PLEADINGS

MACTAN CEBU INTL AIRPORT V. HEIRS OF MINOZA

MACTAN-CEBU AUTHORITY, Petitioner, INTERNATIONAL AIRPORT Promulgated:

February 2, 2011 x----------------------------------- - - - - - - - - - - - - - - -x

versus DECISION

HEIRS of ESTANISLAO MIOZA, namely: The HEIRS of FILOMENO T. MIOZA, represented by LAUREANO M. MIOZA; The HEIRS of PEDRO T. MIOZA; and The HEIRS of FLORENCIA T. MIOZA, represented by ANTONIO M. URBIZTONDO, Respondents. G.R. No. 186045

PERALTA, J.:

This is a petition for review on certiorari seeking to reverse and set aside the Decision[1] dated March 25, 2008 of the Court of Appeals (CA) in CA-G.R. CV No. 70429, and the Resolution[2] dated January 8, 2009 denying petitioners motion for reconsideration. The procedural and factual antecedents, as found by the CA, are as follows:

Present: On July 6, 1998, a Complaint[3] for Reconveyance, Cancellation of Defendants Title, Issuance of New Title to Plaintiffs and Damages was filed by Leila M. Hermosisima (Leila) for herself and on behalf of the other heirs of the late Estanislao Mioza. The complaint alleged that Leilas late great grandfather, Estanislao Mioza, was the registered owner of Cadastral Lot Nos. 986 and 991-A, located at Banilad Estate, Cebu City, per TCT Nos. RT-6101 (T-10534) and RT-6102 (T10026). It was, likewise, alleged that the late Estanislao Mioza had three children, namely, Adriana, Patricio, and Santiago, all surnamed Mioza. In the late 1940s, the National Airports Corporation (NAC) embarked in an expansion project of the Lahug Airport. For said purpose, the NAC acquired several properties which surrounded the airport either through

CARPIO, J., Chairperson, NACHURA, PERALTA, ABAD, and MENDOZA, JJ.

negotiated sale or through expropriation. Among the properties that were acquired by the NAC through a negotiated sale were Lot Nos. 986 and 991-A.[4]

Leila claimed that their predecessors-in-interest, specifically, Adriana, Patricio, and Santiago executed a Deed of Sale on February 15, 1950 conveying the subject lots to the NAC on the assurance made by the latter that they (Leilas predecessors-in-interest) can buy the properties back if the lots are no longer needed. Consequently, they sold Lot No. 986 to the NAC for only P157.20 and Lot No. 991-A for P105.40. However, the expansion project did not push through. More than forty years after the sale, plaintiffs informed the NACs successor-in-interest, the MactanCebu International Airport Authority (MCIAA), that they were exercising the buy-back option of the agreement, but the MCIAA refused to allow the repurchase on the ground that the sale was in fact unconditional.

on January 21, 1958, Adriana, Patricio, and Santiago, executed, in fraud of the intervenors, an Extrajudicial Settlement of the Estate of the late spouses Estanislao Mioza and Inocencia Togono and adjudicated unto themselves the estate of the deceased spouses; and (3) that, on February 15, 1958, the same Adriana, Patricio, and Santiago, fraudulently, deceitfully, and in bad faith, sold Lot Nos. 986 and 991-A to the NAC. The intervenors thus prayed for the following reliefs:

a. Declaring herein intervenors as the true, legal and legitimate heirs of the late spouses Estanislao Mioza and Inocencia Togono;

b. Declaring herein intervenors as the true, rightful and registered owners of Lots 986 and 991-A of the Banilad Friar Lands Estate;

The MCIAA, through the Office of the Solicitor General (OSG), filed an Answer with Counterclaim.

After the parties filed their respective pleadings, trial ensued.

c. Declaring the Extrajudicial Settlement executed on January 21, 1958 by the late Adriana Mioza and the late Patricio Mioza and the late Santiago Mioza that they are the only heirs of the late spouses Estanislao Mioza and Inocencia Togono, who died intestate and without any debts or obligations and adjudicating among themselves the estate of the deceased x x x as void ab initio;

On November 16, 1999, before the MCIAA could present evidence in support of its case, a Motion for Intervention,[5] with an attached Complainant-inIntervention, was filed before the Regional Trial Court (RTC) of Cebu City, Branch 22, by the heirs of Filomeno T. Mioza, represented by Laureano M. Mioza; the heirs of Pedro T, Mioza, represented by Leoncio J. Mioza; and the Heirs of Florencia T. Mioza, represented by Antonio M. Urbiztondo (Intervenors), who claimed to be the true, legal, and legitimate heirs of the late Estanislao Mioza. The intervenors alleged in their complaint (1) that the plaintiffs in the main case are not related to the late spouses Estanislao Mioza and Inocencia Togono whose true and legitimate children were: Filomeno, Pedro, and Florencia, all surnamed Mioza; (2) that,

d. Declaring the sale of Lots 986 and 991-A of the Banilad Friar Lands Estate executed by the late Adriana Mioza, the late Patricio Mioza and the late Santiago Mioza in favor of the National Airport Corporation on February 15, 1958 x x x as void ab initio;

e. Ordering the cancellation of Transfer Certificate of Title Nos. 120370 and 120372 for Lots 986 and 991-A in the name of the Mactan-Cebu International Airport Authority and restoring Transfer Certificate of Title Nos. RT-6101 (T-10534) and RT-6102 (T-10026) to be the true and valid torrens titles to Lots 986 and 991[A].

f. Condemning plaintiffs Leila M. Hermosisima and Constancio Mioza to pay intervenors, who are the true, lawful and legitimate heirs of the late Spouses Estanislao Mioza and Inocencia Togono, the amounts of P300,000.00 and P100,000.00 as moral and exemplary damages respectively;

g. Condemning plaintiffs to pay the cost of suit.[6]

On February 18, 2000, the RTC of Cebu City, Branch 22, issued an Order[7] denying the Motion for Intervention.

THE COURT A QUO IN ITS ORDER DATED FEBRUARY 18, 2000 GRAVELY ERRED IN DISMISSING THE ABOVE CAPTIONED COMPLAINT BASED ON THE GROUND THAT: 1). THE RIGHTS CLAIMED BY MOVANTS-INTERVERNORS (NOW INTERVENORSAPPELLANTS) WOULD MORE APPROPRIATELY BE ASSERTED IN, AND WOULD BE FULLY PROTECTED BY, A SEPARATE PROCEEDING; 2). IT (THE COMPLAINT-IN-INTERVENTION) WILL DELAY THE PROCEEDINGS OF THE INSTANT CASE; AND 3). THAT THE COMPLAINT-IN-INTERVENTION IS NOT VERIFIED AND DOES NOT CONTAIN THE REQUISITE CERTIFICATION OF NON-FORUM SHOPPING.

In denying the motion, the trial court opined that the ownership of the subject lots was merely a collateral issue in the action. The principal issue to be resolved was whether or not the heirs of the late Estanislao Mioza whoever they may be have a right to repurchase the said lots from the MCIAA. Consequently, the rights being claimed by the intervenors should be asserted in and would be fully protected by a separate proceeding. Moreover, if the motion was granted, it would unduly delay the proceedings in the instant case. Finally, the complaint-in-intervention was flawed, considering that it was not verified and does not contain the requisite certification of non-forum shopping.

II.

THE COURT A QUO IN ITS ORDER DATED JULY 25, 2000 GRAVELY ERRED WHEN IT DENIED MOVANTSINTERVENORS (NOW INTERVENORS-APPELLANTS) MOTION FOR RECONSIDERATION DATED MARCH 20, 2000, AGAIN ON THE GROUND THAT TO ALLOW THE INTERVENORS TO INTERVENE IN THIS CASE WHICH IS ALREADY SUBMITTED FOR DECISION WOULD ONLY DELAY THE DISPOSAL OF THIS CASE AND THAT ANYWAY, THE INTERVERNORS HAVE NOTHING TO FEAR BECAUSE THEIR CLAIMS, IF THERE IS ANY, CAN BE WELL THRESHED OUT IN ANOTHER PROCEEDING.[10]

The intervenors filed a Motion for Reconsideration,[8] to which was attached a Complaint-in-Intervention with the required Verification and Certificate of NonForum Shopping.[9] However, the RTC denied the motion in its Order dated July 25, 2000.

On March 25, 2008, the CA rendered the assailed Decision, the decretal portion of which provides:

Aggrieved, the intervenors sought recourse before the CA, docketed as CA-G.R. CV No. 70429, on the following assignment of errors:

WHEREFORE, the appealed Orders dated February 18, 2000 and July 25, 2000 of the RTC of Cebu City, in Civil Case No. 22290, are REVERSED and SET ASIDE. The RTC of Cebu City is directed to resolve with deliberate dispatch Civil Case No. 22290 and to admit the complaint-in-intervention filed by the intervenorsappellants.

I.

SO ORDERED.[11]

Petitioner also posits that the intervenors rights can be better protected in another proceeding.

In ruling for the intervenors, the CA ratiocinated that contrary to the findings of the trial court, the determination of the true heirs of the late Estanislao Mioza is not only a collateral, but the focal issue of the case, for if the intervenors can prove that they are indeed the true heirs of Estanislao Mioza, there would be no more need to determine whether the right to buy back the subject lots exists or not as the MCIAA would not have acquired rights to the subject lots in the first place. In addition, to grant the motion for intervention would avoid multiplicity of suits. As to the lack of verification and certification on non-forum shopping, the CA opined that the filing of the motion for reconsideration with an appended complaint-inintervention containing the required verification and certificate of non-forum shopping amounted to substantial compliance of the Rules.

Anent the lack of verification and certification on nonforum shopping, petitioner maintains that the trial court was correct in denying the motion on this ground. In addition, even if the complaint-inintervention with the required verification and certificate of non-forum shopping was appended to the intervenors motion for reconsideration, the complaint-in-intervention was not verified by all the interested parties or all the heirs of Filomeno Mioza, which still warrants its dismissal.

The petition is meritorious.

Petitioner then filed a motion for reconsideration, but it was denied in the Resolution dated January 8, 2009.

Hence, the petition assigning the lone error that:

At the outset, on the procedural aspect, contrary to petitioners contention, the initial lack of the complaint-in-intervention of the requisite verification and certification on non-forum shopping was cured when the intervenors, in their motion for reconsideration of the order denying the motion to intervene, appended a complaint-in-intervention containing the required verification and certificate of non-forum shopping.

