1

RULE 35 SUMMARY JUDGEMENTS

SECTION 1 SUMMARY JUDGEMENT FOR CLAIMANT

NOCOM V CAMERINO , GR NO. 182984 FEB. 10,

2009

FACTS:

Respondents in the instant case won a favorable

judgment against Springsun Management Systems
Corp. in Civil Case docketed as GR 161029 after
proving that they were tenants who were tilling on the
parcel of land which SMSC purchased from Victoria
Homes Inc. They were entitled to possession and the
court ordered SMSC and all persons claiming under it
to vacate the land. In the present GR No. 182984
respondents with the marital consent of their wives
executed Irrevocable Power of Attorney in favor of
petitioner Nocom in exchange of several Managers
Checks amounting to P500,000 each representing the
price of their inchoate and contingent rights over the
subject property as SMSC would probably appeal the
case. Meanwhile, TCT Nos. 120542, 120541 and
123872 in the name of SMSC were cancelled and TCT
Nos. 15895, 15896 and 15897 were issued in the
names of the respondents. The court also ordered that
the "Irrevocable Power of Attorney," executed by
respondents in favor of petitioner, be annotated in the
memorandum of encumbrances of TCT Nos. 15895,
15896, and 15897. On October 24, 2005, respondent
Oscar Camerino filed a complaint seeking to annul the
"Irrevocable Power of Attorney", the turnover of the
titles to the properties in his favor, and the payment of
attorneys fees and other legal fees. In his Answer with
Counterclaim, petitioner countered that on September
3, 2003, Atty. Santos informed him of the desire of his
clients, herein respondents, to sell and assign to him
their inchoate and contingent rights and interests
over the subject lots because they were in dire need of
money and could no longer wait until the termination
of the proceedings, that they did not have the amount
of P9,790,612 needed to redeem the subject lots; that
on December 18, 2003, he decided to buy the
contingent rights of the respondents and paid each of
them P500,000 or a total of P2,500,000 as evidenced
by Philtrust Bank Managers Check . Respondent filed a
Motion for Summary Judgment alleging that since the
existence of the Irrevocable Power of Attorney was
admitted by petitioner, the only issue to be resolved
was whether the said document was coupled with
interest and whether it was revocable in contemplation

of law and jurisprudence; that Summary Judgment was

proper because petitioner did not raise any issue
relevant to the contents of the Irrevocable Power of
Attorney; and that in an Affidavit dated January 23,
2005, he admitted receipt of a check amounting to
P500,000.00 which was given to him by petitioner as
financial assistance. Correspondingly, petitioner
opposed respondent Oscar Camerinos motion on the
ground that there were factual issues that required the
presentation of evidence. The RTC of Muntinlupa City,
Branch 203 rendered a Summary Judgment annulling
the Irrevocable Power of Attorney for being contrary
to law and public policy. The CA affirmed the trial
courts Joint Order dated June 9, 2006 and Summary
Judgment dated June 15, 2006 and dismissed the
petitioners appeal for lack of jurisdiction.

ISSUE :

Whether or not summary judgment of the trial court

was proper despite genuine issue of fact raised in the
petitioners answer?

HELD:

No, the present case should not be decided by

summary judgment. Summary judgment is not
warranted when there are genuine issues which call for
a full blown trial. The party who moves for summary
judgment has the burden of demonstrating clearly the
absence of any genuine issue of fact, or that the issue
posed in the complaint is patently unsubstantial so as
not to constitute a genuine issue for trial. Trial courts
have limited authority to render summary judgments
and may do so only when there is clearly no genuine
issue as to any material fact. When the facts as
pleaded by the parties are disputed or contested,
proceedings for summary judgment cannot take the
place of trial. Contrary to the findings of the RTC and
the CA, the present case involves certain factual issues
which remove it from the coverage of a summary
judgment. Under Section 1, Rule 35 of the Rules of
Court, a party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory
relief may, at any time after the pleading in answer
thereto has been served, move with supporting
affidavits, depositions or admissions for a summary
judgment in his favor upon all or any part thereof.
Summary judgment is a procedural device resorted to
in order to avoid long drawn out litigations and useless

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delays. When the pleadings on file show that there are
no genuine issues of fact to be tried, the Rules allow a
party to obtain immediate relief by way of summary
judgment, that is, when the facts are not in dispute,
the court is allowed to decide the case summarily by
applying the law to the material facts. Conversely,
where the pleadings tender a genuine issue, summary
judgment is not proper. A genuine issue is such issue
of fact which requires the presentation of evidence as
distinguished from a sham, fictitious, contrived or false
claim. Section 3 of the said rule provides two (2)
requisites for summary judgment to be proper: (1)
there must be no genuine issue as to any material fact,
except for the amount of damages; and (2) the party
presenting the motion for summary judgment must be
entitled to a judgment as a matter of law. A summary
judgment is permitted only if there is no genuine issue
as to any material fact and a moving party is entitled
to a judgment as a matter of law. A summary judgment
is proper if, while the pleadings on their face appear to
raise issues, the affidavits, depositions, and admissions
presented by the moving party show that such issues
are not genuine. [6] Summary judgment is generally
based on the facts proven summarily by affidavits,
depositions, pleadings, or admissions of the parties. In
this present case, while both parties acknowledge or
admit the existence of the Irrevocable Power of
Attorney, the variance in the allegations in the
pleadings of the petitioner vis--vis that of the
respondents require the presentation of evidence on
the issue of the validity of the Irrevocable Power of
Attorney to determine whether its execution was
attended by the vices of consent and whether the
respondents and their spouses did not freely and
voluntarily execute the same. In his Answer with
Counterclaim, petitioner denied the material
allegations of respondent Oscar Camerinos complaint
for being false and baseless as respondents were
informed that the document they signed was the
Irrevocable Power of Attorney in his favor and that
they had received the full consideration of the
transaction and, thus, had no legal right over the three
parcels of land. Indeed, the presentation of evidence is
necessary to determine the validity and legality of the
Irrevocable Power of Attorney, executed by the
respondents in favor of the petitioner. From said main
factual issue, other relevant issues spring therefrom, to
wit: whether the said Irrevocable Power of Attorney
was coupled with interest; whether it had been
obtained through fraud, deceit, and misrepresentation
or other vices of consent; whether the five (5) Philtrust
Bank Managers checks given by petitioner to the
respondents amounting to P500,000 each were in
consideration of the inchoate and contingent rights
of the respondents in favor of the petitioner; whether
Atty. Santos connived with petitioner in causing the

preparation of the said document and, therefore,

should be impleaded as party-defendant together with
the petitioner; whether respondents deposited the
amount of P9,790,612.00 plus P147,059.18 with the
RTC of Muntinlupa City, Branch 256; and whether the
sale of respondents inchoate and contingent rights
amounted to a champertous contract.

G.R. No. L-22737

November 28, 1924
Estate of the deceased Antonio Tanpoco.
VICENTE GOTAMCO, administrator,
vs.
CHAN SENG, guardian of Tan Kim
Choo, opponent-appellee;
JOSE RAZON, guardian ad litem of the minor Tan
Kim Hong, appellant.
Eiguren and Razon for appellant.
Gibbs & McDonough for appellee.
STATEMENT
Antonio Tanpoco died in the year 1920 and left a will
dividing his estate of over P300,000 among four sons,
one-half of which he bequeathed to Tan Kim Hong, the
claimant, whom he described in his will as his
legitimate son, and the other half he left in equal
shares to his three adopted sons, Tan Kimco. Tan
Kimbio and Tan Kim Choo, and appointed Go Siu San, a
resident of Manila, as executor of his will, which
provided that no bond should be required.
November 22, 1920, two Chinese named Tan Kim Lay
and Te Sue, one of Tarlac and the other of Manila, were
appointed and qualified as commissioners, and later
they published the usual notice to creditors to present
their claims within six months at the office of Attorney
M. G. Goyena, of Manila.
June 29, 1921, the commissioners presented their
report to the court in which, among others, they
reported the allowance of the claim here in question.
At the time all of the heirs, including Tan Kim Hong,
were minors and had lived in China since the death of
Antonio Tanpoco, as also had the widow of the
deceased.
On June 29, 1921, the date the commissioners' report
was filed, the executed filed a motion asking for the
appointment of an attorney of his own choice
as curador ad litem for the minor heirs which, among
other things, recites as follows:
2. That the heirs who are interested in the
estate of the above entitled action are all

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minors, to wit: Tan Kimco, age 20; Tan Kim
Hong, age 12; Tan Kimbio, age 11; and Tan Kim
Choo, age 4; and that all the above heirs are
now in China, and the day of their return to the
Islands is unknown to the administrator of the
estate.
The court ignored request of the executor, and on July
2, 1921, upon its own motion, appointed Mr. Felipe
Canillas, who treated his appointed as a formality and
did not make any investigation of the facts, and hence
the report of the commissioners was approved on July
14, 1922.
During all of this time the minor heirs were still in
China. In September, 1922, they arrived in Manila and
employed counsel to represent and protect their
interest, and it was then that Chan Seng learned for
the first time of the allowance of the claim in favor of
Tan Kim Hong. Upon her motion, on November 27,
1922, Judge Harvey ordered an investigation of the
administration of Go Siu San as executor, which was
made by Mr. Felipe Canillas, who still held the position
of curador ad litem of all the minor heirs, including the
claimant, who made a written report to the court, the
material portion of which is as follows:
In the salary ledger of 1920 there appears to
have been credited, without expressing their
origin, in favor of Tan Kim Hong the following
sums:
January
25 .........................................
February
7 .........................................
February
13 ........................................
Total ..............................................

and in the salary ledger of 1921 this amount

was reduced to the sum of P38,766.69
(P33,766.69) which is exactly the amount of
the claim which is said to have been presented
and admitted against the estate (see the report
of the commissioners). Now, who is this Tan
Kim Hong? He is just one of the children of the
deceased, a minor who is now 13 years old and
who has been made the heir to one-half of all
the property mentioned in clause "A" of the will
of the deceased. Insofar as the basis of this
claim is concerned and insofar as the person
who pretends to have represented the minor in
the presentation of the claim is concerned
nothing is explained in the record nor in the
books of the administrator. Therefore, this
claim should be discarded by reason of its
illegality and nullity and the administrator
required to explain its presentation and

admission. If, as the administration pretends,

this sum was credited in the books by the
deceased himself in favor of his boy Tan Kim
Hong and reason of his being a favorite son,
and if the latter legally accepted the donation,
such an act could only amount to a donation
"inter vivos" and the authority to determine the
rights of the donee are not within the attributes
of commissioners on valuation and claims.
The report concluded with a recommendation for the
removal of the executor for gross misconduct and
fraud, and the annulment of the claim of Tan Kim Hong.
After the report was filed, a hearing was had and
testimony was taken, and Judge Harvey removed Go
Siu San as executor, and in his order of removal,
among other things, said:
The commissioners Te Sue and that he had not
received any claim; that the claims which appears in
the report were taken from the books of the business of
the deceased, Antonio Tanpoco (p. 16, s. n.);
nevertheless, the claim of Tan Peng Sue does not
appear in the report of these commissioners on claims
although it appears in the books and was afterwards
accepted by the commissioners last appointed. In the
report of the first commissioners on valuation and
claims there appears a claim of Tan Kim Ho (Tan Kim
Hong) for the sum of P38,766.69 without any voucher
(pp. 11-12, s. n.). This claimant is a minor and was not
represented by any guardian or curador. The
commissioner Te Sue testified that he had gone to
Tarlac but once and in the year 1922 to attend the
claims, but the report of the commissioners bears date
previous to that time which demonstrates evidently
that the administrator Go Siu San was the person who
furnished the data upon which the supposed claims
which appear in the report of the commissioners were
based notwithstanding the fact that they received no
claims."
After such proceedings, nothing was further done until
November 14, 1923, when the present administrator
applied to the court for authority, among other things,
to pay the claim in question, to which the appellee
appeared and objected. The court denied the
application of the present guardian to the claimant to
require the administrator to pay the claim in question
upon the ground that it was void and fictitious, from
which Tan Kim Hong appeals, contending that the lower
court erred in hearing and sustaining the objections to
the allowance of the claim, and in denying the motion
of the administrator for authority to pay the claim.

