Remedial Law Review I

San Sebastian College-R of Law, Manila

Prof: Judge Eleuterio L. Bathan

Assignment (part 2): Condition Precedent

Graded Recitation, August 15 and 16, 2018 (both at 5:30 -9:30 P.M):
A. Kataraungang Pambarangay Law
B. Family Code provision on condition precedent
requirement
C. Cases:
1. Gayon vs. Gayon, No. L-28394, November 26, 1970
2. Guerrero vs. RTC of Ilocos Norte, G.R. No. 109068, January 10, 1994
3. Hiyas Savings and Loan Bank vs. Judge Acuña (G.R. No. 154132, August
31, 2006
4. Martinez vs. Martinez, G.R. No. 162084, June 28, 2005
5. Blardony, Jr. vs. Judge Coscolluela, Jr., G.R. No. 70261, February 28, 1990
6. Pascual vs. Pascual, 475 SCRA 268
7. Abagatnan vs. Clarito, G.R. No. 211966, August 7, 2017
8. Banting vs. Spouses Maglapuz, 531 Phil. 101
9. Ramos vs. CA, June 30, 1989; Ledesma vs. CA, July 23, 1992
10.Uy [Cabangbang Store] vs. Estate of Vipa Fernandez, G.R. No. 200612,
April 5, 2017

1

EN BANC
G.R. No. L-28394 November 26, 1970
PEDRO GAYON, plaintiff-appellant,
vs.
SILVESTRE GAYON and GENOVEVA DE GAYON, defendants-
appellees.
CONCEPCION, C.J.:
Appeal, taken by plaintiff Pedro Gayon, from an order of the Court of
First Instance of Iloilo dismissing his complaint in Civil Case No.
7334 thereof.
The records show that on July 31, 1967, Pedro Gayon filed said
complaint against the spouses Silvestre Gayon and Genoveva de
Gayon, alleging substantially that, on October 1, 1952, said spouses
executed a deed — copy of which was attached to the complaint, as
Annex "A" — whereby they sold to Pedro Gelera, for the sum of
P500.00, a parcel of unregistered land therein described, and
located in the barrio of Cabubugan, municipality of Guimbal,
province of Iloilo, including the improvements thereon, subject to
redemption within five (5) years or not later than October 1, 1957;
that said right of redemption had not been exercised by Silvestre
Gayon, Genoveva de Gayon, or any of their heirs or successors,
despite the expiration of the period therefor; that said Pedro Gelera
and his wife Estelita Damaso had, by virtue of a deed of sale — copy
of which was attached to the complaint, as Annex "B" — dated
March 21, 1961, sold the aforementioned land to plaintiff Pedro
Gayon for the sum of P614.00; that plaintiff had, since 1961,
introduced thereon improvements worth P1,000; that he had,
moreover, fully paid the taxes on said property up to 1967; and that
Articles 1606 and 1616 of our Civil Code require a judicial decree for
the consolidation of the title in and to a land acquired through a
conditional sale, and, accordingly, praying that an order be issued in
plaintiff's favor for the consolidation of ownership in and to the
aforementioned property.
Rem Rev 1 Civ Pro – KPL
In her answer to the complaint, Mrs. Gayon alleged that her
husband, Silvestre Gayon, died on January 6, 1954, long before the
institution of this case; that Annex "A" to the complaint is fictitious, for
the signature thereon purporting to be her signature is not hers; that
neither she nor her deceased husband had ever executed "any
document of whatever nature in plaintiff's favor"; that the complaint is
malicious and had embarrassed her and her children; that the heirs
of Silvestre Gayon had to "employ the services of counsel for a fee
of P500.00 and incurred expenses of at least P200.00"; and that
being a brother of the deceased Silvestre Gayon, plaintiff "did not
exert efforts for the amicable settlement of the case" before filing his
complaint. She prayed, therefore, that the same be dismissed and
that plaintiff be sentenced to pay damages.
Soon later, she filed a motion to dismiss, reproducing substantially
the averments made in her answer and stressing that, in view of the
death of Silvestre Gayon, there is a "necessity of amending the
complaint to suit the genuine facts on record." Presently, or on
September 16, 1967, the lower court issued the order appealed
from, reading:
Considering the motion to dismiss and it appearing
from Exhibit "A" annexed to the complaint that
Silvestre Gayon is the absolute owner of the land in
question, and considering the fact that Silvestre
Gayon is now dead and his wife Genoveva de Gayon
has nothing to do with the land subject of plaintiff's
complaint, as prayed for, this case is hereby
dismissed, without pronouncement as to costs.1
A reconsideration of this order having been denied, plaintiff
interposed the present appeal, which is well taken.
Said order is manifestly erroneous and must be set aside. To begin
with, it is not true that Mrs. Gayon "has nothing to do with the land
subject of plaintiff's complaint." As the widow of Silvestre Gayon, she
is one of his compulsory heirs2and has, accordingly, an interest in
the property in question. Moreover, her own motion to dismiss
indicated merely "a necessity of amending the complaint," to the end
that the other successors in interest of Silvestre Gayon, instead of
2
 Rem Rev 1 Civ Pro – KPL

the latter, be made parties in this case. In her opposition to the
aforesaid motion for reconsideration of the plaintiff, Mrs. Gayon
alleged, inter alia, that the "heirs cannot represent the dead
defendant, unless there is a declaration of heirship." Inasmuch,
however, as succession takes place, by operation of law, "from the
moment of the death of the decedent"3 and "(t)he inheritance
includes all the property, rights and obligations of a person which are
not extinguished by his death,"4 it follows that if his heirs were
included as defendants in this case, they would be sued, not as
"representatives" of the decedent, but as owners of an aliquot
interest in the property in question, even if the precise extent of their
interest may still be undetermined and they have derived it from the
decent. Hence, they may be sued without a previous declaration of
heirship, provided there is no pending special proceeding for the
settlement of the estate of the decedent.5
As regards plaintiff's failure to seek a compromise, as an alleged
obstacle to the present case, Art. 222 of our Civil Code provides:
No suit shall be filed or maintained between
members of the same family unless it should appear
that earnest efforts toward a compromise have been
made, but that the same have failed, subject to the
limitations in article 2035.
(4) Among brothers and sisters.
Mrs. Gayon is plaintiff's sister-in-law, whereas her children are his
nephews and/or nieces. Inasmuch as none of them is included in the
enumeration contained in said Art. 217 — which should be
construed strictly, it being an exception to the general rule — and
Silvestre Gayon must necessarily be excluded as party in the case
at bar, it follows that the same does not come within the purview of
Art. 222, and plaintiff's failure to seek a compromise before filing the
complaint does not bar the same.
WHEREFORE, the order appealed from is hereby set aside and the
case remanded to the lower court for the inclusion, as defendant or
defendants therein, of the administrator or executor of the estate of
Silvestre Gayon, if any, in lieu of the decedent, or, in the absence of
such administrator or executor, of the heirs of the deceased Silvestre
Gayon, and for further proceedings, not inconsistent with this
decision, with the costs of this instance against defendant-appellee,
Genoveva de Gayon. It is so ordered.

