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Robern Development Corp. v. J. Quitain, G.R. No. 135042, September 23, 1999
Far Eastern Shipping Co. v. CA, G.R. No. 130068, October 1, 1998
i.
National Steel Corp. v. CA, G.R. No. 134468, August 29, 2002
Kaunlaran Lending Investors Inc. v. Uy, G.R. No. 154974, February 4, 2008
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Facts:
Issue:
Held:
A signed pleading is one that is signed either by
the party himself or his counsel. Section 3, Rule 7 is clear
on this matter. It requires that a pleading must
be signed by the party or counsel representing him.
Therefore, only the signature of either the party himself
or his counsel operates to validly convert a pleading from
one that is unsigned to one that is signed. Counsels
authority and duty to sign a pleading are personal to him.
He may not delegate it to just any person.
The signature of counsel constitutes an
assurance by him that he has read the pleading; that, to
the best of his knowledge, information and belief, there is
a good ground to support it; and that it is not interposed
for delay. Under the Rules of Court, it is counsel alone, by
affixing his signature, who can certify to these matters.
The preparation and signing of a pleading
constitute legal work involving practice of law which is
reserved exclusively for the members of the legal
profession. Counsel may delegate the signing of a
pleading to another lawyer but cannot do so in favor of
one who is not. The Code of Professional Responsibility
provides: Rule 9.01 A lawyer shall not delegate to any
unqualified person the performance of any task which by
law may only be performed by a member of the Bar in
good standing.
A signature by agents of a lawyer amounts to
signing by unqualified persons, something the law
strongly proscribes. Therefore, the blanket authority
respondent claims Atty. Garlitos entrusted to just anyone
was void. Any act taken pursuant to that authority was
likewise void. There was no way it could have been cured
or ratified by Atty. Garlitos subsequent acts. No doubt,
Atty. Garlitos could not have validly given blanket
authority for just anyone to sign the answer. RTC correctly
ruled that respondents answer was invalid and of no legal
effect as it was an unsigned pleading.
Respondent insists that even if it were true that
its answer was supposedly an unsigned pleading, the
defect was a mere technicality that could be set aside. To
summarily brush them aside may result in arbitrariness
and injustice. Like all rules, procedural rules should be
followed except only when they may be relaxed to relieve
a litigant of an injustice not commensurate with the
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Held:
YES. We find that Montes transgressed the
proscription against forum shopping.
There is forum shopping when a party seeks to
obtain remedies in an action in one court, which had
already been solicited, and in other courts and other
proceedings in other tribunals. Forum shopping is also the
act of one party against another when an adverse
judgment has been rendered in one forum, of seeking
another and possibly favorable opinion in another forum
other than by appeal or the special civil action of
certiorari; or the institution of two or more acts or
proceedings grounded on the same cause on the
supposition that one or the other court would make a
favorable disposition.
In the case at bar, when Montes filed the petition
for prohibition against the suspension order, his motion
for reconsideration of the dismissal of his petition for
certiorari was still pending before the CA. In fact, Montes
motion for reconsideration has not been fully resolved.
Montes petition for certiorari prayed, among
others, that the appellate court issue an order "restraining
the Honorable Secretary, Department of Science and
Technology from implementing the order.
Montes motion for reconsideration likewise
prayed that the implementation of the suspension for one
year from the service without pay of the herein petitioner
be restrained.
In the present petition, Montes prays that an
order be issued to restrain the Honorable Secretary, DOST
from implementing the Suspension Order on the herein
petitioner.
Clearly, the relief sought from the appellate court
is the same as the relief prayed for in the present
petitionthat is, that an order be issued restraining the
DOST Secretary from implementing the Ombudsmans
Order. In filing the instant petition without awaiting the
resolution of his pending motion before the appellate
court, Montes asked for simultaneous remedies in two
different fora. This act is censurable and serves as a
ground for the dismissal of the instant case with
prejudice.
In this regard, the Court notes that Montes
implicitly confirmed that he committed forum shopping
by stating that he had to file the instant petition before
this Court in view of the denial of his motion for
reconsideration before the appellate court. Montes failed
to consider that the same implementation of the
suspension order which impelled him to abandon his
motion for reconsideration also rendered the instant
petition academic.
As the present petition is one for prohibition
which is a preventive remedy, worthy of note is the fact,
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the
Facts:
Dispute arose between petitioner and
respondent union regarding the grant of Productivity and
Quality Bonus and Fiscal Year-End incentive award.
Representative of NSC and the union appeared
before a voluntary arbitrator. The latter issued a decision
ruling that the demand for productivity and quality bonus
is without merit while the demand for distribution of
year-end incentive award is in order.
The NSC filed a petition for review with the Court
of Appeals.
The CA issues a resolution dismissing the
companys petition for review on the ground that Atty.
Padilla, one of the counsels of record of the petitioner is
not a real party in interest but a retained counsel with
mere incidental interest and therefore not the petitioner
or principal party required by law to certify under oath to
the facts or undertakings.
Motion for Reconsideration was likewise denied.
Issue:
Whether or not the signature of petitioners
counsel be deemed sufficient for the purposes of Revised
Circular Nos. 28-91 and AO No. 04-49?
Held:
NSCs counsel of record was duly authorized to
represent them not only before the voluntary arbitrator
but also to prepare the petition for review filed before the
court of appeals.
The Corporation has no powers except those
expressly conferred on it by the corporation code. In turn,
a corporation exercises said powers through its board of
directors or authorized agents.
While it is admitted that the authorization of
petitioners counsel was submitted to the appellate court
only after the issuance of its resolution dismissing the
petition based on non-compliance with the aforesaid
circular, we hold that in view of the peculiar
circumstances of the present case and in the interest of
substantial justice, the procedural defect may be set
aside.
the
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During the congressional hearing held on November 26, 1998,
one of those summoned was Atty. Garlitos, respondents former
counsel. He testified that he prepared respondents answer and
transmitted an unsigned draft to respondents president, Mr.
Victor Ong. The signature appearing above his name was not his.
He authorized no one to sign in his behalf either. And he did not
know who finally signed it.
With Atty. Garlitos revelation, the Republic promptly filed an
urgent motion on December 3, 1998 to declare respondent in
2
default, predicated on its failure to file a valid answer. The
Republic argued that, since the person who signed the answer
was neither authorized by Atty. Garlitos nor even known to him,
the answer was effectively an unsigned pleading. Pursuant to
3
Section 3, Rule 7 of the Rules of Court, it was a mere scrap of
paper and produced no legal effect.
