Alaba, Johannes Jude U.

Legal Research C Issues: (1) (2) (3) WON, M Bank has the right to oust B Hospital and reclaim possession of the land WON, B Hospital has the right to stay in the leased property WON, B Hospital is guilty of Forum Shopping

M Bank contends that B Hospital is guilty of forum shopping for going to four different courts for the same relief. B Hospital filed several cases, to wit: 1) Review on certiorari under Rule 45, in relation to Section 2(c) of Rule 41, of the Rules of Court, with the Supreme Court; 2) Action for Specific Performance, Injunction, and Damages with the RTC of Malaybalay City; and 3) Petition for Corporate Rehabilitation with the RTC of Cagayan de Oro City. Forum shopping is defined as an act of a party against whom an adverse judgment or order has been rendered in one forum of seeking and possibly getting a favorable opinion in another forum, other than by appeal or special civil action for certiorari. It may also be the institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition. Its elements are as follows: a. identity of parties, or at least such parties as would represent the same interest in both actions; b. identity of rights asserted and relief prayed for, the relief being founded on the same facts; and c. identity of the two preceding particulars such that any judgment in the other action, regardless of which party is successful, will amount to res judicata in the action under consideration. The certiorari sought by B Hospital was to question the propriety of the issuance of a writ of possession for the purpose of evicting B Hospital despite the lease agreement subsequently entered into by the. The second case sought the enforcement of the lease contract between both parties, with prayer for damages for M Banks breach of contractual obligation. The third case sought for rehabilitation pursuant to the Interim Rules on Corporation Rehabilitation. The appeal and the two cases involved different causes of action. Thus, B Hospital is not guilty of Forum Shopping. With regards to the first issue, we should note first that what applies now is no longer the law on extrajudicial foreclosure, but the law on lease. Therefore, a case for ejectment or unlawful detainer should be the proper remedy in this case, and not a writ of possession. The writ of possession issued to M Bank is improper since the parties relation was no longer as mortgagee/buyer and mortgagor/seller but as lessor and lessee. The rationale for the issuance of writ of possession is to put the foreclosure buyer in possession of the property sold without delay, since the right of possession is founded on ownership of the property. Articles 524 & 525 of the New Civil code define possession as holding

of a thing or the enjoyment of a right. The possession of things or rights may be had in one of two concepts: either in the concept of an owner, or in that of the holder of the thing or right to keep or enjoy it, the ownership pertaining to another person. In other words, an owner of a real estate has possession either when he himself is physically occupying the property, or when another person who recognizes his rights as owner is occupying it. Clearly, the second concept is shown in the case at bar. B Hospitals payment of the monthly rentals indicates their recognition of M Banks possession of the property. In view of the foregoing, the answer to first issue should be in the negative. As for the second issue, it should also be noted that there was no fixed term. What was present was a data for monthly rental. Article 1687 of the New Civil Code states: If the period for the lease has not been fixed, it is understood to be from year to year, if the rent agreed upon is annual; from month to month, if it is monthly; from week to week, if the rent is weekly; and from day to day, if the rent is to be paid daily. Thus, in this case it should be presumed that the agreement between them is on a monthly basis. This is evidenced by the acceptance of the lessor of the lessees monthly rental payments for a period of one year and eight months. Now, Article 1673 of the New Civil Code states: The lessor may judicially eject the lessee for any of the following causes: a. When the period agreed upon, or that which is fixed for the duration of leases under Articles 1682 and 1687, has expired; b. Lack of payment of the price stipulated; c. Violation of any of the conditions agreed upon in the contract; d. When the lessee devotes the thing leased to any use or service not stipulated which causes the deterioration thereof; or if he does not observe the requirement in No. 2 of Article 1657, as regards the use thereof. From the preceding paragraph, we noted that the agreement had no fixed term. There was also no default on the payments by B Hospital. Causes C & D could not be ascertained from the facts presented. Therefore, M Bank cannot judicially eject B Hospital because the requisites were not met. B Hospital has the right to stay in the property by virtue of the existing lease agreement.