP No. 79752 on October 16, 2003, the same day he filed
the Second Petition docketed as CA-G.R. S.P No.
79904. 50
Atty. Ferrer states that there was an urgent need to file
the Second Petition as the First Petition was verified by
only one petitioner instead of four. 51 He also claims that
the technical defect may have hampered the immediate
issuance of a temporary restraining order. 52 Thus, he
deems that it was "more realistic and expedient" to file
the Second Petition and simultaneously withdraw the
First Petition rather than amend the First Petition. 53 He
states that amending the First Petition would have
required a hearing before it could be admitted as basis
for the issuance of a temporary restraining order. 54
Atty. Ferrer adds that by filing the Motion to withdraw the
First Petition on the same day as the filing of the Second
Petition, he substantially complied with the rule against
forum shopping. 55 He asserts that he was acting in the
best interest of his clients, whose "liberty [were] then at
stake and time was of the essence." 56 As the
withdrawal of the First Petition and the filing of the
Second Petition were made simultaneously and not one
day after another, Atty. Ferrer claims that it was unlikely
to have conflicting decisions rendered by different courts
on the same issue. 57
Finally, Atty. Ferrer states that there was no violation of
the rule against forum shopping because the First and
Second Petitions were not filed before different tribunals,
although the Eleventh and Third Divisions of the Court of
Appeals are technically separate from each other. 58 He
states that forum shopping takes place when, as a result
of an adverse opinion in one forum, a party seeks a
favorable opinion (other than appeal or certiorari) in
another. 59 Atty. Ferrer further asserts that the filing of
the case took place before only one forum — the Court of
Appeals — and that no forum shopping could be
considered to have taken place. 60
In his Report and Recommendation dated November 17,
2009, Commissioner Salvador B. Hababag
(Commissioner Hababag) of the Integrated Bar of the
Philippines Commission on Bar Discipline adopted the
findings of the Court of Appeals in toto. 61 He stated that
the Court of Appeals Decision dated August 19, 2008 in
CA-G.R. SP No. 79904 is "loud and clear." 62
Based on the Court of Appeals' findings, Commissioner
Hababag concluded that Atty. Ferrer clearly violated the
rule on forum shopping. 63 Thus, he recommended that
Atty. Ferrer be suspended for three (3) months from the
practice of law with a stern warning that any similar
infraction in the future would be dealt with more
severely. 64 IDSEAH
On February 13, 2013, the Integrated Bar of the
Philippines Board of Governors issued Resolution No.
XX-2013-132, 65 which resolved to adopt and approve
the Report and Recommendation of Commissioner
Hababag. It recommended that the penalty of Atty. Ferrer
be reprimand with a warning that a repetition of the same
act shall be dealt with more severely. 66 The Integrated
Bar of the Philippines Commission on Bar Discipline then
transmitted the Notice of Resolution to this court through
a letter dated October 7, 2013. 67
The issue for resolution is whether respondent Atty. Jose
De G. Ferrer should be held administratively liable for
violating the rule against forum shopping.
We affirm the factual findings of the Court of Appeals and
the Report and Recommendation of Commissioner
Hababag. Respondent is guilty of violating the rule
against forum shopping.
Rule 7, Section 5 of the Rules of Court provides the rule
against forum shopping:
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. (n)
In Asia United Bank v. Goodland Company, Inc., 68 this
court enumerated the instances where forum shopping
takes place:
There is forum shopping "when a party repetitively avails
of several judicial remedies in different courts,
simultaneously or successively, all substantially founded
on the same transactions and the same essential facts
and circumstances, and all raising substantially the
same issues either pending in or already resolved
adversely by some other court." The different ways by
which forum shopping may be committed were explained
in Chua v. Metropolitan Bank & Trust Company:
Forum shopping can be committed in three ways: (1)
filing multiple cases based on the same cause of action
and with the same prayer, the previous case not having
been resolved yet (where the ground for dismissal is litis
pendentia); (2) filing multiple cases based on the same
cause of action and the same prayer, the previous case
having been finally resolved (where the ground for
dismissal is res judicata); and (3) filing multiple cases
based on the same cause of action, but with different
prayers (splitting causes of action, where the ground for
dismissal is also either litis pendentia or res
judicata). 69 (Citations omitted)
In Dy v. Mandy Commodities Co, Inc., 70 the court
elaborated on the purpose of the rule against forum
shopping:
The grave 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, this Court
strictly adheres to the rules against forum shopping, and
any violation of these rules results in the dismissal of a
case. 71
Respondent filed multiple cases based on the same
cause of action and with the same prayer. All the
elements necessary for the commission of forum
shopping are present.
The Court of Appeals correctly held that respondent
could have easily filed a manifestation that the other
petitioners had yet to verify the First Petition.
Respondent's reason that the failure of other petitioners
to verify the First Petition may imperil the issuance of a
temporary restraining order cannot justify the willful
violation of the rule against forum shopping.