THE COURT OF APPEALS (CEBU CITY) GRAVELY ERRED IN ALLOWING RESPONDENTS TO INTERVENE IN CIVIL CASE NO. CEB-22290.[12]

Petitioner argues that to allow the intervenors to intervene in the proceedings before the trial court would not only unduly prolong and delay the resolution of the case, it would make the proceedings unnecessarily complicated and change the nature of the proceedings. Furthermore, contrary to the requirements for the allowance of a motion for intervention, their legal interest in the subject properties appear to be merely contingent or expectant and not of direct or immediate character.

In the case of Altres v. Empleo,[13] this Court clarified, among other things, that as to verification, non-compliance therewith or a defect therein does not necessarily render the pleading fatally defective. The court may order its submission or correction, or act on the pleading if the attending circumstances are such that strict compliance with the Rule may be dispensed with in order that the ends of justice may be served thereby. Further, a verification is deemed substantially complied with when one who has ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the petition have been made in good faith or are true and correct.[14]

Moreover, as to the certification against forum shopping, non-compliance therewith or a defect therein, unlike in verification, is generally not curable by its subsequent submission or correction thereof, unless there is a need to relax the Rules on the ground of substantial compliance or presence of special circumstances or compelling reasons. Also, the certification against forum shopping must be signed by all the plaintiffs or petitioners in a case; otherwise, those who did not sign will be dropped as parties to the case. Under reasonable or justifiable circumstances, however, as when all the plaintiffs or petitioners share a common interest and invoke a common cause of action or defense, the signature of only one of them in the certification against forum shopping substantially complies with the Rule.[15]

Section 1, Rule 19 of the Rules of Court states:

SECTION 1. Who may intervene. A person who has a legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenors rights may be fully protected in a separate proceeding.

Thus, considering that the intervenors in their motion for reconsideration, appended a complaint-inintervention with the required verification and certificate of non-forum shopping, the requirement of the Rule was substantially complied with.

Notwithstanding the intervenors compliance with the procedural requirements, their attempt to intervene is doomed to fail.

Intervention is a remedy by which a third party, not originally impleaded in the proceedings, becomes a litigant therein to enable him, her or it to protect or preserve a right or interest which may be affected by such proceedings.[16] It is a proceeding in a suit or action by which a third person is permitted by the court to make himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them; the act or proceeding by which a third person becomes a party in a suit pending between others; the admission, by leave of court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right of interest alleged by him to be affected by such proceedings.[17]

Under this Rule, intervention shall be allowed when a person has (1) a legal interest in the matter in litigation; (2) or in the success of any of the parties; (3) or an interest against the parties; (4) or when he is so situated as to be adversely affected by a distribution or disposition of property in the custody of the court or an officer thereof.[18] Moreover, the court must take into consideration whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties, and whether or not the intervenors right or interest can be adequately pursued and protected in a separate proceeding.

In the case at bar, the intervenors are claiming that they are the legitimate heirs of Estanislao Mioza and Inocencia Togono and not the original plaintiffs represented by Leila Hermosisima. True, if their allegations were later proven to be valid claims, the intervenors would surely have a legal interest in the matter in litigation. Nonetheless, this Court has ruled that the interest contemplated by law must be actual, substantial, material, direct and immediate, and not simply contingent or expectant. It must be of such direct and immediate character that the intervenor will either gain or lose by the direct legal operation and effect of the judgment.[19] Otherwise, if persons not parties to the action were allowed to intervene,

proceedings would become unnecessarily complicated, expensive and interminable.[20]

Moreover, the intervenors contentions that Leilas predecessors-in-interest executed, in fraud of the intervenors, an extra judicial settlement of the estate of the late spouses Estanislao Mioza and Inocencia Togono and adjudicated unto themselves the estate of the deceased spouses, and that subsequently, her predecessors-in-interest fraudulently and deceitfully sold the subject lots to the NAC, would unnecessarily complicate and change the nature of the proceedings.

To be sure, not only will the intervenors rights be fully protected in a separate proceeding, it would best determine the rights of the parties in relation to the subject properties and the issue of who the legitimate heirs of Estanislao Mioza and Inocencia Togono, would be laid to rest.

In addition to resolving who the true and legitimate heirs of Estanislao Mioza and Inocencia Togono are, the parties would also present additional evidence in support of this new allegation of fraud, deceit, and bad faith and resolve issues of conflicting claims of ownership, authenticity of certificates of titles, and regularity in their acquisition. Verily, this would definitely cause unjust delay in the adjudication of the rights claimed by the original parties, which primarily hinges only on the issue of whether or not the heirs represented by Leila have a right to repurchase the subject properties from the MCIAA.

Furthermore, the allowance or disallowance of a motion for intervention rests on the sound discretion of the court after consideration of the appropriate circumstances.[23] It is not an absolute right. The statutory rules or conditions for the right of intervention must be shown. The procedure to secure the right to intervene is to a great extent fixed by the statute or rule, and intervention can, as a rule, be secured only in accordance with the terms of the applicable provision.[24]

Consequently, the denial of the motion to intervene by the RTC was but just and proper. The conclusion of the RTC is not bereft of rational bases. It denied the motion to intervene in the exercise of its sound discretion and after taking into consideration the particular circumstances of the case.

Verily, the allegation of fraud and deceit is an independent controversy between the original parties and the intervenors. In general, an independent controversy cannot be injected into a suit by intervention, hence, such intervention will not be allowed where it would enlarge the issues in the action and expand the scope of the remedies. It is not proper where there are certain facts giving the intervenors case an aspect peculiar to himself and differentiating it clearly from that of the original parties; the proper course is for the would-be intervenor to litigate his claim in a separate suit.[21] Intervention is not intended to change the nature and character of the action itself, or to stop or delay the placid operation of the machinery of the trial. The remedy of intervention is not proper where it will have the effect of retarding the principal suit or delaying the trial of the action.[22]

WHEREFORE, subject to the above disquisition, the petition is GRANTED. The Decision dated March 25, 2008 and the Resolution dated January 8, 2009, of the Court of Appeals in CA-G.R. CV No. 70429, are REVERSED and SET ASIDE. The Orders of the Regional Trial Court of Cebu City, Branch 22, dated February 18, 2000 and July 25, 2000, are REINSTATED.

SO ORDERED.

VALLACAR TRANSIT V. CATUBIG

VALLACAR TRANSIT, INC.,

Petitioner,

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

- versus LEONARDO-DE CASTRO, J.:

JOCELYN CATUBIG, Respondent.

G.R. No. 175512

For review under Rule 45 of the Rules of Court is the Decision[1] dated November 17, 2005 and the Resolution[2] dated November 16, 2006 of the Court Appeals in CA-G.R. CV No. 66815, which modified the Decision[3] dated January 26, 2000 of the Regional Trial Court (RTC), Branch 30 of Dumaguete City, in Civil Case No. 11360, an action for recovery of damages based on Article 2180, in relation to Article 2176, of the Civil Code, filed by respondent Jocelyn Catubig against petitioner Vallacar Transit, Inc. While the RTC dismissed respondents claim for damages, the Court of Appeals granted the same.

Present: The undisputed facts are as follows: CORONA, C.J., Chairperson, VELASCO, JR., LEONARDO-DE CASTRO, PERALTA,* and PEREZ, JJ. On January 27, 1994, respondents husband, Quintin Catubig, Jr. (Catubig), was on his way home from Dumaguete City riding in tandem on a motorcycle with his employee, Teddy Emperado (Emperado). Catubig was the one driving the motorcycle. While approaching a curve at kilometers 59 and 60, Catubig tried to overtake a slow moving ten-wheeler cargo truck by crossing-over to the opposite lane, which was Petitioner is engaged in the business of transportation and the franchise owner of a Ceres Bulilit bus with Plate No. T-0604-1348. Quirino C. Cabanilla (Cabanilla) is employed as a regular bus driver of petitioner.

Promulgated:

May 30, 2011

then being traversed by the Ceres Bulilit bus driven by Cabanilla, headed for the opposite direction. When the two vehicles collided, Catubig and Emperado were thrown from the motorcycle. Catubig died on the spot where he was thrown, while Emperado died while being rushed to the hospital.

In the Pre-Trial Order[4] dated June 10, 1997, the parties stipulated that the primary issue for trial was whether or not petitioner should be held liable for Catubigs death. Trial then ensued.

On February 1, 1994, Cabanilla was charged with reckless imprudence resulting in double homicide in Criminal Case No. M-15-94 before the Municipal Circuit Trial Court (MCTC) of Manjuyod-Bindoy-Ayungon of the Province of Negros Oriental. After preliminary investigation, the MCTC issued a Resolution on December 22, 1994, dismissing the criminal charge against Cabanilla. It found that Cabanilla was not criminally liable for the deaths of Catubig and Emperado, because there was no negligence, not even contributory, on Cabanillas part.

Police Officer (PO) 2 Robert B. Elnas (Elnas),[5] Emilio Espiritu (Espiritu),[6] Dr. Norberto Baldado, Jr. (Dr. Baldado),[7] Peter Cadimas (Cadimas),[8] and respondent[9] herself testified in support of respondents complaint.

Thereafter, respondent filed before the RTC on July 19, 1995 a Complaint for Damages against petitioner, seeking actual, moral, and exemplary damages, in the total amount of P484,000.00, for the death of her husband, Catubig, based on Article 2180, in relation to Article 2176, of the Civil Code. Respondent alleged that petitioner is civilly liable because the latters employee driver, Cabanilla, was reckless and negligent in driving the bus which collided with Catubigs motorcycle.

PO2 Elnas conducted an investigation of the collision incident. According to PO2 Elnas, the bus was running fast, at a speed of 100 kilometers per hour, when it collided with the motorcycle which was trying to overtake a truck. The collision occurred on the lane of the bus. Catubig was flung 21 meters away, and Emperado, 11 meters away, from the point of impact. The motorcycle was totaled; the chassis broke into three parts, and the front wheel and the steering wheel with the shock absorbers were found 26 meters and 38 meters, respectively, from the collision point. In contrast, only the front bumper of the bus suffered damage.

