Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-35910 July 21, 1978 PURITA BERSABAL, petitioner, vs. HONORABLE JUDGE SERAFIN SALVADOR, as Judge of the Court of First Instance of Caloocan City, Branch XIV, TAN THAT and ONG PIN TEE, respondents.

MAKASIAR, J.: On March 23, 1972, petitioner Purita Bersabal seeks to annul the orders of respondent Judge of August 4, 1971, October 30, 1971 and March 15, 1972 and to compel said respondent Judge to decide petitioner's perfected appeal on the basis of the evidence and records of the case submitted by the City Court of Caloocan City plus the memorandum already submitted by the petitioner and respondents. Since only questions of law were raised therein, the Court of Appeals, on October 13, 1972, issued a resolution certifying said case to this Court pursuant to Section 17, paragraph (4) of the Judiciary Act of 1948, as amended. As found by the Court of Appeals, the facts of this case are as follows:
It appears that private respondents Tan That and Ong Pin Tee filed an ejectment suit, docketed as Civil Case No. 6926 in the City Court of Caloocan City, against the petitioner. A decision was rendered by said Court on November 25, 1970, which decision was appealed by the petitioner to the respondent Court and docketed therein as Civil Case No. C-2036. During the pendency of the appeal the respondent court issued on March 23, 1971 an order which reads: Pursuant to the provisions of Rep. Act No. 6031, the Clerk of Court of Caloocan City, is hereby directed to transmit to this Court within fifteen (15) days from receipt hereof the transcripts of stenographic notes taken down during the hearing of this case before the City Court of Caloocan City, and likewise, counsels for both parties are given thirty (30) days from receipt of this order within which to file their respective memoranda, and thereafter, this case shall be deemed submitted for decision by this Court. which order was apparently received by petitioner on April 17, 1971.

The transcript of stenographic notes not having yet been forwarded to the respondent court, petitioner filed on May 5, 1971 a 'MOTION EX-PARTE TO SUBMIT MEMORANDUM WITHIN 30 DAYS FROM RECEIPT OF NOTICE OF SUBMISSION OF THE TRANSCRIPT OF STENOGRAPHIC NOTES TAKEN DURING THE HEARING OF THE CASE BEFORE THE CITY COURT OF CALOOCAN CITY' which was granted by respondent court on May 7, 1971. However, before the petitioner could receive any such notice from the respondent court, the respondent Judge issued an order on August 4, 1971 which says: For failure of the defendant-appellant to prosecute her appeal the same is hereby ordered DISMISSED with costs against her. Petitioner filed a motion for reconsideration of the order on September 28, 1971, citing as a ground the granting of his ex-parte motion to submit memorandum within 30 days from notice of the submission of the stenographic notes taken before the City Court. Private respondents filed their opposition to the motion on September 30,1971. In the meantime, on October 20,1971, petitioner filed her memorandum dated October 18, 1971. On October 30, 1971 the respondent Court denied the motion for reconsideration. Then on January 25, 1972, petitioner filed a motion for leave to file second motion for reconsideration which was likewise denied by the respondent court on March 15, 1972. Hence this petition.

The sole inquiry in the case at bar can be stated thus: Whether, in the light of the provisions of the second paragraph of Section 45 of Republic Act No. 296, as amended by R.A. No. 6031, the mere failure of an appellant to submit on nine the memorandum mentioned in the same paragraph would empower the Court of First Instance to dismiss the appeal on the ground of failure to Prosecute; or, whether it is mandatory upon said Court to proceed to decide the appealed case on the basis of the evidence and records transmitted to it, the failure of the appellant to submit a memorandum on time notwithstanding. The second paragraph of Section 45 of R.A. No. 296, otherwise known as the Philippine Judiciary Act of 1948, as amended by R.A. No. 6031 provides, in part, as follows:
Courts of First Instance shall decide such appealed cases on the basis of the evidence and records transmitted from the city or municipal courts: Provided, That the parties may submit memoranda and/or brief with oral argument if so requested ... . (Emphasis supplied).