On February 19, 1999, the trial court issued a resolution granting
4
the Republics motion. It found respondents answer to be
sham and false and intended to defeat the purpose of the rules.
The trial court ordered the answer stricken from the records,
declared respondent in default and allowed the Republic to
present its evidence ex parte.
The Republic presented its evidence ex parte, after which it
rested its case and formally offered its evidence.
Meanwhile, respondent sought reconsideration of the February
19, 1999 resolution but the trial court denied it.
Aggrieved, respondent elevated the matter to the Court of
5
Appeals via a petition for certiorari seeking to set aside the
February 19, 1999 resolution of the trial court. Respondent
contended that the trial court erred in declaring it in default for
failure to file a valid and timely answer.
On May 31, 2001, the Court of Appeals rendered the assailed
decision. It found Atty. Garlitos statements in the legislative
hearing to be unreliable since they were not subjected to crossexamination. The appellate court also scrutinized Atty. Garlitos
6
acts after the filing of the answer and concluded that he
assented to the signing of the answer by somebody in his stead.
This supposedly cured whatever defect the answer may have
had. Hence, the appellate court granted respondents petition
for certiorari. It directed the lifting of the order of default
against respondent and ordered the trial court to proceed to
trial with dispatch. The Republic moved for reconsideration but
it was denied. Thus, this petition.
Did the Court of Appeals err in reversing the trial courts order
which declared respondent in default for its failure to file a valid
answer? Yes, it did.
A party may, by his words or conduct, voluntarily adopt or ratify
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anothers statement. Where it appears that a party clearly and
unambiguously assented to or adopted the statements of
another, evidence of those statements is admissible against
8
him. This is the essence of the principle of adoptive admission.
An adoptive admission is a partys reaction to a statement or
action by another person when it is reasonable to treat the
partys reaction as an admission of something stated or implied
9
by the other person. By adoptive admission, a third persons
statement becomes the admission of the party embracing or
espousing it. Adoptive admission may occur when a party:
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1. While Atty. Garlitos denied signing the answer, the fact was
that the answer was signed. Hence, the pleading could not be
considered invalid for being an unsigned pleading. The fact that
the person who signed it was neither known to Atty. Garlitos nor
specifically authorized by him was immaterial. The important
thing was that the answer bore a signature.
2. While the Rules of Court requires that a pleading must be
signed by the party or his counsel, it does not prohibit a counsel
from giving a general authority for any person to sign the answer
for him which was what Atty. Garlitos did. The person who
actually signed the pleading was of no moment as long as
counsel knew that it would be signed by another. This was
similar to addressing an authorization letter "to whom it may
concern" such that any person could act on it even if he or she
was not known beforehand.
3. Atty. Garlitos testified that he prepared the answer; he never
disowned its contents and he resumed acting as counsel for
respondent subsequent to its filing. These circumstances show
that Atty. Garlitos conformed to or ratified the signing of the
answer by another.
Respondent repeated these statements of Atty. Garlitos in its
motion for reconsideration of the trial courts February 19, 1999
resolution. And again in the petition it filed in the Court of
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Appeals as well as in the comment and memorandum it
submitted to this Court.
Evidently, respondent completely adopted Atty. Garlitos
statements as its own. Respondents adoptive admission
constituted a judicial admission which was conclusive on it.
Contrary to respondents position, a signed pleading is one that
is signed either by the party himself or his counsel. Section 3,
Rule 7 is clear on this matter. It requires that a pleading must
be signed by the party or counsel representing him.
Therefore, only the signature of either the party himself or his
counsel operates to validly convert a pleading from one that is
unsigned to one that is signed.
Counsels authority and duty to sign a pleading are personal to
him. He may not delegate it to just any person.
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PANGANIBAN, J.:
Expropriation proceedings are governed by revised Rule 67 of
the 1997 Rules of Civil Procedure which took effect on July 1,
1997. Previous doctrines inconsistent with this Rule are deemed
reversed or modified. Specifically, (1) an answer, not a motion to
dismiss, is the responsive pleading to a complaint in eminent
domain; (2) the trial court may issue a writ of possession once
the plaintiff deposits an amount equivalent to the assessed
value of the property, pursuant to Section 2 of said Rule, without
need of a hearing to determine the provisional sum to be
deposited; and (3) a final order of expropriation may not be
issued prior to a full hearing and resolution of the objections and
defenses of the property owner.
The Case
Before us is a Petition under Rule 45, challenging the Decision of
1
the Court of Appeals promulgated February 27, 1998 and its
Resolution promulgated July 23, 1998 in CA-GR SP-46002, which
(1) dismissed the action for certiorari and preliminary injunction
filed by Robern Development Corporation ("Robern" for brevity);
and (2) effectively affirmed the Orders (dated August 13, 1997;
September 11, 1997; and November 5, 1997) and the Writ of
Possession (dated September 19, 1997), all issued by the
Regional Trial Court of Davao City in Civil Case No. 25356-97.
The assailed Decision disposed as follows:
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2. On June 6, 1997, NPC filed a Complaint for Eminent Domain
4
against Robern. Instead of filing an answer, petitioner
5
countered with a Motion to Dismiss, alleging (a) that the
Complaint suffered a jurisdictional defect for not showing that
the action bore the approval of the NPC board of directors; (b)
that Nemesio S. Caete, who signed the verification and
certification in the Complaint, was not the president, the general
manager or an officer specifically authorized under the NPC
charter (RA 6395); (c) that the choice of property to be
expropriated was improper, as it had already been intended for
use in a low-cost housing project, a public purpose within the
contemplation of law; and the choice was also arbitrary, as there
were similar properties available within the area.
3. Before this Motion could be resolved, NPC filed a Motion for
the Issuance of Writ of Possession based on Presidential Decree
No. 42. On July 9, 1997, NPC deposited P6,121.20 at the
Philippine National Bank, Davao Branch, as evidenced by PNB
6
Savings Account No. 385-560728-9.
4. In its Order of August 13, 1997, the trial court denied
petitioner's Motion to Dismiss in this wise:
This refers to the motion to dismiss. The
issues raised are matters that should be
dealt with during the trial proper. Suffice it
to say that [NPC] has the privilege as a utility
to use the power of eminent domain.