Petitioner, in its Answer with Counterclaim, contended that the proximate cause of the vehicular collision, which resulted in the deaths of Catubig and Emperado, was the sole negligence of Catubig when he imprudently overtook another vehicle at a curve and traversed the opposite lane of the road. As a special and affirmative defense, petitioner asked for the dismissal of respondents complaint for not being verified and/or for failure to state a cause of action, as there was no allegation that petitioner was negligent in the selection or supervision of its employee driver.

Cadimas personally witnessed the collision of the bus and the motorcycle. He recalled that he was then waiting for a ride to Dumaguete City and saw the Ceres Bulilit bus making a turn at a curve. Cadimas signaled the said bus to halt but it was running fast. Cadimas also recollected that there was a cargo truck running slow in the opposite direction of the bus. Cadimas next heard a thud and saw that the bus already collided with a motorcycle.

Espiritu was the photographer who took photographs of the scene of the accident. He identified the five photographs which he had taken of Catubig lying on the ground, bloodied; broken parts of the motorcycle; and the truck which Catubig tried to overtake.

Dr. Baldado was the medico-legal doctor who conducted the post-mortem examination of Catubigs body. He reported that Catubig suffered from the following injuries: laceration and fracture of the right leg; laceration and fracture of the left elbow; multiple abrasions in the abdominal area, left anterior chest wall, posterior right arm, and at the back of the left scapular area; and contusion-hematoma just above the neck. Dr. Baldado confirmed that Catubig was already dead when the latter was brought to the hospital, and that the vehicular accident could have caused Catubigs instantaneous death.

defense in the present case was a true and correct copy of the TSN of the preliminary investigation held in Criminal Case No. M-15-94 on May 25, 1994, and another document was a duplicate original of the MCTC Resolution dated December 22, 1994 dismissing Criminal Case No. M-15-94.

Respondent herself testified to substantiate the amount of damages she was trying to recover from petitioner for Catubigs death, such as Catubigs earning capacity; expenses incurred for the wake and burial of Catubig, as well as of Emperado; the cost of the motorcycle; and the costs of the legal services and fees respondent had incurred.

Maypa is the Administrative and Personnel Manager at the Dumaguete branch of petitioner. He started working for petitioner on September 22, 1990 as a clerk at the Human Resources Development Department at the Central Office of petitioner in Bacolod City. Sometime in November 1993, he became an Administrative Assistant at the Dumaguete branch of petitioner; and in August 1995, he was promoted to his current position at the same branch.

Respondents documentary exhibits consisted of her and Catubigs Marriage Contract dated August 21, 1982, their two childrens Certificate of Live Births, Catubigs College Diploma dated March 24, 1983, the list and receipts of the expenses for Catubigs burial, the sketch of the collision site prepared by PO2 Elnas, the excerpts from the police blotter, the photographs of the collision,[10] and the Post Mortem Report[11] on Catubigs cadaver prepared by Dr. Baldado.

In an Order[12] dated October 6, 1998, the RTC admitted all of respondents aforementioned evidence.

On the other hand, Rosie C. Amahit (Amahit)[13] and Nunally Maypa (Maypa)[14] took the witness stand for petitioner.

While he was still an Administrative Assistant, Maypa was responsible for the hiring of personnel including drivers and conductors. Maypa explained that to be hired as a driver, an applicant should be 35 to 45 years old, have at least five years experience in driving big trucks, submit police, court, and medical clearances, and possess all the necessary requirements for driving a motor vehicle of more than 4,500 kilograms in gross weight such as a professional drivers license with a restriction code of 3. The applicant should also pass the initial interview, the actual driving and maintenance skills tests, and a written psychological examination involving defensive driving techniques. Upon passing these examinations, the applicant still had to go through a 15-day familiarization of the bus and road conditions before being deployed for work. Maypa, however, admitted that at the time of his appointment as Administrative Assistant at the Dumaguete branch, Cabanilla was already an employee driver of petitioner.

Amahit was a Court Stenographer at the MCTC who took the transcript of stenographic notes (TSN) in Criminal Case No. M-15-94 against Cabanilla. Amahit verified that the document being presented by the

Maypa further explained the investigation and grievance procedure followed by petitioner in cases of vehicular accidents involving the latters employee drivers. Maypa related that Cabanilla had been put on preventive suspension following the vehicular accident on January 27, 1994 involving the bus Cabanilla was driving and the motorcycle carrying Catubig and

Emperado. Following an internal investigation of said accident conducted by petitioner, Cabanilla was declared not guilty of causing the same, for he had not been negligent.

WHEREFORE, finding preponderance of evidence in favor of the [herein petitioner] that the [herein respondents] husband is the reckless and negligent driver and not the driver of the [petitioner], the above-entitled case is hereby ordered dismissed.

Lastly, Maypa recounted the expenses petitioner incurred as a result of the present litigation.

[Petitioners] counterclaim is also dismissed for lack of merit.[18]

The documentary exhibits of petitioner consisted of the TSN of the preliminary investigation in Criminal Case No. M-15-94 held on May 25, 1994 before the MCTC of Manjuyod-Bindoy-Ayungon of the Province of Negros Oriental; Resolution dated December 22, 1994 of the MCTC in the same case; and the Minutes dated February 17, 1994 of the Grievance Proceeding conducted by petitioner involving Cabanilla.[15]

The RTC, in its Order[16] dated November 12, 1999, admitted all the evidence presented by petitioner.

On January 26, 2000, the RTC promulgated its Decision favoring petitioner. Based on the sketch prepared by PO2 Elnas, which showed that the point of impact x x x occurred beyond the center lane near a curve within the lane of the Ceres bus[;][17] plus, the testimonies of PO2 Elnas and Cadimas that the motorcycle recklessly tried to overtake a truck near a curve and encroached the opposite lane of the road, the RTC ruled that the proximate cause of the collision of the bus and motorcycle was the negligence of the driver of the motorcycle, Catubig. The RTC, moreover, was convinced through the testimony of Maypa, the Administrative and Personnel Manager of the Dumaguete branch of petitioner, that petitioner had exercised due diligence in the selection and supervision of its employee drivers, including Cabanilla.

Respondent appealed to the Court of Appeals. In its Decision dated November 17, 2005, the appellate court held that both Catubig and Cabanilla were negligent in driving their respective vehicles. Catubig, on one hand, failed to use reasonable care for his own safety and ignored the hazard when he tried to overtake a truck at a curve. Cabanilla, on the other hand, was running his vehicle at a high speed of 100 kilometers per hour. The Court of Appeals also brushed aside the defense of petitioner that it exercised the degree of diligence exacted by law in the conduct of its business. Maypa was not in a position to testify on the procedures followed by petitioner in hiring Cabanilla as an employee driver considering that Cabanilla was hired a year before Maypa assumed his post at the Dumaguete branch of petitioner.

Thus, the Court of Appeals decreed:

WHEREFORE, based on the foregoing, the assailed decision of the trial court is modified. We rule that [herein petitioner] is equally liable for the accident in question which led to the deaths of Quintin Catubig, Jr. and Teddy Emperado and hereby award to the heirs of Quintin Catubig, Jr. the amount [of] P250,000.00 as full compensation for the death of the latter.[19]

After trial, the RTC concluded:

The Court of Appeals denied the motion for reconsideration of petitioner in a Resolution dated November 16, 2006.

exemplary damages is likewise contrary to the ruling of the appellate court that Catubig should be equally held liable for his own death.

Hence, the instant Petition for Review.

Petitioner asserts that respondents complaint for damages should be dismissed for the latters failure to verify the same. The certification against forum shopping attached to the complaint, signed by respondent, is not a valid substitute for respondents verification that she has read the pleading and that the allegations therein are true and correct of her personal knowledge or based on authentic records.[20] Petitioner cited jurisprudence in which the Court ruled that a pleading lacking proper verification is treated as an unsigned pleading, which produces no legal effect under Section 3, Rule 7 of the Rules of Court.

Respondent maintains that the Court of Appeals correctly adjudged petitioner to be liable for Catubigs death and that the appellate court had already duly passed upon all the issues raised in the petition at bar.

The petition is meritorious.

At the outset, we find no procedural defect that would have warranted the outright dismissal of respondents complaint.

Petitioner also denies any vicarious or imputed liability under Article 2180, in relation to Article 2176, of the Civil Code. According to petitioner, respondent failed to prove the culpability of Cabanilla, the employee driver of petitioner. There are already two trial court decisions (i.e., the Resolution dated December 22, 1994 of the MCTC of Manjuyod-Bindoy-Ayungon of the Province of Negros Oriental in Criminal Case No. M-1594 and the Decision dated January 26, 2000 of the RTC in the instant civil suit) explicitly ruling that the proximate cause of the collision was Catubigs reckless and negligent act. Thus, without the fault or negligence of its employee driver, no liability at all could be imputed upon petitioner.

Respondent filed her complaint for damages against petitioner on July 19, 1995, when the 1964 Rules of Court was still in effect. Rule 7, Section 6 of the 1964 Rules of Court provided:

SEC. 6. Verification.A pleading is verified only by an affidavit stating that the person verifying has read the pleading and that the allegations thereof are true of his own knowledge.

Verifications based on "information and belief," or upon "knowledge, information and belief," shall be deemed insufficient.

Petitioner additionally argues, without conceding any fault or liability, that the award by the Court of Appeals in respondents favor of the lump sum amount of P250,000.00 as total death indemnity lacks factual and legal basis. Respondents evidence to prove actual or compensatory damages are all selfserving, which are either inadmissible in evidence or devoid of probative value. The award of moral and

On July 1, 1997, the new rules on civil procedure took effect. The foregoing provision was carried on, with a few amendments, as Rule 7, Section 4 of the 1997 Rules of Court, viz:

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

A pleading is verified by an affidavit that the affiant has read the pleading and that the allegations therein are true and correct of his knowledge and belief.

specifically requires that respondents complaint for damages should have been verified.

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

Although parties would often submit a joint verification and certificate against forum shopping, the two are different.

In Pajuyo v. Court of Appeals,[21] we already pointed out that:

The same provision was again amended by A.M. No. 00-2-10, which became effective on May 1, 2000. It now reads:

A partys failure to sign the certification against forum shopping is different from the partys failure to sign personally the verification. The certificate of nonforum shopping must be signed by the party, and not by counsel. The certification of counsel renders the petition defective.