The foregoing provision is clear and leaves no room for doubt. It cannot be interpreted otherwise than that the submission of memoranda is optional on the part of the parties. Being optional on the part of the parties, the latter may so choose to waive submission of the memoranda. And as a logical concomitant of the choice given to the Parties, the Court cannot dismiss the appeal of the party waiving the submission of said memorandum the appellant so chooses not to submit the memorandum, the Court of First Instance is left with no alternative but to decide the case on the basis of the evidence and records transmitted from the city or municipal courts. In other words, the Court is not empowered by law to dismiss the appeal on the mere failure of an appellant to submit his memorandum, but rather it is the Court's mandatory duty to decide the case on the basis of the available evidence and records transmitted to it.

As a general rule, the word "may" when used in a statute is permissive only and operates to confer discretion; while the word "shall" is imperative, operating to impose a duty which may be enforced (Dizon vs. Encarnacion, L-18615, Dec. 24, 1963, 9 SCRA 714, 716-717). The implication is that the Court is left with no choice but to decide the appealed case either on the basis of the evidence and records transmitted to it, or on the basis of the latter plus memoranda and/or brief with oral argument duly submitted and/or made on request. Moreover, memoranda, briefs and oral arguments are not essential requirements. They may be submitted and/or made only if so requested. Finally, a contrary interpretation would be unjust and dangerous as it may defeat the litigant's right to appeal granted to him by law. In the case of Republic vs. Rodriguez (L-26056, May 29, 1969, 28 SCRA 378) this Court underscored "the need of proceeding with caution so that a party may not be deprived of its right to appeal except for weighty reasons." Courts should heed the rule in Municipality of Tiwi, Albay vs. Cirujales (L-37520, Dec. 26, 1973, 54 SCRA 390, 395), thus:
The appellate court's summary dismissal of the appeal even before receipt of the records of the appealed case as ordered by it in a prior mandamus case must be set aside as having been issued precipitously and without an opportunity to consider and appreciate unavoidable circumstances of record not attributable to petitioners that caused the delay in the elevation of the records of the case on appeal.

In the instant case, no notice was received by petitioner about the submission of the transcript of the stenographic notes, so that his 30-day period to submit his memorandum would commence to run. Only after the expiration of such period can the respondent Judge act on the case by deciding it on the merits, not by dismissing the appeal of petitioner. WHEREFORE, THE CHALLENGED ORDERS OF RESPONDENT JUDGE DATED AUGUST 4, 1971, OCTOBER 30, 1971 AND MARCH 15, 1971 ARE HEREBY SET ASIDE AS NULL AND VOID AND THE RESPONDENT COURT IS HEREBY DIRECTED TO DECIDE CIVIL CASE NO. C-2036 ON THE MERITS. NO COSTS. Muoz Palma, Fernandez and Guerrero, JJ., concur.

Separate Opinions

TEEHANKEE, J, concurring:

I concur with the setting aside of the questioned dismissal of petitioner's appeal on the ground that the record shows quite clearly that there was no failure on part of petitionerappellant to prosecute her appeal in respondent judge's court. Petitioner had been granted in respondent judge's Order of May 7, 1971, 30 days from notice of submission of the transcripts within which to file her memorandum on appeal, yet her appeal was dismissed per his Order of August 4, 1971 for alleged failure to prosecute (by failure to file the memorandum) even before she had received any such notice. Upon receipt of the dismissal order, petitioner had promptly moved for reconsideration and filed her memorandum on appeal. I am not prepared at this stage to concur with the ratio decidendi of the decision penned by Mr. Justice Makasiar that the Court is not empowered by law to dismiss the appeal on the mere failure of an appellant to submit his memorandum, but rather it is the Court's mandatory duty to decide the case on the basis of the available evidence and records transmitted to it." I entertain serious doubts about such pronouncement, once when the court of first instance "requests" the party-appellant to submit a memorandum or brief on appeal under the provisions of Republic Act No. 6031 amending section 45 of Republic Act No. 296, such "request" is tantamount to a requirement for the proper prosecution of the appeal; thus, when the appellant willfuly fails to file such memorandum or brief, the judge should be empowered to dismiss the appeal, applying suppletorily the analogous provisions of Rule 50, section 1 for dismissal of appeal by the higher appellate courts and taking into account that Rule 40, section 9 of the Rules of Court now expressly authorizes the court of first instance to dismiss an appeal before it "for failure to prosecute."