The motion is denied for lack of merit. The
pre-trial conference shall be on August 27,
7
1997 at 2:30 P.M.
5. On September 2, 1997, petitioner filed a Motion for
Reconsideration, pointing out that (a) the issues raised in the
Motion to Dismiss could be resolved without trial, as they could
be readily appreciated on the face of the Complaint itself vis-visthe applicable provisions of law on the matter; and (b) the
grounds relied upon for dismissing the Complaint did not require
evidence aliunde.
6. On September 11, 1997, the trial court denied the Motion. as
follows:
The . . . motion [of the
petitioner]
for
reconsideration is denied
for lack of merit. Finding
the . . . motion [of NPC]
to be meritorious[,] let a
8
writ of possession issue.
7. On September 22, 1997, petitioner filed a Motion for
Reconsideration of the Order of September 11, 1997, arguing
among others that Section 15-A of RA 6395 was virtually
"amended" when Caete was allowed to verify and sign the
certificate of non-forum shopping in regard to the Complaint for
expropriation filed by NPC.
8. Without awaiting the outcome of the Motion for
Reconsideration, NPC filed a Motion to Implement the Writ of
Possession.
9. On September 19, 1997, in spite of petitioner's opposition,
the trial court issued a Writ of Possession as follows:
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affected area
WHEREAS, on September 11, 1997 the court
issued an Order granting the issuance of a
Writ of Possession in favor of the . . .
National Power Corporation for the
immediate possession and control of the
parcels of land owned by the [petitioner] as
aforestated for the construction MantanaoNew-Loon 138 KV Transmission Line Project
to be undertaken by the petitioner affecting
17,746.50 sq. m. of the 97,371.00 sq. meters
as shown above.
NOW THEREFORE, you are hereby
commanded to place [NPC] in possession
and control of the affected property
consisting 17,746.50 [s]quare [m]eters of the
total area of 97,371.00 square meters
described above and to eject therefrom all
adverse occupants, Robern Development
Corporation and [all other] persons . . .
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claiming under it.
10. On November 5, 1997, before counsel for the petitioner
received any order from the trial court directing the
implementation of the Writ of Possession, NPC occupied the
disputed property.
11. In a Petition for Certiorari before the Court of Appeals (CA),
Robern assailed the Writ on the following grounds: (a) patent on
the face of the complaint were its jurisdictional defect,
prematurity and noncompliance with RA 6395; and (b) the
10
The Issues
In their Memorandum,
12
issues:
11
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property in which he claims to have an
interest, state the nature and extent of the
interest claimed, and adduce all his
objections and defenses to the taking of his
property. . . . . .
In his book on remedial law, Justice Florenz D. Regalado writes
that the old Rule was a "bit confusing as the previous holdings
under that former provision also allowed the filing of another
motion to dismiss, as that is understood in Rule 16, to raise
additionally the preliminary objections authorized by that Rule."
Further, an answer, which is now required, gives more
leeway. First, even if it still applies the omnibus motion rule, it
allows amendments to be made within ten days from its
22
filing. Second, the failure to file an answer does not produce
all the disastrous consequences of default in ordinary civil
actions, because the defendant may still present evidence as to
23
just compensation.
When petitioner filed its Motion to Dismiss, the 1997 Rules of
Civil Procedure had already taken effect. Statutes regulating
procedure in the courts are applicable to actions pending and
24
undetermined at the time those statutes were passed. New
court rules apply to proceedings that take place after the date of
25
their effectivity. On April 8, 1997, the Court en banc issued a
Resolution in Bar Matter No. 803, declaring that the revisions in
the Rules of Court were to become effective on July 1, 1997.
Accordingly, Rule 16, Section 1 of the Rules of Court, does not
consider as grounds for a motion to dismiss the allotment of the
disputed land for another public purpose or the petition for a
mere easement of right-of-way in the complaint for
expropriation. The grounds for dismissal are exclusive to those
specifically mentioned in Section 1, Rule 16 of the Rules of
Court, and an action can be dismissed only on a ground
26
authorized by this provision.
To be exact, the issues raised by the petitioner are affirmative
defenses that should be alleged in an answer, since they require
27
presentation of evidence aliunde. Section 3 of Rule 67
provides that "if a defendant has any objection to the filing of or
the allegations in the complaint, or any objection or defense to
the taking of his property," he should include them in his
answer. Naturally, these issues will have to be fully ventilated in
a full-blown trial and hearing. It would be precipitate to dismiss
the Complaint on such grounds as claimed by the petitioner.
Dismissal of an action upon a motion to dismiss constitutes a
denial of due process if, from a consideration of the pleadings, it
appears that there are issues that cannot be decided without a
trial
of
the
case
on
the
28
merits.
Inasmuch as the 1997 Rules had just taken effect when this case
arose, we believe that in the interest of substantial justice, the
petitioner should be given an opportunity to file its answer to
the Complaint for expropriation in accordance with Section 3,
Rule 67 of the 1997 Rules of Civil Procedure.
Order of Condemnation
The Court will now tackle the validity of the trial court's assailed
Order of August 13, 1997, which Respondent Court affirmed in
this wise:
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shopping when a party institutes two or more suits in different
courts, either simultaneously or successively, in order to ask the
courts to rule on the same or related causes and/or to grant the
same or substantially the same reliefs on the supposition that
one or the other court would make a favorable disposition or
increase a partys chances of obtaining a favorable decision or
6
action.
The rationale against forum shopping is that a party should not
be allowed to pursue simultaneous remedies in two different
fora. Filing multiple petitions or complaints constitutes abuse of
court processes, which tends to degrade the administration of
justice, wreaks havoc upon orderly judicial procedure, and adds
to the congestion of the heavily burdened dockets of the courts.
Thus, the rule proscribing forum shopping seeks to promote
candor and transparency among lawyers and their clients in the
pursuit of their cases before the courts to promote the orderly
administration of justice, prevent undue inconvenience upon the
other party, and save the precious time of the courts. It also
aims to prevent the embarrassing situation of two or more
courts or agencies rendering conflicting resolutions or decisions
7
upon the same issue.
To determine whether a party violated the rule against forum
shopping, the most important question to ask is whether the
elements of litis pendentia are present or whether a final
judgment in one case will result to res judicata in another.