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

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

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

On the other hand, the requirement on verification of a pleading is a formal and not a jurisdictional requisite. It is intended simply to secure an assurance that what are alleged in the pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. The party need not sign the verification. A partys representative, lawyer or any person who personally knows the truth of the facts alleged in the pleading may sign the verification.[22]

The 1997 Rules of Court, even prior to its amendment by A.M. No. 00-2-10, clearly provides that a pleading lacking proper verification is to be treated as an unsigned pleading which produces no legal effect. However, it also just as clearly states that [e]xcept when otherwise specifically required by law or rule, pleadings need not be under oath, verified or accompanied by affidavit. No such law or rule

In the case before us, we stress that as a general rule, a pleading need not be verified, unless there is a law or rule specifically requiring the same. Examples of pleadings that require verification are: (1) all pleadings filed in civil cases under the 1991 Revised Rules on Summary Procedure; (2) petition for review from the Regional Trial Court to the Supreme Court raising only questions of law under Rule 41, Section 2; (3) petition for review of the decision of the Regional Trial Court to the Court of Appeals under Rule 42, Section 1; (4) petition for review from quasi-judicial bodies to the Court of Appeals under Rule 43, Section

5; (5) petition for review before the Supreme Court under Rule 45, Section 1; (6) petition for annulment of judgments or final orders and resolutions under Rule 47, Section 4; (7) complaint for injunction under Rule 58, Section 4; (8) application for preliminary injunction or temporary restraining order under Rule 58, Section 4; (9) application for appointment of a receiver under Rule 59, Section 1; (10) application for support pendente lite under Rule 61, Section 1; (11) petition for certiorari against the judgments, final orders or resolutions of constitutional commissions under Rule 64, Section 2; (12) petition for certiorari, prohibition, and mandamus under Rule 65, Sections 1 to 3; (13) petition for quo warranto under Rule 66, Section 1; (14) complaint for expropriation under Rule 67, Section 1; (15) petition for indirect contempt under Rule 71, Section 4, all from the 1997 Rules of Court; (16) all complaints or petitions involving intracorporate controversies under the Interim Rules of Procedure on Intra-Corporate Controversies; (17) complaint or petition for rehabilitation and suspension of payment under the Interim Rules on Corporate Rehabilitation; and (18) petition for declaration of absolute nullity of void marriages and annulment of voidable marriages as well as petition for summary proceedings under the Family Code.

We agree with petitioner, nonetheless, that respondent was unable to prove imputable negligence on the part of petitioner.

Prefatorily, we restate the time honored principle that in a petition for review under Rule 45, only questions of law may be raised. It is not our function to analyze or weigh all over again evidence already considered in the proceedings below, our jurisdiction is limited to reviewing only errors of law that may have been committed by the lower court. The resolution of factual issues is the function of lower courts, whose findings on these matters are received with respect. A question of law which we may pass upon must not involve an examination of the probative value of the evidence presented by the litigants.[24]

In contrast, all complaints, petitions, applications, and other initiatory pleadings must be accompanied by a certificate against forum shopping, first prescribed by Administrative Circular No. 04-94, which took effect on April 1, 1994, then later on by Rule 7, Section 5 of the 1997 Rules of Court. It is not disputed herein that respondents complaint for damages was accompanied by such a certificate.

In addition, verification, like in most cases required by the rules of procedure, is a formal, not jurisdictional, requirement, and mainly intended to secure an assurance that matters which are alleged are done in good faith or are true and correct and not of mere speculation. When circumstances warrant, the court may simply order the correction of unverified pleadings or act on it and waive strict compliance with the rules in order that the ends of justice may thereby be served.[23]

The above rule, however, admits of certain exceptions. The findings of fact of the Court of Appeals are generally conclusive but may be reviewed when: (1) the factual findings of the Court of Appeals and the trial court are contradictory; (2) the findings are grounded entirely on speculation, surmises or conjectures; (3) the inference made by the Court of Appeals from its findings of fact is manifestly mistaken, absurd or impossible; (4) there is grave abuse of discretion in the appreciation of facts; (5) the appellate court, in making its findings, goes beyond the issues of the case and such findings are contrary to the admissions of both appellant and appellee; (6) the judgment of the Court of Appeals is premised on a misapprehension of facts; (7) the Court of Appeals fails to notice certain relevant facts which, if properly considered, will justify a different conclusion; and (8) the findings of fact of the Court of Appeals are contrary to those of the trial court or are mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by respondent, or where the findings of fact of the Court of Appeals are premised on the absence of evidence but are contradicted by the evidence on record.[25]

The issue of negligence is basically factual.[26] Evidently, in this case, the RTC and the Court of Appeals have contradictory factual findings: the former found that Catubig alone was negligent, while the latter adjudged that both Catubig and petitioner were negligent.

Respondent based her claim for damages on Article 2180, in relation to Article 2176, of the Civil Code, which read:

There is merit in the argument of the petitioner that Article 2180 of the Civil Code imputing fault or negligence on the part of the employer for the fault or negligence of its employee does not apply to petitioner since the fault or negligence of its employee driver, Cabanilla, which would have made the latter liable for quasi-delict under Article 2176 of the Civil Code, has never been established by respondent. To the contrary, the totality of the evidence presented during trial shows that the proximate cause of the collision of the bus and motorcycle is attributable solely to the negligence of the driver of the motorcycle, Catubig.

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

Art. 2180. The obligation imposed by Article 2176 is demandable not only for ones own acts or omissions, but also for those persons for whom one is responsible.

xxxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry.

Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. And more comprehensively, the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.[27]

xxxx

The RTC concisely articulated and aptly concluded that Catubigs overtaking of a slow-moving truck ahead of him, while approaching a curve on the highway, was the immediate and proximate cause of the collision which led to his own death, to wit:

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

Based on the evidence on record, it is crystal clear that the immediate and proximate cause of the collision is the reckless and negligent act of Quintin Catubig, Jr. and not because the Ceres Bus was running very fast. Even if the Ceres Bus is running very fast on its lane, it could not have caused the collision if not for the fact that Quintin Catubig, Jr.

tried to overtake a cargo truck and encroached on the lane traversed by the Ceres Bus while approaching a curve. As the driver of the motorcycle, Quintin Catubig, Jr. has not observed reasonable care and caution in driving his motorcycle which an ordinary prudent driver would have done under the circumstances. Recklessness on the part of Quintin Catubig, Jr. is evident when he tried to overtake a cargo truck while approaching a curve in Barangay Donggo-an, Bolisong, Manjuyod, Negros Oriental. Overtaking is not allowed while approaching a curve in the highway (Section 41(b), Republic Act [No.] 4136, as amended). Passing another vehicle proceeding on the same direction should only be resorted to by a driver if the highway is free from incoming vehicle to permit such overtaking to be made in safety (Section 41(a), Republic Act [No.] 4136). The collision happened because of the recklessness and carelessness of [herein respondents] husband who was overtaking a cargo truck while approaching a curve. Overtaking another vehicle while approaching a curve constitute reckless driving penalized not only under Section 48 of Republic Act [No.] 4136 but also under Article 365 of the Revised Penal Code.

PO2 Elnas, on the other hand, made inconsistent statements as to the actual speed of the bus at the time of the collision. During the preliminary investigation in Criminal Case No. M-15-94 before the MCTC, PO2 Elnas refused to give testimony as to the speed of either the bus or the motorcycle at the time of the collision and an opinion as to who was at fault.[30] But during the trial of the present case before the RTC, PO2 Elnas claimed that he was told by Cabanilla that the latter was driving the bus at the speed of around 100 kilometers per hour.[31]

The Court commiserate with the [respondent] for the untimely death of her husband. However, the Court as dispenser of justice has to apply the law based on the facts of the case. Not having proved by preponderance of evidence that the proximate cause of the collision is the negligence of the driver of the Ceres bus, this Court has no other option but to dismiss this case.[28] (Emphases supplied.)

As the RTC noted, Cadimas and PO2 Elnas both pointed out that the motorcycle encroached the lane of the bus when it tried to overtake, while nearing a curve, a truck ahead of it, consistent with the fact that the point of impact actually happened within the lane traversed by the bus. It would be more reasonable to assume then that it was Catubig who was driving his motorcycle at high speed because to overtake the truck ahead of him, he necessarily had to drive faster than the truck. Catubig should have also avoided overtaking the vehicle ahead of him as the curvature on the road could have obstructed his vision of the oncoming vehicles from the opposite lane.

The evidence shows that the driver of the bus, Cabanilla, was driving his vehicle along the proper lane, while the driver of the motorcycle, Catubig, had overtaken a vehicle ahead of him as he was approaching a curvature on the road, in disregard of the provision of the law on reckless driving, at the risk of his life and that of his employee, Emperado.

The testimonies of prosecution witnesses Cadimas and PO2 Elnas that Cabanilla was driving the bus at a reckless speed when the collision occurred lack probative value.

We are unable to establish the actual speed of the bus from Cadimass testimony for he merely stated that the bus did not stop when he tried to flag it down because it was running very fast.[29]

The presumption that employers are negligent under Article 2180 of the Civil Code flows from the negligence of their employees.[32] Having adjudged that the immediate and proximate cause of the collision resulting in Catubigs death was his own negligence, and there was no fault or negligence on Cabanillas part, then such presumption of fault or negligence on the part of petitioner, as Cabanillas employer, does not even arise. Thus, it is not even

necessary to delve into the defense of petitioner that it exercised due diligence in the selection and supervision of Cabanilla as its employee driver.

CARPIO MORALES, J.: Assailed via petition for review on certiorari are the Decision dated February 2, 20071 and Order dated October 22, 20072 of Branch 3 of the Regional Trial Court (RTC) of Iligan City, which denied petitioners petition for mandamus praying for a writ commanding the city accountant of Iligan, Camilo G. Empleo (Empleo), or his successor in office, to issue a certification of availability of funds in connection with their appointments, issued by then Iligan City Mayor Franklin M. Quijano (Mayor Quijano), which were pending approval by the Civil Service Commission (CSC). Sometime in July 2003, Mayor Quijano sent notices of numerous vacant career positions in the city government to the CSC. The city government and the CSC thereupon proceeded to publicly announce the existence of the vacant positions. Petitioners and other applicants submitted their applications for the different positions where they felt qualified.

WHEREFORE, premises considered, the petition is GRANTED. The Decision dated November 17, 2005 and Resolution dated November 16, 2006 of the Court Appeals in CA-G.R. CV No. 66815 are SET ASIDE and the Decision dated January 26, 2000 of the Regional Trial Court, Branch 30 of Dumaguete City, dismissing Civil Case No. 11360 is REINSTATED.