Respondent must be reminded that the withdrawal of any
case, when it has been duly filed and docketed with a
court, rests upon the discretion of the court, and not at
the behest of litigants. 72 Once a case is filed before a
court and the court accepts the case, the case is
considered pending and is subject to that court's
jurisdiction.
Thus, it was incumbent upon respondent to inform the
court or division where he subsequently filed his Second
Petition that he had already filed the First Petition. The
Court of Appeals correctly held that courts cannot take
judicial notice of actions that have been filed either
before their courts or before other courts.
This court's Circular No. 28-91 is instructive on this
point: aCIHcD
[I]n every petition filed with the Supreme Court or
the Court of Appeals, the petitioner . . . must certify under
oath all of the following facts or undertakings: (a) he has
not theretofore commenced any other action or
proceeding involving the same issues in the Supreme
Court, the Court of Appeals, or any other tribunal or
agencies; (b) to the best of his knowledge, no such action
or proceeding is pending in the Supreme Court, the Court
of Appeals, or different Divisions thereof, or any other
tribunal or agency; (c) if there is such other action or
proceeding pending, he must state the status of the
same; and (d) 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
such other tribunal or agency of that fact within five (5)
days therefrom. (Emphasis supplied). 73
As a lawyer, respondent is expected to anticipate the
possibility of being held liable for forum shopping. He is
expected to be aware of actions constituting forum
shopping. Respondent's defense of substantial
compliance and good faith cannot exonerate him. The
elements of forum shopping are expected to be
fundamentally understood by members of the bar, and a
defense of good faith cannot counter an abject violation
of the rule.
In Alonso v. Relamida, Jr., 74 the court elaborated on the
liability of counsel who was complicit in violating the rule
on forum shopping:
The essence of forum shopping is the filing of multiple
suits involving the same parties for the same cause of
action, either simultaneously or successively, for the
purpose of obtaining a favorable judgment. It exists
when, as a result of an adverse opinion in one forum, a
party seeks a favorable opinion in another, or when he
institutes two or more actions or proceedings grounded
on the same cause to increase the chances of obtaining
a favorable decision. An important factor in determining
its existence is the vexation caused to the courts and the
parties-litigants by the filing of similar cases to claim
substantially the same reliefs. Forum shopping exists
where the elements of litis pendentia are present
or where a final judgment in one case will amount to res
judicata in another. Thus, the following requisites should
concur:
. . . (a) identity of parties, or at least such parties as
represent the same interests in both actions, (b) identity
of rights asserted and relief prayed for, the relief being
founded on the same facts, and (c) the identity of the two
preceding particulars is such that any judgment rendered
in the other action will, regardless of which party is
successful, amount to res judicata in the action under
consideration.
A lawyer owes fidelity to the cause of his client, but not
at the expense of truth and the administration of justice.
The filing of multiple petitions constitutes abuse of the
court's processes and improper conduct that tends to
impede, obstruct and degrade the administration of
justice and will be punished as contempt of court.
Needless to state, the lawyer who files such multiple or
repetitious petitions (which obviously delays the
execution of a final and executory judgment) subjects
himself to disciplinary action for incompetence (for not
knowing any better) or for willful violation of his duties as
an attorney to act with all good fidelity to the courts, and
to maintain only such actions as appear to him to be just
and are consistent with truth and honor. 75 (Emphasis
supplied, citations omitted)
As we stated in Alonso, the incompetence of counsel in
not knowing any better justifies the imposition of
administrative liability. Respondent himself admitted
that he was responsible for the withdrawal of the pending
First Petition and the filing of the Second Petition, in the
belief that it was in the best interest of his clients. This
court cannot tolerate respondent's inability to realize
that his actions would amount to forum shopping.
Respondent had full knowledge that when he filed the
Second Petition, it concerned the same parties and same
cause of action.
As for his administrative liability, this court deems it
necessary to modify the penalty recommended in
Resolution No. XX-2013-132 and impose on respondent
the penalty of six (6) months' suspension from legal
practice. In Alonso, this court suspended the lawyer for
six (6) months and warned him not to repeat his
infraction. 76
The Lawyers' Oath that respondent took exhorts him not
to "wittingly or willingly promote or sue any groundless,
false or unlawful suit, nor give aid or consent to the
same." 77 Moreover, in Teodoro v. Atty. Gonzales: 78
In engaging in forum shopping, Atty. Gonzales violated
Canon 1 of the Code of Professional Responsibility which
directs lawyers to obey the laws of the land and promote
respect for the law and legal processes. He also
disregarded his duty to assist in the speedy and efficient
administration of justice, and the prohibition against
unduly delaying a case by misusing court
processes. 79 cHaCAS
WHEREFORE, respondent Atty. Jose De G. Ferrer is
hereby SUSPENDED from the practice of law for six (6)
months for engaging in forum shopping, effective upon
receipt of this Resolution. He is STERNLY WARNED that
a repetition of the same and similar acts will be dealt with
more severely.
Let a copy of this Resolution be furnished to the Office of
the Bar Confidant, to be appended to the personal record
of respondent as a member of the bar; the Integrated Bar
of the Philippines; and the Office of the Court
Administrator, for circulation to all courts in the country
for their information and guidance.