Separate Opinions TEEHANKEE, J, Concurring: I concur with the setting aside of the questioned dismissal of petitioner's appeal on the ground that the record shows quite clearly that there was no failure on part of petitionerappellant to prosecute her appeal in respondent judge's court. Petitioner had been granted in respondent judge's Order of May 7, 1971, 30 days from notice of submission of the transcripts within which to file her memorandum on appeal, yet her appeal was dismissed per his Order of August 4, 1971 for alleged failure to prosecute (by failure to file the memorandum) even before she had received any such notice. Upon receipt of the dismissal order, petitioner had promptly moved for reconsideration and filed her memorandum on appeal. I am not prepared at this stage to concur with the ratio decidendi of the decision penned by Mr. Justice Makasiar that the Court is not empowered by law to dismiss the appeal on the mere failure of an appellant to submit his memorandum, but rather it is the Court's mandatory duty to decide the case on the basis of the available evidence and records transmitted to it." I entertain serious doubts about such pronouncement, once

when the court of first instance "requests" the party-appellant to submit a memorandum or brief on appeal under the provisions of Republic Act No. 6031 amending section 45 of Republic Act No. 296, such "request" is tantamount to a requirement for the proper prosecution of the appeal; thus, when the appellant willfuly fails to file such memorandum or brief, the judge should be empowered to dismiss the appeal, applying suppletorily the analogous provisions of Rule 50, section 1 for dismissal of appeal by the higher appellate courts and taking into account that Rule 40, section 9 of the Rules of Court now expressly authorizes the court of first instance to dismiss an appeal before it "for failure to prosecute."
Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 115245 July 11, 1995 JUANITO C. PILAR, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

QUIASON, J.: This is a petition for certiorari under Rule 65 of the Revised Rules of Court assailing the Resolution dated April 28, 1994 of the Commission on Elections (COMELEC) in UND No. 94-040. I On March 22, 1992, petitioner Juanito C. Pilar filed his certificate of candidacy for the position of member of the Sangguniang Panlalawigan of the Province of Isabela. On March 25, 1992, petitioner withdrew his certificate of candidacy. In M.R. Nos. 93-2654 and 94-0065 dated November 3, 1993 and February 13, 1994 respectively, the COMELEC imposed upon petitioner the fine of Ten Thousand Pesos (P10,000.00) for failure to file his statement of contributions and expenditures. In M.R. No. 94-0594 dated February 24, 1994, the COMELEC denied the motion for reconsideration of petitioner and deemed final M.R. Nos. 93-2654 and 94-0065 (Rollo, p. 14).

Petitioner went to the COMELEC En Banc (UND No. 94-040), which denied the petition in a Resolution dated April 28, 1994 (Rollo, pp. 10-13). Hence, this petition for certiorari. We dismiss the petition. II Section 14 of R.A. No. 7166 entitled "An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for Other Purposes" provides as follows:
Statement of Contributions and Expenditures: Effect of Failure to File Statement. Every candidate and treasurer of the political party shall, within thirty (30) days after the day of the election, file in duplicate with the offices of the Commission the full, true and itemized statement of all contributions and expenditures in connection with the election. No person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required. The same prohibition shall apply if the political party which nominated the winning candidate fails to file the statement required herein within the period prescribed by this Act. Except candidates for elective barangay office, failure to file the statements or reports in connection with electoral contributions and expenditures as required herein shall constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from One Thousand Pesos ( P1,000.00) to Thirty Thousand Pesos (P30,000.00), in the discretion of the Commission. The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender. It shall be the duty of every city or municipal election registrar to advise in writing, by personal delivery or registered mail, within five (5) days from the date of election all candidates residing in his jurisdiction to comply with their obligation to file their statements of contributions and expenditures. For the commission of a second or subsequent offense under this Section, the administrative fine shall be from Two Thousand Pesos (P2,000.00) to Sixty Thousand Pesos (P60,000.00), in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office (Emphasis supplied).