Otherwise stated, to determine forum shopping, the test is to
see whether in the two or more cases pending, there is identity
8
of parties, rights or causes of action, and reliefs sought.
A plain reading of the allegations in the complaint in Civil Case
No. 4068-AF and those in the petition for certiorari filed with the
Court of Appeals would preclude the Court from affirming the
Court
of Appeals finding that Huibonhoa had engaged in forum
shopping. Not all the elements of litis pendentia concur. There is
no identity of parties, rights or causes of action between Civil
Case No. 4068-AF and the petition for certiorari. Civil Case No.
4068-AF is a derivative suit and complaint for injunction
instituted by the stockholders of the aforementioned
corporations while the petition for certiorari was instituted by
petitioner in her capacity as manager of Poulex Supermarket.
The complaint in Civil Case No. 4068-AF alleges different causes
of action, including those relating to interference by respondent
Concepcion in the operations of the supermarket and causing
damages to the corporations and the stockholders arising from
such unlawful interference. The petition for certiorari aims to
nullify the two orders of Judge Annang on the ground that they
were issued with grave abuse of discretion since only the
designated special commercial court has jurisdiction to hear and
decide intra-corporate controversies. A resolution on the merits
of the petition for certiorari would necessarily have to discuss
the authority of respondent Judge Annang to take cognizance of
the case, which was allegedly an intra-corporate matter, and the
issuance of the mandatory injunction, which was allegedly not
sanctioned by any rule. These are the main issues raised in the
petition for certiorari but are not raised as issues in Civil Case
No. 4068-F.
The reliefs sought in the two actions are also different. In Civil
Case No. 4068-F, aside from the main action for a permanent
injunction, complainants therein also claimed damages. In the
petition for certiorari, Huibonhoa sought the prevention of the
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May 4, 2006
CARLITO
L.
MONTES, Petitioner,
vs.
COURT OF APPEALS, Sixth Division, Office of the Ombudsman,
Department of Science and Technology,Respondents.
RESOLUTION
TINGA, J.
In this Petition for Prohibition with Prayer for Temporary
1
Restraining Order under Rule 65 of the 1997 Rules of Civil
Procedure, petitioner Carlito L. Montes (Montes) seeks to
prohibit the Honorable Secretary of the Department of Science
and Technology (DOST) from implementing the suspension
2
order dated 28 June 2000. The suspension order was issued in
3
relation to the Decision dated 17 January 2000 and
4
Order dated 2 March 2000, both of the Office of the
Ombudsman, in "Imelda D. Rodriguez and Elizabeth Fontanilla v.
Carlito L. Montes," docketed as OMB-ADM-0-98-0556. The
assailed suspension order reads as follows:
TO:
CARLITO
Chief, Legal Division, DOST
L.
MONTES
You are hereby directed to make the necessary turnover/clearance of property and monetary accountabilities and
submit all pending legal work to the Office of the Assistant
Secretary for Administrative and Legal Affairs.
AS ORDERED.
Taguig, Metro Manila, June 28, 2000.
A.
URIARTE,
JR.
Montes now argues in his petition before the Court that the
implementation of the suspension order is premature
considering the pendency of his petition before the appellate
15
court. Citing Lapid v. Court of Appeals, he further states that
16
there is no law or provision in R.A. 6770, the Ombudsman Law,
17
or in Administrative Order No. 7 mandating the immediate
execution of the Ombudsmans decision in an administrative
case where the penalty imposed is suspension for one (1) year.
Moreover, he asserts that the administrative complaint, which is
for a violation of R.A. 4200, is cognizable by the regular courts
considering the imposable penalty. Finally, he complains that he
was convicted of the alleged wire-tapping by mere substantial
evidence which is short of the quantum of evidence required for
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conviction of a criminal offense.
FILEMON
(sgd)
DR.
5
Secretary
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Honorable Secretary, DOST from implementing the Suspension
29
Order on the herein petitioner."
Clearly, the relief sought from the appellate court is the same as
the relief prayed for in the present petitionthat is, that an
order be issued restraining the DOST Secretary from
implementing the Ombudsmans Order. In filing the instant
petition without awaiting the resolution of his pending motion
before the appellate court, Montes asked for simultaneous
remedies in two different fora. This act is censurable and serves
as a ground for the dismissal of the instant case with prejudice.
Moreover, we find that Montes failed to adequately show that
there is no appeal or any other plain, speedy, and adequate
remedy in the ordinary course of law to warrant the issuance of
a writ of prohibition.
For a party to be entitled to a writ of prohibition, he must
establish the following requisites: (a) it must be directed against
a tribunal, corporation, board or person exercising functions,
judicial or ministerial; (b) the tribunal, corporation, board or
person has acted without or in excess of its jurisdiction, or with
grave abuse of discretion; and (c) there is no appeal or any other
plain, speedy, and adequate remedy in the ordinary course of
30
law.
A remedy is considered plain, speedy and adequate if it will
promptly relieve the petitioner from the injurious effects of the
judgment or rule, order or resolution of the lower court or
31
agency.
When the DOST issued the assailed suspension order on 28 June
2000, Montes motion for reconsideration was still pending
before the appellate court. Montes thus had the remedy of filing
a petition for prohibition before the appellate court as an
incident of the petition for certiorari and motion for
reconsideration he had previously filed therewith. Had Montes
brought the instant petition before the Court of Appeals, the
same could, and would, have been consolidated with his petition
for certiorari, thereby bringing under the competence of the said
court all matters relative to the action, including the incidents
thereof.
Evidently too, Montes disregarded the doctrine of judicial
hierarchy which we enjoin litigants and lawyers to strictly
observe as a judicial policy. For this reason, the instant petition
32
should be dismissed. As we ruled in Vergara, Sr. v. Suelto, to
wit:
The Supreme Court is a court of last resort, and must so remain
if it is to satisfactorily perform the functions assigned to it by the
fundamental charter and immemorial tradition. It cannot and
should not be burdened with the task of dealing with causes in
the first instance. Its original jurisdiction to issue the so-called
extraordinary writs should be exercised only where absolutely
necessary or where serious and important reasons exist
therefor. Hence, that jurisdiction should generally be exercised
relative to actions or proceedings before the Court of Appeals,
or before constitutional or other tribunals, bodies or agencies
whose acts for some reason or another, are not controllable by
the Court of Appeals. Where the issuance of an extraordinary
writ is also within the competence of the Court of Appeals or a
Regional Trial Court, it is in either of these courts that the
specific action for the writs procurement must be presented.