It is noteworthy that the impediment arising from this provision

applies to suits "filed or maintained between members of the same
family." This phrase, "members of the same family," should,
however, be construed in the light of Art. 217 of the same Code,
pursuant to which:

Family relations shall include those:

(1) Between husband and wife;

(2) Between parent and child;

(3) Among other ascendants and their descendants;

3

FIRST DIVISION
G.R. No. 109068 January 10, 1994
GAUDENCIO GUERRERO, petitioner,
vs.
REGIONAL TRIAL COURT OF ILOCOS NORTE, BR. XVI, JUDGE
LUIS B. BELLO, JR., PRESIDING, and PEDRO G.
HERNANDO, respondents.
Juan Jacito for petitioner.
Alipio V. Flores for private respondent.
BELLOSILLO, J.:
Filed by petitioner as an accion publicana1 against private
respondent, this case assumed another dimension when it was
dismissed by respondent Judge on the ground that the parties being
brother-in-law the complaint should have alleged that earnest efforts
were first exerted towards a compromise.
Admittedly, the complaint does not allege that the parties exerted
earnest towards a compromise and that the same failed. However,
private respondent Pedro G. Hernando apparently overlooked this
alleged defect since he did not file any motion to dismiss nor attack
the complaint on this ground in his answer. It was only on 7
December 1992, at the pre-trial conference, that the relationship of
petitioner Gaudencio Guerrero and respondent Hernando was noted
by respondent Judge Luis B. Bello, Jr., they being married to half-
sisters hence are brothers-in-law, and on the basis thereof
respondent Judge gave petitioner five (5) days "to file his motion and
amended complaint" to allege that the parties were very close
relatives, their respective wives being sisters, and that the complaint
to be maintained should allege that earnest efforts towards a
Rem Rev 1 Civ Pro – KPL
compromise were exerted but failed. Apparently, respondent Judge
considered this deficiency a jurisdictional defect.
On 11 December 1992, Guerrero moved to reconsider the 7
December 1992 Order claiming that since brothers by affinity are not
members of the same family, he was not required to exert efforts
towards a compromise. Guerrero likewise argued that Hernando was
precluded from raising this issue since he did not file a motion to
dismiss nor assert the same as an affirmative defense in his answer.
On 22 December 1992, respondent Judge denied the motion for
reconsideration holding that "[f]ailure to allege that earnest efforts
towards a compromise is jurisdictional such that for failure to allege
same the court would be deprived of its jurisdiction to take
cognizance of the case." He warned that unless the complaint was
amended within five (5) days the case would be dismissed.
On 29 January 1993, the 5-day period having expired without
Guerrero amending his complaint, respondent Judge dismissed the
case, declaring the dismissal however to be without prejudice.
Guerrero appeals by way of this petition for review the dismissal by
the court a quo. He raises these legal issues: (a) whether brothers
by affinity are considered members of the same family contemplated
in Art. 217, par. (4), and Art. 222 of the New Civil Code, as well as
under Sec. 1, par. (j), Rule 16, of the Rules of Court requiring
earnest efforts towards a compromise before a suit between them
may be instituted and maintained; and, (b) whether the absence of
an allegation in the complaint that earnest efforts towards a
compromise were exerted, which efforts failed, is a ground for
dismissal for lack of jurisdiction.
The Constitution protects the sanctity of the family and endeavors to
strengthen it as a basic autonomous social institution.2 This is also
embodied in Art. 149,3 and given flesh in Art. 151, of the Family
Code, which provides:
Art. 151. No suit between members of the same
family shall prosper unless it should appear from the
4

verified complaint or petition that earnest efforts
toward a compromise have been made, but that the
same had failed. If it is shown that no such efforts
were in fact made, the case must be dismissed.
This rule shall not apply to cases which may not be
the subject of compromise under the Civil Code.
Considering that Art. 151 herein-quoted starts with the negative word
"No", the requirement is mandatory4 that the complaint or petition,
which must be verified, should allege that earnest efforts towards a
compromise have been made but that the same failed, so that "[i]f it
is shown that no such efforts were in fact made, the case must be
dismissed."
Further, Art. 151 is contemplated by Sec. 1, par. (j), Rule 16, of the
Rules of Court which provides as a ground for motion to dismiss
"(t)hat the suit is between members of the same family and no
earnest efforts towards a compromise have been made."
The Code Commission, which drafted the precursor provision in the
Civil Code, explains the reason for the requirement that earnest
efforts at compromise be first exerted before a complaint is given
due course —
This rule is introduced because it is difficult to
imagine a sadder and more tragic spectacle than a
litigation between members of the same family. It is
necessary that every effort should be made toward a
compromise before a litigation is allowed to breed
hate and passion in the family. It is known that a
lawsuit between close relatives generates deeper
bitterness than between strangers . . . A litigation in a
family is to be lamented far more than a lawsuit
between strangers . . . 5
But the instant case presents no occasion for the application of the
above-quoted provisions. As early as two decades ago, we already
ruled in Gayon v. Gayon6 that the enumeration of "brothers and
Rem Rev 1 Civ Pro – KPL
sisters" as members of the same family does not comprehend
"sisters-in-law". In that case, then Chief Justice Concepcion
emphasized that "sisters-in-law" (hence, also "brothers-in-law") are
not listed under Art. 217 of the New Civil Code as members of the
same family. Since Art. 150 of the Family Code repeats essentially
the same enumeration of "members of the family", we find no reason
to alter existing jurisprudence on the matter. Consequently, the
court a quo erred in ruling that petitioner Guerrero, being a brother-
in-law of private respondent Hernando, was required to exert earnest
efforts towards a compromise before filing the present suit.
In his Comment, Hernando argues that ". . . although both wives of
the parties were not impleaded, it remains a truism that being
spouses of the contending parties, and the litigation involves
ownership of real property, the spouses' interest and participation in
the land in question cannot be denied, making the suit still a suit
between half-sisters . . ."7
Finding this argument preposterous, Guerrero counters in his Reply
that his "wife has no actual interest and participation in the land
subject of the . . . suit, which the petitioner bought, according to his
complaint, before he married his wife."8 This factual controversy
however may be best left to the court a quo to resolve when it
resumes hearing the case.
As regards the second issue, we need only reiterate our ruling in
O'Laco v. Co Cho Chit,9 citing Mendoza v. Court of Appeals, 10 that
the attempt to compromise as well as the inability to succeed is a
condition precedent to the filing of a suit between members of the
same family, the absence of such allegation in the complaint being
assailable at any stage of the proceeding, even on appeal, for lack of
cause of action.
It is not therefore correct, as petitioner contends, that private
respondent may be deemed to have waived the aforesaid defect in
failing to move or dismiss or raise the same in the Answer. On the
other hand, we cannot sustain the proposition of private respondent
that the case was, after all, also dismissed pursuant to Sec. 3, Rule
17, of the Rules of Court 11 for failure of petitioner to comply with the
court's order to amend his complaint.
5
 Rem Rev 1 Civ Pro – KPL

A review of the assailed orders does not show any directive which
Guerrero supposedly defied. The Order of 7 December 1992 merely
gave Guerrero five (5) days to file his motion and amended
complaint with a reminder that the complaint failed to allege that
earnest efforts were exerted towards a compromise. The Order of 22
December 1992, which denied Guerrero's motion for
reconsideration, simply stated that "Plaintiff if it (sic) so desire must
amend the complaint otherwise, the court will have to dismiss the
case (emphasis supplied) . . ." The Order of 29 January 1993
dismissing the case without prejudice only made reference to an
earlier order "admonishing" counsel for Guerrero to amend the
complaint, and an "admonition" is not synonymous with "order".
Moreover, since the assailed orders do not find support in our
jurisprudence but, on the other hand, are based on an erroneous
interpretation and application of the law, petitioner could not be
bound to comply with them. 12

WHEREFORE, the petition is GRANTED and the appealed Orders

of
7 December 1992, 22 December 1992 and 29 January 1993 are
SET ASIDE. The Regional Trial Court of Laoag City, Branch 16, or
whichever branch of the court the case may now be assigned, is
directed to continue with Civil Case
No. 10084-16 with deliberate dispatch.

SO ORDERED.