JOHNS, J.:
The appellant cites and relies upon section 773, 774
and 775 of the Code of Civil Procedure as follows:

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SEC. 773. An appeal from allowance or
disallowance of claim. Any executor or
administrator may appeal to the Court of First
Instance from the allowance of any claim
against the estate by the committee appointed
for the purpose of allowing claims against the
estate of deceased persons, or from the
disallowance, in whole or in part, of any offset
presented by the executor or administrator to
such claim; any creditor may appeal to the
Court of First Instance from the disallowance of
the whole or any part of his claim by such
committee, or the allowance of the whole or a
part of any claim in offset to his claim against
the estate by such committee.
SEC. 774. If administrator does not appeal, heir
or creditor may. If the executor or
administrator does not appeal from the
allowance of any claim against the estate by
the committee, or the disallowance in whole or
in part by it of any offset in behalf of the estate
against such claim, any heir or creditor may
appeal to the Court of First Instance from such
allowance or disallowance, and prosecute the
appeal in the name of the executor or
administrator, upon filing in court a bond to the
administrator or executor, to be approved by
the court, conditioned that he will prosecute
the appeal to effect, and indemnify the
administrator of executor against all costs and
expenses, by reason of the appeal, and will
likewise pay to the claimant such costs as may
be ultimately awarded to him by reason of such
appeal. The bond shall be available for such
claimant as well as for the executor or
administrator.
SEC. 775. Perfecting appeal. The appeal
provided in the two preceding section shall be
perfected by filing with the clerk of the Court of
First Instance that has jurisdiction of the estate,
within twenty-five days after the committee's
reports is filed therein, a statement that the
person so appealing is dissatisfied with the
action of the committee in respect to the item
or items complained of, and appeals therefrom
to the court.
He points out that the report of the committee allowing
the claim was made and filed on June 29, 1921, and
contends that it became automatically final on July 14,
1921; that the opponent should have made her
opposition within the time specified in the Code, and
that her failure to take the statutory appeal is a bar to
all defenses, citing and relying upon the case of De los
Santos vs. Reyes (37 Phil. 104), the syllabus of which is
as follows:
1. DESCENT AND DISTRIBUTION; CLAIMS
AGAINST ESTATES OF DECEASED PERSONS.
It is not sufficient to plead on the part of an
objector, to the allowance by the committee of

appraisal of a credit against a testate or

intestate succession, that he had a good
defense, but he must plead it in due time and
set forth the facts and grounds on which he
intends to rest it, especially when the credit
allowed appears to have been proven at trial
by means of documents which were neither
contradicted nor assailed as false, criminally or
civilly.
2. ID.; ID. Any error, fraud, credit, defect, or
vice, or a substantial nature and productive of
annulment, found in the committee's report,
may serve as a ground for appeal, be pleaded
in the trial had in the Court of First Instance,
and be a subject-matter of the final judgment
rendered in the proceedings, provided that the
person who believed himself to have been
prejudiced shall have appealed from the report
of the commissioners and from the order
approving it, for, if he does not do so, after the
lapse of the period fixed by law, all claims
made for reasons of the annulment of the
proceedings had, will be valid."
On page 113 of the opinion in that case, the court says:
From the careful examination made of the
record in this case it appears that the
proceedings had by the trial court, as well as
those by the committee of appraisal and
claims, were in accordance with law, as the
preinserted provisions and other of the Code of
Civil Procedure were substantially complied
with, and it cannot be affirmed on good
grounds that the irregularities complained of by
counsel for the minor Alfredo Ocampo were
essentially such or that they in any manner
prejudiced his rights and interests, for both he
and his mother Gervasia de los Santos, as well
as their attorneys, knew positively and
certainly that two commissioners of appraisal
had been appointed, had commenced to
discharge their duties, had published notices,
by means of edicts posted in public places;
including the pueblo of Bian, and by
publications in the newspaper La Vanguardia,
calling the creditors of the estate of the
decedent Ramon Ocampo. If the mother of the
minor Ocampo had actually had justifiable
grounds whereupon to oppose by a just and
good defense the claim presented by the
administrator of the estate of the deceased
wife of the decedent Ocampo, in behalf of the
rights and interests of her minor son, she
would have filed her objections opportunely
during the period of the six months fixed by the
commissioners and on the day and hour set by
them. . . . (37 Phil., 113.)
In other words, the court found as a fact that in the De
los Santos vs. Reyes case, supra, there was a
substantial compliance with all of the statutory

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requirements, and the decision in that case was based
upon that fact. But there is a marked distinction
between the facts there and those in the instant case.
Here, all of the parties in interest were minors. The
evidence is conclusive that at the time the alleged
claim was allowed, Tan Kim Hong was only twelve
years of age, and that all of the other parties were
minors. There is no claim or pretense that Tan Kim
Hong had a guardian or that anyone had the legal
authority to appear for and present his claim or to
represent him, or that his claim was ever presented.
There is no claim or pretense that any of the parties in
interest had any knowledge of the fact that the claim
was presented and allowed before they came to Manila
from China in September, 1922. As a matter of fact,
there is no evidence that the claim in question in any
manner, shape or form was ever presented to the
commissioners by anyone. For aught that appears in
the record, the claim was allowed by the
commissioners on their own motion and of their own
volition. It also appears that the entries which were
made in the books of the deceased were made by his
bookkeeper, and there is nothing to show that they
were made by the authority of the deceased. It is very
significant that the will of the deceased was made
sometime after the entries were made, and that no
reference whatever is made in the will to the claim in
question.
The authorities cited by the appellant upon the
question of res judicata are good law, but are not in
point. Here, there was no claim presented to the
commissioners. Hence, there was nothing for them to
adjudicate. Neither the claimant nor anyone on his
behalf made or presented a claim. Hence, it must
follow that the commissioners did not have any
authority to allow or reject the claim, and that they
were without jurisdiction to act in the premises. Neither
is the evidence in the record sufficient to sustain the
claim. Outside of the fact that the above entries were
made in the books of the deceased by the his
bookkeeper, there is nothing in the record upon which
to base the claim, and it does not even appear that
such entries were authorized by the deceased.
Giving full force and effect to the provisions of the
Code of Civil Procedure above quoted, all of the
prerequisites and essential elements of a judgment are
wanting.
Ruling Case Law, volume 15, page 569,
says:1awphil.net
A judgment is the law's last word in a judicial
controversy. It may therefore be defined as the
final consideration and determination of a court
of competent jurisdiction upon the matters
submitted to it in an action or proceeding. A
more precise definition is that a judgment is
the conclusion of the law upon the matters
contained in the record, or the application of
the law to the pleadings and to the facts, as
found by the court or admitted by the parties,

or deemed to exist upon their default in a

course of judicial proceedings. It should be
noted that only is a judgment which is
pronounced between the parties to an action
upon the matters submitted to the court for
decision. . . .
In the instant case there was not claim made, filed or
presented by anyone. Legally speaking, the allowance
of the claim would be like rendering a judgment
without the filing of a complaint, or even the making or
presentment of a claim.
Upon the facts shown, to legalize the allowance of the
claim with all of the formalities and requisites of a final
judgment, would be a travesty upon justice. It appears
from the record before us that the commissioners did
not have any jurisdiction to allow the claim; that as to
the claim in question their proceedings were null and
void ab initio, and hence they were not res judicata,
and in addition to that, it clearly appears that the
allowance of the claim was a fraud upon the appellee.
The judgment of the lower court is affirmed, with costs.
So ordered.
Street, Malcolm, Avancea, Villamor, Ostrand and
Romualdez, JJ., concur.

G.R. No. 178899

November 15, 2010
PHILIPPINE BUSINESS BANK, Petitioner,
vs.
FELIPE CHUA, Respondent.
DECISION
BRION, J.:
We resolve the petition for review on certiorari 1 filed by
Philippine Business Bank (PBB) challenging the
decision of the Court of Appeals (CA) in CA-G.R. SP No.
94883 dated February 8, 2007,2 insofar as it overturned
the Regional Trial Courts (RTCs) order dated
December 16, 2005 declaring the finality of its Partial
Summary Judgment and granting the issuance of a writ
of execution against respondent Felipe Chua
(respondent Chua). PBB also seeks to overturn the
resolution of the CA dated July 18, 2007, which denied
its motion for reconsideration.
FACTUAL ANTECEDENTS
From the records, the following facts are not in dispute.
On March 22, 2002, Tomas Tan (Tan), a stockholder and
director/Treasurer of CST Enterprises, Inc. (CST), filed a

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derivative suit for the Declaration of Unenforceability of
Promissory Notes and Mortgage, Nullity of Secretarys
Certificate, Injunction, Damages with Prayer for the
Issuance of Temporary Restraining Order/Writ of
Preliminary Injunction against PBB, Francis Lee, Alfredo
Yao, Rodulfo Besinga, Stephen Taala, Rose Robles,
Henry Ramos, Yu Heng, Mabuhay Sugar Central, Inc.,
Nancy Chan, Henry Chan, John Dennis Chua, Jaime
Soriano, Voltaire Uychutin, Peter Salud, Edgar Lo,
respondent Felipe Chua, and John Does before the
Makati City Regional Trial Court.3
In Tans amended complaint dated January 9, 2003, he
alleged that sometime in February 2001, before he
went abroad for medical treatment, he turned over to
respondent Chua, a director and the President of CST,
the original copies of Transfer Certificate of Title Nos.
124275 and 157581, titles to lands owned by, and
registered in the name of, CST. In January 2002, the
respondent informed him that CSTs properties had
been fraudulently used as collateral for loans allegedly
taken out in CSTs name, but without proper authority
from CST stockholders and/or the Board of Directors.4
From his investigation, Tan discovered that a certain
Atty. Jaime Soriano had issued a Secretarys certificate,
which stated that John Dennis Chua was authorized
during a duly constituted CST board meeting to open a
bank account and obtain credit facilities under the
name of CST with PBB. This Secretarys Certificate also
authorized John Dennis Chua to use CSTs properties as
security for these loans.5 Using this Secretarys
Certificate, John Dennis Chua took out loans with PBB
in the total amount of Ninety-One Million One Hundred
Thousand Pesos (P91,100,000.00),6 and used CST
properties as collateral.7 Respondent Chua signed as
co-maker with John Dennis Chua, who signed both as
the representative of CST, as well as in his personal
capacity, on six promissory notes to PBB to evidence
parts of this loan.8
When PBB threatened to foreclose the mortgage on
these properties after CST defaulted,9 Tan filed the
present complaint, essentially arguing that the
loans/promissory notes and mortgage made out in
CSTs name are unenforceable against it, since they
were entered into by persons who were unauthorized
to bind the company.10
In its Amended Answer,11 PBB claimed that the loans to
CST, as well as the corresponding mortgage over CST
properties, were all valid and binding since the loan
applications and documents accomplished by John
Dennis Chua were supported by the duly accomplished
secretarys certificate, which authorized him to obtain
credit facilities in behalf of CST. In addition, the original
copies of the titles to the properties were offered to
PBB as collaterals.
PBBs Amended Answer also included a cross-claim
against respondent Chua, demanding payment of the

promissory notes he signed as co-maker with John

Dennis Chua.12
In respondent Chuas Answer to the Cross-Claim of
PBB,13 he claimed that he never applied for a loan with
the PBB. He further denied authorizing John Dennis
Chua to apply for any loans in CSTs name, or to use
CST properties as security for any
loans.14 Nevertheless, he admitted that he signed, as
co-maker, six promissory notes covering the loans
obtained by John Dennis Chua with PBB. According to
respondent Chua, he executed these promissory notes
after the loans had already been consummated, "in a
sincere effort to persuade John Dennis Chua to pay off
the unauthorized loan and retrieve from cross-claimant
PBB the CST titles."15
PBB subsequently filed a Motion for Partial Summary
Judgment based on Section 1, Rule 35 of the 1997
Rules of Civil Procedure (Rules), claiming that since
respondent Chua already admitted the execution of the
promissory notes in favor of PBB amounting to Seventy
Five Million Pesos (P75,000,000.00),16 insofar as its
cross-claim against him was concerned, there was no
genuine issue on any material fact on the issue of his
liability to PBB. PBB argued that although respondent
Chua claimed that he signed the promissory notes
merely to persuade John Dennis Chua to pay off his
loan to PBB, he was still liable as an accommodation
party under Section 29 of the Negotiable Instruments
Law.17
THE RTCS PARTIAL SUMMARY JUDGMENT
Acting on PBBs motion, the RTC issued a partial
summary judgment on PBBs cross-claim on July 27,
2005, finding respondent Chua liable as a signatory to
the promissory notes amounting to Seventy-Five Million
Pesos (P75,000,000.00). The RTC reasoned that by
signing as a co-maker, he obligated himself to pay the
amount indicated in the promissory notes, even if he
received no consideration in return. Thus, the RTC
ordered him to pay PBB the amount of P75,000,000.00,
plus interests and costs.18
In its order dated December 16, 2005, the RTC resolved
respondent Chuas Notice of Appeal, as well as PBBs
Motion to Disallow Appeal and to Issue Execution.
Citing Section 1, Rule 41 of the Rules, the RTC ruled
that respondent Chua could not file a notice of appeal.
Instead, he should have filed a special civil action
for certiorariunder Rule 65 of the Rules. However, since
the period for filing a certiorari petition had already
lapsed without respondent filing any petition, the
partial summary judgment had become final and
executory. Thus, it ordered the issuance of a writ of
execution for the satisfaction of the partial summary
judgment in favor of PBB.19