This is and should continue to be the policy in this regard, a
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policy that courts and lawyers must strictly observe.
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COMPANY, petitioner,
PHILIPPINE
PORTS
REGALADO, J.:
These consolidated petitions for review on certiorari seek in
1
unison to annul and set aside the decision of respondent Court
2
of Appeals of November 15, 1996 and its resolution dated July
31, 1997 in CA-G.R. CV No. 24072, entitled "Philippine Ports
Authority, Plaintiff-Appellee vs. Far Eastern Shipping Company,
Senen C. Gavino and Manila Pilots' Association, DefendantsAppellants," which affirmed with modification the judgment of
the trial court holding the defendants-appellants therein
solidarily liable for damages in favor of herein private
respondent.
There is no dispute about the facts as found by the appellate
court,
thus
. . . On June 20, 1980, the M/V PAVLODAR,
flying under the flagship of the USSR, owned
and operated by the Far Eastern Shipping
Company (FESC for brevity's sake), arrived at
the Port of Manila from Vancouver, British
Columbia at about 7:00 o'clock in the
morning. The vessel was assigned Berth 4 of
the Manila International Port, as its berthing
space. Captain Roberto Abellana was tasked
by the Philippine Port Authority to supervise
the berthing of the vessel. Appellant Senen
Gavino was assigned by the Appellant Manila
Pilots' Association (MPA for brevity's sake) to
conduct docking maneuvers for the safe
berthing of the vessel to Berth No. 4.
Gavino boarded the vessel at the quarantine
anchorage and stationed himself in the
bridge, with the master of the vessel, Victor
Kavankov, beside him. After a briefing of
Gavino by Kavankov of the particulars of the
vessel and its cargo, the vessel lifted anchor
from the quarantine anchorage and
proceeded to the Manila International Port.
The sea was calm and the wind was ideal for
docking maneuvers.
When the vessel reached the landmark (the
big church by the Tondo North Harbor) onehalf mile from the pier, Gavino ordered the
engine stopped. When the vessel was
already about 2,000 feet from the pier,
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Upon motion by FESC dated April 24, 1998 in G.R. No. 130150,
18
said case was consolidated with G.R. No. 130068.
Prefatorily, on matters of compliance with procedural
requirements, it must be mentioned that the conduct of the
respective counsel for FESC and PPA leaves much to be desired,
to the displeasure and disappointment of this Court.
Sec. 2, Rule 42 of the 1997 Rules of Civil
19
Procedure incorporates the former Circular No. 28-91 which
provided for what has come to be known as the certification
against forum shopping as an additional requisite for petitions
filed with the Supreme Court and the Court of Appeals, aside
from the other requirements contained in pertinent provisions
of the Rules of Court therefor, with the end in view of
preventing the filing of multiple complaints involving the same
issues in the Supreme Court, Court of Appeals or different
divisions thereof or any other tribunal or agency.
More particularly, the second paragraph of Section 2, Rule 42
provides:
xxx xxx xxx
The petitioner shall also submit together
with the petition a certification under oath
that he has not theretofore commenced any
other action involving the same issues in the
Supreme Court, the Court of Appeals or
different divisions thereof, or any other
tribunal or agency; if there is such other
action or proceeding, he must state the
status of the same; and if he should
thereafter learn that a similar action or
proceeding has been filed or is pending
before the Supreme Court, the Court of
Appeals or different divisions thereof, or any
other tribunal or agency, he undertakes to
promptly inform the aforesaid courts and
other tribunal or agency thereof within five
(5) days therefrom. (Emphasis ours.)
For petitions for review filed before the Supreme
Court, Section 4(e), Rule 45 specifically requires that
such petition shall contain a sworn certification against
forum shopping as provided in the last paragraph of
Section 2, Rule 42.
The records show that the law firm of Del Rosario and Del
Rosario through its associate, Atty. Herbert A. Tria, is the counsel
of record for FESC in both G.R. No. 130068 and G.R. No. 130150.
G.R. No. 130068, which is assigned to the Court's Second
Division, commenced with the filing by FESC through counsel on
August 22, 1997 of a verified motion for extension of time to file
its petition for thirty (30) days from August 28, 1997 or until
20
September 27, 1997. Said motion contained the following
21
certification against forum shopping signed by Atty. Herbert A.
Tria as affiant:
CERTIFICATION
AGAINST FORUM SHOPPING
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I/we hereby certify that I/we have not
commenced any other action or proceeding
involving the same issues in the Supreme
Court, the Court of Appeals, or any other
tribunal or agency; that to the best of my
own knowledge, no such action or
proceeding is pending in the Supreme Court,
the Court of Appeals, or any other tribunal or
agency; that if I/we 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, I/we undertake to report
that fact within five (5) days therefrom to
this Honorable Court.
This motion having been granted, FESC subsequently
filed its petition on September 26, 1997, this time
bearing a "verification and certification against forumshopping" executed by one Teodoro P. Lopez on
22
September 24, 1997, to wit:
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING
in compliance with Section 4(e), Rule 45 in
relation
to Section 2, Rule 42 of the Revised Rules of
Civil Procedure
I, Teodoro P. Lopez, of legal age, after being
duly sworn, depose and state:
1. That I am the Manager, Claims
Department of Filsov Shipping Company, the
local agent of petitioner in this case.
2. That I have caused the preparation of this
Petition for Review on Certiorari.
3. That I have read the same and the
allegations therein contained are true and
correct based on the records of this case.
4. That I certify that petitioner has not
commenced any other action or proceeding
involving the same issues in the Supreme
Court or Court of Appeals, or any other
tribunal or agency, that to the best of my
own knowledge, no such action or
proceeding is pending in the Supreme Court,
the Court of Appeals or any other tribunal or
agency, that if I 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, I undertake to report the fact within
five (5) days therefrom to this Honorable
Court. (Italics supplied for emphasis.)
Reviewing the records, we find that the petition filed by MPA in
G.R. No. 130150 then pending with the Third Division was duly
filed on August 29, 1997 with a copy thereof furnished on the
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the case before the respondent Court of
Appeals, has taken a separate appeal from
the said decision to this Honorable Court,
which was docketed as G.R. No. 130150 and
entitled
"Manila
Pilots'
Association,
Petitioner, versus Philippine Ports Authority
and
Far
Eastern
Shipping
Co.,
41
Respondents."