Cruz, Davide, Jr. and Quiason, JJ., concur.

6

FIRST DIVISION
G.R. NO. 154132 August 31, 2006
HIYAS SAVINGS and LOAN BANK, INC. Petitioner,
vs.
HON. EDMUNDO T. ACUÑA, in his capacity as Pairing Judge of
Regional Trial Court, Branch 122, Caloocan City, and ALBERTO
MORENO, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a petition for certiorari under Rule 65 of the Rules of
Court seeking to nullify the Orders 1 of the Regional Trial Court (RTC) of
Caloocan City, Branch 122, dated November 8, 2001 2 and May 7,
2002 3 denying herein petitioner’s Motion to Dismiss and Motion for
Partial Reconsideration, respectively.
The antecedent facts are as follows:
On November 24, 2000, Alberto Moreno (private respondent) filed with
the RTC of Caloocan City a complaint against Hiyas Savings and Loan
Bank, Inc. (petitioner), his wife Remedios, the spouses Felipe and Maria
Owe and the Register of Deeds of Caloocan City for cancellation of
mortgage contending that he did not secure any loan from petitioner, nor
did he sign or execute any contract of mortgage in its favor; that his
wife, acting in conspiracy with Hiyas and the spouses Owe, who were
the ones that benefited from the loan, made it appear that he signed the
contract of mortgage; that he could not have executed the said contract
because he was then working abroad. 4
On May 17, 2001, petitioner filed a Motion to Dismiss on the ground that
private respondent failed to comply with Article 151 of the Family Code
wherein it is provided that no suit between members of the same family
shall prosper unless it should appear from the verified complaint or
petition that earnest efforts toward a compromise have been made, but
that the same have failed. Petitioner contends that since the complaint
does not contain any fact or averment that earnest efforts toward a
Rem Rev 1 Civ Pro – KPL
compromise had been made prior to its institution, then the complaint
should be dismissed for lack of cause of action. 5
Private respondent filed his Comment on the Motion to Dismiss with
Motion to Strike Out and to Declare Defendants in Default. He argues
that in cases where one of the parties is not a member of the same
family as contemplated under Article 150 of the Family Code, failure to
allege in the complaint that earnest efforts toward a compromise had
been made by the plaintiff before filing the complaint is not a ground for
a motion to dismiss. Alberto asserts that since three of the party-
defendants are not members of his family the ground relied upon by
Hiyas in its Motion to Dismiss is inapplicable and unavailable. Alberto
also prayed that defendants be declared in default for their failure to file
their answer on time. 6
Petitioner filed its Reply to the Comment with Opposition to the Motion
to Strike and to Declare Defendants in Default. 7 Private respondent, in
turn, filed his Rejoinder. 8
On November 8, 2001, the RTC issued the first of its assailed Orders
denying the Motion to Dismiss, thus:
The court agrees with plaintiff that earnest efforts towards a compromise
is not required before the filing of the instant case considering that the
above-entitled case involves parties who are strangers to the family. As
aptly pointed out in the cases cited by plaintiff, Magbaleta v. G[o]nong,
L-44903, April 25, 1977 and Mendez v. [B]iangon, L-32159, October 28,
1977, if one of the parties is a stranger, failure to allege in the complaint
that earnest efforts towards a compromise had been made by plaintiff
before filing the complaint, is not a ground for motion to dismiss.
Insofar as plaintiff’s prayer for declaration of default against defendants,
the same is meritorious only with respect to defendants Remedios
Moreno and the Register of Deeds of Kaloocan City. A declaration of
default against defendant bank is not proper considering that the filing of
the Motion to Dismiss by said defendant operates to stop the running of
the period within which to file the required Answer. 9
Petitioner filed a Motion for Partial Reconsideration. 10 Private
respondent filed his Comment, 11 after which petitioner filed its
Reply. 12 Thereafter, private respondent filed his Rejoinder. 13
7

On May 7, 2002, the RTC issued the second assailed Order denying
petitioner’s Motion for Partial Reconsideration. The trial court ruled:
Reiterating the resolution of the court, dated November 8, 2001,
considering that the above-entitled case involves parties who are
strangers to the family, failure to allege in the complaint that earnest
efforts towards a compromise were made by plaintiff, is not a ground for
a Motion to Dismiss.
Additionally, the court agrees with plaintiff that inasmuch as it is
defendant Remedios Moreno who stands to be benefited by Art. 151 of
the Family Code, being a member of the same family as that of plaintiff,
only she may invoke said Art. 151. 14
xxx
Hence, the instant Petition for Certiorari on the following grounds:
I. Public respondent committed grave abuse of discretion amounting to
lack or in excess of jurisdiction when he ruled that lack of earnest efforts
toward a compromise is not a ground for a motion to dismiss in suits
between husband and wife when other parties who are strangers to the
family are involved in the suit. Corollarily, public respondent committed
grave abuse of discretion amounting to lack or in excess of jurisdiction
when he applied the decision in the case of Magbaleta v.
Gonong instead of the ruling in the case of De Guzman v. Genato.
II. Public respondent committed grave abuse of discretion amounting to
lack or in excess of jurisdiction when he ruled that a party who is a
stranger to the family of the litigants could not invoke lack of earnest
efforts toward a compromise as a ground for the dismissal of the
complaint. 15
At the outset, the Court notes that the instant Petition
for Certiorari should have been filed with the Court of Appeals (CA) and
not with this Court pursuant to the doctrine of hierarchy of courts.
Reiterating the established policy for the strict observance of this
doctrine, this Court held in Heirs of Bertuldo Hinog v. Melicor 16 that:
Although the Supreme Court, Court of Appeals and the Regional Trial
Courts have concurrent jurisdiction to issue writs of certiorari,
Rem Rev 1 Civ Pro – KPL
prohibition, mandamus, quo warranto, habeas corpus and injunction,
such concurrence does not give the petitioner unrestricted freedom of
choice of court forum. As we stated in People v. Cuaresma:
This Court's original jurisdiction to issue writs of certiorari is not
exclusive. It is shared by this Court with Regional Trial Courts and with
the Court of Appeals. This concurrence of jurisdiction is not, however, to
be taken as according to parties seeking any of the writs an absolute,
unrestrained freedom of choice of the court to which application therefor
will be directed. There is after all a hierarchy of courts. That hierarchy is
determinative of the venue of appeals, and also serves as a general
determinant of the appropriate forum for petitions for the extraordinary
writs. A becoming regard for that judicial hierarchy most certainly
indicates that petitions for the issuance of extraordinary writs against
first level ("inferior") courts should be filed with the Regional Trial Court,
and those against the latter, with the Court of Appeals. A direct
invocation of the Supreme Court’s original jurisdiction to issue these
writs should be allowed only when there are special and important
reasons therefor, clearly and specifically set out in the petition. This is
[an] established policy. It is a policy necessary to prevent inordinate
demands upon the Court’s time and attention which are better devoted
to those matters within its exclusive jurisdiction, and to prevent further
over-crowding of the Court’s docket.
The rationale for this rule is two-fold: (a) it would be an imposition upon
the precious time of this Court; and (b) it would cause an inevitable and
resultant delay, intended or otherwise, in the adjudication of cases,
which in some instances had to be remanded or referred to the lower
court as the proper forum under the rules of procedure, or as better
equipped to resolve the issues because this Court is not a trier of facts.
Thus, this Court will not entertain direct resort to it unless the redress
desired cannot be obtained in the appropriate courts, and exceptional
and compelling circumstances, such as cases of national interest and of
serious implications, justify the availment of the extraordinary remedy of
writ of certiorari, calling for the exercise of its primary jurisdiction.
Exceptional and compelling circumstances were held present in the
following cases: (a) Chavez vs. Romulo on citizens’ right to bear arms;
(b) Government of the United States of America vs. Purganan on bail in
extradition proceedings; (c) Commission on Elections vs. Quijano-
Padilla on government contract involving modernization and
computerization of voters’ registration list; (d) Buklod ng Kawaning EIIB
8