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On December 21, 2005, the RTC issued an order
appointing Renato Flora as the special sheriff to
implement the writ of execution. In line with this order,
Renato Flora, on December 23, 2005, issued a Notice
of Levy and Sale on Execution of Personal Properties,
addressed to respondent Chua. He proceeded with the
execution sale, and on December 28, 2005, he issued a
certificate of sale over respondent Chuas 900 shares
of stock in CST in favor of PBB. He also posted a notice
of sheriffs sale on January 10, 2006 over respondent
Chuas five parcels of land located in Las Pinas, Pasay
City, and Muntinlupa.20
THE COURT OF APPEALS DECISION
Respondent Chua filed a petition for certiorari and
mandamus with the CA to challenge: (a) the December
16, 2005 order, granting PBBs motion to disallow his
appeal; (b) the December 21, 2005 order, granting
PBBs motion to appoint Renato Flora as special sheriff
to implement the writ of execution; and (c) the
February 16, 2006 order denying his motion for
reconsideration and to suspend execution. In essence,
respondent Chua alleged that the RTC acted with grave
abuse of discretion in disallowing his appeal of the
partial summary judgment, and in issuing a writ of
execution. Significantly, respondent Chua did not
question the propriety of the partial summary
judgment.
On February 8, 2007, the CA issued the assailed
decision, partly affirming the RTC order dated
December 16, 2005 on the matter of the disallowance
of respondent Chuas appeal. The CA held that
respondent Chua could not appeal the partial summary
judgment while the main case remained pending, in
keeping with Section 1(g), Rule 41 of the Rules.
However, the CA held that the RTC committed grave
abuse of discretion when it issued the writ of execution
against respondent Chua. As found by the CA, the RTC
grievously erred when it held that the partial judgment
had become final and executory when respondent
Chua failed to avail of the proper remedy
of certiorari within the 60 day reglementary period
under Rule 65. Since a partial summary judgment does
not finally dispose of the action, it is merely an
interlocutory, not a final, order. Thus, it could not attain
finality.
The CA further noted that certiorari is an independent
action and not part of the appeal proceedings, and
failure to file a certiorari petition would not result in the
finality of the judgment or final order. The RTC, thus,
committed grave abuse of discretion amounting to lack
of jurisdiction when it granted the issuance of a writ of
execution, and the corresponding writ of execution
issued by the court a quo, as well as the subsequent
implementing proceedings, were void.

THE PETITION
PBB submits two issues for our resolution:
I.
WHETHER OR NOT THE HONORABLE COURT OF
APPEALS COMMITTED AN ERROR IN APPLYING
JURISPRUDENCE NOT ON ALL FOURS [WITH]
THE FACTUAL BACKDROP OF THE CASE.
II.
WHETHER OR NOT THE HONORABLE COURT OF
APPEALS COMMITTED AN ERROR IN RECALLING
AND SETTING ASIDE THE WRIT OF EXECUTION
AND ALL THE PROCEEDINGS TAKEN FOR ITS
IMPLEMENTATION ON THE WRONG NOTION
THAT THE PARTIAL SUMMARY JUDGMENT HAS
NOT BECOME FINAL AND EXECUTORY.
THE RULING
We DENY the petition for being unmeritorious.
Nature of Partial Summary Judgment
PBBs motion for partial summary judgment against
respondent Chua was based on Section 1, Rule 35 of
the Rules, which provides:
Section 1. Summary Judgment for claimant. - A party
seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declaratory relief may, at any
time after the pleading in answer thereto has been
served, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor upon
all or any part thereof.
A summary judgment, or accelerated judgment, is a
procedural technique to promptly dispose of cases
where the facts appear undisputed and certain from
the pleadings, depositions, admissions and affidavits
on record, or for weeding out sham claims or defenses
at an early stage of the litigation to avoid the expense
and loss of time involved in a trial.21 When the
pleadings on file show that there are no genuine issues
of fact to be tried, the Rules allow a party to obtain
immediate relief by way of summary judgment, that is,
when the facts are not in dispute, the court is allowed
to decide the case summarily by applying the law to
the material facts.22
The rendition by the court of a summary judgment
does not always result in the full adjudication of all the
issues raised in a case. For these instances, Section 4,
Rule 35 of the Rules provides:

8
Section 4. Case not fully adjudicated on motion. If on
motion under this Rule, judgment is not rendered upon
the whole case or for all the reliefs sought and a trial is
necessary, the court at the hearing of the motion, by
examining the pleadings and the evidence before it
and by interrogating counsel shall ascertain what
material facts exist without substantial controversy and
what are actually and in good faith controverted. It
shall thereupon make an order specifying the facts that
appear without substantial controversy, including the
extent to which the amount of damages or other relief
is not in controversy, and directing such further
proceedings in the action as are just. The facts so
specified shall be deemed established, and the trial
shall be conducted on the controverted facts
accordingly.
This is what is referred to as a partial summary
judgment. A careful reading of this section reveals that
a partial summary judgment was never intended to be
considered a "final judgment," as it does not "[put] an
end to an action at law by declaring that the plaintiff
either has or has not entitled himself to recover the
remedy he sues for."23 The Rules provide for a partial
summary judgment as a means to simplify the trial
process by allowing the court to focus the trial only on
the assailed facts, considering as established those
facts which are not in dispute.
After this sifting process, the court is instructed to issue
an order, the partial summary judgment, which
specifies the disputed facts that have to be settled in
the course of trial. In this way, the partial summary
judgment is more akin to a record of pre-trial,24 an
interlocutory order, rather than a final judgment.
The differences between a "final judgment" and an
"interlocutory order" are well-established. We said in
Denso (Phils.) Inc. v. Intermediate Appellate
Court25 that:
[A] final judgment or order is one that finally disposes
of a case, leaving nothing more to be done by the
Court in respect thereto, e.g., an adjudication on the
merits which, on the basis of the evidence presented at
the trial, declares categorically what the rights and
obligations of the parties are and which party is in the
right; or a judgment or order that dismisses an action
on the ground, for instance, of res judicata or
prescription. Once rendered, the task of the Court is
ended, as far as deciding the controversy or
determining the rights and liabilities of the litigants is
concerned. Nothing more remains to be done by the
Court except to await the parties' next move . . . and
ultimately, of course, to cause the execution of the
judgment once it becomes "final" or, to use the
established and more distinctive term, "final and
executory."
xxxx

Conversely, an order that does not finally dispose of

the case, and does not end the Court's task of
adjudicating the parties' contentions and determining
their rights and liabilities as regards each other, but
obviously indicates that other things remain to be done
by the Court, is "interlocutory", e.g., an order denying a
motion to dismiss under Rule 16 of the Rules x x x
Unlike a 'final judgment or order, which is appealable,
as above pointed out, an 'interlocutory order may not
be questioned on appeal except only as part of an
appeal that may eventually be taken from the final
judgment rendered in the case.26
Bearing in mind these differences, there can be no
doubt that the partial summary judgment envisioned
by the Rules is an interlocutory order that was never
meant to be treated separately from the main case. As
we explained in Guevarra v. Court of Appeals:27
It will be noted that the judgment in question is a
"partial summary judgment." It was rendered only with
respect to the private respondents first and second
causes of action alleged in their complaint. It was not
intended to cover the other prayers in the said
complaint, nor the supplementary counterclaim filed by
the petitioners against the private respondents, nor the
third-party complaint filed by the petitioners against
the Security Bank and Trust Company. A partial
summary judgment "is not a final or appealable
judgment." (Moran, Vol. 2, 1970 Edition, p. 189, citing
several cases.) "It is merely a pre-trial adjudication that
said issues in the case shall be deemed established for
the trial of the case." (Francisco, Rules of Court, Vol. II,
p. 429.)
xxxx
The partial summary judgment rendered by the trial
court being merely interlocutory and not a final
judgment, it is puerile to discuss whether the same
became final and executory due to the alleged failure
to appeal said judgment within the supposed period of
appeal. What the rules contemplate is that the appeal
from the partial summary judgment shall be taken
together with the judgment that may be rendered in
the entire case after a trial is conducted on the
material facts on which a substantial controversy
exists. This is on the assumption that the partial
summary judgment was validly rendered, which, as
shown above, is not true in the case at bar. 28
We reiterated this ruling in the cases of Province of
Pangasinan v. Court of Appeals29 and Government
Service Insurance System v. Philippine Village Hotel,
Inc.30
Applicability of Guevarra
PBB asserts that our pronouncement in the cases of
Guevarra, Province of Pangasinan, and Government

9
Service Insurance System cannot be applied to the
present case because these cases involve factual
circumstances that are completely different from the
facts before us. While the partial summary judgments
in the cited cases decided only some of the causes of
action presented, leaving other issues unresolved, PBB
insists that as far as its cross-claim against respondent
Chua is concerned, the court a quos partial summary
judgment is a full and complete adjudication because
the award is for the whole claim.31 According to PBB,
whatever the court decides as regards the main case,
this will not affect the liability of respondent Chua as a
solidary debtor in the promissory notes, since the
creditor can proceed against any of the solidary
debtors. In other words, no substantial controversy
exists between PBB and respondent Chua, and there is
nothing more to be done on this particular issue.
We do not agree with PBBs submission.
In the Guevarra case, the Court held that the summary
judgment rendered by the lower court was in truth a
partial summary judgment because it failed to resolve
the other causes of action in the complaint, as well as
the counterclaim and the third party complaint raised
by the defendants.
Contrary to PBBs assertions, the same could be said
for the case presently before us. The partial summary
judgment in question resolved only the cross-claim
made by PBB against its co-defendant, respondent
Chua, based on the latters admission that he signed
promissory notes as a co-maker in favor of PBB. This is
obvious from the dispositive portion of the partial
summary judgment, quoted below for convenient
reference:
WHEREFORE, a partial summary judgment is hereby
rendered on the cross-claim of cross-defendant
Philippine Business Bank against cross-defendant
Felipe Chua, ordering the latter to pay the former as
follows:
1. The amount of Ten Million (P10,000,000.00) Pesos,
representing the value of the Promissory Note dated
April 17, 2001, plus interest thereof at the rate of 16%
from April 12, 2002, until fully paid;
2. The amount of Twelve Million (P12,000,000.00)
Pesos, representing the value of the Promissory Note
dated April 5, 2001, plus interest thereon at the rate of
17% from April 1, 2002, until fully paid;
3. The amount of Twenty Three Million
(P23,000,000.00) Pesos, representing the value of the
Promissory Note dated April 25, 2001, plus interest

thereon at the rate of 16% from April 19, 2002, until

fully paid;
4. The amount of Eight Million (P8,000,000.00) Pesos,
representing the value of the Promissory Note dated
June 20, 2001, plus interest thereon at the rate of 17%
from June 20, 2001, until fully paid;
5. The amount of Seven Million (P7,000,000.00) Pesos,
representing the value of the Promissory Note dated
June 22, 2001, plus interest thereon at the rate of 17%
from June 17, 2002, until fully paid;
6. The amount of Fifteen Million (P15,000,000.00)
Pesos, representing the value of the Promissory Note
dated June 28, 2001, plus interest thereon at the rate
of 17% from June 24, 2002, until fully paid;
7. Plus cost of suit.
SO ORDERED.

32

Clearly, this partial summary judgment did not dispose

of the case as the main issues raised in plaintiff Tomas
Tans complaint, i.e., the validity of the secretarys
certificate which authorized John Dennis Chua to take
out loans, and execute promissory notes and
mortgages for and on behalf of CST, as well as the
validity of the resultant promissory notes and
mortgage executed for and on behalf of CST, remained
unresolved.
Chua shares common interest with co-defendantdebtors
Still, PBB insists that the partial summary judgment is a
final judgment as regards PBBs cross-claim against
respondent Chua since respondent Chuas liability will
not be affected by the resolution of the issues of the
main case.
On its face, the promissory notes were executed by
John Dennis Chua in two capacities as the alleged
representative of CST, and in his personal capacity.
Thus, while there can be no question as to respondent
Chuas liability to PBB (since he already admitted to
executing these promissory notes as a co-maker), still,
the court a quos findings on: (a) whether John Dennis
Chua was properly authorized to sign these promissory
notes on behalf of CST, and (b) whether John Dennis
Chua actually signed these promissory notes in his
personal capacity, would certainly have the effect of
determining whether respondent Chua has the right to
go after CST and/or John Dennis Chua for
reimbursement on any payment he makes on these

10
promissory notes, pursuant to Article 1217 of the Civil
Code, which states:
Article 1217. Payment made by one of the solidary
debtors extinguishes the obligation. If two or more
solidary debtors offer to pay, the creditor may choose
which offer to accept.
He who made the payment may claim from his codebtors only the share which corresponds to each, with
the interest for the payment already made. If the
payment is made before the debt is due, no interest for
the intervening period may be demanded.