SO ORDERED.

ALTRES V. EMPLEO
G.R. No. 180986 December 10, 2008

NORBERTO ALTRES, EVITA BULINGAN, EVANGELINE SASTINE, FELIPE SASA, LILIBETH SILLAR, RAMONITO JAYSON, JELO TUCALO, JUAN BUCA, JR., JUE CHRISTINE CALAMBA, ROMEO PACQUINGAN, JR., CLEO JEAN ANGARA, LOVENA OYAO, RODOLFO TRINIDAD, LEONILA SARA, SORINA BELDAD, MA. LINDA NINAL, LILIA PONCE, JOSEFINA ONGCOY, ADELYN BUCTUAN, ALMA ORBE, MYLENE SOLIVA, NAZARENE LLOREN, ELIZABETH MANSERAS, DIAMOND MOHAMAD, MARYDELL CADAVOS, ELENA DADIOS, ALVIN CASTRO, LILIBETH RAZO, NORMA CEPRIA, PINIDO BELEY, JULIUS HAGANAS, ARTHUR CABIGON, CERILA BALABA, LIEZEL SIMAN, JUSTINA YUMOL, NERLITA CALI, JANETH BICOY, HENRY LACIDA, CESARIO ADVINCULA, JR., MERLYN RAMOS, VIRGIE TABADA, BERNARDITA CANGKE, LYNIE GUMALO, ISABEL ADANZA, ERNESTO LOBATON, RENE ARIMAS, FE SALVACION ORBE, JULIE QUIJANO, JUDITHO LANIT, GILBERTO ELIMIA, MANUEL PADAYOGDOG, HENRY BESIN, ROMULO PASILANG, BARTOLOME TAPOYAO, JR., RUWENA GORRES, MARIBETH RONDEZ, FERDINAND CAORONG, TEODOMERO CORONEL, ELIZABETH SAGPANG, and JUANITA ALVIOLA, petitioners, vs. CAMILO G. EMPLEO, FRANKLIN MAATA, LIVEY VILLAREN, RAIDES CAGA, FRANCO BADELLES, ERNESTO BALAT, GRACE SAQUILABON, MARINA JUMALON and GEORGE DACUP,respondents. DECISION

Toward the end of his term or on May 27, June 1, and June 24, 2004, Mayor Quijano issued appointments to petitioners. the meantime, the Sangguniang Panglungsod issued Resolution No. 04-2423 addressed In to the CSC Iligan City Field Office requesting a suspension of action on the processing of appointments to all vacant positions in the plantilla of the city government as of March 19, 2004 until the enactment of a new budget.

The Sangguniang Panglungsod subsequently issued Resolution No. 04-2664 which, in view of its stated policy against "midnight appointments," directed the officers of the City Human Resource Management Office to hold in abeyance the transmission of all appointments signed or to be signed by the incumbent mayor in order to ascertain whether these had been hurriedly prepared or carefully considered and whether the matters of promotion and/or qualifications had been properly addressed. The same Resolution enjoined all officers of the said Office to put off the transmission of all appointments to the CSC, therein making it clear that non-compliance therewith would be met with administrative action. Respondent city accountant Empleo did not thus issue a certification as to availability of funds for the payment of salaries and wages of petitioners, as required by Section 1(e)(ii), Rule V of CSC Memorandum Circular No. 40, Series of 1998 reading:

xxxx e. LGU Appointment. Appointment in local government units for submission to the Commission shall beaccompanied, in addition to the common requirements, by the following: xxxx ii. Certification by the Municipal/City Provincial Accountant/Budget Officer that funds are available. (Emphasis and underscoring supplied) And the other respondents did not sign petitioners position description forms. The CSC Field Office for Lanao del Norte and Iligan City disapproved the appointments issued to petitioners invariably due to lack of certification of availability of funds. On appeal by Mayor Quijano, CSC Regional Office No. XII in Cotabato City, by Decision of July 30, 2004,5dismissed the appeal, it explaining that its function in approving appointments is only ministerial, hence, if an appointment lacks a requirement prescribed by the civil service law, rules and regulations, it would disapprove it without delving into the reasons why the requirement was not complied with. Petitioners thus filed with the RTC of Iligan City the above-stated petition for mandamus against respondent Empleo or his successor in office for him to issue a certification of availability of funds for the payment of the salaries and wages of petitioners, and for his co-respondents or their successors in office to sign the position description forms. As stated early on, Branch 3 of the Iligan RTC denied petitioners petition for mandamus. It held that, among other things, while it is the ministerial duty of the city accountant to certify as to the availability of budgetary allotment to which expenses and obligations may properly be charged under Section 474(b)(4) of Republic Act No. 7160,6 otherwise known as the Local Government Code of 1991, the city accountant cannot be compelled to issue a certification as to availability of funds for the payment of salaries and wages of petitioners as this ministerial function pertains to the citytreasurer. In so holding, the trial court relied on Section 344 of the Local Government Code of 1991 the pertinent portion of which provides:

344. Certification and Approval of Vouchers. No money shall be disbursed Sec.

unless the local budget officer certifies to the existence of appropriation that has been legally made for the purpose, the local accountant has obligated said appropriation, and the local treasurer certifies to the availability of funds for the purpose. x x x x (Underscoring supplied) Petitioners filed a motion for reconsideration7 in which they maintained only their prayer for a writ of mandamus for respondent Empleo or his successor in office to issue a certification of availability of funds for the payment of their salaries and wages. The trial court denied the motion by Order of October 22, 2007,8 hence, the present petition. By Resolution of January 22, 2008,9 this Court, without giving due course to the petition, required respondents to comment thereon within ten (10) days from notice, and at the same time required petitioners to comply, within the same period, with the relevant provisions of the 1997 Rules of Civil Procedure. Petitioners filed a Compliance Report dated February 18, 200810 to which they attached 18 copies of (a) a verification and certification, (b) an affidavit of service, and (c) photocopies of counsels Integrated Bar of the Philippines (IBP) official receipt for the year 2008 and his privilege tax receipt for the same year. Respondents duly filed their Comment,11 alleging technical flaws in petitioners petition, to which Comment petitioners filed their Reply12 in compliance with the Courts Resolution dated April 1, 2008.13 The lone issue in the present petition is whether it is Section 474(b)(4) or Section 344 of the Local Government Code of 1991 which applies to the requirement of certification of availability of funds under Section 1(e)(ii), Rule V of CSC Memorandum Circular Number 40, Series of 1998. As earlier stated, the trial court ruled that it is Section 344. Petitioners posit, however, that it is Section 474(b)(4) under which it is the ministerial duty of the city accountant to issue the certification, and not Section 344 which pertains to the ministerial function of the city treasurer to issue the therein stated certification. A discussion first of the technical matters questioned by respondents is in order. Respondents assail as defective the verification and certification against forum shopping attached to the

petition as it bears the signature of only 11 out of the 59 petitioners, and no competent evidence of identity was presented by the signing petitioners. They thus move for the dismissal of the petition, citing Section 5, Rule 714 vis a vis Section 5, Rule 4515 of the 1997 Rules of Civil Procedure and Docena v. 16 Lapesura which held that the certification against forum shopping should be signed by all the petitioners or plaintiffs in a case and that the signing by only one of them is insufficient as the attestation requires personal knowledge by the party executing the same.17 Petitioners, on the other hand, argue that they have a justifiable cause for their inability to obtain the signatures of the other petitioners as they could no longer be contacted or are no longer interested in pursuing the case.18 Petitioners plead substantial compliance, citing Huntington Steel Products, Inc., et al. v. NLRC19 which held, among other things, that while the rule is mandatory in nature, substantial compliance under justifiable circumstances is enough. Petitioners position is more in accord with recent decisions of this Court. In Iglesia ni Cristo v. Ponferrada,20 the Court held: The substantial compliance rule has been applied by this Court in a number of cases: Cavile v. Heirs of Cavile, where the Court sustained the validity of the certification signed by only one of petitioners because he is a relative of the other petitioners and coowner of the properties in dispute; Heirs of

attached to the original petition for certiorari filed with the Court of Appeals was signed by only two out of over 100 petitioners and the same was filed one day beyond the period allowed by the Rules. The appellate court initially resolved to dismiss the original petition precisely for these reasons, but on the therein petitioners motion for reconsideration, the appellate court ordered the filing of an amended petition in order to include all the original complainants numbering about 240. An amended petition was then filed in compliance with the said order, but only 180 of the 240 original complainants signed the verification and certification against forum shopping. The Court of Appeals granted the motion for reconsideration and resolved to reinstate the petition. In sustaining the Court of Appeals in Tan, the Court held that it is a far better and more prudent course of action to excuse a technical lapse and afford the parties a review of the case to attain the ends of justice, rather than dispose of the case on technicality and cause grave injustice to the parties, giving a false impression of speedy disposal of cases while actually resulting in more delay, if not a miscarriage of justice. The Court further discoursed in Tan: Under justifiable circumstances, we have already allowed the relaxation of the requirements of verification and certification so that the ends of justice may be better served. Verification is simply intended to secure an assurance that the allegations in the pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith; while the purpose of the aforesaid certification is to prohibit and penalize the evils of forum shopping. In Torres