vs. Zamora on status and existence of a public office; and (e) Fortich vs.
Corona on the so-called "Win-Win Resolution" of the Office of the
President which modified the approval of the conversion to agro-
industrial area. 17
In the present case, petitioner failed to advance a satisfactory
explanation as to its failure to comply with the principle of judicial
hierarchy. There is no reason why the instant petition could not have
been brought before the CA. On this basis, the instant petition should be
dismissed.
And even if this Court passes upon the substantial issues raised by
petitioner, the instant petition likewise fails for lack of merit.
Restating its arguments in its Motion for Partial Reconsideration,
petitioner argues that what is applicable to the present case is the
Court’s decision in De Guzman v. Genato 18 and not in Magbaleta v.
Gonong, 19 the former being a case involving a husband and wife while
the latter is between brothers.
The Court is not persuaded.
Article 151 of the Family Code provides as follows:
No suit between members of the same family shall prosper unless it
should appear from the verified complaint or petition that earnest efforts
toward a compromise have been made, but that the same have failed. If
it is shown that no such efforts were in fact made, the case must be
dismissed.
This rule shall not apply to cases which may not be the subject of
compromise under the Civil Code.
Article 222 of the Civil Code from which Article 151 of the Family Code
was taken, essentially contains the same provisions, to wit:
No suit shall be filed or maintained between members of the same
family unless it should appear that earnest efforts toward a compromise
have been made, but that the same have failed, subject to the
limitations in Article 2035. 20
Rem Rev 1 Civ Pro – KPL
The Code Commission that drafted Article 222 of the Civil Code from
which Article 151 of the Family Code was taken explains:
[I]t is difficult to imagine a sadder and more tragic spectacle than a
litigation between members of the same family. It is necessary that
every effort should be made toward a compromise before a litigation is
allowed to breed hate and passion in the family. It is known that a
lawsuit between close relatives generates deeper bitterness than
between strangers. 21
In Magbaleta, the case involved brothers and a stranger to the family,
the alleged owner of the subject property. The Court, taking into
consideration the explanation made by the Code Commision in its
report, ruled that:
[T]hese considerations do not, however, weigh enough to make it
imperative that such efforts to compromise should be a jurisdictional
pre-requisite for the maintenance of an action whenever a stranger to
the family is a party thereto, whether as a necessary or indispensable
one. It is not always that one who is alien to the family would be willing
to suffer the inconvenience of, much less relish, the delay and the
complications that wranglings between or among relatives more often
than not entail. Besides, it is neither practical nor fair that the
determination of the rights of a stranger to the family who just happened
to have innocently acquired some kind of interest in any right or property
disputed among its members should be made to depend on the way the
latter would settle their differences among themselves. 22 x x x.
Hence, once a stranger becomes a party to a suit involving members of
the same family, the law no longer makes it a condition precedent that
earnest efforts be made towards a compromise before the action can
prosper.
In the subsequent case of De Guzman, the case involved spouses and
the alleged paramour of the wife. The Court ruled that due to the efforts
exerted by the husband, through the Philippine Constabulary, to
confront the wife, there was substantial compliance with the law, thereby
implying that even in the presence of a party who is not a family
member, the requirements that earnest efforts towards a compromise
have been exerted must be complied with, pursuant to Article 222 of the
Civil Code, now Article 151 of the Family Code.
9
 Rem Rev 1 Civ Pro – KPL

While De Guzman was decided after Magbaleta, the principle (3) Among other ascendants and their descendants;
enunciated in the Magbaleta is the one that now prevails because it is
reiterated in the subsequent cases of Gonzales v. Lopez, 23 Esquivias v. (4) Among brothers and sisters.
Court of Appeals, 24Spouses Hontiveros v. Regional Trial Court, Branch
25, Iloilo City, 25 and the most recent case of Martinez v.
Petitioner also contends that the trial court committed grave abuse of
Martinez. 26 Thus, Article 151 of the Family Code applies to cover when
discretion when it ruled that petitioner, not being a member of the same
the suit is exclusively between or among family members.
family as respondent, may not invoke the provisions of Article 151 of the
Family Code.
The Court finds no cogent reason why the ruling in Magbaleta as well as
in all of the aforementioned cases should not equally apply to suits
Suffice it to say that since the Court has ruled that the requirement
involving husband and wife.
under Article 151 of the Family Code is applicable only in cases which
are exclusively between or among members of the same family, it
Petitioner makes much of the fact that the present case involves a necessarily follows that the same may be invoked only by a party who is
husband and his wife while Magbaleta is a case between brothers. a member of that same family.
However, the Court finds no specific, unique, or special circumstance
that would make the ruling in Magbaleta as well as in the
WHEREFORE, the instant Petition for Certiorari is DISMISSED for lack
abovementioned cases inapplicable to suits involving a husband and his
of merit.
wife, as in the present case. In the first place, Article 151 of the Family
Code and Article 222 of the Civil Code are clear that the provisions
therein apply to suits involving "members of the same family" as Costs against petitioner.
contemplated under Article 150 of the Family Code, to wit:
SO ORDERED.
ART. 150. Family relations include those:

(1) Between husband and wife;

(2) Between parents and children;

(3) Among other ascendants and descendants; and

(4) Among brothers and sisters, whether of the full or half blood.

and Article 217 of the Civil Code, to wit:

ART. 217. Family relations shall include those:

(1) Between husband and wife;

(2) Between parent and child;

10

SECOND DIVISION
[G.R. No. 162084. June 28, 2005]
APRIL MARTINEZ, FRITZ DANIEL MARTINEZ and MARIA OLIVIA
MARTINEZ, petitioners, vs. RODOLFO G.
MARTINEZ, respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Decision[1] of the
Court of Appeals (CA) in CA-G.R. SP No. 59420 setting aside and
reversing the decision of the Regional Trial Court (RTC) of Manila,
Branch 30, in Civil Case No. 00-96962 affirming, on appeal, the decision
of the Metropolitan Trial Court (MTC) of Manila in Civil Case No. 164761
(CV) for ejectment.
The Antecedents
The spouses Daniel P. Martinez, Sr. and Natividad de Guzman-
Martinez were the owners of a parcel of land identified as Lot 18-B-2
covered by Transfer Certificate of Title (TCT) No. 54334, as well as the
house constructed thereon.[2] On March 6, 1993, Daniel, Sr. executed a
Last Will and Testament[3] directing the subdivision of the property into
three lots, namely, Lots 18-B-2-A, 18-B-2-B and 18-B-2-C. He then
bequeathed the three lots to each of his sons, namely, Rodolfo, Manolo
and Daniel, Jr.; Manolo was designated as the administrator of the
estate.
In May 1995, Daniel, Sr. suffered a stroke which resulted in the
paralysis of the right side of his body. Natividad died on October 26,
1996.[4] Daniel, Sr. passed away on October 6, 1997.[5]
Rem Rev 1 Civ Pro – KPL
On September 16, 1998, Rodolfo found a deed of sale purportedly
signed by his father on September 15, 1996, where the latter appears to
have sold Lot 18-B-2 to Manolo and his wife Lucila.[6] He also
discovered that TCT No. 237936 was issued to the vendees based on
the said deed of sale.[7]
Rodolfo filed a complaint[8] for annulment of deed of sale and
cancellation of TCT No. 237936 against his brother Manolo and his
sister-in-law Lucila before the RTC. He also filed a criminal complaint
for estafa through falsification of a public document in the Office of the
City Prosecutor against Manolo, which was elevated to the Department
of Justice.[9]
On motion of the defendants, the RTC issued an Order [10] on March
29, 1999, dismissing the complaint for annulment of deed of sale on the
ground that the trial court had no jurisdiction over the action since there
was no allegation in the complaint that the last will of Daniel Martinez,
Sr. had been admitted to probate. Rodolfo appealed the order to the
CA.[11]
On October 4, 1999, Rodolfo filed a Petition with the RTC of Manila
for the probate of the last will of the deceased Daniel Martinez, Sr.[12]
In the meantime, the spouses Manolo and Lucila Martinez wrote
Rodolfo, demanding that he vacate the property. Rodolfo ignored the
letter and refused to do so. This prompted the said spouses to file a
complaint for unlawful detainer against Rodolfo in the MTC of Manila.
They alleged that they were the owners of the property covered by TCT
No. 237936, and that pursuant to Presidential Decree (P.D.) No. 1508,
the matter was referred to the barangay for conciliation and settlement,
but none was reached. They appended the certification to file action
executed by the barangay chairman to the complaint.
In his Answer[13] to the complaint filed on October 11, 1999,
Rodolfo alleged, inter alia, that the complaint failed to state a condition
precedent, namely, that earnest efforts for an amicable settlement of the
matter between the parties had been exerted, but that none was
reached. He also pointed out that the dispute had not been referred to
the barangay before the complaint was filed.
On October 20, 1999, the spouses Martinez filed an Amended
Complaint in which they alleged that earnest efforts toward a settlement
had been made, but that the same proved futile. Rodolfo filed his
opposition thereto, on the ground that there was no motion for the
11