To implement the provisions of law relative to election contributions and expenditures, the COMELEC promulgated on January 13, 1992 Resolution No. 2348 (Re: Rules and Regulations Governing Electoral Contributions and Expenditures in Connection with the National and Local Elections on May 11, 1992). The pertinent provisions of said Resolution are:

Sec. 13. Statement of contributions and expenditures: Reminders to candidates to file statements. Within five (5) days from the day of the election, the Law Department of the Commission, the regional election director of the National Capital Region, the provincial election supervisors and the election registrars shall advise in writing by personal delivery or registered mail all candidates who filed their certificates of candidacy with them to comply with their obligation to file their statements of contributions and expenditures in connection with the elections. Every election registrar shall also advise all candidates residing in his jurisdiction to comply with said obligation (Emphasis supplied). Sec. 17. Effect of failure to file statement. (a) No person elected to any public office shall enter upon the duties of his office until he has filed the statement of contributions and expenditures herein required. The same prohibition shall apply if the political party which nominated the winning candidates fails to file the statement required within the period prescribed by law. (b) Except candidates for elective barangay office, failure to file statements or reports in connection with the electoral contributions and expenditures as required herein shall constitute an administrative offense for which the offenders shall be liable to pay an administrative fine ranging from One Thousand Pesos (P1,000) to Thirty Thousand Pesos (P30,000), in the discretion of the Commission. The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be enforceable by a writ of execution issued by the Commission against the properties of the offender. For the commission of a second or subsequent offense under this section, the administrative fine shall be from Two Thousand Pesos (P2,000) to Sixty Thousand Pesos (P60,000), in the discretion of the Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office.

Petitioner argues that he cannot be held liable for failure to file a statement of contributions and expenditures because he was a "non-candidate," having withdrawn his certificates of candidacy three days after its filing. Petitioner posits that "it is . . . clear from the law that candidate must have entered the political contest, and should have either won or lost" (Rollo, p. 39). Petitioner's argument is without merit. Section 14 of R.A. No. 7166 states that "every candidate" has the obligation to file his statement of contributions and expenditures. Well-recognized is the rule that where the law does not distinguish, courts should not distinguish, Ubi lex non distinguit nec nos distinguere debemos (Philippine British Assurance Co. Inc. v. Intermediate Appellate Court, 150 SCRA 520 [1987]; cf Olfato v. Commission on Elections, 103 SCRA 741 [1981]). No distinction is to be made in the application of a law where none is indicated (Lo Cham v. Ocampo, 77 Phil. 636 [1946]). In the case at bench, as the law makes no distinction or qualification as to whether the candidate pursued his candidacy or withdrew the same, the term "every candidate"