This Resolution shall be immediately executory.
SO ORDERED.
||| (In Re: Ferrer, A.C. No. 8037 (Resolution), [February 17,
2016], 781 PHIL 48-62)
RULE 19 | SECTION 1
FIRST DIVISION
[G.R. No. 130228. July 27, 2004.]
BERNABE FOSTER-GALLEGO, petitioner, vs. SPOUSES
ROMEO and VIVIEN GALANG, VIVE REALTY
CORPORATION, MUNICIPALITY OF PARAÑAQUE,
TREASURER OF PARAÑAQUE, REGISTER OF DEEDS OF
PARAÑAQUE, respondents.
DECISION
CARPIO, J p:
The Case
Before the Court is a petition for review 1 assailing the
Decision 2 of 22 July 1997 of the Court of Appeals in CA-
G.R. CV No. 43439. The Court of Appeals affirmed with
modification the Decision 3 of 8 July 1993 of the
Regional Trial Court of Makati, Metro Manila, Branch 148,
in Civil Case No. 89-3898. The trial court rendered
judgment against Lito Gallego (“Gallego”) and declared
Romeo and Vivien Galang (“Spouses Galang”), the
owners of the parcel of land subject of this case.
Antecedent Facts
Vive Realty Corporation (“VRC”) acquired several
properties at a public auction held by the Municipal
Treasurer of Parañaque (“Treasurer”) on 29 October
1982. Among these properties was a parcel of land
(“Property”) with an area of 330 square meters located in
Barrio Kaybiga, Parañaque, Metro Manila, and covered by
TCT No. 435402. The Treasurer executed a Final Bill of
Sale 4 over the Property in favor of VRC on 25 November
1983. VRC then filed a petition, docketed as Civil Case No.
5801, to cancel the titles of the properties VRC had
purchased during the public auction. In a
Decision 5 dated 19 December 1983, the Regional Trial
Court of Makati, Branch 138 (“RTC-Branch 138”), ordered
the Register of Deeds to cancel 11 transfer certificates of
title, including TCT No. 435402, and to issue new titles in
the name of VRC. IEHDAT
On 22 June 1984, the Spouses Galang purchased the
Property from VRC through a Deed of Absolute
Sale. 6 The Register of Deeds later issued TCT No.
(86872) 22786 over the Property in the name of the
Spouses Galang. The Spouses Galang took possession
of the Property and had it declared in their name for
taxation purposes. They diligently paid the
corresponding real property taxes.
In April 1989, Romeo Galang came home from Saudi
Arabia and discovered a hollow block fence along the
perimeter of the Property. Gallego built the fence in
March 1989. Although the Spouses Galang brought the
matter to the Barangay Lupon for possible settlement,
Gallego failed to appear at the barangay hall and instead
sent his lawyer. On 16 May 1989, the Spouses Galang
filed a complaint for Quieting of Title with
Damages 7 against Gallego. The case was raffled to the
Regional Trial Court of Makati, Branch 146 8 (“RTC-
Branch 146”).
In his Answer with Counterclaim, Gallego alleged that his
brother, Bernabe Foster-Gallego, owned the Property.
Gallego denied that his brother was delinquent in the
payment of real property taxes. Gallego asserted that his
brother had never received a notice of delinquency or a
notice of the public auction of the Property, much less a
copy of RTC-Branch 138’s decision cancelling TCT No.
435402. Gallego pointed out that TCT No. 435402 and
Tax Declaration No. A-022-00019 clearly indicated his
brother’s address as No. 15 Tiller Green S.W. Washington
D.C., USA. Since his brother is the true and lawful owner
of the Property, Gallego argued that the Spouses Galang
should not disturb his possession as caretaker of the
Property. EaScHT
As Gallego subsequently failed to appear at the pre-trial
conference and to submit his pre-trial brief, RTC-Branch
146 issued an Order 9 on 16 February 1990 declaring
Gallego in default and allowing the Spouses Galang to
present their evidence ex parte. On 10 March 1990,
Gallego filed a motion to lift the order of default and to
admit his pre-trial brief. On the same day, Bernabe
Foster-Gallego (“petitioner”) filed a motion for
intervention with an attached answer-in-intervention.
RTC-Branch 146 denied Gallego’s motion but granted
petitioner’s motion and admitted the answer-in-
intervention.
RTC-Branch 146 set a pre-trial conference between the
Spouses Galang and petitioner. However, the pre-trial did
not push through because petitioner filed on 2 August
1990 a motion to admit third-party complaint, which
RTC-Branch 146 granted. Summonses were issued on
third-party defendant VRC, as well on the Municipality
(now City), Treasurer, and Register of Deeds of
Parañaque. VRC failed to file an answer to the third-party
complaint. caHIAS
The case was subsequently re-raffled to the Regional
Trial Court of Makati, Branch 65 10 (“RTC-Branch 65”).