4. The judgment rendered by [the RTC] dated July 27,

2005 is only a partial summary judgment against
[respondent Chua], on the crossclaim of cross-claimant
Philippine Business Bank. The main case which
involves the claim of plaintiffs against the principal
defendants is still pending and has not yet been
adjudged by [the RTC].34
Thus, PBB cannot now be allowed to deny the
interlocutory nature of the partial summary judgment.
Certiorari not the proper remedy

When one of the solidary debtors cannot, because of

his insolvency, reimburse his share to the debtor
paying the obligation, such share shall be borne by all
his co-debtors, in proportion to the debt of each.

PBB also maintains that the partial summary judgment

attained finality when respondent Chua failed to file a
certiorari petition, citing the last paragraph of Section
1, Rule 41 of the Rules as basis. We quote:

In other words, PBB has a common cause of action

against respondent Chua with his alleged co-debtors,
John Dennis Chua and CST, it would simply not be
proper to treat respondent Chua separately from his
co-debtors.

Section 1. Subject of appeal. An appeal maybe taken

from a judgment or final order that completely
disposes of the case, or of a particular matter therein
when declared by these Rules to be appealable.

Moreover, we cannot turn a blind eye to the clear

intention of the trial court in rendering a partial
summary judgment. Had the trial court truly intended
to treat PBBs cross-claim against respondent Chua
separately, it could easily have ordered a separate trial
via Section 2, Rule 31 of the Rules, which states:
Section 2. Separate trials. The court, in furtherance of
convenience or to avoid prejudice, may order a
separate trial of any claim, cross-claim, counterclaim,
or third-party complaint, or of any separate issue or of
any number of claims, cross-claims, counterclaims,
third-party complaints or issues.
That the trial court did not do so belies PBBs
contention.
It has also not escaped our attention that PBB, in its
Motion to Disallow Appeal and to Issue Execution
Against Cross-Defendant Felipe Chua,33 already
admitted that the partial summary judgment is not a
judgment or final order that completely disposes of the
case. In its own words:
xxxx
3. However, the remedy availed of by [respondent
Chua] is patently erroneous because under Rule 41
Section 1 of the Rules of Court, an appeal may be
taken only from a judgment or final order that
completely disposes the case;

No appeal may be taken from:

xxxx
(g) A judgment or final order for or against one or more
of several parties or in separate claims, counterclaims,
cross-claims and third party complaints, while the main
case is pending, unless the court allows an appeal
therefrom;
xxxx
In all the above instances where the judgment, or final
order is not appealable, the aggrieved party may file
an appropriate special civil action under Rule 65.
Contrary to PBBs contention, however, certiorari was
not the proper recourse for respondent Chua. The
propriety of the summary judgment may be corrected
only on appeal or other direct review, not a petition for
certiorari,35 since it imputes error on the lower courts
judgment. It is well-settled that certiorari is not
available to correct errors of procedure or mistakes in
the judges findings and conclusions of law and
fact.36 As we explained in Apostol v. Court of Appeals:37
As a legal recourse, the special civil action
of certiorari is a limited form of review. The jurisdiction
of this Court is narrow in scope; it is restricted to
resolving errors of jurisdiction, not errors of judgment.
Indeed, as long as the courts below act within their
jurisdiction, alleged errors committed in the exercise of

11
their discretion will amount to mere errors of judgment
correctable by an appeal or a petition for review.38
In light of these findings, we affirm the CAs ruling that
the partial summary judgment is an interlocutory order
which could not become a final and executory
judgment, notwithstanding respondent Chuas failure
to file a certiorari petition to challenge the judgment.
Accordingly, the RTC grievously erred when it issued
the writ of execution against respondent Chua.
In view of this conclusion, we find it unnecessary to
resolve the issue raised by respondent Chua on the
validity of the RTCs appointment of a special sheriff for
the implementation of the execution writ.

the Court of Appeals in CA-G.R. SP No. 94883 dated

February 8, 2007, as well as its Resolution dated July
18, 2007. Costs against the petitioner, Philippine
Business Bank.
SO ORDERED.

G.R. No. 170483

April 19, 2010
MANUEL C. BUNGCAYAO, SR., represented in this
case by his Attorney-in-fact ROMEL R.
BUNGCAYAO,Petitioner,
vs.
FORT ILOCANDIA PROPERTY HOLDINGS, AND
DEVELOPMENT CORPORATION, Respondent.
DECISION

Propriety of Summary Judgment Reserved for Appeal

CARPIO, J.:
As a final point, we note that respondent Chua has
raised with this Court the issue of the propriety of the
partial summary judgment issued by the RTC. Notably,
respondent Chua never raised this issue in his petition
for certiorari before the CA. It is well settled that no
question will be entertained on appeal unless it has
been raised in the proceedings below.39 Basic
considerations of due process impel the adoption of
this rule.40
Furthermore, this issue would be better resolved in the
proper appeal, to be taken by the parties once the
court a quo has completely resolved all the issues
involved in the present case in a final
judgment.1avvphi1 If we were to resolve this issue
now, we would be preempting the CA, which has
primary jurisdiction over this issue.
Lastly, taking jurisdiction over this issue now would
only result in multiple appeals from a single case which
concerns the same, or integrated, causes of action. As
we said in Santos v. People:41
Another recognized reason of the law in permitting
appeal only from a final order or judgment, and not
from an interlocutory or incidental one, is to avoid
multiplicity of appeals in a single action, which must
necessarily suspend the hearing and decision on the
merits of the case during the pendency of the appeal.
If such appeal were allowed, the trial on the merits of
the case would necessarily be delayed for a
considerable length of time, and compel the adverse
party to incur unnecessary expenses, for one of the
parties may interpose as many appeals as incidental
questions may be raised by him, and interlocutory
orders rendered or issued by the lower court.
WHEREFORE, premises considered, we DENY the
petition for lack of merit and AFFIRM the Decision of

The Case
Before the Court is a petition for review1 assailing the
21 November 2005 Decision2 of the Court of Appeals in
CA-G.R. CV No. 82415.
The Antecedent Facts
Manuel C. Bungcayao, Sr. (petitioner) claimed to be
one of the two entrepreneurs who introduced
improvements on the foreshore area of Calayab Beach
in 1978 when Fort Ilocandia Hotel started its
construction in the area. Thereafter, other
entrepreneurs began setting up their own stalls in the
foreshore area. They later formed themselves into the
DSierto Beach Resort Owners Association, Inc.
(DSierto).
In July 1980, six parcels of land in Barrio Balacad (now
Calayad) were transferred, ceded, and conveyed to the
Philippine Tourism Authority (PTA) pursuant to
Presidential Decree No. 1704. Fort Ilocandia Resort
Hotel was erected on the area. In 1992, petitioner and
other DSierto members applied for a foreshore lease
with the Community Environment and Natural
Resources Office (CENRO) and was granted a
provisional permit. On 31 January 2002, Fort Ilocandia
Property Holdings and Development Corporation
(respondent) filed a foreshore application over a 14hectare area abutting the Fort Ilocandia Property,
including the 5-hectare portion applied for by DSierto
members. The foreshore applications became the
subject matter of a conflict case, docketed Department
of Environment and Natural Resources (DENR) Case No.
5473, between respondent and DSierto members. In
an undated Order,3 DENR Regional Executive Director
Victor J. Ancheta denied the foreshore lease

12
applications of the DSierto members, including
petitioner, on the ground that the subject area applied
for fell either within the titled property or within the
foreshore areas applied for by respondent. The DSierto
members appealed the denial of their applications. In a
Resolution4 dated 21 August 2003, then DENR
Secretary Elisea G. Gozun denied the appeal on the
ground that the area applied for encroached on the
titled property of respondent based on the final
verification plan.
In a letter dated 18 September 2003,5 respondent,
through its Public Relations Manager Arlene de
Guzman, invited the DSierto members to a luncheon
meeting to discuss common details beneficial to all
parties concerned. Atty. Liza Marcos (Atty. Marcos), wife
of Governor Bongbong Marcos, was present as she was
asked by Fort Ilocandia hotel officials to mediate over
the conflict among the parties. Atty. Marcos
offered P300,000 as financial settlement per claimant
in consideration of the improvements introduced, on
the condition that they would vacate the area
identified as respondents property. A DSierto member
made a counter-offer of P400,000, to which the other
DSierto members agreed.
Petitioner alleged that his son, Manuel Bungcayao, Jr.,
who attended the meeting, manifested that he still had
to consult his parents about the offer but upon the
undue pressure exerted by Atty. Marcos, he accepted
the payment and signed the Deed of Assignment,
Release, Waiver and Quitclaim6 in favor of respondent.
Petitioner then filed an action for declaration of nullity
of contract before the Regional Trial Court of Laoag,
City, Branch 13 (trial court), docketed as Civil Case
Nos. 12891-13, against respondent. Petitioner alleged
that his son had no authority to represent him and that
the deed was void and not binding upon him.
Respondent countered that the area upon which
petitioner and the other DSierto members constructed
their improvements was part of its titled property
under Transfer Certificate of Title No. T-31182.
Respondent alleged that petitioners sons, Manuel, Jr.
and Romel, attended the luncheon meeting on their
own volition and they were able to talk to their parents
through a cellular phone before they accepted
respondents offer. As a counterclaim, respondent
prayed that petitioner be required to return the amount
of P400,000 from respondent, to vacate the portion of
the respondents property he was occupying, and to
pay damages because his continued refusal to vacate
the property caused tremendous delay in the planned
implementation of Fort Ilocandias expansion projects.

In an Order7 dated 6 November 2003, the trial court

confirmed the agreement of the parties to cancel the
Deed of Assignment, Release, Waiver and Quitclaim
and the return of P400,000 to respondent. Petitioners
counsel, however, manifested that petitioner was still
maintaining its claim for damages against respondent.
Petitioner and respondent agreed to consider the case
submitted for resolution on summary judgment. Thus,
in its Order8 dated 28 November 2003, the trial court
considered the case submitted for resolution. Petitioner
filed a motion for reconsideration, alleging that he
manifested in open court that he was withdrawing his
earlier manifestation submitting the case for
resolution. Respondent filed a Motion for Summary
Judgment.
The trial court rendered a Summary Judgment9 dated
13 February 2004.
The Decision of the Trial Court
The trial court ruled that the only issue raised by
petitioner was his claim for damages while
respondents issue was only his claim for possession of
the property occupied by petitioner and damages. The
trial court noted that the parties already stipulated on
the issues and admissions had been made by both
parties. The trial court ruled that summary judgment
could be rendered on the case.
The trial court ruled that the alleged pressure on
petitioners sons could not constitute force, violence or
intimidation that could vitiate consent. As regards
respondents counterclaim, the trial court ruled that
based on the pleadings and admissions made, it was
established that the property occupied by petitioner
was within the titled property of respondent. The
dispositive portion of the trial courts decision reads:
WHEREFORE, the Court hereby renders judgment
DISMISSING the claim of plaintiff for damages as it is
found to be without legal basis, and finding the
counterclaim of the defendant for recovery of
possession of the lot occupied by the plaintiff to be
meritorious as it is hereby GRANTED. Consequently,
the plaintiff is hereby directed to immediately vacate
the premises administratively adjudicated by the
executive department of the government in favor of
the defendant and yield its possession unto the
defendant. No pronouncement is here made as yet of
the damages claimed by the defendant.
SO ORDERED.10

13
Petitioner appealed from the trial courts decision.

The petition has merit.

The Decision of the Court of Appeals

Compulsory Counterclaim

In its 21 November 2005 Decision, the Court of Appeals

affirmed the trial courts decision in toto.

A compulsory counterclaim is any claim for money or

any relief, which a defending party may have against
an opposing party, which at the time of suit arises out
of, or is necessarily connected with, the same
transaction or occurrence that is the subject matter of
the plaintiffs complaint.13 It is compulsory in the sense
that it is within the jurisdiction of the court, does not
require for its adjudication the presence of third parties
over whom the court cannot acquire jurisdiction, and
will be barred in the future if not set up in the answer
to the complaint in the same case.14Any other
counterclaim is permissive.15

The Court of Appeals sustained the trial court in

resorting to summary judgment as a valid procedural
device for the prompt disposition of actions in which
the pleadings raise only a legal issue and not a genuine
issue as to any material fact. The Court of Appeals
ruled that in this case, the facts are not in dispute and
the only issue to be resolved is whether the subject
property was within the titled property of respondent.
Hence, summary judgment was properly rendered by
the trial court.
The Court of Appeals ruled that the counterclaims
raised by respondent were compulsory in nature, as
they arose out of or were connected with the
transaction or occurrence constituting the subject
matter of the opposing partys claim and did not
require for its adjudication the presence of third parties
of whom the court could not acquire jurisdiction. The
Court of Appeals ruled that respondent was the rightful
owner of the subject property and as such, it had the
right to recover its possession from any other person to
whom the owner has not transmitted the property,
including petitioner.
The dispositive portion of the Court of Appeals
decision reads:
WHEREFORE, the assailed decision dated February 13,
2004 of the Regional Trial Court of Laoag City, Branch
13 is hereby AFFIRMED in toto.