must be deemed to refer not only to a candidate who pursued his campaign, but also to one who withdrew his candidacy. The COMELEC, the body tasked with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall (The Constitution of the Republic of the Philippines, Art. IX(C), Sec. 2[1]), issued Resolution No. 2348 in implementation or interpretation of the provisions of Republic Act No. 7166 on election contributions and expenditures. Section 13 of Resolution No. 2348 categorically refers to "all candidates who filed their certificates of candidacy." Furthermore, Section 14 of the law uses the word "shall." As a general rule, the use of the word "shall" in a statute implies that the statute is mandatory, and imposes a duty which may be enforced , particularly if public policy is in favor of this meaning or where public interest is involved. We apply the general rule (Baranda v. Gustilo, 165 SCRA 757 [1988]; Diokno v. Rehabilitation Finance Corporation, 91 Phil. 608 [1952]). The state has an interest in seeing that the electoral process is clean, and ultimately expressive of the true will of the electorate. One way of attaining such objective is to pass legislation regulating contributions and expenditures of candidates, and compelling the publication of the same. Admittedly, contributions and expenditures are made for the purpose of influencing the results of the elections (B.P. Blg. 881, Sec. 94; Resolution No. 2348, Sec. 1). Thus, laws and regulations prescribe what contributions are prohibited (B.P. Blg. 881, Sec. 95, Resolution No. 2348, Sec. 4), or unlawful (B.P. Blg. 881, Sec. 96), and what expenditures are authorized (B.P. Blg. 881, Sec. 102; R.A. No. 7166, Sec. 13; Resolution No. 2348, Sec. 7) or lawful (Resolution No. 2348, Sec. 8). Such statutes are not peculiar to the Philippines. In "corrupt and illegal practices acts" of several states in the United States, as well as in federal statutes, expenditures of candidates are regulated by requiring the filing of statements of expenses and by limiting the amount of money that may be spent by a candidate. Some statutes also regulate the solicitation of campaign contributions (26 Am Jur 2d, Elections 287). These laws are designed to compel publicity with respect to matters contained in the statements and to prevent, by such publicity, the improper use of moneys devoted by candidates to the furtherance of their ambitions (26 Am Jur 2d, Elections 289). These statutes also enable voters to evaluate the influences exerted on behalf of candidates by the contributors, and to furnish evidence of corrupt practices for annulment of elections (Sparkman v. Saylor [Court of Appeals of Kentucky], 180 Ky. 263, 202 S.W. 649 [1918]). State courts have also ruled that such provisions are mandatory as to the requirement of filing (State ex rel. Butchofsky v. Crawford [Court of Civil Appeals of Texas], 269 S.W. 2d 536 [1954]; Best v. Sidebottom, 270 Ky. 423,109 S.W. 2d 826 [1937]; Sparkman v. Saylor, supra.)

It is not improbable that a candidate who withdrew his candidacy has accepted contributions and incurred expenditures, even in the short span of his campaign. The evil sought to be prevented by the law is not all too remote. It is notesworthy that Resolution No. 2348 even contemplates the situation where a candidate may not have received any contribution or made any expenditure. Such a candidate is not excused from filing a statement, and is in fact required to file a statement to that effect. Under Section 15 of Resolution No. 2348, it is provided that "[i]f a candidate or treasurer of the party has received no contribution, made no expenditure, or has no pending obligation, the statement shall reflect such fact." Lastly, we note that under the fourth paragraph of Section 73 of the B.P. Blg. 881 or the Omnibus Election Code of the Philippines, it is provided that "[t]he filing or withdrawal of certificate of candidacy shall not affect whatever civil, criminal or administrative liabilities which a candidate may have incurred." Petitioner's withdrawal of his candidacy did not extinguish his liability for the administrative fine. WHEREFORE, the petition is DISMISSED. Narvasa, C.J., Feliciano, Regalado, Davide, Jr., Romero, Bellosillo, Puno, Vitug, Mendoza and Francisco, JJ., concur. Kapunan, J., is on leave.

Separate Opinions

MELO, J., dissenting: The majority opinion is to the effect that every candidate, including one who has withdrawn his certificate of candidacy, is obliged to file his statement of contributions and expenditures in line with Section 14 of Republic Act No. 7166 vis-a-vis the pertinent portions of Comelec Resolution No. 2348. I must concede that the use of the word "shall" in the main statute as well as the implementing rules generally suggest mandatoriness as to cover all candidates. But is an anspirant for public office who had a sudden change of heart, so to speak, still considered a candidate to begin with? I am of the impression that he is not and is thus not bound to render an accounting subsequent to election for the simple reason that the

term 'candidate' is used to designate a person who actually submits himself and is voted for at our election (Santos vs. Miranda, 35 Phil. 643, 648 (1916) citing State vs. Hirsch, 125 Ind., 207; 9 L.R.A. 107; Moreno, Philippine Law Dictionary, 1972 2nd ed., p. 84) Certainly, one who withdraws his certificate of candidacy 3 days after the filing thereof, can not be voted for at an election. And considering the shortness of the period of 3 days from the filing to the withdrawal of the certificate of candidacy, petitioner cannot be accused, as indeed there is no such charge, of utilizing his aborted candidacy for purposes to raise funds or to extort money from other candidates in exchange for the withdrawal. I, therefore, vote to grant the petition. Padilla, J., concurs.