admission of the amended complaint. The trial court failed to act on the
matter.
The spouses Martinez alleged in their position paper that earnest
efforts toward a compromise had been made and/or exerted by them,
but that the same proved futile.[14] No amicable settlement was, likewise,
reached by the parties during the preliminary conference because of
irreconcilable differences. The MTC was, thus, impelled to terminate the
conference.[15]
On February 21, 2000, the trial court rendered judgment in favor of
the spouses Martinez. The fallo of the decision reads:
WHEREFORE, premises considered, judgment is rendered in favor of
plaintiff. The defendant, including any person claiming right under him,
is ordered:
1) To vacate the subject premises;
2) To pay plaintiff the sum of P10,000.00 a month
starting July 17, 1999, the date of last demand until he
vacates the same;
3) To pay the sum of P10,000.00 as and for attorneys
fees; and
4) Costs of suit.
SO ORDERED.[16]
The trial court declared that the spouses Martinez had substantially
complied with Article 151 of the Family Code of the Philippines [17] based
on the allegations of the complaint and the appended certification to file
action issued by the barangay captain.
Rodolfo appealed the decision to the RTC. On May 31, 2000, the
RTC rendered judgment affirming the appealed decision. He then filed a
petition for review of the decision with the CA, alleging that:
1. THE RTC ERRED IN AFFIRMING THE DECISION OF THE
MTC WHICH FOUND WITHOUT MERIT THE DEFENSE OF
PETITIONER THAT THERE IS NO ALLEGATION IN THE
COMPLAINT THAT PETITIONER HAS UNLAWFULLY
WITHHELD POSSESSION OF THE PROPERTY FROM
RESPONDENTS A REQUIREMENT IN [AN] UNLAWFUL
DETAINER SUIT.
Rem Rev 1 Civ Pro – KPL
2. THE RTC ERRED IN AFFIRMING THE DECISION OF THE
MTC WHICH FOUND THAT PETITIONERS POSSESSION
OF THE PROPERTY IS BY MERE TOLERANCE OF
RESPONDENTS.
3. THE RTC ERRED IN AFFIRMING THE DECISION OF THE
MTC WHICH FOUND THAT THE RESPONDENTS HAVE A
CAUSE OF ACTION.
4. THE RTC ERRED IN AFFIRMING THE DECISION OF THE
MTC WHICH DID NOT RESOLVE THE SIXTH ISSUE, TO
WIT, Whether or not this Court has jurisdiction over this case
considering that the allegations in the complaint makes out a
case of accion publiciana.
5. THE RTC ERRED IN AFFIRMING THE DECISION OF THE
MTC WHICH HAS NO JURISDICTION OVER THE CASE.
6. THE RTC ERRED IN AFFIRMING THE DECISION OF THE
MTC WHICH FOUND THAT THE MANDATORY
REQUIREMENT OF CONCILIATION HAS BEEN COMPLIED
WITH.
7. THE RTC ERRED IN AFFIRMING THE DECISION OF THE
MTC WHICH FOUND THAT THERE WAS SUBSTANTIAL
COMPLIANCE WITH THE KATARUNGANG
PAMBARANGAY LAW.
8. THE RTC ERRED IN AFFIRMING THE DECISION OF THE
MTC WHICH FOUND THAT THE PENDENCY OF CIVIL
CASE NO. 98-91147 AND SPECIAL PROCEEDINGS NO. 99-
95281, INVOLVING THE PETITIONER AND RESPONDENTS
AND INVOLVING THE SAME PROPERTY DID NOT DIVEST
THE MTC OF AUTHORITY TO DECIDE THE CASE.
9. THE RTC ERRED IN AFFIRMING THE DECISION OF THE
MTC WHICH GRANTED THE RELIEF PRAYED FOR BY
THE RESPONDENTS.
10. THE RTC ERRED IN AFFIRMING THE DECISION OF
THE MTC.[18]
On November 27, 2003, the CA rendered judgment granting the
petition and reversing the decision of the RTC. The appellate court ruled
that the spouses Martinez had failed to comply with Article 151 of the
Family code. The CA also held that the defect in their complaint before
12

the MTC was not cured by the filing of an amended complaint because
the latter pleading was not admitted by the trial court.
Upon the denial of their motion for reconsideration of the said
decision, the spouses Martinez filed the present petition for review
on certiorari, in which they raise the following issues:
I.
WHETHER OR NOT THE CERTIFICATION TO FILE ACTION AND
THE ALLEGATIONS IN THE COMPLAINT THAT THE CASE PASSED
[THROUGH] THE BARANGAY BUT NO SETTLEMENT WAS
REACHED, ARE SUFFICIENT COMPLIANCE TO PROVE THAT,
INDEED, EARNEST EFFORTS WERE, IN FACT, MADE BUT THE
SAME HAVE FAILED PRIOR TO THE FILING OF THE COMPLAINT.
II.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY AND
SERIOUSLY ERRED IN FINDING THAT THERE WAS NON-
COMPLIANCE WITH THE REQUIREMENT PROVIDED FOR UNDER
ARTICLE 151 OF THE FAMILY CODE, CONSIDERING THAT ONE OF
THE PARTIES TO A SUIT IN THIS CASE IS NOT A MEMBER OF THE
SAME FAMILY.[19]
The petitioners alleged that they substantially complied with Article
151 of the Family Code, since they alleged the following in their original
complaint:
2. In compliance with P.D. 1508, otherwise known as the Katarungang
Pambarangay, this case passed [through] the Barangay and no
settlement was forged between plaintiffs and defendant as a result of
which Certification to File Action was issued by Barangay 97, Zone 8,
District I, Tondo, Manila. xxx (Underscoring supplied)[20]
Further, the petitioners averred, they alleged in their position paper
that they had exerted earnest efforts towards a compromise which
proved futile. They also point out that the MTC resolved to terminate the
preliminary conference due to irreconcilable difference between the
parties. Besides, even before they filed their original complaint,
animosity already existed between them and the respondent due to the
latters filing of civil and criminal cases against them; hence, the
Rem Rev 1 Civ Pro – KPL
objective of an amicable settlement could not have been attained.
Moreover, under Article 150 of the Family Code, petitioner Lucila
Martinez had no familial relations with the respondent, being a mere
sister-in-law. She was a stranger to the respondent; hence, there was
no need for the petitioners[21] to comply with Article 151 of the Family
Code.
The petition is meritorious.
Article 151 of the Family Code provides:
Art. 151. No suit between members of the same family shall prosper
unless it should appear from the verified complaint or petition that
earnest efforts toward a compromise have been made, but that the
same have failed. If it is shown that no such efforts were, in fact, made,
the case must be dismissed.
This rule shall not apply to cases which may not be the subject of
compromise under the Civil Code.
The phrase members of the family must be construed in relation to
Article 150 of the Family Code, to wit:
Art. 150. Family relations include those:
(1) Between husband and wife;
(2) Between parents and children;
(3) Among other ascendants and descendants; and
(4) Among brothers and sisters, whether of the full or half-
blood.
Article 151 of the Family code must be construed strictly, it being
an exception to the general rule. Hence, a sister-in-law or brother-in-law
is not included in the enumeration.[22]
As pointed out by the Code Commission, it is difficult to imagine a
sadder and more tragic spectacle than a litigation between members of
the same family. It is necessary that every effort should be made toward
a compromise before a litigation is allowed to breed hate and passion in
the family and it is known that a lawsuit between close relatives
generates deeper bitterness than between strangers.[23]
13