The Court has ruled that the compelling test of

compulsoriness characterizes a counterclaim as
compulsory if there should exist a logical relationship
between the main claim and the counterclaim.16 The
Court further ruled that there exists such a relationship
when conducting separate trials of the respective
claims of the parties would entail substantial
duplication of time and effort by the parties and the
court; when the multiple claims involve the same
factual and legal issues; or when the claims are
offshoots of the same basic controversy between the
parties.17
The criteria to determine whether the counterclaim is
compulsory or permissive are as follows:
(a) Are issues of fact and law raised by the claim and
by the counterclaim largely the same?
(b) Would res judicata bar a subsequent suit on
defendants claim, absent the compulsory rule?

SO ORDERED.11
Thus, the petition before this Court.
The Issues
Petitioner raises the following issues in his
Memorandum:12
1. Whether respondents counterclaim is
compulsory; and
2. Whether summary judgment is appropriate
in this case.
The Ruling of this Court

(c) Will substantially the same evidence support or

refute plaintiffs claim as well as defendants
counterclaim?
(d) Is there any logical relations between the claim and
the counterclaim?
A positive answer to all four questions would indicate
that the counterclaim is compulsory.18
In this case, the only issue in the complaint is whether
Manuel, Jr. is authorized to sign the Deed of
Assignment, Release, Waiver and Quitclaim in favor of
respondent without petitioners express approval and
authority. In an Order dated 6 November 2003, the trial
court confirmed the agreement of the parties to cancel

14
the Deed of Assignment, Release, Waiver and Quitclaim
and the return of P400,000 to respondent. The only
claim that remained was the claim for damages against
respondent. The trial court resolved this issue by
holding that any damage suffered by Manuel, Jr. was
personal to him. The trial court ruled that petitioner
could not have suffered any damage even if Manuel, Jr.
entered into an agreement with respondent since the
agreement was null and void.
Respondent filed three counterclaims. The first was for
recovery of the P400,000 given to Manuel, Jr.; the
second was for recovery of possession of the subject
property; and the third was for damages. The first
counterclaim was rendered moot with the issuance of
the 6 November 2003 Order confirming the agreement
of the parties to cancel the Deed of Assignment,
Release, Waiver and Quitclaim and to return
the P400,000 to respondent. Respondent waived and
renounced the third counterclaim for damages.19 The
only counterclaim that remained was for the recovery
of possession of the subject property. While this
counterclaim was an offshoot of the same basic
controversy between the parties, it is very clear that it
will not be barred if not set up in the answer to the
complaint in the same case. Respondents second
counterclaim, contrary to the findings of the trial court
and the Court of Appeals, is only a permissive
counterclaim. It is not a compulsory counterclaim. It is
capable of proceeding independently of the main case.
The rule in permissive counterclaim is that for the trial
court to acquire jurisdiction, the counterclaimant is
bound to pay the prescribed docket fees.20 Any decision
rendered without jurisdiction is a total nullity and may
be struck down at any time, even on appeal before this
Court.21 In this case, respondent did not dispute the
non-payment of docket fees. Respondent only insisted
that its claims were all compulsory counterclaims. As
such, the judgment by the trial court in relation to the
second counterclaim is considered null and
void22 without prejudice to a separate action which
respondent may file against petitioner.1avvphi1

Summary judgment has been explained as follows:

Summary judgment is a procedural device resorted to
in order to avoid long drawn out litigations and useless
delays. When the pleadings on file show that there are
no genuine issues of fact to be tried, the Rules allow a
party to obtain immediate relief by way of summary
judgment, that is, when the facts are not in dispute,
the court is allowed to decide the case summarily by
applying the law to the material facts. Conversely,
where the pleadings tender a genuine issue, summary
judgment is not proper. A "genuine issue" is such issue
of fact which requires the presentation of evidence as
distinguished from a sham, fictitious, contrived or false
claim. Section 3 of the said rule provides two (2)
requisites for summary judgment to be proper: (1)
there must be no genuine issue as to any material fact,
except for the amount of damages; and (2) the party
presenting the motion for summary judgment must be
entitled to a judgment as a matter of law. A summary
judgment is permitted only if there is no genuine issue
as to any material fact and a moving party is entitled
to a judgment as a matter of law. A summary judgment
is proper if, while the pleadings on their face appear to
raise issues, the affidavits, depositions, and admissions
presented by the moving party show that such issues
are not genuine.23
Since we have limited the issues to the damages
claimed by the parties, summary judgment has been
properly rendered in this case.
WHEREFORE, we MODIFY the 21 November 2005
Decision of the Court of Appeals in CA-G.R. CV No.
82415 which affirmed the 13 February 2004 Decision of
the Regional Trial Court of Laoag City, Branch 13,
insofar as it ruled that respondents counterclaim for
recovery of possession of the subject property is
compulsory in nature. WeDISMISS respondents
permissive counterclaim without prejudice to filing a
separate action against petitioner.
SO ORDERED.

Summary Judgment
Section 1, Rule 35 of the 1997 Rules of Civil Procedure
provides:
Section 1. Summary Judgment for claimant. - A party
seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declaratory relief may, at any
time after the pleading in answer thereto has been
served, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor upon
all or any part thereof.

SECTION 2 SUMMARY JUDGEMENT FOR

DEFENDING PARTY

G.R. No. 166330

September 11, 2013
SMART COMMUNICATIONS, INC., Petitioner,
vs.

15
ARSENIO ALDECOA, JOSE B. TORRE, CONRADO U.
PUA, GREGORIO V. MANSANO, JERRY CORPUZ and
ESTELITAACOSTA, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Before the Court is a Petition for Review on Certiorari
under Rule 45 of the Rules of Court filed by petitioner
Smart Communications, Inc., seeking the reversal of
the Decision1 dated July 16, 2004 and Resolution2 dated
December 9, 2004 of the Court of Appeals in CA-G.R.
CV No. 71337. The appellate court (I) reversed and set
aside the Order3dated January 16, 2001 of the Regional
Trial Court (RTC), Branch 23, of Roxas, Isabela, in Civil
Case No. Br. 23-632-2000 dismissing the complaint for
abatement of nuisance and injunction against
petitioner, and (2) entered a new judgment declaring
petitioner's cellular base station located in Barangay
Vira, Municipality of Roxas, Province of Isabela, a
nuisance and ordering petitioner to cease and desist
from operating the said cellular base station.
The instant Petition arose from the following facts:
Petitioner is a domestic corporation engaged in the
telecommunications business. On March 9, 2000,
petitioner entered into a contract of lease4 with
Florentino Sebastian in which the latter agreed to lease
to the former a piece of vacant lot, measuring around
300 square meters, located in Barangay Vira, Roxas,
Isabela (leased property).Petitioner, through its
contractor, Allarilla Construction, immediately
constructed and installed a cellular base station on the
leased property. Inside the cellular base station is a
communications tower, rising as high as150 feet, with
antennas and transmitters; as well as a power house
open on three sides containing a 25KVA diesel power
generator. Around and close to the cellular base station
are houses, hospitals, clinics, and establishments,
including the properties of respondents Arsenio
Aldecoa, Jose B. Torre, Conrado U. Pua, Gregorio V.
Mansano, Jerry Corpuz, and Estelita Acosta.
Respondents filed before the RTC on May 23, 2000 a
Complaint against petitioner for abatement of nuisance
and injunction with prayer for temporary restraining
order and writ of preliminary injunction, docketed as
Civil Case No. Br. 23-632-2000. Respondents alleged in
their Complaint that:
5. Petitioners communications tower is 150 feet in
height equivalent to a 15-storey building. It is a tripodtype tower made of tubular steel sections and the last
section, to which the huge and heavy
antenna/transponder array will be attached, about to
be bolted on. Weight of the antenna mast is estimated

at one (1) to three (3) tons, more or less. As designed,

the antenna/transponder array are held only by steel
bolts without support of guy wires;
6. This SMART tower is no different from the Mobiline
tower constructed at Reina Mercedes, Isabela which
collapsed during a typhoon that hit Isabela in October
1998, an incident which is of public knowledge;
7. With its structural design, SMARTs tower being
constructed at Vira, Roxas, Isabela, is weak, unstable,
and infirm, susceptible to collapse like the Mobiline
tower which fell during a typhoon as earlier alleged,
and its structural integrity being doubtful, and not
earthquake proof, this tower poses great danger to life
and limb of persons as well as their property,
particularly, the respondents whose houses a but, or
are near or within the periphery of the communications
tower;
8. This tower is powered by a standby generator that
emitsnoxious and deleterious fumes, not to mention
the constant noise it produces, hence, a hazard to the
health, not only of the respondents, but the residents
in the area as well;
9. When in operation, the tower would also pose
danger to the life and health of respondents and
residents of the barangay, especially children, because
of the ultra high frequency (UHF) radio wave emissions
it radiates. Only recently, Cable News Network (CNN)
reported that cell phones, with minimal radiated power,
are dangerous to children, so more it is for this
communications tower, whose radiated power is
thousands of times more than that of a cellphone;
10. Worse, and in violation of law, petitioner
constructed the tower without the necessary public
hearing, permit of the barangay, as well as that of the
municipality, the Environmental Compliance Certificate
of the [Department of Environment and Natural
Resources (DENR)],construction permit, and other
requirements of the National Telecommunications
Commission (NTC), and in fact committed fraud in its
application by forging an undated certification " that
Barangay Vira does not interpose any objection to the
proposed construction of a 150 ft. tower & site
development, " as this certification was never issued
byrespondent Jose Torre, the Barangay Captain of Vira,
Roxas, Isabela, and without the official barangay seal,
attached as Annex "A" and Certification of the
Barangay Officer of the Day that no public hearing was
held, attached as Annex "B" made integral part hereof;
11. Not being armed with the requisite
permits/authority as above mentioned, the
construction of the tower is illegal and should be
abated;
12. Respondents and petitioner should not wait for the
occurrence of death, injuries and damage on account

16
of this structure and judicial intervention is needed to
ensure that such event will not happen.5
Respondents thus prayed for the RTC to:
1. Issue a temporary restraining order
and after due hearing to issue a writ of
preliminary mandatory injunction;
2. Render judgment:
- Making the writ of preliminary mandatory injunction
permanent;
- Declaring the construction of the SMART tower as a
nuisance per se or per accidens;
- Ordering the abatement of this nuisance by ordering
the removal and/or demolition of petitioners
communication tower;
- Condemning petitioner to pay respondents moral
damages in the sum of P150,000.00 and exemplary
damages in the sum of P30,000.00;
- Ordering petitioner to pay attorneys fees in the
amount of P20,000.00 plus trial honoraria ofP1,000.00
for every appearance in Court;
- Ordering petitioner to refund to respondents litigation
expenses in the amount of not less thanP10,000.00;
3. And for such other reliefs as are just and equitable in
the premises.6
In its Answer/Motion to Oppose Temporary Restraining
Order with Compulsory Counterclaim, petitioner raised
the following special and affirmative defenses:
13. Petitioner through its contractor, Allarilla
Construction(hereafter Allarilla), applied for a Building
Permit through the office of Municipal engineer Virgilio
A. Batucal on 13 April 2000 and subsequently received
its approval 17 April 2000. (a copy of the Official
receipt and the Building Permit is hereto attached
respectively as Annex "A" and "B" and made an
integral part hereof)
14. Petitioner, again through Allarilla applied for an
Environmental Compliance Certificate (ECC) the
approval of which, at present, remains pending with
the DENR-[Environment Management Bureau (EMB)].
15. Petitioner should not in anyway be liable for fraud
or bad faith as it had painstakingly secured the consent

of majority of the residents surrounding the location of

the Tower in order to seek their approval therewith. (a
copy of the list of residents who consented there to is
attached herewith as Annex "C" and made an integral
part hereof)
16. Among the residents who signed the consent list
secured by petitioner include the respondent Jose B.
Torre and a certain Linaflor Aldecoa, who is related to
respondent Arsenio Aldecoa.
17. Petitioner did not forge the Barangay Certification
but actually secured the consent of Barangay Captain
Jose Torre through the efforts of Sangguniang Bayan
(SB) Board Member Florentino Sebastian.(a copy of the
Barangay Certification is attached herewith as Annex
"D" and made an integral part hereof)
18. Petitioner Towers safety has been pre-cleared and
is unlikely to cause harm in exposing the members of
the public to levels exceeding health limits considering
that the antenna height of the Tower is 45.73 meters or
equivalent to 150 feet as stated in a Radio Frequency
Evaluation report by Elizabeth H. Mendoza health
Physicist II, of the Department of Health Radiation
Health Service dated 9 May 2000. (a copy is hereto
attached as Annex "E" and made an integral part
hereof)
19. The structural stability and soundness of the Tower
has been certified by Engr. Melanio A. Guillen Jr. of the
Engineering Consulting firm Microflect as contained in
their Stress Analysis Report (a copy is hereto attached
as Annex "F" and made an integral part hereof)
20. petitioners impetus to push through with the
construction of the Tower is spurred by the
Telecommunications Act of 1995 or Republic Act 7925
which states that the "expansion of the
telecommunications network shall give priority to
improving and extending basic services to areas not
yet served." Article II, Sec. 4 par. B.(a copy of RA 7925
is hereto attached as Annex "G" and made an integral
part hereof)7
In the end, petitioner sought the dismissal of
respondents Complaint; the denial of respondents
prayer for the issuance of a temporary restraining
order and writ of preliminary mandatory injunction; the
award of moral, nominal, and exemplary damages in
the amounts which the court deem just and
reasonable; and the award of attorneys fees in the
sum of P500,000.00 and litigation expenses as may be
proven at the trial.
Respondents then contested petitioners allegations
and averred in their Reply and Answer to Counterclaim
that:

17
- Petitioners cell site relay antenna operates on the
ultra high frequency (UHF) band, or gigabyte band,
that is much higher than that of TV and radio
broadcasts which operates only on the Very High
Frequency (VHF) band, hence, petitioners equipment
generates dangerously high radiation and emission
that is hazardous to the people exposed to it like
respondents, whose houses are clustered around
petitioners cell site antenna/communications tower;
- As admitted, petitioner has not secured the required
Environmental Compliance Certificate (ECC). It has not
even obtained the initial compliance certificate (ICC). In
short,petitioner should have waited for these
documents before constructing its tower, hence, it
violated the law and such construction is illegal and all
the more sustains the assertions of respondents;
- The alleged building permit issued to petitioner is
illegal because of the lack of an ECC and that
petitioners application for a building permit covered
only a building and not a cell site antenna tower.
Moreover, the petitioner failed to obtain a National
Telecommunications Commission (NTC) Clearance to
construct the communications tower. As will be seen in
the application and permit, the documents are dated
April, 2000 while the construction begun in March,
2000;
- The technical data that served as the basis of the
Radio Frequency Radiation Evaluation of petitioners
mobile telephone base station was provided solely by
the petitioner and in fact misled the DOH Radiation
Health Service. It states an absurdly low transmitted
power of twenty (20) watts for a dual band mobile
phone service such as petitioner Smarts GSM
900/1800 Dual Band which is the standard service it
offers to the public;
- The Stress Analysis Report is self-serving and tested
against the communications tower, the structural
integrity is flawed;
- While respondents may yield to the mandate of
Republic Act No.7925, otherwise known as the
Telecommunications Act of 1995,extending and
improving or upgrading of basic services to are as not
yet served, this should not be taken as a license to
gamble and/or destroy the health and well-being of the
people;
- Petitioners alleged certification (Annex "D", should be
Annex "4") is the very same certification appended to
respondents complaint which they have assailed as a
forgery and which respondent Jose Torre, the Barangay
Captain of Vira, Roxas, Isabela, emphatically denies
having signed and/or issued the same. Moreover, the
certification gives petitioner away because respondent
Jose Torre has no technical education using the
telecommunications term "SMART GSM & ETACS
project," in said falsified certification;

- Petitioners claim that it is not liable for fraud or bad

faith, proudly stating that it has painstakingly secured
the consent of the majority of the residents
surrounding the tower site, is belied by the alleged
Conformity of Host Community (Residential) Annex
"C" should be Annex "3" where only a handful of
residents signed the document prepared by petitioner
and the contents of which were misrepresented by a
Sangguniang Bayan Member in the person of Nick
Sebastian who is an interested party being the owner
of the land where the tower is constructed. It was
misrepresented to Linaflor Aldecoa, wife of respondent
Arsenio Aldecoa that it was already anyway approved
and signed by Barangay Captain Jose Torre when in
truth his signature was again forged by the petitioner
and/or its employees or agents or person working for
said company. Also, there are persons who are not
residents of Vira, Roxas, Isabela who signed the
document such as Melanio C. Gapultos of Rizal, Roxas,
Isabela, Carlito Castillo of Nuesa, Roxas, Isabela, and
another, Gennie Feliciano from San Antonio, Roxas,
Isabela. Certainly six (6) persons do not constitute the
conformity of the majority of the residents of Vira,
Roxas, Isabela, and those immediately affected by the
cellsite tower like respondents. This document is
likewise flawed and cannot help petitioners cause.
Besides, respondents and other residents, sixty-two
(62) of them, communicated their protest against the
erection of the cell tower specifying their reasons
therefor and expressing their sentiments and fears
about petitioners communications tower, xerox copy
attached as Annex "A" and made integral part hereof;
- Respondents likewise specifically deny the
truth of the allegation in paragraph 12 of the
answer, the truth being that the lot leased to
petitioner is owned by SB Member Nick
Sebastian and that Florentino Sebastian is
dummying for the former in avoidance of
possible anti-graft charges against his son
concerning this project. It is also further denied
for lack of knowledge or information sufficient
to form a belief as to the truth thereof.
Moreover, the lease contract, copy not
annexed to petitioners answer, would
automatically be terminated or ended in the
event of complaints and/or protests from the
residents.8
Civil Case No. Br. 23-632-2000 was set for pre-trial on
September 28, 2000.9
On September 11, 2000, petitioner filed its Pre-Trial
Brief in which it identified the following issues:
4.1. Whether respondents have a cause of
action against the petitioner SMART for this

18
Honorable Court to issue a Preliminary
Mandatory Injunction over the SMART tower in
Roxas, Isabela as it allegedly poses a threat to
the lives and safety of the residents within the
area and if respondents are entitled to moral
and exemplary damages as well as attorneys
fees and expenses of litigation.
4.2 Whether the complaint should be dismissed
in that the claim or demand set forth in the
Complaint is fictitious, imaginary, sham and
without any real basis.
4.3. What petitioner SMART is entitled under its
compulsory counterclaim against respondents
for moral and exemplary damages, attorneys
fees, and other expenses of litigation.10
On even date, petitioner filed a Motion for Summary
Judgment that reads:
Petitioner SMART Communications Inc., thru counsel,
respectfully manifests that:
1. There is no need for a full-blown trial as the causes
of action and issues have already been identified in all
the pleadings submitted to this Honorable court by
both respondents and petitioner
2. There is clearly no genuine issue as to any material
fact or cause in the action.
3. There is no extreme urgency to issue a Preliminary
Mandatory Injunction as stated in an affidavit executed
by SMART Senior Supervisor Andres V. Romero in an
affidavit hereto attached as Annex "A"
4. Petitioner seeks immediate declaratory relief from
respondents contrived allegations as set forth in their
complaint;
Wherefore, it is most respectfully prayed of this
Honorable Court that summary judgment be rendered
pursuant to Rule 35 of the Revised Rules of Court. 11
Respondents filed their Pre-Trial Brief on September 21,
2000, proposing to limit the issues,
viz:
- Whether petitioners communications tower is a
nuisance per se/per accidens and together with its
standby generator maybe abated for posing danger to
the property and life and limb of the residents of Vira,

Roxas, Isabela more particularly the respondents and

those whose houses are clustered around or in the
periphery of the cell site.
- Damages, attorneys fees, litigation expenses and
other claims.12
Respondents likewise filed on September 21, 2000
their Opposition to petitioners Motion for Summary
Judgment, maintaining that there were several genuine
issues relating to the cause of action and material facts
of their Complaint. They asserted that there was a
need for a full blown trial to prove the allegations in
their Complaint, as well as the defenses put up by
petitioner.13
In its Order14 dated September 28, 2000, the RTC
indefinitely postponed the pre-trial until it has resolved
petitioners Motion for Summary Judgment. In the same
Order, the RTC directed the counsels of both parties to
submit their memoranda, including supporting
affidavits and other documents within 30 days.
Petitioner submitted its Memorandum15 on October 26,
2000; while respondents, following several motions for
extension of time, filed their Memorandum16 on
November 22, 2000. In their Memorandum,
respondents additionally alleged that:
The cellsite base station is powered by a roaring 25
KVA power generator. Operated 24 hours since it
started more than a month ago, it has sent
"jackhammers into the brains" of all the inhabitants
nearby. Everyone is going crazy. A resident just
recently operated for breast cancer is complaining that
the noise emanating from the generator is fast tracking
her appointment with death. She can no longer bear
the unceasing and irritating roar of the power
generator.
For this, the residents, led by the respondents, sought
a noise emission test of the power generator of
petitioner SMART Communications with the DENR. The
test was conducted on November 14 and 15, 2000 and
the result shows that the petitioners power generator
failed the noise emission test, day and night time.
Result of this test was furnished the Municipal Mayor of
Roxas, Isabela (See Communication of DENR Regional
Director Lorenzo C. Aguiluz to Mayor Benedicto
Calderon dated November 16, 2000 and the Inspection
Monitoring Report).
With these findings, the power generator is also a
nuisance. It must also be abated.17
On January 16, 2001, the RTC issued its Order granting
petitioners Motion for Summary Judgment and
dismissing respondents Complaint. The RTC ruled as
follows:

19
What is of prime importance is the fact that contrary to
the respondents speculation, the radio frequency
radiation as found out by the Department of Health is
much lower compared to that of TV and radio
broadcast. The respondents counter to this claim is
that the Department of Health was misled. This is a
mere conclusion of the respondents.
The respondents in opposing the Smarts construction
of their cellsite is anchored on the supposition that the
operation of said cellsite tower would pose a great
hazard to the health of the alleged cluster of residents
nearby and the perceived danger that the said tower
might also collapse in case of a strong typhoon that fell
the Mobiline Cellsite tower of Mobiline (sic). The
structured built of the Smarts Cellsite tower is similar
to that of the Mobiline.
Now, as to the Courts assessment of the
circumstances obtaining, we find the claim of the
respondents to be highly speculative, if not an isolated
one. Elsewhere, we find several cellsite towers
scattered (sic) allover, both of the Smart, Globe, and
others, nay even in thickly populated areas like in
Metro Manila and also in key cities nationwide, yet they
have not been outlawed or declared nuisance as the
respondents now want this Court to heed. To the
thinking of the Court, the respondents are harping
imagined perils to their health for reason only known to
them perhaps especially were we to consider that the
Brgy. Captain of Vira earlier gave its imprimatur to this
project. Noteworthy is the fact that the alleged cluster
of residential houses that abut the cellsite tower in
question might be endangered thereby, the
respondents are but a few of those residents. If indeed,
all those residents in Vira were adversely affected for
the perceived hazards posed by the tower in question,
they should also have been joined in as respondents in
a class suit. The sinister motive is perhaps obvious.
All the foregoing reasons impel this Court to grant the
petitioners motion for the dismissal of the complaint,
the perceived dangers being highly speculative without
any bases in fact. Allegations in the complaint being
more imaginary than real, do not constitute factual
bases to require further proceeding or a trial. As to the
claim that there is no certification or clearance from
the DENR for the petitioner to lay in wait before the
construction, suffice it to say that no action as yet has
been taken by said office to stop the ongoing operation
of said cellsite now in operation. There has been no
hue and cry from among the greater majority of the
people of Roxas, Isabela, against it. Al contrario, it is
most welcome to them as this is another landmark
towards the progress of this town.18
The dispositive portion of the RTC Order reads:

WHEREFORE, in view of the foregoing considerations,

the Court hereby renders judgment dismissing the
complaint as the allegations therein are purely
speculative and hence no basis in fact to warrant
further proceedings of this case.
The Court finds no compelling grounds to award
damages.
Without costs.19
In another Order20 dated February 27, 2001, the RTC
denied respondents Motion for Reconsideration.
Respondents filed an appeal with the Court of Appeals,
docketed as CA-G.R. CV No. 71337.
The Court of Appeals rendered its Decision on July 16,
2004. The appellate court declared the cellular base
station of petitioner a nuisance that endangered the
health and safety of the residents of Barangay Vira,
Roxas, Isabela because: (1) the locational clearance
granted to petitioner was a nullity due to the lack of
approval by majority of the actual residents of the
barangay and a barangay resolution endorsing the
construction of the cellular base station; and (2) the
sound emission of the generator at the cellular base
station exceeded the Department of Environment and
Natural Resources (DENR) standards. Consequently,
the Court of Appeals decreed:
WHEREFORE, the appealed decision is hereby
REVERSED and SET ASIDE. A new one is entered
declaring the communications tower or base station of
petitioner Smart Communications, Inc. located at
Brigido Pascual Street in Vira, Municipality of Roxas,
Province of Isabela, a nuisance. Petitioner is ordered to
cease and desist from operating the said tower or
station.21
Petitioner filed its Motion for Reconsideration arguing
that: (1) the basis for the judgment of the appellate
court that the cellular base station was a nuisance had
been extinguished as the generator subject of the
Complaint was already removed; and (2) there had
been substantial compliance in securing all required
permits for the cellular base station.22
The Court of Appeals, in a Resolution dated December
9, 2004,refused to reconsider its earlier Decision,
reasoning that:
Petitioner principally anchors its pleas for
reconsideration on the Certification issued by Roxas,
Isabela Municipal Engineer Virgilio Batucal, declaring
that upon actual inspection, no Denyo Generator Set
has been found in the companys cell site in Roxas,
Isabela. We hold, however, that the certification dated

20
August 12, 2004, taken on its own, does not prove
Smarts allegation that it has abandoned using dieselpowered generators since January 2002. Respondents
current photographs of the cell site clearly shows (sic)
that Smart continues to use a mobile generator
emitting high level of noise and fumes.

disputed or contested factual matters that call for the

presentation of evidence at a full-blown trial.
On the finding of the Court of
Appeals that petitioners locational
clearance for its cellular base station
is a nullity

We have gone over [petitioners] other arguments and

observed that they are merely repetitive of previous
contentions which we have judiciously ruled
upon.23 (Citations omitted.)