Separate Opinions MELO, J., dissenting: The majority opinion is to the effect that every candidate, including one who has withdrawn his certificate of candidacy, is obliged to file his statement of contributions and expenditures in line with Section 14 of Republic Act No. 7166 vis-a-vis the pertinent portions of Comelec Resolution No. 2348. I must concede that the use of the word "shall" in the main statute as well as the implementing rules generally suggest mandatoriness as to cover all candidates. But is an aspirant for public office who had a sudden change of heart, so to speak, still considered a candidate to begin with? I am of the impression that he is not and is thus not bound to render an accounting subsequent to election for the simple reason that the term 'candidate' is used to designate a person who actually submits himself and is voted for at our election (Santos vs. Miranda, 35 Phil. 643, 648 (1916) citing State vs. Hirsch, 125 Ind., 207; 9 L.R.A. 107; Moreno, Philippine Law Dictionary, 1972 2nd ed., p. 84) Certainly, one who withdraws his certificate of candidacy 3 days after the filing thereof, can not be voted for at an election. And considering the shortness of the period of 3 days from the filing to the withdrawal of the certificate of candidacy, petitioner cannot be accused, as indeed there is no such charge, of utilizing his aborted candidacy for purposes to raise funds or to extort money from other candidates in exchange for the withdrawal. I, therefore, vote to grant the petition. Padilla, J., concurs.
Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-47757-61 January 28, 1980 THE PEOPLE OF THE PHILIPPINES, ABUNDIO R. ELLO, As 4th Assistant of Provincial Bohol VICENTE DE LA SERNA. JR., as complainant all private prosecutor, petitioners, vs. HON. VICENTE B. ECHAVES, JR., as Judge of the Court of First Instance of Bohol Branch II, ANO DACULLO, GERONIMO OROYAN, MARIO APARICI, RUPERTO CAJES and MODESTO S SUELLO, respondents.

AQUINO, J.:p The legal issue in this case is whether Presidential Decree No. 772, which penalizes squatting and similar acts, applies to agricultural lands. The decree (which took effect on August 20, 1975) provides:
SECTION 1. Any person who, with the use of force, intimidation or threat, or taking advantage of the absence or tolerance of the landowner, succeeds in occupying or possessing the property of the latter against his will for residential, commercial or any other purposes, shall be punished by an imprisonment ranging from six months to one year or a fine of not less than one thousand nor more than five thousand pesos at the discretion of the court, with subsidiary imprisonment in case of insolvency. (2nd paragraph is omitted.)

The record shows that on October 25, 1977 Fiscal Abundio R. Ello filed with the lower court separate informations against sixteen persons charging them with squatting as penalized by Presidential Decree No. 772. The information against Mario Aparici which is similar to the other fifteen informations, reads:
That sometime in the year 1974 continuously up to the present at barangay Magsaysay, municipality of Talibon, province of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with stealth and strategy, enter into, occupy and cultivate a portion of a grazing land physically occupied, possessed and claimed by Atty. Vicente de la Serna, Jr. as successor to the pasture applicant Celestino de la Serna of Pasture Lease Application No. 8919, accused's entrance into the area has been and is still against the win of the offended party; did then and there willfully, unlawfully, and feloniously squat and cultivate a portion of the said grazing land; said cultivating has rendered a nuisance to and has deprived the pasture applicant from the full use thereof for which the land applied for has been intended, that is preventing applicant's cattle from grazing the whole area, thereby causing damage and prejudice to the said applicantpossessor-occupant, Atty. Vicente de la Serna, Jr. (sic)

Five of the informations, wherein Ano Dacullo, Geronimo Oroyan, Mario Aparici, Ruperto Cajes and Modesto Suello were the accused, were raffled to Judge Vicente B. Echaves, Jr. of Branch II (Criminal Cases Nos. 1824, 1828, 1832, 1833 and 1839, respectively).