On 4 March 1991, the Spouses Galang started presenting
their evidence ex parte against Gallego. Petitioner filed a
motion to strike out these proceedings and to hold in
abeyance the hearing scheduled on 8 April 1991 on the
ground that not all the third-party defendants had filed
their answers and pre-trial briefs. RTC-Branch 65 denied
the motion in an Order dated 6 May 1991. 11 ETIDaH
Gallego and petitioner jointly filed a petition
for certiorari with the Court of Appeals praying to annul
the order. The appellate court dismissed the petition for
lack of merit. Gallego and petitioner then elevated the
matter to this Court, which denied their petition and
subsequent motion for reconsideration for lack of
reversible error.
The Spouses Galang continued to present their
evidence ex parte against Gallego on 17 August 1992. On
24 August 1992, they submitted their written offer of
evidence and RTC-Branch 65 deemed the case involving
the Gallego and the Spouses Galang submitted for
decision. RTC-Branch 65 also ordered the Spouses
Galang and petitioner to submit their position papers on
the procedure to receive further evidence in the case.
Both parties complied in September 1992. cHSIAC
In October 1992, petitioner filed a motion to inhibit Judge
Abad Santos who granted the motion and inhibited
himself. The case was re-raffled to the Regional Trial
Court of Makati, Branch 148 (“trial court”). The trial court
eventually decided the original case in favor of the
Spouses Galang, and denied petitioner’s intervention and
third-party complaint. ScCEIA
The Ruling of the Trial Court
The dispositive portion of the Decision of 8 July 1993 of
the trial court reads:
WHEREFORE, premises considered, judgment is hereby
rendered in favor of the plaintiffs and against defendant
Lito Gallego removing any cloud or quieting of title and
ownership over the parcel of land covered by TCT No.
(86872) 22786 of the Register of Deeds of Pasay City with
an area of 330 square meters more or less situated in
Barrio Kaybiga, Parañaque, Metro Manila, declaring them
at this point in time as exclusive owner of said land and
that said defendant Lito Gallego is hereby ordered to pay
plaintiffs moral damages in the amount of P10,000.00;
attorney’s fees in the amount of P25,000.00 including the
appearance fees and P3,000.00 as litigation expenses.
With costs against the defendant Lito Gallego.
SO ORDERED. 12
Dissatisfied with the trial court’s decision, Gallego and
the Spouses Galang appealed to the Court of Appeals.
The trial court also set for hearing the issue of whether
trial on the merits should proceed on petitioner’s
intervention and third-party complaint. After hearing the
arguments of the parties concerned and receiving their
respective memoranda, the trial court issued on 12
October 1993 the following Order:
WHEREFORE, premises considered,
(1) the order admitting the Answer in Intervention by
Bernabe Gallego is hereby reconsidered, and the Motion
to Admit the same is hereby DENIED, and the Answer in
Intervention is hereby stricken off the record.
(2) the third party complaint filed by Bernabe Gallego is
hereby denied admission, and if it was already admitted,
the admission is hereby reconsidered and said third party
complaint is hereby stricken off the records.
SO ORDERED. 13 TSacID
Petitioner received the trial court’s order on 21 October
1993. Petitioner filed a motion for reconsideration on 5
November 1993, which the trial court denied. Petitioner
received a copy of the trial court’s denial on 23 January
1995. Petitioner then filed on 26 January 1995 a notice
that he was appealing the Order to the Court of Appeals.
Instead of filing his own brief, however, petitioner joined
in Gallego’s appeal. aATESD
The Ruling of the Court of Appeals
The Court of Appeals held that petitioner had no legal
personality to join Gallego’s appeal, thus:
In fact, with the denial of his motion for intervention,
intervenor-appellant never became a party to the case.
Thus, he had no legal personality to join defendant-
appellant in this appeal to impugn the decision of 8 July
1993, much less to use this appeal as a mode to question
the orders denying his intervention. Under Section 2, Rule
12 of the Rules of Court, the Rule then prevailing at the
time the intervention of intervenor-appellant was denied,
any person desiring to intervene shall file a motion for
leave of court and that allowance or disallowance of the
motion is addressed to the sound discretion of the court.
. . . once the court exercises its discretion, the same
cannot be reviewed save in instances where such
discretion has been so exercised in an arbitrary or
capricious manner in which case a petition for certiorari
may be pursued. In other words, if intervenor-appellant
believes that the lower court gravely abused its
discretion in denying his motion for intervention, his
proper forum is elsewhere and not in this
appeal. HSTCcD
xxx xxx xxx
But even assuming that the questioned orders are final
such that they can be the proper subject of appeal, an
examination of the records will show that intervenor-
appellant’s appeal was interposed out of time. The order
of 12 October 1993 denying the motion for intervention
of intervenor-appellant was received by him on 21
October 1993; hence, pursuant to Section 39
of Batas Pambansa Bilang 129, he only had a period of
fifteen (15) days, or until 5 November 1993, within which
to perfect an appeal. Intervenor-appellant instead filed a
motion for reconsideration on 5 November 1993 but this
was denied by the lower court on 26 December 1994, a
copy of the order of which was served on him on 23
January 1995. This means that intervenor-appellant had
until the next day, 24 January 1995, within which to
perfect his appeal considering that he filed his motion for
reconsideration on the very last day to appeal. It will be
noted, however, that intervenor-appellant failed to beat
his deadline as he filed his notice of appeal only on 26
January 1995. This Court therefore has no jurisdiction to
review the assailed orders as they already lapsed into
finality. . . .
xxx xxx xxx
One last note. Intervenor-appellant is not without any
remedy with the denial of his motion for intervention.