Based on the principle of exhaustion of administrative

remedies and its corollary doctrine of primary
jurisdiction, it was premature for the Court of Appeals
to take cognizance of and rule upon the issue of the
validity or nullity of petitioners locational clearance for
its cellular base station.
The principle of exhaustion of administrative remedies
and the doctrine of primary jurisdiction were explained
at length by the Court in Province of Zamboanga del
Norte v. Court of Appeals,25 as follows:

Petitioner seeks recourse from the Court through the

instant Petition, assigning the following errors on the
part of the Court of Appeals:
21.0 The Court of Appeals erred when it
encroached upon an executive function of
determining the validity of a locational
clearance when it declared, contrary to the
administrative findings of the Housing Land
Use and Regulatory Board ("HLURB"), that the
locational clearance of Petitioner was void.
22.0 The Court of Appeals erred when it
resolved an issue that was not submitted to it
for resolution and in the process had usurped a
purely executive function.
23.0 The Court of Appeals erred in declaring
Petitioners entire base station a nuisance
considering that it was only a small part of the
base station, a generator that initially powered
the base station, that was reportedly producing
unacceptable levels of noise.
24.0 The Court of Appeals erred in not
considering that the supervening event of shut
down and pull out of the generator in the base
station, the source of the perceived nuisance,
made the complaint for abatement of nuisance
academic.24
The Petition is partly meritorious. While the Court
agrees that the Court of Appeals should not have taken
cognizance of the issue of whether the locational
clearance for petitioners cellular base station is valid,
the Court will still not reinstate the RTC Order dated
January 16, 2001 granting petitioners Motion for
Summary Judgment and entirely dismissing Civil Case
No. Br. 23-632-2000. The issues of (1) whether
petitioners cellular base station is a nuisance, and (2)
whether the generator at petitioners cellular base
station is, by itself, also a nuisance, ultimately involve

The Court in a long line of cases has held that before a

party is allowed to seek the intervention of the courts,
it is a pre-condition that he avail himself of all
administrative processes afforded him. Hence, if a
remedy within the administrative machinery can be
resorted to by giving the administrative officer every
opportunity to decide on a matter that comes within
his jurisdiction, then such remedy must be exhausted
first before the court's power of judicial review can be
sought. The premature resort to the court is fatal to
one's cause of action. Accordingly, absent any finding
of waiver or estoppel, the case may be dismissed for
lack of cause of action.
The doctrine of exhaustion of administrative remedies
is not without its practical and legal reasons. Indeed,
resort to administrative remedies entails lesser
expenses and provides for speedier disposition of
controversies. Our courts of justice for reason of comity
and convenience will shy away from a dispute until the
system of administrative redress has been completed
and complied with so as to give the administrative
agency every opportunity to correct its error and to
dispose of the case.
xxxx
The doctrine of primary jurisdiction does not warrant a
court to arrogate unto itself the authority to resolve a
controversy the jurisdiction over which is initially
lodged with an administrative body of special
competence.
We have held that while the administration grapples
with the complex and multifarious problems caused by
unbridled exploitation of our resources, the judiciary
will stand clear. A long line of cases establishes the
basic rule that the court will not interfere in matters
which are addressed to the sound discretion of
government agencies entrusted with the regulation of

21
activities coming under the special technical
knowledge and training of such agencies.
In fact, a party with an administrative remedy must not
merely initiate the prescribed administrative procedure
to obtain relief, but also pursue it to its appropriate
conclusion before seeking judicial intervention. The
underlying principle of the rule on exhaustion of
administrative remedies rests on the presumption that
when the administrative body, or grievance machinery,
is afforded a chance to pass upon the matter, it will
decide the same correctly. (Citations omitted.)
The Court again discussed the said principle and
doctrine in Addition Hills Mandaluyong Civic & Social
Organization, Inc. v. Megaworld Properties & Holdings,
Inc., et al.,26 citing Republic v. Lacap,27 to wit:

issued HLURB Resolution No.R-626, series of 1998,

Approving the Locational Guidelines for Base Stations
of Cellular Mobile Telephone Service, Paging Service,
Trunking Service, Wireless Loop Service and Other
Wireless Communication Services (HLURB Guidelines).
Said HLURB Guidelines aim to protect" providers and
users, as well as the public in general while ensuring
efficient and responsive communication services."

We have consistently declared that the doctrine of

exhaustion of administrative remedies is a cornerstone
of our judicial system. The thrust of the rule is that
courts must allow administrative agencies to carry out
their functions and discharge their responsibilities
within the specialized areas of their respective
competence. The rationale for this doctrine is obvious.
It entails lesser expenses and provides for the speedier
resolution of controversies. Comity and convenience
also impel courts of justice to shy away from a dispute
until the system of administrative redress has been
completed.
In the case of Republic v. Lacap, we expounded on the
doctrine of exhaustion of administrative remedies and
the related doctrine of primary jurisdiction in this wise:

A. The following documents shall be submitted in

duplicate:

The general rule is that before a party may seek the

intervention of the court, he should first avail of all the
means afforded him by administrative processes. The
issues which administrative agencies are authorized to
decide should not be summarily taken from them and
submitted to a court without first giving such
administrative agency the opportunity to dispose of the
same after due deliberation.
Corollary to the doctrine of exhaustion of
administrative remedies is the doctrine of primary
jurisdiction; that is, courts cannot or will not determine
a controversy involving a question which is within the
jurisdiction of the administrative tribunal prior to the
resolution of that question by the administrative
tribunal, where the question demands the exercise of
sound administrative discretion requiring the special
knowledge, experience and services of the
administrative tribunal to determine technical and
intricate matters of fact. (Citations omitted.)
The Housing and Land Use Regulatory Board
(HLURB)28 is the planning, regulatory, and quasi-judicial
instrumentality of government for land use
development.29 In the exercise of its mandate to ensure
rational land use by regulating land development, it

Indeed, the HLURB Guidelines require the submission

of several documents for the issuance of a locational
clearance for a cellular base station, including:
IV. Requirements and Procedures in Securing Locational
Clearance

xxxx
g. Written Consent:
g.1 Subdivisions
xxxx
g. 1.2 In the absence of an established Homeowners
Association, consent/affidavit of non-objection from
majority of actual occupants and owners of properties
within a radial distance equivalent to the height of the
proposed base station measured from its base,
including all those whose properties is adjoining the
proposed site of the base station.(Refer to Figure 2)
xxxx
h. Barangay Council Resolution endorsing the base
station.
Correlatively, the HLURB provides administrative
remedies for non-compliance with its requirements.
In 2000, when factual precedents to the instant case
began to take place, HLURB Resolution No. R-586,
series of 1996, otherwise known as the 1996 HLURB
Rules of Procedure, as amended, was in effect. The
original 1996 HLURB Rules of Procedure was precisely
amended by HLURB Resolution No. R-655, series of
1999, "so as to afford oppositors with the proper
channel and expeditious means to ventilate their
objections and oppositions to applications for permits,
clearances and licenses, as well as to protect the rights
of applicants against frivolous oppositions that may

22
cause undue delay to their projects. "Under the 1996
HLURB Rules of Procedure, as amended, an opposition
to an application for a locational clearance for a cellular
base station or a complaint for the revocation of a
locational clearance for a cellular base station already
issued, is within the original jurisdiction of the HLURB
Executive Committee. Relevant provisions read:
RULE III
Commencement of Action, Summons and Answer
xxxx
SECTION 2. Opposition to Application for
Permit/License/ Clearance. When an opposition is
filed to an application for a license, permit or clearance
with the Board or any of its Regional Field Office, the
Regional Officer shall make a preliminary evaluation
and determination whether the case is impressed with
significant economic, social, environmental or national
policy implications. If he/she determines that the case
is so impressed with significant economic, social,
environmental or national policy implications, such as,
but not limited to:
1) Projects of national significance, for
purposes of this rule, a project is of national
significance if it is one or falls under any of
those enumerated in Rule III, Section 3 of these
Rules, as amended;
2) Those involving zoning variances and
exceptions;
3) Those involving significant public interest or
policy issues;
4) Those endorsed by the zoning
administrators of local government units.
The Regional Officer shall cause the records of the case
to be transmitted to the Executive Committee which
shall assume original jurisdiction over the case,
otherwise, the Regional Officer shall act on and resolve
the Opposition.
SECTION 3. A project is of national significance if it
involves any of the following:
a) Power generating plants (e.g., coal-fired
thermal plants)and related facilities (e.g.,
transmission lines);

b) Airport/seaports; dumping sites/sanitary

landfills; reclamation projects;
c) Large-scale piggery and poultry projects;
d) Mining/quarrying projects;
e) National government centers;
f) Golf courses;
g) Fish ponds and aqua culture projects;
h) Cell sites and telecommunication facilities;
i) Economic zones, regional industrial centers,
regional agro-industrial centers, provincial
industrial centers;
j) All other industrial activities classified as
high-intensity uses (1-3 Projects).
SECTION 4. Any party aggrieved, by reason of the
elevation or non-elevation of any contested application
by the Regional Officer, may file a verified petition for
review thereof within thirty (30) days from receipt of
the notice of elevation or non-elevation of the
contested application with the Executive Committee
which shall resolve whether it shall assume jurisdiction
thereon.
The contested application for clearance, permit or
license shall be treated as a complaint and all other
provisions of these rules on complaints not inconsistent
with the preceding section shall, as far as practicable,
be made applicable to oppositions except that the
decision of the Board en banc on such contested
applications shall be final and executory as provided in
Rule XIX, Section 2 of these Rules, as amended.
The Rules pertaining to contested applications for
license, permit or clearance shall, by analogy, apply to
cases filed primarily for the revocation thereof.
xxxx
RULE XVII
Proceedings Before the Board of Commissioners
xxxx
SECTION 15. The Executive Committee. The
Executive Committee shall be composed of the four

23
regular Commissioners and the Ex-Officio
Commissioner from the Department of Justice.
xxxx
The Executive Committee shall act for the Board on
policy matters, measures or proposals concerning the
management and substantive administrative
operations of the Board subject to ratification by the
Board en banc, and shall assume original jurisdiction
over cases involving opposition to an application for
license, permit or clearance for projects or cases
impressed with significant economic, social,
environmental or national policy implications or issues
in accordance with Section 2, Rule II of these Rules, as
amended. It shall also approve the proposed agenda of
the meetings of the Board en banc. (Emphases
supplied.)
After the HLURB Executive Committee had rendered its
Decision, the aggrieved party could still avail itself of a
system of administrative appeal, also provided in the
1996 HLURB Rules of Procedure, as amended:
RULE XII
Petition for Review
SECTION 1. Petition for Review. Any party aggrieved
by the Decision of the Regional Officer, on any legal
ground and upon payment of the review fee may file
with the Regional Office a verified Petition for Review of
such decision within thirty (30) calendar days from
receipt thereof.
In cases decided by the Executive Committee pursuant
to Rule II, Section 2 of these Rules, as amended, the
verified Petition shall be filed with the Executive
Committee within thirty (30) calendar days from
receipt of the Committees Decision. Copy of such
petition shall be furnished the other party and the
Board of Commissioners. No motion for reconsideration
or mere notice of petition for review of the decision
shall be entertained.
Within ten (10) calendar days from receipt of the
petition, the Regional Officer, or the Executive
Committee, as the case may be, shall elevate the
records to the Board of Commissioner together with
the summary of proceedings before the Regional
Office. The Petition for Review of a decision rendered
by the Executive Committee shall betaken cognizance
of by the Board en banc.
RULE XVIII
Appeal from Board Decisions
SECTION 1.