Similarly, in G.R. No. 130150, it states
Counsel for PPA did not make matters any better. Despite the
fact that, save for the Solicitor General at the time, the same
legal team of the Office of the Solicitor General (OSG, for short)
composed of Assistant Solicitor General Roman G. Del Rosario
and Solicitor Luis F. Simon, with the addition of Assistant
Solicitor General Pio C. Guerrero very much later in the
proceedings, represented PPA throughout the appellate
proceedings in both G.R. No. 130068 and G.R. No. 130150 and
was presumably fully acquainted with the facts and issues of the
case, it took the OSG an inordinately and almost unreasonably
long period of time to file its comment, thus unduly delaying the
resolution of these cases. It took several changes of leadership in
the OSG from Silvestre H. Bello III to Romeo C. dela Cruz and,
finally, Ricardo P. Galvez before the comment in behalf of PPA
was finally filed.
In G.R. No. 130068, it took eight (8) motions for extension of
time totaling 210 days, a warning that no further extensions
shall be granted, and personal service on the Solicitor General
himself of the resolution requiring the filing of such comment
before the OSG indulged the Court with the long required
35
comment on July 10, 1998. This, despite the fact that said
office was required to file its comment way back on November
36
12, 1997. A closer scrutiny of the records likewise indicates
that petitoner FESC was not even furnished a copy of said
comment as required by Section 5, Rule 42. Instead, a copy
thereof was inadvertently furnished to MPA which, from the
37
point of view of G.R. No. 130068, was a non-party. The OSG
fared slightly better in G.R. No. 130150 in that it took only six (6)
extensions, or a total of 180 days, before the comment was
38
finally filed. And while it properly furnished petitioner MPA
with a copy of its comment, it would have been more desirable
and expedient in this case to have furnished its therein corespondent FESC with a copy thereof, if only as a matter of
39
professional courtesy.
This undeniably dilatory disinclination of the OSG to seasonably
file required pleadings constitutes deplorable disservice to the
tax-paying public and can only be categorized as censurable
inefficiency on the part of the government law office. This is
most certainly professionally unbecoming of the OSG.
Another thing that baffles the Court is why the OSG did not take
the inititive of filing a motion for consolidation in either G.R. No.
130068 or G.R. No. 130150, considering its familiarity with the
background of the case and if only to make its job easier by
having to prepare and file only one comment. It could not have
been unaware of the pendency of one or the other petition
because, being counsel for respondent in both cases, petitioner
is required to furnish it with a copy of the petition under pain of
40
dismissal of the petition for failure otherwise.
Besides, in G.R. 130068, it prefaces its discussions thus
Incidentally, the Manila Pilots' Association
(MPA), one of the defendants-appellants in
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59
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manuevering the vessel must be attributed
to Capt. Senen Gavino. He was an
experienced pilot and by this time should
have long familiarized himself with the depth
of the port and the distance he could keep
between the vessel and port in order to
68
berth safely.
The negligence on the part of Capt. Gavino is evident; but Capt.
Kabancov is no less responsible for the allision. His unconcerned
lethargy as master of the ship in the face of troublous exigence
constitutes negligence.
While it is indubitable that in exercising his functions a pilot is in
69
sole command of the ship and supersedes the master for the
time being in the command and navigation of a ship and that he
70
becomes master pro hac vice of a vessel piloted by him, there
is overwhelming authority to the effect that the master does not
surrender his vessel to the pilot and the pilot is not the master.
The master is still in command of the vessel notwithstanding the
presence of a pilot. There are occasions when the master may
and should interfere and even displace the pilot, as when the
pilot is obviously incompetent or intoxicated and the
circumstances may require the master to displace a compulsory
pilot because of incompetency or physical incapacity. If,
however, the master does nor observe that a compulsory pilot is
incompetent or physically incapacitated, the master is justified
71
in relying on the pilot, but not blindly.
The master is not wholly absolved from his duties while a pilot is
on board his vessel, and may advise with or offer suggestions to
him. He is still in command of the vessel, except so far as her
navigation is concerned, and must cause the ordinary work of
the vessel to be properly carried on and the usual precaution
taken. Thus, in particular, he is bound to see that there is
sufficient watch on deck, and that the men are attentive to their
duties, also that engines are stopped, towlines cast off, and the
72
anchors clear and ready to go at the pilot's order.
A perusal of Capt. Kabankov's testimony makes it apparent that
he was remiss in the discharge of his duties as master of the
ship, leaving the entire docking procedure up to the pilot,
instead of maintaining watchful vigilance over this risky
maneuver:
Q Will you please tell us
whether you have the
right to intervene in
docking of your ship in
the harbor?
A No sir, I have no right
to intervene in time of
docking, only in case
there is imminent danger
to the vessel and to the
pier.
Q Did you ever intervene
during the time that your
ship was being docked by
Capt. Gavino?
A No sir, I did not
intervene at the time
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was
Court:
Q Not the actuation that
conform to the safety
maneuver of the ship to
the harbor?
Q By that statement of
yours, you are leading
the court to understand
that there was nothing
irregular in the docking
of the ship?
the
the
was
that
Q You want us to
understand, Mr. Witness,
that the dropping of the
anchor of the vessel was
nor timely?
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danger to your ship, is
that what you mean?
A Yes sir, up to the very
last moment, I believed
that there was no
imminent danger.
Q Because of that, did
you ever intervene in the
command of the pilot?
A Yes sir, I did not
intervene because I
believed
that
the
command of the pilot to
be correct.
Solicitor Abad (to the
witness)
Q As a captain of M/V
Pavlodar, you consider
docking maneuvers a
serious matter, is it not?
A Yes sir, that is right.
Q Since it affects not only
the safety of the port or
pier, but also the safety
of the vessel and the
cargo, is it not?
A That is right.
Q So that, I assume that
you were watching Capt.
Gavino very closely at
the time he was making
his commands?
A I was close to him, I
was
hearing
his
command and being
executed.
Q And that you were also
alert for any possible
mistakes
he
might
commit
in
the
maneuvering of the
vessel?
A Yes sir, that is right.
Q But at no time during
the maneuver did you
issue order contrary to
the orders Capt. Gavino
made?
A No sir.
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A Yes sir.
Q Because, otherwise,
you would have issued
order
that
would
supersede
his
own
order?