Whatever right or interest he may have over the subject
property will not in any way be affected by the judgment
rendered against defendant-appellant. If indeed there
were some irregularities in the sale at public auction of
the property and in the cancellation of his title,
intervenor-appellant may still avail of the proper
remedies under the rules. 14 SDHETI
The Court of Appeals also affirmed the decision of the
trial court but deleted the award of damages to the
Spouses Galang for lack of basis, as follows:
WHEREFORE, premises considered, the 8 July 1993
decision appealed from is hereby AFFIRMED, with
MODIFICATION that the award in favor of plaintiffs-
appellants for moral damages, attorney’s fees and
litigation expenses is DELETED.
SO ORDERED. 15
Gallego and the Spouses Galang did not appeal the
appellate court’s Decision of 22 July 1997. However,
petitioner filed before this Court a petition for review
on certiorari assailing the Decision.
The Issues
Petitioner contends that:
1. THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
SETTING ASIDE THE ORDER DATED OCTOBER 12, 1993
AND THE ORDER DATED DECEMBER 26, 1994 AS WELL
AS THE DECISION DATED JULY 8, 1993 AND IN NOT
RENDERING A DECISION RULING THAT:
a) THE TRIAL COURT ERRED IN RECONSIDERING THE
ORDER DATED APRIL 16, 1990 . . .;
b) THE TRIAL COURT GRAVELY ERRED IN REASONING
THAT THE DEFAULT ORDER AGAINST GALLEGO
PRECLUDED THE ADMISSION OF THE VERIFIED
ANSWER-IN-INTERVENTION AND THE VERIFIED THIRD-
PARTY COMPLAINT OF PETITIONER WHICH HAVE IPSO
FACTO AND EFFECTIVELY ADMITTED OR INSTALLED
PETITIONER AS DEFENDANT OR BECAME THE MAIN
DEFENDANT AND INDISPENSABLE PARTY OF THE CASE;
c) THE TRIAL COURT GRAVELY ERRED IN RULING THAT
THE INTERVENTION OF PETITIONER IS MERELY
ANCILLARY TO THE MAIN ACTION . . .;
d) THE TRIAL COURT GRAVELY ERRED IN NOT
CONCLUDING THAT THE NOTICE OF AUCTION SALE AND
ITS PUBLICATION, THE CERTIFICATE OF SALE, AND THE
FINAL BILL OF SALE INVOLVED ARE ALL VOID AB
INITIO AND DID NOT AFFECT THE EFFECTIVE AND
STANDING VALIDITY AND EXISTENCE OF TCT NO.
435402 . . .;
e) THE TRIAL COURT GRAVELY ERRED IN NOT DECIDING
THAT . . . CIVIL CASE NO. 5801 OF THE RTC, BRANCH
138, MAKATI, AND THE PROCEEDINGS AND DECISION
DATED DECEMBER 19, 1993 16 THEREUNDER ARE VOID;
f) THE TRIAL COURT COMMITTED A SERIOUS ERROR IN
NOT DECIDING THAT EVEN ASSUMING THAT THE
AUCTION PROCEEDINGS WERE VALID, PETITIONER IN
EFFECT HAD REDEEMED HIS PROPERTY WHICH WAS
ALLEGEDLY AUCTIONED, WITHIN THE REDEMPTION
PERIOD OF ONE (1) YEAR BASED ON UNDISPUTED
FACTS ON RECORD;
g) THE TRIAL COURT COMMITTED A SERIOUS MISTAKE
IN NOT DECIDING THAT THE DOCTRINE OF AN
INNOCENT PURCHASER FOR VALUE IS NOT APPLICABLE
IN THIS CASE, BECAUSE THE SPOUSES GALANG
PURCHASED NOTHING FROM VIVE REALTY
CORPORATION WHOSE TITLE IS VOID AB INITIO AND
THEREFORE HAD NOTHING TO SELL;
h) THE TRIAL COURT SERIOUSLY ERRED IN NOT RULING
THAT TCT NO. 86872 (22786) IN THE NAME OF THE
SPOUSES GALANG IS VOID AB INITIO AND
PETITIONER’S TCT NO. 435402 WHICH REMAINS
UNCANCELLED IN THE NAME OF PETITIONER AND IN
HIS POSSESSION, IS STILL LEGALLY EXISTING AND
VALID;
i) THE TRIAL COURT GRAVELY ERRED IN NOT RULING
THAT THE ANSWER-IN-INTERVENTION IS A DIRECT
ATTACK, NOT COLLATERAL, ON THE TITLE OF SPOUSES
GALANG; cHaCAS
2. THE COURT OF APPEALS SERIOUSLY ERRED IN
CONCLUDING THAT IT CANNOT REVIEW THE ORDER
DATED OCTOBER 12, 1993 AND THE ORDER DATED
DECEMBER 26, 1994;
3. THE COURT OF APPEALS SERIOUSLY ERRED IN
RULING THAT PETITIONER FILED HIS NOTICE OF
APPEAL LATE; BUT EVEN ASSUMING IT TO BE SO, THE
ONE-DAY 17 TARDINESS IS EXCUSABLE AND STRICTLY
TECHNICAL TO DEFEAT PETITIONER’S PROPERTY
RIGHT OF WHICH HE IS BEING DEPRIVED WITHOUT DUE
PROCESS OF LAW; and HSDaTC
4. THE COURT OF APPEALS COMMITTED A SERIOUS
ERROR IN THAT, ASSUMING PETITIONER HAD NO
PERSONALITY TO JOIN THE APPEAL OF GALLEGO AND
THAT THE ORDERS DATED OCTOBER 12, 1993 AND
DATED DECEMBER 26, 1993 RESPECTIVELY ARE
INTERLOCUTORY, PETITIONER HAS STILL A REMEDY TO
FILE HIS OWN ACTION TO ANNUL TCT NO. (86872)
22786 IN THE NAMES OF THE SPOUSES
GALANG. 18 DIETHS
The original parties to this case chose not to appeal the
Court of Appeals’ Decision of 22 July 1997. The ruling of
this Court thus pertains to petitioner only. We will not
delve into the issues between the Spouses Galang and
Gallego. ECTSDa