Thus, a partys failure to comply with Article 151 of the Family Code
before filing a complaint against a family member would render such
complaint premature.
In this case, the decision of the CA that the petitioners were
mandated to comply with Article 151 of the Family code and that they
failed to do so is erroneous.
First. Petitioner Lucila Martinez, the respondents sister-in-law, was
one of the plaintiffs in the MTC. The petitioner is not a member of the
same family as that of her deceased husband and the respondent:
As regards plaintiffs failure to seek a compromise, as an alleged
obstacle to the present case, Art. 222 of our Civil Code provides:
No suit shall be filed or maintained between members of the same
family unless it should appear that earnest efforts toward a compromise
have been made, but that the same have failed, subject to the
limitations in Article 2035.
It is noteworthy that the impediment arising from this provision applies to
suits filed or maintained between members of the same family. This
phrase, members of the same family, should, however, be construed in
the light of Art. 217 of the same Code, pursuant to which:
Family relations shall include those:
(1) Between husband and wife;
(2) Between parent and child;
(3) Among other ascendants and their descendants;
(4) Among brothers and sisters.
Mrs. Gayon is plaintiffs sister-in-law, whereas her children are his
nephews and/or nieces. Inasmuch as none of them is included in the
enumeration contained in said Art. 217 which should be construed
strictly, it being an exception to the general rule and Silvestre Gayon
must necessarily be excluded as party in the case at bar, it follows that
the same does not come within the purview of Art. 222, and plaintiffs
failure to seek a compromise before filing the complaint does not bar the
same.[24]
Rem Rev 1 Civ Pro – KPL
Second. The petitioners were able to comply with the requirements
of Article 151 of the Family Code because they alleged in their
complaint that they had initiated a proceeding against the respondent for
unlawful detainer in the Katarungang Pambarangay, in compliance with
P.D. No. 1508; and that, after due proceedings, no amicable settlement
was arrived at, resulting in the barangay chairmans issuance of a
certificate to file action.[25] The Court rules that such allegation in the
complaint, as well as the certification to file action by
the barangay chairman, is sufficient compliance with article 151 of the
Family Code. It bears stressing that under Section 412(a) of Republic
Act No. 7160, no complaint involving any matter within the authority of
the Lupon shall be instituted or filed directly in court for adjudication
unless there has been a confrontation between the parties and no
settlement was reached.[26]
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED.
The Decision of the Court of Appeals in CA-G.R. SP No. 59420 is
REVERSED AND SET ASIDE. The Decision of the Metropolitan Trial
Court of Manila, as affirmed on appeal by the Regional Trial Court of
Manila, Branch 30, in Civil Case No. 164761(CV) is REINSTATED. No
costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-Nazario,
JJ., concur.
14

FIRST DIVISION
G.R. No. 70261 February 28, 1990
MAURO BLARDONY, JR., petitioner,
vs.
HON. JOSE L. COSCOLLUELA, JR., as Presiding Judge of
Branch CXLVI, REGIONAL TRIAL COURT NATIONAL CAPITAL
REGION, MAKATI, METRO MANILA and MA. ROSARIO
ARANETA BLARDONY, respondents.
Recto Law Offices for petitioner.
Araneta, Mendoza & Papa for private respondent.
GRIÑO-AQUINO, J.:
The petitioner seeks a review of the orders dated August 9, 1983,
and February 20, 1985, of respondent Judge Jose Coscolluela, Jr.,
of the Regional Trial Court of Makati, Branch CXLVI, amending the
order of his predecessor, Judge Segundo Soza, (which dismissed
private respondent's petition for dissolution of the conjugal
partnership and partition of conjugal properties) by requiring
petitioner to submit an accounting of his salaries, allowances,
bonuses and commissions.
The petitioner and the private respondent are spouses. They were
married on April 30, 1975. During their marriage, they begot one
child named Patricia Araneta Blardony, who was born on November
10, 1975. Due to irreconcilable differences, petitioner and private
respondent separated in March, 1981.
On different dates, the spouses executed the following agreements:
(a) Memorandum of Agreement dated July 1981 for
the support of their child, Patricia;
Rem Rev 1 Civ Pro – KPL
(b) Receipt dated January 11, 1982, evidencing the
Compromise of Settlement of Advances claimed by
private respondent from petitioner;
(c) The Deed of Conveyance of a property situated in
Alabang, Muntinlupa; and
(d) The Confirmation of the waiver by private
respondent in favor of petitioner over a property
situated in Calatagan, Batangas. (p. 25, Rollo.)
On May 3, 1982, the wife filed a Petition for Dissolution of Conjugal
Partnership and Partition of Conjugal Partnership Properties in the
Court of First Instance of Rizal, Branch XXXVI, in Makati, where it
was docketed as Sp. No. 9711.
The husband, in his answer, admitted that he had abandoned the
conjugal home since March 1981; that before the filing of the
petition, he and his wife, assisted by their respective counsel, tried to
file a joint petition for the dissolution of their conjugal partnership but
their attempt failed due to their inability to agree upon the equitable
partition of their conjugal partnership properties and he prayed the
court to order "a fair and equitable dissolution of their conjugal
partnership in accordance with law." (p. 74, Rollo.)
On October 8, 1982, the husband filed a motion to dismiss the
petition on jurisdictional grounds, claiming that it should have been
filed first in the Lupon Tagapamayapa as provided in P.D. 1508,
because both are residents of the same Municipality of Makati.
Mrs. Blardony opposed the motion to dismiss. Nevertheless, Judge
Segundo Soza dismissed her petition on October 8, 1982 for her
failure, as plaintiff, to comply with Section 6 of P.D. 1508.
Mrs. Blardony filed a motion for reconsideration. In the meantime,
the courts were reorganized and the case was transferred to Branch
CXLVI (146) of the Regional Trial Court of Makati, presided over by
Judge Jose Coscolluela, Jr.
15