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A Yes, your Honor. That
is why they hire a pilot in
an advisory capacity, but
still, the safety of the
vessel rest(s) upon the
Captain, the Master of
the vessel.
Q In this case, there was
not a disagreement
between you and the
Captain of the vessel in
the bringing of the vessel
to port?
A No, your Honor.
Court:
May proceed.
Atty. Catris:
In fact, the Master of the
vessel testified here that
he was all along in
conformity with the
orders you, gave to him,
and, as matter of fact, as
he said, he obeyed all
your orders. Can you tell,
if in the course of giving
such normal orders for
the saf(e) docking of the
MV Pavlodar, do you
remember
of
any
instance that the Master
of the vessel did not
obey your command for
the safety docking of the
MV Pavlodar?
Atty. del Rosario:
Already answered,
already said yes sir.
he
Court:
Yes,
he
has
just
answered yes sir to the
Court that there was no
disagreement insofar as
the bringing of the vessel
safely to the port.
Atty. Catris:
But in this instance of
docking of the MV
Pavlodar,
do
you
remember of a time
during the course of the
docking that the MV
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in
of
In Jure vs. United Fruit Co., which, like the present petitions,
involved compulsory pilotage, with a similar scenario where at
and prior to the time of injury, the vessel was in the charge of a
pilot with the master on the bridge of the vessel beside said
pilot, the court therein ruled:
The authority of the master of a vessel is not
in complete abeyance while a pilot, who is
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required by law to be accepted, is in
discharge of his functions. . . . It is the duty of
the master to interfere in cases of the pilot's
intoxication or manifest incapacity, in cases
of danger which he does not foresee, and in
all cases of great necessity. The master has
the same power to displace the pilot that he
has to remove any subordinate officer of the
vessel. He may exercise it, or not, according
to his discretion. There was evidence to
support findings that piaintiff's injury was
due to the negligent operation of the Atenas,
and that the master of that vessel was
negligent in failing to take action to avoid
endangering a vessel situated as the City of
Canton was and persons or property
thereon.
A phase of the evidence furnished support
for the inferences . . . that he negligently
failed to suggest to the pilot the danger
which was disclosed, and means of avoiding
such danger; and that the master's
negligence in failing to give timelt
admonition to the pilot proximately
contributed to the injury complained of. We
are of opinion that the evidence mentioned
tended to prove conduct of the pilot, known
to the master, giving rise to a case of danger
or great necessity, calling for the
intervention of the master. A master of a
vessel is not without fault in acquiescing in
canduct of a pilot which involves apparent
and avoidable danger, whether such danger
is to the vessel upon which the pilot is, or to
another vessel, or persons or property
thereon or on shore. (Emphasis ours.)
Still in another case involving a nearly identical setting, the
captain of a vessel alongside the compulsory pilot was deemed
to be negligent, since, in the words of the court, "he was in a
position to exercise his superior authority if he had deemed the
speed excessive on the occasion in question. I think it was clearly
negligent of him not to have recognized the danger to any craft
moored at Gravell Dock and that he should have directed the
pilot to reduce his speed as required by the local governmental
regulations. His failure amounted to negligence and renders the
81
respondent liable." (Emphasis supplied.) Though a compulsory
pilot might be regarded as an independent contractor, he is at
82
all times subject to the ultimate control of the ship's master.
In sum, where a compulsory pilot is in charge of a ship, the
master being required to permit him to navigate it, if the master
observes that the pilot is incompetent or physically incapable,
then it is the dury of the master to refuse to permit the pilot to
act. But if no such reasons are present, then the master is
justified in relying upon the pilot, but not blindly. Under the
circumstances of this case, if a situation arose where the master,
exercising that reasonable vigilance which the master of a ship
should exercise, observed, or should have observed, that the
pilot was so navigating the vessel that she was going, or was
likely to go, into danger, and there was in the exercise of
reasonable care and vigilance an opportunity for the master to
intervene so as to save the ship from danger, the master should
83
have acted accordingly. The master of a vessel must exercise a
84
degree of vigilance commensurate with the circumstances.
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A Yes sir.
Q May it not happen that
by natural factors, the
existing damage in 1980
was aggravated for the 2
year period that the
damage portion was not
repaired?
A I don't think so
because that area was at
once marked and no
vehicles can park, it was
closed.
A Cannot, sir.
Q (A)nd the two square
meters.
A Yes sir.
Q In other words, this
P1,300,999.77 does not
represent only for the six
piles that was damaged
as
well
as
the
corresponding two piles.
A
The
area
was
corresponding,
was
increased by almost two
in the actual payment.
That was why the
contract was decreased,
the real amount was
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Q Nonetheless, if you
drove
the
original
number of piles, six, on
different places, would
not that have sustained
the same load?
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65, supra, in tandem with the by-laws of the
107
MPA.
There being no employer-employee relationship, clearly Article
108
2180 of the Civil Code is inapplicable since there is no
vicarious liability of an employer to speak of. It is so stated in
American law, as follows:
The well established rule is that pilot
associations are immune to vicarious liability
for the tort of their members. They are not
the employer of their members and exercise
no control over them once they take the
helm of the vessel. They are also not
partnerships because the members do not
function as agents for the association or for
each other. Pilots' associations are also not
liable for negligently assuring the
competence of their members because as
professional associations they made no
guarantee of the professional conduct of
109
their members to the general public.
Where under local statutes and regulations, pilot associations
lack the necessary legal incidents of responsibility, they have
been held not liable for damages caused by the default of a
110
member pilot. Whether or not the members of a pilots'
association are in legal effect a copartnership depends wholly on
the powers and duties of the members in relation to one
another under the provisions of the governing statutes and
regulations. The relation of a pilot to his association is not that
of a servant to the master, but of an associate assisting and
participating in a common purpose. Ultimately, the rights and
liabilities between a pilots' association and an individual
member depend largely upon the constitution, articles or bylaws of the association, subject to appropriate government
111
regulations.
No reliance can be placed by MPA on the cited American rulings
as to immunity from liability of a pilots' association in ljght of
existing positive regulation under Philippine law. The Court of
Appeals properly applied the clear and unequivocal provisions of
Customs Administrative Order No. 15-65. In doing so, it was just
being consistent with its finding of the non-existence of
employer-employee relationship between MPA and Capt.
Gavino which precludes the application of Article 2180 of the
Civil Code.