In sum, the issues of this case are: (1) whether the Court
of Appeals erred in dismissing petitioner’s appeal from
the trial court’s orders disallowing petitioner’s
intervention; (2) whether RTC-Branch 138’s Decision of
19 December 1983 can be declared void in an action for
quieting of title; and (3) whether petitioner is an
indispensable party to the action for quieting of title.
The Ruling of the Court
The Court of Appeals Did Not Err in
Dismissing Petitioner’s Appeal
True, this Court has on occasion held that an order
denying a motion for intervention is
appealable. 19 Where the lower court’s denial of a
motion for intervention amounts to a final order, an
appeal is the proper remedy, 20 as when the denial
leaves the intervenor without further remedy or resort to
judicial relief.
However, the issue of whether petitioner correctly
appealed the assailed orders of the trial court to the Court
of Appeals is beside the point since petitioner did not
interpose his own appeal. Petitioner merely joined
Gallego’s appeal from the trial court’s decision. CHDTIS
A prospective intervenor’s right to appeal applies only to
the denial of his intervention. 21 Not being a party to the
case, a person whose intervention the court denied has
no standing to question the decision of the
court. 22 Petitioner thus had no legal personality to join
Gallego in assailing the decision of the trial court.
Petitioner could question only the trial court’s orders
denying his intervention and striking off from the records
his answer-in-intervention, not the decision itself.
Moreover, petitioner filed his notice of appeal out of time.
The Court of Appeals ruled that:
. . . The order of 12 October 1993 denying the motion for
intervention of intervenor-appellant was received by him
on 21 October 1993; hence, pursuant to Section 39
of Batas Pambansa Bilang 129, he only had a period of
fifteen (15) days, or until 5 November 1993, within which
to perfect an appeal. Intervenor-appellant instead filed a
motion for reconsideration on 5 November 1993 but this
was denied by the lower court on 26 December 1994, a
copy of the order of which was served on him on 23
January 1995. This means that intervenor-appellant had
until the next day, 24 January 1995, within which to
perfect his appeal considering that he filed his motion for
reconsideration on the very last day to appeal. It will be
noted, however, that intervenor-appellant failed to beat
his deadline as he filed his notice of appeal only on 26
January 1995. 23
Petitioner disputes the appellate court’s findings.
Petitioner claims that he filed his motion for
reconsideration on 3 November 1993, and not on 5
November. The deadline for his appeal was on 25
January 1995 and not on 24 January 1995. Petitioner
concedes that he filed his appeal a day late on 26
January 1993, but argues that this brief delay is strictly
technical.
The records show that petitioner filed with the trial court
his motion for reconsideration by registered mail on 3
November 1993, 24 and not on 5 November. However, as
petitioner himself admits, he still filed his appeal a day
beyond the 25 January 1993 deadline. ScTCIE
An appeal from a court’s judgment or final order is a
statutory right, subject to the law and the rules of
procedure. The perfection of an appeal within the
statutory or reglementary period is not only mandatory
but also jurisdictional. 25 Failure to interpose a timely
appeal renders the assailed decision final and executory,
and deprives the appellate court of jurisdiction to alter
the final judgment or to entertain the appeal. 26
Petitioner lost his right to appeal when he exceeded the
fifteen-day period 27 granted by law. Petitioner filed his
motion for reconsideration on the thirteenth day of his
fifteen-day period to appeal. The filing of a motion for
reconsideration merely suspends the running of the
period to appeal. 28 Once the court denies the motion,
the aggrieved party has only the remaining period from
receipt of the order of denial to file his
appeal. 29 Petitioner thus had only two days from his
receipt on 23 January 1995 of the trial court’s order
denying the reconsideration, or up to 25 January 1995, to
perfect his appeal to the Court of Appeals. Petitioner’s
failure to interpose his appeal on time rendered the
assailed orders of the trial court final.