Agapito T. Olarte v. Office of the President of the Philippines, where the Court allowed a

certification signed by only two petitioners because the case involved a family home in which all the petitioners shared a common interest; Gudoy v. Guadalquiver, where the Court considered as valid the certification signed by only four of the nine petitioners because all petitioners filed as co-owners pro indiviso a complaint against respondents for quieting of title and damages, as such, they all have joint interest in the undivided whole; and DAR v. Alonzo-Legasto, where the Court sustained the certification signed by only one of the spouses as they were sued jointly involving a property in which they hada common interest.21 (Italics in the original, underscoring supplied) Very recently, in Tan, et al. v. Ballena, et al.,22 the verification and certification against forum shopping

v. Specialized Packaging Development Corporation, we ruled that the

verification requirement had been substantially complied with despite the fact that only two (2) out of the twenty-five (25) petitioners have signed the petition for review and the verification. In that case, we held that the two signatories were unquestionably real partiesin-interest, who undoubtedly had sufficient knowledge and belief to swear to the truth of the allegations in the Petition. In Ateneo de Naga University v. Manalo, we also ruled that there was substantial compliance with the requirement of verification when only one of the petitioners, the President

of the University, signed for and on behalf of the institution and its officers. in Bases Conversion and Development Authority v. Uy, we allowed the Similarly,

they could no longer be contacted or are no longer interested in pursuing the case need not merit the outright dismissal of the petition without defeating the administration of justice. The non-signing petitioners are, however, dropped as parties to the case. In fact, even Docena24 cited by respondents sustains petitioners position. In that case, the certification against forum shopping was signed by only one of the petitioning spouses. The Court held that the certification against forum shopping should be deemed to constitute substantial compliance with the Rules considering, among other things, that the petitioners were husband and wife, and that the subject property was their residence which was alleged in their verified petition to be conjugal.25 With respect to petitioners non-presentation of any identification before the notary public at the time they swore to their verification and certification attached to the petition, suffice it to state that this was cured by petitioners compliance26with the Courts Resolution of January 22, 200827 wherein they submitted a notarized verification and certification bearing the details of their community tax certificates. This, too, is substantial compliance. The Court need not belabor its discretion to authorize subsequent compliance with the Rules. For the guidance of the bench and bar, the Court restates in capsule form the jurisprudential pronouncements already reflected above respecting non-compliance with the requirements on, or submission of defective, verification and certification against forum shopping: 1) A distinction must be made between noncompliance with the requirement on or submission of defective verification, and non-compliance with the requirement on or submission of defective certification against forum shopping. 2) As to verification, non-compliance therewith or a defect therein does not necessarily render the pleading fatally defective. The court may order its submission or correction or act on the pleading if the attending circumstances are such that strict compliance with the Rule may be dispensed with in order that the ends of justice may be served thereby.28 3) Verification is deemed substantially complied with when one who has ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the

signature of only one of the principal parties in the case despite the absence of a Board Resolution which conferred upon him the authority to represent the petitioner BCDA. In the present case, the circumstances squarely involve a verification that was not signed by all the petitioners therein. Thus, we see no reason why we should not uphold the ruling of the Court of Appeals in reinstating the petition despite the said formal defect. On the requirement of a certification of nonforum shopping, the well-settled rule is that all the petitioners must sign the certification of non-forum shopping. The reason for this is that the persons who have signed the certification cannot be presumed to have the personal knowledge of the other non-signing petitioners with respect to the filing or nonfiling of any action or claim the same as or similar to the current petition. The rule, however, admits of an exception and that is when the petitioners show reasonable cause for failure to personally sign the certification. The petitioners must be able to convince the court that the outright dismissal of the petition woulddefeat the administration of justice. In the case at bar, counsel for the respondents disclosed that most of the respondents who were the original complainants have since sought employment in the neighboring towns of Bulacan, Pampanga and Angeles City. Only the one hundred eighty (180) signatories were then available to sign the amended Petition for Certiorari and the accompanying verification and certification of non-forum shopping.23 In the present case, the signing of the verification by only 11 out of the 59 petitioners already sufficiently assures the Court that the allegations in the pleading are true and correct and not the product of the imagination or a matter of speculation; that the pleading is filed in good faith; and that the signatories are unquestionably real parties-in-interest who undoubtedly have sufficient knowledge and belief to swear to the truth of the allegations in the petition. With respect to petitioners certification against forum shopping, the failure of the other petitioners to sign as

petition have been made in good faith or are true and correct.29 4) As to certification against forum shopping, noncompliance therewith or a defect therein, unlike in verification, is generally not curable by its subsequent submission or correction thereof, unless there is a need to relax the Rule on the ground of "substantial compliance" or presence of "special circumstances or compelling reasons."30 5) The certification against forum shopping must be signed by all the plaintiffs or petitioners in a case;31 otherwise, those who did not sign will be dropped as parties to the case. Under reasonable or justifiable circumstances, however, as when all the plaintiffs or petitioners share a common interest and invoke a common cause of action or defense, the signature of only one of them in the certification against forum shopping substantially complies with the Rule.32 6) Finally, the certification against forum shopping must be executed by the party-pleader, not by his counsel.33 If, however, for reasonable or justifiable reasons, the party-pleader is unable to sign, he must execute a Special Power of Attorney34 designating his counsel of record to sign on his behalf. And now, on respondents argument that petitioners raise questions of fact which are not proper in a petition for review on certiorari as the same must raise only questions of law. They entertain doubt on whether petitioners seek the payment of their salaries, and assert that the question of whether the city accountant can be compelled to issue a certification of availability of funds under the circumstances herein obtaining is a factual issue.35 The Court holds that indeed petitioners are raising a question of law. The Court had repeatedly clarified the distinction between a question of law and a question of fact. A question of law exists when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts; or when the issue does not call for an examination of the probative value of the evidence presented, the truth or falsehood of facts being admitted.36 A question of fact, on the other hand, exists when the doubt or difference arises as to the truth or falsehood of facts or when the query invites calibration of the whole evidence considering mainly the credibility of the witnesses, the existence and relevance of specific surrounding circumstances, as well as their relation to

each other and to the whole, and the probability of the situation.37 When there is no dispute as to fact, the question of whether the conclusion drawn therefrom is correct is a question of law.38 In the case at bar, the issue posed for resolution does not call for the reevaluation of the probative value of the evidence presented, but rather the determination of which of the provisions of the Local Government Code of 1991 applies to the Civil Service Memorandum Circular requiring a certificate of availability of funds relative to the approval of petitioners appointments. At all events, respondents contend that the case has become moot and academic as the appointments of petitioners had already been disapproved by the CSC. Petitioners maintain otherwise, arguing that the act of respondent Empleo in not issuing the required certification of availability of funds unduly interfered with the power of appointment of then Mayor Quijano; that the Sangguniang Panglungsod Resolutions relied upon by respondent Empleo constituted legislative intervention in the mayors power to appoint; and that the prohibition against midnight appointments applies only to presidential appointments as affirmed in De Rama v. Court of Appeals.39 The Court finds that, indeed, the case had been rendered moot and academic by the final disapproval of petitioners appointments by the CSC. The mootness of the case notwithstanding, the Court resolved to rule on its merits in order to settle the issue once and for all, given that the contested action is one capable of repetition40 or susceptible of recurrence. The pertinent portions of Sections 474(b)(4) and 344 of the Local Government Code of 1991 provide: Section 474. Qualifications, Powers and Duties. xxxx (b) The accountant shall take charge of both the accounting and internal audit services of the local government unit concerned and shall: xxxx (4) certify to the availability of budgetary allotment to which expenditures and obligations may be properly charged. (Emphasis and underscoring supplied)

xxxx 344. Certification and Approval of Vouchers. No money shall be disbursed unless the local budget officer certifies to the existence of appropriation that has been legally made for the purpose, the local accountanthas obligated said appropriation, and the local treasurer certifies to the availability of funds for the purpose. x x x (Emphasis and underscoring supplied) Sec. Petitioners propound the following distinctions between Sections 474(b)(4) and 344 of the Local Government Code of 1991: (1) Section 474(b)(4) speaks of certification of availability of budgetary allotment, while Section 344 speaks of certification of availability of funds for disbursement; (2) Under Section 474(b)(4), before a certification is issued, there must be an appropriation, while under Section 344, before a certification is issued, two requisites must concur: (a) there must be an appropriation legally made for the purpose, and (b) the local accountant has obligated said appropriation; (3) Under Section 474(b)(4), there is no actual payment involved because the certification is for the purpose of obligating a portion of the appropriation; while under Section 344, the certification is for the purpose of payment after the local accountant had obligated a portion of the appropriation; (4) Under Section 474(b)(4), the certification is issued if there is an appropriation, let us say, for the salaries of appointees; while under Section 344, the certification is issued if there is an appropriation and the same is obligated, let us say, for the payment of salaries of employees.41 Respondents do not squarely address the issue in their Comment. Section 344 speaks of actual disbursements of money from the local treasury in payment of due and demandable obligations of the local government unit. The disbursements are to be made through the issuance, certification, and approval of vouchers. The full text of Section 344 provides:

344. Certification and Approval of Vouchers. No money shall be disbursed unless the local budget officer certifies to the existence of appropriation that has been legally made for the purpose, the local accountant has obligated said appropriation, and the local treasurer certifies to the availability of funds for the purpose. Vouchers and payrolls shall be certified to and approved by the head of the department or office who has administrative control of the fund concerned, as to validity, propriety, and legality of the claim involved. Sec. Except in cases of disbursements involving regularly recurring administrative expenses such as payrolls for regular or permanent employees, expenses for light, water, telephone and telegraph services, remittances to government creditor agencies such as GSIS, SSS, LDP, DBP, National Printing Office, Procurement Service of the DBM and others, approval of the disbursement voucher by the local chief executive himself shall be required whenever local funds are disbursed.

In cases of special or trust funds, disbursements shall be approved by the administrator of the fund. In case of temporary absence or incapacity of the department head or chief of office, the officer next-in-rank shall automatically perform his function and he shall be fully responsible therefor. (Italics and underscoring supplied) "Voucher," in its ordinary meaning, is a document which shows that services have been performed or expenses incurred.42 When used in connection with disbursement of money, it implies the existence of an instrument that shows on what account or by what authority a particular payment has been made, or that services have been performed which entitle the party to whom it is issued to payment.43 Section 344 of the Local Government Code of 1991 thus applies only when there is already an obligation to pay on the part of the local government unit, precisely because vouchers are issued only when services have been performed or expenses incurred. The requirement of certification of availability of funds from the city treasurer under Section 344 of the Local Government Code of 1991 is for the purpose of facilitating the approval of vouchers issued for the payment of services already rendered to, and expenses incurred by, the local government unit.