Motion for Reconsideration. Within the period for

filing an appeal from a Board decision, order or ruling
of the Board of Commissioners, any aggrieved party
may file a motion for reconsideration with the Board
only on the following grounds: (1) serious errors of law
which would result in grave injustice if not corrected;
and (2) newly discovered evidence.
Only one (1) motion for reconsideration shall be
entertained.
Motions for reconsideration shall be assigned to the
division from which the decision, order or ruling
originated.
SECTION 2. Appeal. Any party may upon notice to the
Board and the other party appeal a decision rendered
by the Board of Commissioners en banc or by one of its
divisions to the Office of the President within fifteen
(15) calendar days from receipt thereof, in accordance
with P.D. No. 1344 and A.O. No. 18 Series of 1987.
RULE XIX
Entry of Judgment
xxxx
SECTION 2. Rules on Finality. For purposes of
determining when a decision or order has become final
and executory for purposes of entry in the Book of
Judgment, the following shall be observed:
a. Unless otherwise provided in a decision or resolution
rendered by the Regional Officer, the Executive
Committee, or the Board of Commissioners, as the
case may be, the orders contained therein shall
become final as regards a party thirty (30) calendar
days after the date of receipt thereof and no petition
for review or appeal therefrom has been filed within
the said period. (Emphases supplied.)
There is no showing that respondents availed
themselves of the afore-mentioned administrative
remedies prior to instituting Civil Case No. Br. 23-6322000 before the RTC. While there are accepted
exceptions to the principle of exhaustion of
administrative remedies and the doctrine of primary
jurisdiction,30 respondents never asserted nor argued
any of them. Thus, there is no cogent reason for the
Court to apply the exceptions instead of the general
rule to this case.
Ordinarily, failure to comply with the principle of
exhaustion of administrative remedies and the doctrine
of primary jurisdiction will result in the dismissal of the
case for lack of cause of action. However, the Court
herein will not go to the extent of entirely dismissing

24
Civil Case No. Br. 23-632-2000. The Court does not lose
sight of the fact that respondents Complaint in Civil
Case No. Br. 23-632-2000 is primarily for abatement of
nuisance; and respondents alleged the lack of HLURB
requirements for the cellular base station, not to seek
nullification of petitioners locational clearance, but to
support their chief argument that said cellular base
station is a nuisance which needs to be abated. The
issue of whether or not the locational clearance for said
cellular base station is valid is actually separate and
distinct from the issue of whether or not the cellular
base station is a nuisance; one is not necessarily
determinative of the other. While the first is within the
primary jurisdiction of the HLURB and, therefore,
premature for the courts to rule upon in the present
case, the latter is within the jurisdiction of the courts to
determine but only after trial proper.
On the declaration of the Court of
Appeals that petitioners cellular
base station is a nuisance that must
be abated
Article 694 of the Civil Code defines nuisance as:
ART. 694. A nuisance is any act, omission,
establishment, business, condition of property, or
anything else which:
(1) Injures or endangers the health or safety of
others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or
morality; or
(4) Obstructs or interferes with the free
passage of any public highway or street, or any
body of water; or
(5) Hinders or impairs the use of property.
The term "nuisance" is so comprehensive that it has
been applied to almost all ways which have interfered
with the rights of the citizens, either in person,
property, the enjoyment of his property, or his
comfort.31
The Court, in AC Enterprises, Inc. v. Frabelle Properties
Corporation,32 settled that a simple suit for abatement
of nuisance, being incapable of pecuniary estimation, is
within the exclusive jurisdiction of the RTC. Although
respondents also prayed for judgment for moral and
exemplary damages, attorneys fees, and litigation

expenses, such claims are merely incidental to or as a

consequence of, their principal relief.
Nonetheless, while jurisdiction over respondents
Complaint for abatement of nuisance lies with the
courts, the respective judgments of the RTC and the
Court of Appeals cannot be upheld.
At the outset, the RTC erred in granting petitioners
Motion for Summary Judgment and ordering the
dismissal of respondents Complaint in Civil Case No.
Br. 23-632-2000.
Summary judgments are governed by Rule 35 of the
Rules of Court, pertinent provisions of which state:
SEC. 2. Summary judgment for defending party. A
party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory relief is sought may,
at any time, move with supporting affidavits,
depositions or admissions for a summary judgment in
his favor as to all or any part thereof.
SEC. 3. Motion and proceedings thereon. The motion
shall be served at least ten (10) days before the time
specified for the hearing. The adverse party may serve
opposing affidavits, depositions, or admissions at least
three (3) days before the hearing. After the hearing,
the judgment sought shall be rendered forthwith if the
pleadings, supporting affidavits, depositions, and
admissions on file, show that, except as to the amount
of damages, there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law. (Emphases supplied.)
In Rivera v. Solidbank Corporation,33 the Court
discussed extensively when a summary judgment is
proper:
For a summary judgment to be proper, the movant
must establish two requisites: (a) there must be no
genuine issue as to any material fact, except for the
amount of damages; and (b) the party presenting the
motion for summary judgment must be entitled to a
judgment as a matter of law. Where, on the basis of the
pleadings of a moving party, including documents
appended thereto, no genuine issue as to a material
fact exists, the burden to produce a genuine issue
shifts to the opposing party. If the opposing party fails,
the moving party is entitled to a summary judgment.
A genuine issue is an issue of fact which requires the
presentation of evidence as distinguished from an
issue which is a sham, fictitious, contrived or a false
claim.
The trial court can determine a genuine issue on the
basis of the pleadings, admissions, documents,

25
affidavits or counter affidavits submitted by the
parties. When the facts as pleaded appear uncontested
or undisputed, then there is no real or genuine issue or
question as to any fact and summary judgment called
for. On the other hand, where the facts pleaded by the
parties are disputed or contested, proceedings for a
summary judgment cannot take the place of a trial.
The evidence on record must be viewed in light most
favorable to the party opposing the motion who must
be given the benefit of all favorable inferences as can
reasonably be drawn from the evidence.
Courts must be critical of the papers presented by the
moving party and not of the papers/documents in
opposition thereto. Conclusory assertions are
insufficient to raise an issue of material fact. A party
cannot create a genuine dispute of material fact
through mere speculations or compilation of
differences. He may not create an issue of fact through
bald assertions, unsupported contentions and
conclusory statements. He must do more than rely
upon allegations but must come forward with specific
facts in support of a claim. Where the factual context
makes his claim implausible, he must come forward
with more persuasive evidence demonstrating a
genuine issue for trial. (Emphases supplied; citations
omitted.)
Judging by the aforequoted standards, summary
judgment cannot be rendered in this case as there are
clearly factual issues disputed or contested by the
parties. As respondents correctly argued in their
Opposition to petitioners Motion for Summary
Judgment:
1. Contrary to the claim of petitioner, there are several
genuine issues as to the cause of action and material
facts related to the complaint. For one there is an issue
on the structural integrity of the tower, the ultra high
frequency (UHF) radio wave emission radiated by the
communications tower affecting the life, health and
well being of the[respondents] and the barangay
residents, especially their children. Also, the
noxious/deleterious fumes and the noise produce[d] by
the standby generator and the danger posted by the
tower if it collapses in regard to life and limb as well as
the property of the [respondents] particularly those
whose houses abut, or are near/within the periphery of
the communications tower. x x x34
Likewise constituting real or genuine issues for trial,
which arose from subsequent events, are the following:
whether the generator subject of respondents
Complaint had been removed; whether said generator
had been replaced by another that produces as much
or even more noise and fumes; and whether the
generator is a nuisance that can be abated separately
from the rest of the cellular base station.

Furthermore, the Court demonstrated in AC

Enterprises, Inc. the extensive factual considerations of
a court before it can arrive at a judgment in an action
for abatement of nuisance:
Whether or not noise emanating from a blower of the
air conditioning units of the Feliza Building is nuisance
is to be resolved only by the court in due course of
proceedings.1wphi1 The plaintiff must prove that the
noise is a nuisance and the consequences thereof.
Noise is not a nuisance per se. It may be of such a
character as to constitute a nuisance, even though it
arises from the operation of a lawful business, only if it
affects injuriously the health or comfort of ordinary
people in the vicinity to an unreasonable extent. Injury
to a particular person in a peculiar position or of
especially sensitive characteristics will not render the
noise an actionable nuisance. In the conditions of
present living, noise seems inseparable from the
conduct of many necessary occupations. Its presence
is a nuisance in the popular sense in which that word is
used, but in the absence of statute, noise becomes
actionable only when it passes the limits of reasonable
adjustment to the conditions of the locality and of the
needs of the maker to the needs of the listener. What
those limits are cannot be fixed by any definite
measure of quantity or quality; they depend upon the
circumstances of the particular case. They may be
affected, but are not controlled, by zoning ordinances.
The delimitation of designated areas to use for
manufacturing, industry or general business is not a
license to emit every noise profitably attending the
conduct of any one of them.
The test is whether rights of property, of health or of
comfort are so injuriously affected by the noise in
question that the sufferer is subjected to a loss which
goes beyond the reasonable limit imposed upon him by
the condition of living, or of holding property, in a
particular locality in fact devoted to uses which involve
the emission of noise although ordinary care is taken to
confine it within reasonable bounds; or in the vicinity of
property of another owner who, though creating a
noise, is acting with reasonable regard for the rights of
those affected by it.
Commercial and industrial activities which are lawful in
themselves may become nuisances if they are so
offensive to the senses that they render the enjoyment
of life and property uncomfortable. The fact that the
cause of the complaint must be substantial has often
led to expressions in the opinions that to be a nuisance
the noise must be deafening or loud or excessive and
unreasonable. The determining factor when noise
alone is the cause of complaint is not its intensity or
volume. It is that the noise is of such character as to
produce actual physical discomfort and annoyance to a
person of ordinary sensibilities, rendering adjacent

26
property less comfortable and valuable. If the noise
does that it can well be said to be substantial and
unreasonable in degree, and reasonableness is a
question of fact dependent upon all the circumstances
and conditions. There can be no fixed standard as to
what kind of noise constitutes a nuisance.
The courts have made it clear that in every case the
question is one of reasonableness. What is a
reasonable use of ones property and whether a
particular use is an unreasonable invasion of anothers
use and enjoyment of his property so as to constitute a
nuisance cannot be determined by exact rules, but
must necessarily depend upon the circumstances of
each case, such as locality and the character of the
surroundings, the nature, utility and social value of the
use, the extent and nature of the harm involved, the
nature, utility and social value of the use or enjoyment
invaded, and the like.
Persons who live or work in thickly populated business
districts must necessarily endure the usual annoyances
and of those trades and businesses which are properly
located and carried on in the neighborhood where they
live or work. But these annoyances and discomforts
must not be more than those ordinarily to be expected
in the community or district, and which are incident to
the lawful conduct of such trades and businesses. If
they exceed what might be reasonably expected and
cause unnecessary harm, then the court will grant
relief.
A finding by the LGU that the noise quality standards
under the law have not been complied with is not a
prerequisite nor constitutes indispensable evidence to
prove that the defendant is or is not liable for a
nuisance and for damages. Such finding is merely
corroborative to the testimonial and/or other evidence
to be presented by the parties. The exercise of due
care by the owner of a business in its operation does
not constitute a defense where, notwithstanding the
same, the business as conducted, seriously affects the
rights of those in its vicinity.35 (Citations omitted.)
A reading of the RTC Order dated January 16, 2001
readily shows that the trial court did not take into
account any of the foregoing considerations or tests
before summarily dismissing Civil Case No. Br. 23-6322000. The reasoning of the RTC that similar cellular
base stations are scattered in heavily populated areas
nationwide and are not declared nuisances is

unacceptable. As to whether or not this specific cellular

base station of petitioner is a nuisance to respondents
is largely dependent on the particular factual
circumstances involved in the instant case, which is
exactly why a trial for threshing out disputed or
contested factual issues is indispensable. Evidently, it
was the RTC which engaged in speculations and
unsubstantiated conclusions.
For the same reasons cited above, without presentation
by the parties of evidence on the contested or disputed
facts, there was no factual basis for declaring
petitioner's cellular base station a nuisance and
ordering petitioner to cease and desist from operating
the same.
Given the equally important interests of the parties in
this case, i.e., on one hand, respondents' health,
safety, and property, and on the other, petitioner's
business interest and the public's need for accessible
and better cellular mobile telephone services, the wise
and prudent course to take is to remand the case to
the RTC for trial and give the parties the opportunity to
prove their respective factual claims.
WHEREFORE, premises considered, the instant Petition
is PARTIALLY GRANTED. The Decision dated July 16,
2004 and Resolution dated December 9, 2004 of the
Court of Appeals in CA-G.R. CV No. 71337 are
REVERSED and SET ASIDE. Let the records of the case
be REMANDED to the Regional Trial Court, Branch 23,
of Roxas, Isabela, which is DIRECTED to reinstate Civil
Case No. Br. 23-632-2000 to its docket and proceed
with the trial and adjudication thereof with appropriate
dispatch in accordance with this Decision.
SO ORDERED.

SECTION 4 CASE NOT FULLY ADJUDICATED ON

MOTION
G.R. No. 178899
November 15, 2010
PHILIPPINE BUSINESS BANK, Petitioner,
vs.
FELIPE CHUA, Respondent.