Before the accused could be arraigned, Judge Echaves motu proprio issued an omnibus order dated December 9, 1977 dismissing the five informations on the grounds (1) that it was alleged that the accused entered the land through "stealth and strategy", whereas under the decree the entry should be effected "with the use of force, intimidation or threat, or taking advantage of the absence or tolerance of the landowner", and (2) that under the rule of ejusdem generis the decree does not apply to the cultivation of a grazing land. Because of that order, the fiscal amended the informations by using in lieu of "stealth and strategy" the expression "with threat, and taking advantage of the absence of the ranchowner and/or tolerance of the said ranchowner". The fiscal asked that the dismissal order be reconsidered and that the amended informations be admitted. The lower court denied the motion. It insisted that the phrase "and for other purposes" in the decree does not include agricultural purposes because its preamble does not mention the Secretary of Agriculture and makes reference to the affluent class. From the order of dismissal, the fiscal appealed to this Court under Republic Act No. 5440. The appeal is devoid of merit. We hold that the lower court correctly ruled that the decree does not apply to pasture lands because its preamble shows that it was intended to apply to squatting in urban communities or more particularly to illegal constructions in squatter areas made by wellto-do individuals. The squating complained of involves pasture lands in rural areas. The preamble of the decree is quoted below:
WHEREAS, it came to my knowledge that despite the issuance of Letter of Instruction No. 19 dated October 2, 1972, directing the Secretaries of National Defense, Public Work. 9 and communications, Social Welfare and the Director of Public Works, the PHHC General Manager, the Presidential Assistant on Housing and Rehabilitation Agency, Governors, City and Municipal Mayors, and City and District Engineers, "to remove an illegal constructions including buildings on and along esteros and river banks, those along railroad tracks and those built without permits on public and private property." squatting is still a major problem in urban communities all over the country; WHEREAS, many persons or entities found to have been unlawfully occupying public and private lands belong to the affluent class; WHEREAS, there is a need to further intensify the government's drive against this illegal and nefarious practice.

It should be stressed that Letter of Instruction No. 19 refers to illegal constructions on public and private property. It is complemented by Letter of Instruction No. 19-A which provides for the relocation of squatters in the interest of public health, safety and peace and order.

On the other hand, it should be noted that squatting on public agricultural lands, like the grazing lands involved in this case, is punished by Republic Act No. 947 which makes it unlawful for any person, corporation or association to forcibly enter or occupy public agricultural lands. That law provides:
SECTION 1. It shall be unlawful for any person corporation or association to enter or occupy, through force, intimidation, threat, strategy or stealth, any public agriculture land including such public lands as are granted to private individuals under the provision of the Public Land Act or any other laws providing for the of public agriculture lands in the Philippines and are duly covered by the corresponding applications for the notwithstanding standing the fact that title thereto still remains in the Government or for any person, natural or judicial to investigate induce or force another to commit such acts.

Violations of the law are punished by a fine of not exceeding one thousand or imprisonment for not more than one year, or both such fine and imprisonment in the discretion of the court, with subsidiary imprisonment in case of insolvency. (See People vs. Lapasaran 100 Phil. 40.) The rule of ejusdem generis (of the same kind or species) invoked by the trial court does not apply to this case. Here, the intent of the decree is unmistakable. It is intended to apply only to urban communities, particularly to illegal constructions. The rule of ejusdem generis is merely a tool of statutory construction which is resorted to when the legislative intent is uncertain (Genato Commercial Corp. vs. Court of Tax Appeals, 104 Phil. 615,618; 28 C.J.S. 1049-50). WHEREFORE, the trial court's order of dismissal is affirmed. No costs. SO ORDERED.
Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 79094 June 22, 1988 MANOLO P. FULE, petitioner, vs. THE HONORABLE COURT OF APPEALS, respondent. Balagtas P. Ilagan for petitioner. The Solicitor General for respondent.