Petitioner argues that his tardiness of one day is
excusable, and cannot defeat his property rights.
Petitioner does not, however, offer any valid justification
for the late filing of his appeal. Petitioner merely cites the
lame excuse that his counsel’s assistant attorney must
have mistaken the handwritten received date of
“1/23/95” on counsel’s copy of the trial court’s order
denying petitioner’s motion for reconsideration as
“1/25/95”. 30 Although the Court, under exceptional
circumstances, has allowed late appeals in the interest
of justice and equity, this only applies to highly
meritorious cases to prevent a grave injustice. 31 That is
not the case here.
The allowance or disallowance of a motion to intervene
is addressed to the sound discretion of the court hearing
the case. 32 This discretion, once exercised, is not
reviewable by certiorari or mandamus save in instances
where such discretion is exercised in an arbitrary or
capricious manner. 33 Petitioner has not shown that the
trial court acted capriciously or arbitrarily. That the trial
court initially allowed petitioner to intervene but
subsequently reconsidered and withdrew its permission
does not prove, by itself, that the trial court acted in a
manner warranting review. This is certainly not the first
time a trial court initially allowed a motion for
intervention and later reconsidered and denied
it. 34 DHIcET
The trial court had a valid reason to deny petitioner’s
intervention. An intervention is ordinarily not permitted if
the prospective intervenor’s rights can be fully protected
in a separate proceeding. 35 In this case, even if the trial
court allowed it, petitioner’s intervention in the action for
quieting of title would have been futile. cSITDa
Reliefs Sought by Petitioner are Not Available
in an Action to Quiet Title
It is evident from most of the issues raised and the reliefs
prayed for that petitioner’s principal aim is to overturn
the 19 December 1983 Decision of RTC-Branch 138
(“RTC-Branch 138 Decision”) cancelling his title.
Petitioner seeks to set aside the RTC-Branch 138
Decision, to uphold the validity of his title, and to annul
the title held by the Spouses Galang. To this end,
petitioner impleaded VRC, and the Municipality (now
City), Treasurer and Register of Deeds of Parañaque in a
third-party complaint, alleging that these parties
committed fraud and deprived petitioner of due process.
However, these issues — whether fraud tainted the
proceedings before RTC-Branch 138, whether the
Treasurer of Parañaque notified petitioner of the public
auction of the Property, and whether there was denial of
petitioner’s right to due process — cannot be resolved in
a proceeding for quieting of title. The only issue in an
action to quiet title is whether there is a cloud on a title
to real property because of any instrument, record, claim,
encumbrance or proceeding that has a prima
facie appearance of validity. 36
The issues petitioner raised would also necessarily
require the trial court to review the decision of another
regional trial court. This is plainly beyond the powers of
the trial court. Under the doctrine of non-interference, a
trial court has no authority to interfere with the
proceedings of a court of equal jurisdiction, 37 much less
to annul the final judgment of a co-equal court. 38 The
Court held in Metropolitan Bank & Trust Co. v.
Alejo 39 that an action for quieting of title is not the
appropriate remedy where the action would require the
court hearing it to modify or interfere with the judgment
or order of another co-equal court.
Even if it wanted to, the trial court could not declare the
RTC-Branch 138 Decision void, since that would be
tantamount to annulling the decision of a co-equal court.
The jurisdiction to annul the judgment of a regional trial
court lies with the Court of Appeals, 40 and not with
another regional trial court. The trial court also did not err
when it recognized the auction sale of the Property,
which RTC-Branch 138 had already upheld. AISHcD
The instant petition must also fail because it anchors
petitioner’s claim on a cancelled certificate of title.
Petitioner’s cancelled title cannot cast a cloud on the
current title the Spouses Galang now hold. On 19
December 1983, RTC-Branch 138 cancelled TCT No.
435402 in its decision in Civil Case No. 5801. With the
lapse of more than two decades, RTC-Branch 138’s
Decision has long gained finality by operation of law. A
judgment becomes final upon the lapse of the
reglementary period to appeal if no appeal is
perfected. 41 Being final, the RTC-Branch 138 Decision
is no longer subject to review by appeal.