On August 9, 1983, Judge Coscolluela set aside Judge Soza's order
of dismissal and required the defendant to submit an accounting of
his salaries, allowances, bonuses, and commissions. The latter's
motion for reconsideration of that order was denied by the court on
February 20, 1985. Hence, this petition for certiorari under Rule 65
of the Rules of Court with a prayer for a writ of preliminary injunction
on the grounds that respondent Judge exceeded his jurisdiction:
1. in assuming jurisdiction over the case without prior
referral to the Lupon Tagapamayapa as required by
P.D. 1508; and
2. in declaring that the issues of support pendente
lite and delivery of personal property belonging to the
conjugal partnership of the parties are essentially
involved in the petition, hence, the parties could go
directly to court without passing through the Lupon
Tagapamayapa, as provided in Section 6 of P.D.
1508.
The petition has no merit. Our jurisprudence is replete with decisions
of this Court to the effect that while the referral of a case to the
Lupon Tagapayapa is a condition precedent for filing a complaint in
court, it is not a jurisdictional requirement, "its non-compliance
cannot affect the jurisdiction which the court has already acquired
over the subject matter or over the person of the defendant."
(Fernandez vs. Militante, May 31, 1988; Gonzales vs. Court of
Appeals, 151 SCRA 287; Royales vs. Intermediate Appellate Court,
127 SCRA 470). Petitioner waived the pre-litigation conciliation
procedure prescribed in P.D. No. 1508 when he did not file a motion
to dismiss the complaint on that score, but filed his answer thereto
wherein he prayed the court to make an equitable partition of the
conjugal properties.
While petitioners could have prevented the trial court
from exercising jurisdiction over the case by
seasonably taking exception thereto, they instead
invoked the very same jurisdiction by filing an answer
and seeking affirmative relief from it. ... . Upon this
premise, petitioners cannot be allowed belatedly to
Rem Rev 1 Civ Pro – KPL
adopt an inconsistent posture by attacking the
jurisdiction of the court to which they had submitted
themselves voluntarily. (Royales vs. Intermediate
Appellate Court, 127 SCRA 470.)
Furthermore, under Section 6 of P.D. 1508, the complaint may be
filed directly in a competent court without passing the
Lupon Tagapayapa in the following cases:
SECTION 6. Conciliation, pre-condition to filing of
complaint. — No complaint, petition, action or
proceeding involving any matter within the authority
of the Lupon as provided in Section 2 hereof, shall be
filed or instituted in court or any other government
office for adjudication unless there has been a
confrontation of the parties before the Lupon
Chairman or the Pangkat and no conciliation or
settlement has been reached as certified by the
Lupon Secretary or the Pangkat Secretary, attested
by the Lupon or Pangkat Chairman, or unless the
settlement has been repudiated. However, the
parties may go directly to court in the following
cases:
xxx xxx xxx
(3) Actions coupled with provisional
remedies such as preliminary
injunction, attachment,delivery of
personal properly and support
pendente lite; and
xxx xxx xxx
(Emphasis supplied.)
Respondent Judge correctly observed that:
16
 Rem Rev 1 Civ Pro – KPL

... the issues of support pendente lite and delivery of

personal properties belonging to the conjugal
partnership, although not coupled in the strict sense
of the word with the instant petition, are essentially
involved in this petition because of the minority of the
daughter, Patricia Araneta Blardony who, as of this
date, is not yet 8 years old, and because the
resolution or decision of this court on the pending
petition would be incomplete without a clear cut
disposition on the partition of the personal and real
properties of the conjugal partnership and
consequent delivery thereof to the proper parties. (p.
20, Rollo.)

WHEREFORE, finding no reversible error in the orders complained

of, the petition for certiorari is denied for lack of merit. Costs against
the petitioner. This decision is immediately executory.

SO ORDERED.

17
 Rem Rev 1 Civ Pro – KPL

THIRD DIVISION
Petitioner, a permanent resident of the United States of America,
DANTE M. PASCUAL, G.R. No. 157830
appointed Sagario as his attorney-in-fact by a Special Power of
represented by REYMEL R.
SAGARIO, Present: Attorney (SPA) dated April 10, 2002:
Petitioner, 1. To file a case for the cancellation of Transfer
PANGANIBAN, Chairman, Certificate of Title No. T-271656 issued in the name
SANDOVAL- GUTIERREZ,* of Marilou M. Pascual as well as the Deed of Sale of
CORONA, Registered Land (Dec. No. 639; Page No. 52; Book
-versus- CARPIO MORALES, and No. XXI; Series of 1994) and/or Reconveyance at the
GARCIA, JJ. appropriate court;

Promulgated: 2. To collect the monthly rentals from the tenant;

MARILOU M. PASCUAL,
Respondent. November 17, 2005 3. To enter into amicable settlement with Marilou M.
Pascual or any other mode of payment/and/or
x------------------------------------------------- dispute resolution;
----------------x
4. To execute and sign any and all papers,
DECISION contracts/documents which may be necessary
relative to the above acts.
CARPIO MORALES, J.:
x x x[1]

On challenge via Petition for Review on Certiorari is the February 10,

Pursuant to the SPA, Sagario filed on October 14, 2002 before the
2003 Order of the Regional Trial Court (RTC) of Isabela, Branch 23
Isabela RTC at Roxas a complaint entitled Dante M. Pascual,
at Roxas dismissing, on motion of herein respondent Marilou M.
plaintiff v. Marilou M. Pascual and Register of Deeds, Defendants,
Pascual, the complaint filed against her by her brother-herein
docketed as Civil Case No. Br. 23-713-02, for Annulment of Transfer
petitioner Dante M. Pascual, represented by his attorney-in-fact
Certificate of Title No. T-271657 of Isabela and Deed of Absolute
Reymel R. Sagario (Sagario), for non-compliance with the
Sale of Registered Land and/or Reconveyance with Damages.[2]
conciliation provision-pre condition to filing of complaint in court
under R.A. 7160 (the Local Government Code).

18

To the Complaint the defendant-herein respondent Marilou M.
Pascual filed a Motion to Dismiss[3] on two grounds one of which was
non-compliance with the requirement under Section 412 of the Local
Government Code,[4] she contending that there is no showing that
the dispute was referred to the barangay court before the case was
filed in court.
By the assailed Order of February 10, 2003,[5] Branch 23 of the
Isabela RTC at Roxas granted respondents Motion to Dismiss in this
wise:
. . . RA 7160 repealing P.D. 1508 otherwise known
as the Revised Katarungang Pambarangay provides
under Section 409 All disputes involving real property
or any interest therein shall be brought in the
barangay where the real property or the larger
portion thereof is situated. Hence, the reliance of the
plaintiff on Section 408 of R.A. 7160 is incorrect.
When real property or any interest therein is
involved, the dispute shall be filed before the
barangay where the property is located, regardless
of the residence of the parties. Besides, it is
incorrect to say that the parties are not residents of
the same place, Vira, Roxas, Isabela. The Attorney-
in-fact of the plaintiff in the person of Reymel R.
Sagario is a resident of Vira, Roxas, Isabela, and
he substitute(sic) Dante Pascual by virtue of said
Special Power of Attorney. Hence, said Attorney-in-
fact should have brought the dispute before barangay
Vira, Roxas, Isabela, where the property is located.
In the case of Royales vs. Intermediate Appellate
Court 127 SCRA 470, Ordinarily, non-compliance
Rem Rev 1 Civ Pro – KPL
with the condition precedent prescribed by P.D. 1508
could affect the sufficiency of the plaintiffs cause of
action and make his complaint vulnerable to
dismissal on ground of lack of cause of action or
prematurity.[6] (Emphasis and underscoring supplied)
Petitioners Motion for Reconsideration[7] of the above-said order was
denied by Order of March 24, 2003:[8]
xxx
Consequently, the Court is [of] the opinion that the
said Attorney-in-fact shall be deemed to be the
real party in interest, reading from the tenor of the
provisions of the Special Power of Attorney. Being a
real party in interest, the Attorney-in-fact is therefore
obliged to bring this case first before the Barangay
Court. Sec. 3, Rule 3 of the Rules of Court provides
that Where the action is allowed to be prosecuted or
defended by a representative or someone acting in a
fiduciary capacity, the beneficiary shall be included in
the title of the case and shall be deemed to be the
real party in interest.
xxx
Being the real party in interest, the Attorney-in-fact
may therefore bring the necessary complaint before
the Lupon Tagapayapa and appear in person as if
he is the owner of the land.[9](Emphasis and
underscoring supplied)
Hence, the present petition questioning the palpable legal errors of
the RTC.
19
 Rem Rev 1 Civ Pro – KPL