MELENCIO-HERRERA, J.:

This is a Petition for Review on certiorari of the Decision of respondent Appellate Court, which affirmed the judgment of the Regional Trial Court, Lucena City, Branch LIV, convicting petitioner (the accused-appellant) of Violation of Batas Pambansa Blg. 22 (The Bouncing Checks Law) on the basis of the Stipulation of Facts entered into between the prosecution and the defense during the pre-trial conference in the Trial Court. The facts stipulated upon read:
a) That this Court has jurisdiction over the person and subject matter of this case; b) That the accused was an agent of the Towers Assurance Corporation on or before January 21, 1981; c) That on January 21, 1981, the accused issued and made out check No. 26741, dated January 24, 1981 in the sum of P2,541.05; d) That the said check was drawn in favor of the complaining witness, Roy Nadera; e) That the check was drawn in favor of the complaining witness in remittance of collection; f) That the said check was presented for payment on January 24, 1981 but the same was dishonored for the reason that the said checking account was already closed; g) That the accused Manolo Fule has been properly Identified as the accused party in this case.

At the hearing of August 23, 1985, only the prosecution presented its evidence consisting of Exhibits "A," "B" and "C." At the subsequent hearing on September 17, 1985, petitioner-appellant waived the right to present evidence and, in lieu thereof, submitted a Memorandum confirming the Stipulation of Facts. The Trial Court convicted petitioner-appellant. On appeal, respondent Appellate Court upheld the Stipulation of Facts and affirmed the judgment of conviction. 1 Hence, this recourse, with petitioner-appellant contending that:
The Honorable Respondent Court of Appeals erred in the decision of the Regional Trial Court convicting the petitioner of the offense charged, despite the cold fact that the basis of the conviction was based solely on the stipulation of facts made during the pre-trial on August 8, 1985, which was not signed by the petitioner, nor by his counsel.

Finding the petition meritorious, we resolved to give due course. The 1985 Rules on Criminal Procedure, which became effective on January 1, 1985, applicable to this case since the pre-trial was held on August 8, 1985, provides:
SEC. 4. Pre-trial agreements must be signed. No agreement or admission made or entered during the pre-trial conference shall be used in evidence against the accused

unless reduced to writing and signed by him and his counsel. (Rule 118) [Emphasis supplied]

By its very language, the Rule is mandatory. Under the rule of statutory construction, negative words and phrases are to be regarded as mandatory while those in the affirmative are merely directory (McGee vs. Republic, 94 Phil. 820 [1954]). The use of the term "shall" further emphasizes its mandatory character and means that it is imperative, operating to impose a duty which may be enforced (Bersabal vs. Salvador, No. L-35910, July 21, 1978, 84 SCRA 176). And more importantly, penal statutes whether substantive and remedial or procedural are, by consecrated rule, to be strictly applied against the government and liberally in favor of the accused (People vs. Terrado No. L-23625, November 25, 1983, 125 SCRA 648). The conclusion is inevitable, therefore, that the omission of the signature of the accused and his counsel, as mandatorily required by the Rules, renders the Stipulation of Facts inadmissible in evidence. The fact that the lawyer of the accused, in his memorandum, confirmed the Stipulation of Facts does not cure the defect because Rule 118 requires both the accused and his counsel to sign the Stipulation of Facts. What the prosecution should have done, upon discovering that the accused did not sign the Stipulation of Facts, as required by Rule 118, was to submit evidence to establish the elements of the crime, instead of relying solely on the supposed admission of the accused in the Stipulation of Facts. Without said evidence independent of the admission, the guilt of the accused cannot be deemed established beyond reasonable doubt. Consequently, under the circumstances obtaining in this case, the ends of justice require that evidence be presented to determine the culpability of the accused. When a judgment has been entered by consent of an attorney without special authority, it will sometimes be set aside or reopened (Natividad vs. Natividad, 51 Phil. 613 [1928]). WHEREFORE, the judgment of respondent Appellate Court is REVERSED and this case is hereby ordered RE-OPENED and REMANDED to the appropriate Branch of the Regional Trial Court of Lucena City, for further reception of evidence. SO ORDERED. Yap, C.J., Fernan, Narvasa, Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino and Medialdea, JJ., concur. Paras, J., took no part.