The trial court thus erred in relying on Section 344 of the Local Government Code of 1991 in ruling that the ministerial function to issue a certification as to availability of funds for the payment of the wages and salaries of petitioners pertains to the city treasurer. For at the time material to the required issuance of the certification, the appointments issued to petitioners were not yet approved by the CSC, hence, there were yet no services performed to speak of. In other words, there was yet no due and demandable obligation of the local government to petitioners. Section 474, subparagraph (b)(4) of the Local Government Code of 1991, on the other hand, requires the cityaccountant to "certify to the availability of budgetary allotment to which expenditures and obligations may be properly charged."44 By necessary implication, it includes the duty to certify to the availability of funds for the payment of salaries and wages of appointees to positions in the plantilla of the local government unit, as required under Section 1(e)(ii), Rule V of CSC Memorandum Circular Number 40, Series of 1998, a requirement before the CSC considers the approval of the appointments. In fine, whenever a certification as to availability of funds is required for purposes other than actual payment of an obligation which requires disbursement of money, Section 474(b)(4) of the Local Government Code of 1991 applies, and it is the ministerial duty of the city accountant to issue the certification. WHEREFORE, the Court declares that it is Section 474(b)(4), not Section 344, of the Local Government Code of 1991, which applies to the requirement of certification of availability of funds under Section 1(e)(ii), Rule V of Civil Service Commission Memorandum Circular Number 40, Series of 1998. SO ORDERED. CONCHITA Associate Justice CARPIO MORALES

THEIR

ATTORNEY-IN-FACT,

RESPONDENTS.

DECISION MENDOZA, J.: This is a petition for review on certiorari assailing the August 11, 2005 Decision[1] of the Court of Appeals (CA), in CA-GR. SP No. 89329, filed by petitioners, Spouses Francisco De Guzman, Jr. and Amparo O. De Guzman (petitioners). In the assailed decision, the CA found no commission of grave abuse of discretion when the public respondent therein, Judge Amelia A. Fabros (Judge Fabros), Presiding Judge of the Regional Trial Court, Pasig City, Branch 160 (RTC), denied petitioners' second motion to dismiss, in Civil Case No. 68896, an action for annulment of contract and damages. The facts of the case have summarized by the CA as follows: been succinctly

On March 25, 2002, respondent spouses Cesar Ochoa and Sylvia Ochoa, through respondent Araceli Azores, ostensibly acting as attorney-in-fact, commenced in the Regional Trial Court (RTC) in Pasig City an action seeking the annulment of contract of mortgage, foreclosure sale, certificate of sale and damages. The action, docketed as Civil Case No. 68896 and entitled Cesar Ochoa and Sylvia A. Ochoa, etc. v. Josefa M. Guevarra, et al., was raffled to Branch 160, presided by the respondent RTC Judge. On May 22, 2002, the petitioners, as defendants in Civil Case No. 68896, filed a motion to dismiss, alleging the sole ground that the complaint did not state a cause of action. The petitioners' motion to dismiss was formally opposed by the private respondents. On December 16, 2002, the respondent RTC Judge denied petitioners' motion to dismissand at the same time set Civil Case No. 68896 for pre-trial conference, directing the parties to submit their respective pre-trial briefs. On March 31, 2003, the petitioners filed a second motion to dismiss, alleging that the certification against forum shopping attached to the complaint was not executed by the principal parties (plaintiffs) in violation of Sec. 5, Rule 7, 1997 Rules of Civil Procedure, rendering the complaint fatally defective and thus dismissible. The private respondents opposed the second motion

SPS DE GUZMAN V. OCHOA

[G.R. No. 169292, April 13 : 2011]

SPOUSES FRANCISCO DE GUZMAN, JR. AND AMPARO O. DE GUZMAN, PETITIONERS, VS. CESAR OCHOA AND SYLVIA A. OCHOA, REPRESENTED BY ARACELI S. AZORES, AS

to

dismiss.

On February 12, 2004, the respondent RTC Judge issued her first assailed order, denying the second motion to dismiss, disposing thus: xxx Inasmuch as the records show that the pending incident is the second motion to dismiss filed by the defendants, the same is hereby Denied for lack of merit. SO ORDERED. On May 25, 2004. the petitioners filed their motion for reconsideration, but the respondent RTC Judge denied the motion through her second assailed order dated December 29, 2004, to wit: Acting on the Motion for Reconsideration (of the Order dated February 12, 2004, filed by the defendant Spouses Francisco and Amparo De Guzman, through counsel, on May 25, 2004, and after considering the grounds stated therein in support of their motion, and finding no cogent reason to warrant the reconsideration sought for, the motion is DENIED. SO ORDERED.[2] Aggrieved, petitioners elevated the order of denial to the CA via a petition for certiorari contending that the RTC should have dismissed the complaint motu proprio since it was fatally defective. They pointed out that the Verification and Certification of Non-Forum Shopping attached to the complaint was not signed by Cesar Ochoa or Sylvia Ochoa but by Araceli S. Azores (Azores), who was acting as the attorney-in-fact of Cesar Ochoa only. They invited the attention of the RTC to the fact that the powers delegated to Azores did not include the authority to institute an action in court. Thus, according to the petitioners, the denial by the RTC of their motion to dismiss was capricious, whimsical and arbitrary, amounting to lack or excess of jurisdiction and should be struck down as null and void. On August 11, 2005, the CA denied the petition for lack' of merit. The CA, in its decision, agreed with the RTC that following the omnibus motion rule, the defects of the complaint pointed out by the petitioners were deemed waived when they failed to raise it in their first motion to dismiss. Not in conformity, the petitioners filed this petition for review under Rule 45, anchored on this:

GROUND THE COURT A QUO DECIDED A QUESTION OF SUBSTANCE IN A MANNER NOT IN ACCORD WITH LAW AND JURISPRUDENCE WHEN IT REFUSED TO DISMISS, THE COMPLAINT DESPITE THE FACT THAT IT WAS INDUBITABLY SHOWN AND ESTABLISHED THAT THE ESSENTIAL REQUIREMENT OF CERTIFICATION OF NON-FORUM SHOPPING PURSUANT TO SECTION 5, RULE 7 OF THE RULES OF COURT WAS NOT OBSERVED AND COMPLIED WITH SINCE THE SAME WAS NOT ACCOMPLISHED PERSONALLY BY THE PURPORTED PLAINTIFFS THEREIN. It is the position of the petitioners that the second motion to dismiss does not violate the Omnibus Motion Rule under Section 8, Rule 15 of the Rules of Court because the issue raised in the second motion was a question of jurisdiction. For said reason, the matter of the defective verification and certification cannot be considered to have been waived when it was not interposed at the first instance. Considering that the issue is jurisdictional, the RTC should have dismissed the complaint motu proprio. The Court disagrees with the petitioners.

An order denying a motion to dismiss is an interlocutory order which neither terminates the case nor finally disposes of it, as it leaves something to be done by the court before the case is finally decided on the merits. As such, the general rule is that the denial of a motion to dismiss cannot be questioned in a special civil action for certiorari which is a remedy designed to correct errors of jurisdiction and not errors of judgment.[3] Therefore, an order denying a motion to dismiss may only be reviewed in the ordinary course of law by an appeal from the judgment after trial. The ordinary procedure to be followed in such cases is to file an answer, go to trial, and if the decision is adverse, reiterate the issue on appeal from the final judgment.[4] Only in exceptional cases where the denial of the motion to dismiss is tainted with grave abuse of discretion that the Court allows the extraordinary remedy of certiorari. By "grave abuse of discretion," we mean such capricious and whimsical exercise of judgment that is equivalent to lack of jurisdiction. The abuse of discretion must be grave as where the power is exercised in an arbitrary or despotic manner by

reason of passion or personal hostility, and must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal-to perform the duty enjoined by or to .act all in contemplation of law.[5] In this case, the petitioners failed to convincingly substantiate its charge of arbitrariness on the part of Judge Fabros. Absent such showing of arbitrariness, capriciousness, or ill motive, the Court cannot but sustain the ruling of the CA. Section 8, Rule 15 of the Rules of Court defines an omnibus motion as a motion attacking a pleading, judgment or proceeding. A motion to dismiss is an omnibus motion because it attacks a pleading, that is, the complaint. For this reason, a motion to dismiss, like any other omnibus motion, must raise and include all objections available at the time of the filing of the motion because under Section 8, "all objections not so included shall be deemed waived." As inferred from the provision, only the following defenses under Section 1, Rule 9, are excepted from its application: [a] lack of jurisdiction over the subject matter; [b] there is another action pending between the same parties for the same cause (litis pendentia); [c] the action is barred by prior judgment (res judicata); and [d] the action is barred by the statute of limitations or prescription. In the case at bench, the petitioners raised the ground of defective verification and certification of forum shopping only when they filed their second motion to dismiss, despite the fact that this ground was existent and available to them at the time of the filing of their first motion to dismiss. Absent any justifiable reason to explain this fatal omission, the ground of defective verification and certification of forum shopping was deemed waived and could no longer be questioned by the petitioners in their second motion to dismiss. Moreover, contrary to petitioners' assertion, the requirement regarding verification of a pleading is formal, not jurisdictional. Such requirement is simply a condition affecting the form of the pleading, and noncompliance with which does not necessarily render the pleading fatally defective. Verification is simply intended to secure an assurance that the allegations in the pleading are true and correct and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. In fact, the court may order the correction of the pleading if verification is lacking or act on the pleading although it is not verified, if the attending circumstances are such that strict compliance with the rules may be dispensed with in order that the ends of justice may thereby be served.[6]

Similarly, the rule requiring the submission of such certification of non-forum shopping, although obligatory, is not jurisdictional.[7] The certification requirement is rooted in the principle that a partylitigant shall not be allowed to pursue simultaneous remedies in different fora, as this Q practice is detrimental to an orderly judicial procedure.[8] As to whether the trial court should have dismissed the complaint motu proprio, the Court rules in the negative. Section 5, Rule 7 of the Rules of Court is clear that failure to comply with the requirements on the rule against forum shopping shall be cause for the dismissal of the case "upon motion and after hearing." WHEREFORE, SO the petition is DENIED. ORDERED.

Carpio, (Chairperson), Peralta, and Abad, JJ., concur.