True. Customs Administrative Order No. 15-65 does not
categorically characterize or label MPA's liability as solidary in
nature. Nevertheless, a careful reading and proper analysis of
the correlated provisions lead to the conclusion that MPA is
solidarily liable for the negligence of its member pilots, without
prejudice to subsequent reimbursement from the pilot at fault.
Art. 1207 of the Civil Code provides that there is solidary liability
only when the obligation expressly so states, or when the law or
the nature of the obligation requires solidarity. Plainly, Customs
Administrative Order No. 15-65, which as an implementing rule
has the force and effect of law, can validly provide for solidary
liability.We note the Solicitor General's comment hereon, to wit:
. . . Customs Administrative Order No. 15-65
may be a mere rule and regulation issued by
an administrative agency pursuant to a
delegated authority to fix "the details" in the
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BACKGROUND FACTS
On April 25, 2003, the MTC ruled in the petitioners favor. The
respondent appealed the MTC decision to the Regional Trial
Court (RTC), Branch 50, Manila, which reversed the MTC ruling
12
in its decision dated November 3, 2004.
The petitioners responded to the reversal by filing a Petition for
13
Review (CA Petition) with the CA on March 31, 2005. On the
14
same date, they also formally manifested with the CA that to
comply with the verification and certification requirements
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statements sworn overseas before foreign notaries; we require
23
their authentication by our consulates. This is a process whose
completion time may vary depending, among others, on various
factors such as the location of the requesting party from the
consulate; the peculiarities of foreign laws on notaries; the
volume of transactions in a consulate, noting particularly the
time of year when the authentication is requested; and the
mode of sending the authenticated documents to the
Philippines. Apparently compelled by one or a combination of
these reasons, the petitioners in fact manifested when they filed
their petition (on March 31, 2005) that they were submitting a
photostatic copy of the Verification/Certification executed in
Washington on March 17, 2005 since the original was still with
the
Philippine
Consulate
in
San
Francisco
for
24
authentication. We take judicial notice that the petitioners
request for authentication coincided with the observance of the
Holy Week a traditional period of prayer and holidays in the
Philippines, for the Philippines foreign embassies and
25
consulates, and even for Filipinos overseas. We find it
significant that, conformably with their Manifestation, the
petitioners counsel filed on April 8, 2005 the duly sworn and
authenticated Verification as soon as counsel received it. Under
these circumstances, there is every reason for an equitable and
relaxed application of the rules to the petitioners situation.
Third, we discern utmost good faith on the part of the
petitioners when they filed their Manifestation about their
problem, intent, and plan of compliance with the verification
requirement. They in fact stated early on through this
Manifestation that their verification had been executed on
March 17, 2005 in Washington, that is, at a date much earlier
than the filing of their petition and manifestation.
Unfortunately, the CA failed to note the variance in dates at the
earliest opportunity; thus, the CA dismissed the petition on
26
some other ground, only to hark back later on to the variance
in dates in their reconsideration of the earlier dismissal. Given
this good faith and the early disclosure, it was basically unfair for
the CA who had earlier overlooked the variance in dates to
subsequently make this ground the basis of yet another
dismissal of the petition. The CA after overlooking the variance
in dates at the first opportunity should have at least asked for
the petitioners explanation on why the variance should not be
an additional ground for the dismissal of the petition, instead of
reflecting in their order on reconsideration that it could have
granted the motion for reconsideration based on attachments
already made, but there existed another reason the variance in
dates for maintaining the dismissal of the petition.
Fourth, we note that most of the material allegations set forth
by petitioners in their CA Petition are already in their complaint
for unlawful detainer filed before the MTC on April 26, 2002.
Attached
to
the
complaint
was
a
27
Verification/Certification dated March 18, 2002 (authenticated
by the Philippine Consulate in San Francisco on March 27, 2002)
in which petitioners declared under oath that they had caused
the preparation of the complaint through their lawyers and had
read and understood the allegations of the complaint. The
material facts alleged in the CA Petition are likewise stated in
the records of the case, as part of the findings of facts made by
the MTC and the RTC. Verification as to the truth of these facts
in the petition for review before the CA was, therefore, strictly a
redundancy; its filing remained a necessity only because the
Rules on the filing of a petition for review before the CA require
it. This consideration could have led to a more equitable
treatment of the petitioners failure to strictly comply with the
Rules, additionally justified by the fact that the failure to comply
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NATIONAL
STEEL
CORPORATION petitioner,
vs.
COURT OF APPEALS, FORMER FIFTH DIVISION, RENE OFRENEO,
in his capacity as Voluntary Arbitrator, and NSC-HDCTC
MONTHLY-DAILY
EMPLOYEES
ORGANIZATIONFFW, respondents.
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari under Rule 45 of
the Rules of Court seeking the reversal of the Resolution of the
1
Court of Appeals dated November 25, 1997 which dismissed
National Steel Corporations petition for review on the ground
that the verification and certification of non-forum shopping
were signed not by the petitioner but by its counsel of record, as
2
well as the subsequent Resolution dated July 2, 1998 which
denied petitioners motion for reconsideration.
11
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xxx
xxx
14
In the case of BA Savings Bank vs. Sia, this Court has ruled that
the certificate of non-forum shopping required by Supreme
Court Circular No. 28-91 may be signed, for and on behalf of a
corporation, by a specifically authorized lawyer who has
personal knowledge of the facts required to be disclosed in such
document.
The reason is that:
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xxx
xxx
xxx
xxx
xxx
xxx
29
34
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xxx
xxx
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February 4, 2008
Virgilio and Jose later tried to withdraw the loan application and
the titles to Loreta's properties but Lelia told them that it was no
longer possible.
xxxx
and/or
cash
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The three defendants surmised that Loreta filed Civil Case No. D14
9136 upon the "malicious instigation" of Jose. They thus
counterclaimed for actual, moral and exemplary damages,
15
attorney's fees, litigation expenses, and the costs of the suit.
Magno and KLII corroborated Lelia's denial of being the owner of
the controlling interest in the company, she being merely the
lessor of the building where KLII holds office.
16
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c. P50,000.00,
damages;
as
exemplary
as
litigation
20
1.
gravely
abused
its
discretion
and
evidently misappreciated the testimony of Magno
Zareno by giving it credence, contrary to the findings
of [the trial court] which heard and saw him testify;
28
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