What petitioner is barred from directly appealing,
however, he seeks to overturn through an appeal from
another case heard by a different trial court. Obviously,
petitioner cannot do this. When a judgment of a lower
court becomes final and executory, it is no longer
reviewable, directly or indirectly, by a higher court, not
even by the Supreme Court. 42
Moreover, as correctly pointed out by the Court of
Appeals, a certificate of title is not subject to collateral
attack. An attack is collateral when, in an action to obtain
a different relief, an attack on the judgment is
nevertheless made as an incident in the
action. 43 Under the Property Registration Decree, titles
issued under the Torrens system can only be altered,
modified or cancelled in direct proceedings in
accordance with the law. 44
In this case, petitioner raised the alleged nullity of TCT
No. (86872) 22786 in his answer-in-intervention to the
suit the Spouses Galang filed to quiet title. The
petitioners in Villanueva v. Court of Appeals 45 also
raised the supposed invalidity of respondents’ titles in
their answer to respondents’ complaint for recovery of
ownership. The Court disallowed the defense on the
ground that it was a collateral attack on respondents’
title, that is, an indirect challenge to the final judgment
and decree of registration that resulted in the issuance of
the assailed title. In Villanueva, the Court declared that
Section 48 of the Property Registration Decree required
no less than a direct action for reconveyance filed within
the period provided by law. 46 ICHcaD
Petitioner argues that these rules do not apply to him.
Citing Ferrer v. Bautista, 47 petitioner alleges that the
Spouses Galang’s title is void ab initio because it
originated from the allegedly void title issued to VRC. The
Court held in Ferrer that a void title is susceptible to
direct and collateral attack. 48 EIAScH
Ferrer does not apply to the case at bar. The void title
referred to in Ferrer was based on a free patent issued by
the Director of Lands over alluvial property. The patent
nullity of the assailed title in Ferrer arose, not from fraud
or deceit, but from the fact that the Bureau of Lands had
no jurisdiction over land that had passed to private
ownership. 49
In this case, the trial court ordered the cancellation of
petitioner’s title and the issuance of a new title to VRC.
The trial court’s decision has long attained finality.
Regional trial courts exercise exclusive original
jurisdiction over all civil actions involving title to real
property. 50 The law authorizes regional trial courts,
acting as land registration courts, to order the
cancellation and issuance of certificates of title. 51
Unlike in Ferrer, there is also insufficient evidence in the
records to verify at this time petitioner’s allegations that
RTC-Branch 138, the City Treasurer and Register of
Deeds of Parañaque failed to observe the legal
requirements of notice and due process on tax sales of
real property. Worse, petitioner anchors many of his
arguments assailing the public auction of the Property on
the outmoded Assessment Law of 1939. 52 Presidential
Decree No. 464 had long superseded the Assessment
Law, which was no longer the applicable law when the
tax sale of the Property took place in 1982. 53
Petitioner’s allegations are better ventilated in a full-
blown trial, and not in an action for quieting of title, which
operates under the rules on declaratory relief.
Petitioner’s charge that the proceedings and decision of
RTC-Branch 138 were void because of alleged due
process violations cannot be resolved in a suit to quiet
title. The issue of whether a title was procured by
falsification or fraud should be raised in an action
expressly instituted for the purpose. 54
Petitioner is Not an Indispensable Party
to the Action for Quieting of Title
An indispensable party is a party who has such an
interest in the controversy or subject matter that a final
adjudication cannot be made, in his absence, without
injuring or affecting that interest. 55 A person is not an
indispensable party if his interest in the controversy or
subject matter is separable from the interest of the other
parties, so that he will not necessarily be injuriously
affected by a decree that does complete justice between
the other parties. 56 He is also not indispensable if his
presence would merely permit complete relief between
him and those already parties to the action or will simply
avoid multiple litigations. 57 ACcISa
Petitioner, whose title RTC-Branch 138 cancelled, is not
an indispensable party to the action for quieting of title.
The assailed decision quieting title in favor of the
Spouses Galang has no appreciable effect on petitioner’s
title. Petitioner’s title could still be cancelled with or
without the trial court’s declaration that the Spouses
Galang are the owners of the Property “at this
time.” 58 ECaTAI
Further, the assailed decision does not bind petitioner.
The rules on quieting of title 59 expressly provide that
any declaration in a suit to quiet title shall not prejudice
persons who are not parties to the action. Given that the
trial court denied petitioner’s intervention and struck it
off from the records, petitioner is not a party to the
instant case. Suits to quiet title are actions quasi in rem,
and the judgment in such proceedings is conclusive only
between the parties to the action. 60
There is also no legal basis for petitioner’s argument that
the order declaring Gallego in default rendered petitioner
the ipso facto defendant of this case. Petitioner could
have but did not move to substitute Gallego during the
proceedings before the court a quo.
On a final note, the Court fully agrees with the Court of
Appeals that petitioner is not without other remedy.
Assuming petitioner can prove his allegations, petitioner
is at the least entitled to recover damages from the
parties that defrauded or deprived him of due process.
WHEREFORE, we DENY the instant petition and AFFIRM
the Decision of 22 July 1997 of the Court of Appeals in
CA-G.R. CV No. 43439.
SO ORDERED.
||| (Foster-Gallego v. Spouses Galang, G.R. No. 130228,
[July 27, 2004], 479 PHIL 148-170)