Nachura,

UST V. SURLA

[G.R. No. 129718. August 17, 1998]

SANTO TOMAS UNIVERSITY HOSPITAL, petitioner vs. CESAR ANTONIO Y. SURLA and EVANGELINE SURLA, respondents. DECISION VITUG, J.: Can a compulsory counterclaim pleaded in an Answer be dismissed on the ground of a failure to accompany it with a certificate of non-forum shopping? This question is the core issue presented for resolution in the instant petition. First, a factual background. On 26 December 1995, respondent spouses filed a complaint for damages against petitioner Santo Tomas University Hospital with the Regional Trial Court of Quezon City predicated on an allegation by the spouses that their son, Emmanuel Cesar Surla, while confined at the said hospital for having been born prematurely, had accidentally fallen from his incubator on 16 April 1995 possibly causing serious

harm on the child. The case was raffled and assigned to Branch 226 of the Regional Trial Court of Quezon City, presided over by the Hon. Leah S. DomingoRegala, and there docketed Civil Case No. Q-9525977. On 28 February 1996, petitioner hospital filed its Answer with Compulsory Counterclaim asserting that respondents still owed to it the amount of P82,632.10 representing hospital bills for Emmanuels confinement at the hospital and making a claim for moral and exemplary damages, plus attorneys fees, by reason of the supposed unfounded and malicious suit filed against it. On 21 March 1996, petitioner received a copy of respondents Reply to Counterclaim, dated 12 March 1996, that sought, inter alia, the dismissal of petitioners counterclaim for its non-compliance with Supreme Court Administrative Circular No. 04-94 requiring that a complaint and other initiatory pleadings, such as a counterclaim, cross-claim, third (fourt, etc.) party complaint, be accompanied with a certificate of non-forum shopping. In its Rejoinder to respondents Reply to Counterclaim, petitioner contended that the subject circular should be held to refer only to a permissive counterclaim, an initiatory pleading not arising out of, nor necessarily connected with, the subject matter of the plaintiffs claim but not to a compulsory counterclaim spawned by the filing of a complaint and so intertwined therewith and logically related thereto that it verily could not stand for independent adjudication. Petitioner concluded that, since its counterclaim was compulsory in nature, the subject circular did not perforce apply to it.[1] In its Order of 22 March 1996, the trial court dismissed petitioners counterclaim,it held: Administrative Circular No. 04-94 provides; among others: The complaint and other initiatory pleadings referred to and subject of this Circular are the original civil complaint, counterclaim, cross-claim, third (fourth, etc) party complaint, or complaint-in-intervention, petition or application wherein a party asserts his claim on (sic) relief. It will be noted that the counterclaim does not distinguish whether the same should be permissive or compulsory, hence this Court finds that the counterclaim referred to in said Circular covers both kinds.

WHEREFORE, the counterclaim of defendant is hereby DISMISSED. Let the pre-trial of this case be set on May 14, 1996 at 2:00 oclock in the afternoon xxx[2] On 16 April 1996, petitioner filed before the same court an Omnibus Motion seeking a clarification of the courts Order of 14 March 1996 denying respondents Reply to Counterclaim and reconsideration of the 22nd March 1996 Order dismissing the compulsory counterclaim.[3] On 22 April 1996, petitioner received a copy of the courts Order, dated 16 April 1996, which pertinently read: WHEREFORE, the Order dated March 14, 1996 is hereby clarified as follows: x x x x xxx x x

The Reply to counterclaim filed by counsel for plaintiffs is hereby NOTED. SO ORDERED. "The Motion for Reconsideration of this Courts Order dated March 22, 1996 is hereby DENIED. The pretrial conference set on May 14, 1996 will go on as scheduled.[4] Petitioner forthwith elevated the matter to the Court of Appeals by way of a special civil action for certiorari under Rule 65, Revised Rules of Court, asseverating grave abuse of discretion by public respondent in dismissing the compulsory counterclaim and in espousing the view that Administrative Circular No. 04-94 should apply even to compulsory counterclaims. The Court of Appeals, in its Decision promulgated on 12 March 1997, dismissed the petition for certiorari; it opined: x x x the Supreme Court circular aforequoted requires without equivocation that to the original civil complaint, counterclaim, cross-claim, third (fourth,etc.) party complainant, or complaint-inintervention, petition, or application wherein a party asserts his claim for relief to be filed in all courts and agencies other than the Supreme Court and the Court of Appeals must be annexed and simultaneously filed therewith the required certification under oath to avoid forum shopping or multiple filing of petitions and complaints. Non-compliance therewith is a cause for the dismissal of the complainant, petition, application or other initiatory pleading. Included in

such initiatory pleading is the counterclaim, permissive or compulsory.

defendants

A counterclaim partakes of the nature of a complaint and/or a cause of action against the plaintiff in a case x x x, only this time it is the original defendant who becomes the plaintiff. It stands on the same footing and is tested by the same rules as if it were an independent action.[5] In its present recourse, petitioner contends that The Court of Appeals (has) committed serious, evident and palpable error in ruling that: 5.1 THE SPECIAL CIVIL ACTION OF CERTIORARI UNDER RULE 65 OF THE REVISED RULES OF COURT IS UNAVAILING. THE DISMISSAL OF THE COMPULSORY COUNTERCLAIM BEING A FINAL ORDER, THE PETITIONER SHOULD HAVE TAKEN AN APPEAL THEREFROM; AND 5.2 ADMINISTRATIVE CIRCULAR NO. 0494 OF THIS HONORABLE COURT LIKEWISE APPLIES TO BOTH KINDS OF COUNTERCLAIMS, PERMISSIVE AND COMPULSORY.[6] The petition is partly meritorious. The appellate court ruled that the dismissal of the counterclaim, being a final order, petitioners remedy was to appeal therefrom and, such appeal being then available, the special civil action for certiorari had been improperly filed. The concept of a final judgment or order, distinguished form an interlocutory issuance, is that the former decisively puts to a close, or disposes of a case or a disputed issue leaving nothing else to be done by the court in respect thereto. Once that judgment or order is rendered, the adjudicative task of the court is likewise ended on the particular matter involved.[7] An order is interlocutory, upon the other hand, if its effects would only be provisional in character and would still leave substantial proceedings to be further had by the issuing court in order to put the controversy to rest.[8] The order of the trial court dismissing petitioners counterclaim was a final order since the dismissal, although based on a technicality, would require nothing else to be done by the court with respect to the specific subject except only to await the possible filing during the reglementary period of a motion for reconsideration or the taking of an appeal therefrom.

As a rule, errors of judgment, as well as of procedure, neither relating to the jurisdiction of the court nor involving grave abuse of discretion, are not reviewable by the extraordinary remedy of certiorari.[9] As long as a court acts within its jurisdiction and does not gravely abuse its discretion in the exercise thereof, any supposed error committed by it will amount to nothing more than an error of judgment reviewable by a timely appeal and not assailable by a special civil action for certiorari.[10] This rule however, is not a rigid and inflexible technicality. This Court has not too infrequently given due course to a petition for certiorari, even when the proper remedy would have been an appeal, where valid and compelling considerations could warrant such a recourse.[11] Certiorari has been deemed to be justified, for instance, in order to prevent irreparable damage and injury to a party where the trial judge has capriciously and whimsically exercised his judgment, or where an ordinary appeal would simply be inadequate to relieve a party from the injurious effects of the judgment complained of.[12] In the case at bar, an appeal from the dismissal of the counterclaim, although not totally unavailable, could have well been ineffective, if not futile, as far as petitioner is concerned since no single piece of evidence has yet been presented by it, the opportunity having been foreclosed by the trial court, on the dismissed counterclaim which could form part of the records to be reviewed by the appellate court. The object of procedural law is not to cause an undue protraction of the litigation, but to facilitate the adjudication of conflicting claims and to serve, rather than to defeat, the ends of justice.[13]

The opinion of this Court on the next issue persuades it to accept, tested by the foregoing disquisition, the instant petition for its consideration. The pertinent provisions of Administrative Circular No. 04-94 provide: 1 The plaintiff, petitioner, applicant or principal party seeking relief in the complaint, petition, application or other initiatory pleading shall certify under oath in such original pleading, or in a sworn certification annexed thereto and simultaneously filed therewith, to the truth of the following facts and 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 agency; (b) to the best of his knowledge, no such action or proceeding is pending in the Supreme Court, the Court of Appeals, or any other tribunal or agency; (c) if there is any such action or

proceeding which is either pending or may have been terminated, he must state the status thereof; 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 any other tribunal or agency, he undertakes to report that fact within five (5) days therefrom to the court or agency wherein the original pleading and sworn certification contemplated here have been filed. The complaint and other initiatory pleadings referred to and subject of this Circular are the original civil complaint, counterclaim, cross-claim third (fourth, etc.) party complaint or complaint-in-intervention, petition, or application wherein a party asserts his claim for relief. (Emphasis supplied) It bears stressing, once again, that the real office of Administrative Circular No. 04-94, made effective on 01 April 1994, is to curb the malpractice commonly referred to also as forum-shopping. It is an act of a party against whom an adverse judgment has been rendered in one forum of seeking and possibly getting a favorable opinion in another forum, other than by appeal or the special civil action of certiorari, or the institution of two or more actions or proceedings grounded on the same cause on the supposition tha tone or the other court would make a favorable disposition.[14] The language of the circular distinctly suggests that it is primarily intended to cover an initiatory pleading or an incipient application of a party asserting a claim for relief.[15] It should not be too difficult, the foregoing rationale of the circular aptly taken, to sustain the view that the circular in question has not, in fact, been contemplated to include a kind of claim which, by its very nature as being auxiliary to the proceedings in the suit and as deriving its substantive and jurisdictional support therefrom, can only be appropriately pleaded in the answer and not remain outstanding for independent resolution except by the court where the main case pends. Prescinding from the foregoing, the provisio in the second paragraph of Section 5, Rule 8 of the 1997 Rules on Civil Procedure, i.e., that the violation of the anti-forum shopping rule shall not be curable by mere amendment x x x but shall be cause for the dismissal of the case without prejudice, being predicated on the applicability of the need for a certification against forum shopping, obviously does not include a claim which cannot be independently set up. Petitioner, nevertheless, is entitled to a mere partial relief. The so called counterclaim of petitioner really consists of two segregative parts: (1) for unpaid hospital bills of respondents son,

Emmanuel Surla, in the total amount of P82,632.10; and (2) for damages, moral and exemplary, plus attorneys fees by reason of the alleged malicious and unfounded suit filed against it.[16] It is the second, not the first, claim that the Court here refers to as not being initiatory in character and thereby not covered by the provisions of Administrative Circular No. 04-94. WHEREFORE, the appealed decision is hereby modified in that the claim for moral, exemplary damages and attorneys fees in Civil Case No. Q-9525977 of petitioner is ordered reinstated. The temporary restraining order priorly issued by this Court is lifted. No costs. SO ORDERED.

Davide, Jr., Panganiban and Quisumbing, JJ., concur.

Bellosillo,