benefit of an undisclosed principal may sue or be

sued without joining the principal except when the
contract involves things belonging to the principal,
Petitioner argues that since he, not his attorney-in-fact Sagario, is
the real party in interest, and since he actually resides abroad,
the lupon would have no jurisdiction to pass upon the dispute
being a substitute, becomes the real party-in-interest.
[10]
involving real property, he citing Agbayani v. Belen.

Respondents submissions do not lie.

Respondent submits, on the other hand, that Section 408, paragraph
(f), of the Local Government Code, is qualified by paragraph (c) of
The pertinent provisions of the Local Government Code read:
Section 409 of the same Code the latter of which provides that [a]ll
disputes involving real property or any interest therein shall be
brought in the barangay where the real property is located, hence,
the use of the word shall makes it mandatory for the bringing of the
dispute before the lupon.
That attorney-in-fact Sagario is a resident of the same barangay as
that of hers, respondent argues in any event, brings the matter under
the jurisdiction of the lupon, for Sagario, following Section 3 of Rule
3 of the 1997 Rules of Civil Procedure which provides:
Sec. 3. Representative as parties. - Where the action
is allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the title
of the case and shall be deemed to be the real party
in interest. A representative may be a trustee of an
express trust, a guardian, an executor or
administrator, or a party authorized by law or these
Rules. An agent acting in his own name for the
SEC. 408. Subject Matter for Amicable Settlement;
Exception Thereto. The lupon of each barangay shall
have authority to bring together the parties actually
residing in the same city or municipality for amicable
settlement of all disputes except:
(a) Where one party is the government or any
subdivision or instrumentality thereof;
(b) Where one party is a public officer or employee,
and the dispute relates to the performance of his
official functions;
(c) Offenses punishable by imprisonment exceeding
one (1) year or a fine exceeding Five Thousand
pesos (P5,000.00);
(d) Offenses where there is no private offended party;
(e) Where the dispute involves real properties located
in different cities or municipalities unless the parties
thereto agree to submit their differences to amicable
settlement by an appropriate lupon;
20
 Rem Rev 1 Civ Pro – KPL

(f) Disputes involving parties who actually reside in resolving objections to venue herein referred to may
barangays of different cities or municipalities, except be submitted to the Secretary of Justice or his duly
where such barangay units adjoin each other and the designated representative whose ruling thereon shall
parties thereto agree to submit their differences to be binding. (Emphasis supplied)
amicable settlement by an appropriate lupon; and
(g) Such other classes of disputes which the
President may determine in the interest of justice or
upon the recommendation of the Secretary of
Justice. In the 1982 case of Tavora v. Veloso,[11] this Court held that where

The court in which non-criminal cases not falling the parties are not actual residents in the same city or municipality
within the authority of the lupon under this Code are
filed may, at any time before trial, motu proprio refer or adjoining barangays, there is no requirement for them to submit
the case to the lupon concerned for amicable their dispute to the lupon as provided for in Section 6 vis a
settlement. (Emphasis supplied)
vis Sections 2 and 3 of P.D. 1508 (Katarungang Pambarangay Law).
SEC. 409. Venue. (a) Disputes between
persons actually residing in the same barangay
shall be brought for amicable settlement before the [B]y express statutory inclusion and exclusion, the
lupon of said barangay . Lupon shall have no jurisdiction over disputes
where the parties are not actual residents of the
(b) Those involving actual residents of different same city or municipality, except where the
barangays within the same city or municipality shall barangays in which they actually reside adjoin each
be brought in the barangay where the respondent or other. (Underscoring supplied)
any of the respondents actually resides, at the
election of the complainant.
(c) All disputes involving real property or any interest
therein shall be brought in the barangay where the In the 2000 case of Vercide v. Hernandez,[12] this Court, noting that
real property or the larger portion thereof is situated.
the Tavora ruling, reiterated in other cases including the 1996 case
(d) Those arising at the workplace where the
contending parties are employed or at the institution of Agbayani[13] cited by petitioner, was decided under the provisions
where such parties are enrolled for study shall be
brought in the barangay where such workplace or of P.D. No. 1508 (Katarungang Pambarangay) Law which were,
institution is located. except for some modifications, echoed in Sections 408-409 of the
Objections to venue shall be raised in the mediation Local Government Code which took effect on January 1, 1992, held
proceedings before the punong barangay; otherwise,
the same shall be deemed waived. Any legal that the Tavora ruling remained.
question which may confront the punong barangay in

21
 Rem Rev 1 Civ Pro – KPL

To construe the express statutory requirement of actual residency as

applicable to the attorney-in-fact of the party-plaintiff, as contended
by respondent, would abrogate the meaning of a real party in
interest as defined in Section 2 of Rule 3[14] of the 1997 Rules of
Court vis a vis Section 3 of the same Rule which was earlier quoted
but misread and misunderstood by respondent.

In fine, since the plaintiff-herein petitioner, the real party in interest,

is not an actual resident of the barangay where the defendant-herein
respondent resides, the local lupon has no jurisdiction over their
dispute, hence, prior referral to it for conciliation is not a pre-
condition to its filing in court.

The RTC thus erred in dismissing petitioners complaint.

WHEREFORE, the petition is granted. The assailed February 10,

2003 Order, as well as the March 24, 2003 Order denying
reconsideration of the first, of Branch 23 of the Regional Trial Court
of Isabela at Roxas is SET ASIDE. Said court is accordingly directed
to reinstate Civil Case No. 23-713-02 to its docket and take
appropriate action thereon with dispatch.

SO ORDERED.
22

FIRST DIVISION
G.R. No. 158867 August 22, 2006
JIMMY BANTING, ALFRED REYES and MAXIMA ARCENO
REYES, Petitioners,
vs.
SPS. JOSE MAGLAPUZ and RAYMUNDA BANDIN
MAGLAPUZ, Respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court praying that we (1) declare the Decision1 dated
August 13, 2002 of the Metropolitan Trial Court, Branch 79, Las
Piñas City (MeTC) as null and void; (2) declare the Order2 dated
February 4, 2003 issued by the Regional Trial Court, Branch 199,
Las Piñas City (RTC) as null and void; and (3) reverse and set aside
the Resolution3 dated May 16, 2003 of the Court of Appeals (CA).
The antecedent facts are as follows:
An ejectment complaint was filed with the MeTC entitled, "Sps. Jose
Maglapuz & Raymunda Bandin-Maglapuz,4represented by their
Attorney-in-Fact Rosalinda Maglapuz-Agulay, Plaintiffs, v. Jimmy
Banting and Sps. Alfred Reyes and Maxima Arceno-Reyes,
Defendants" and docketed as Civil Case No. 5663.5 It involved the
right to possession of a parcel of land located at No. 405 Real
Street, Talon I, Las Piñas City, containing an area of 258 square
meters and covered by Transfer Certificate of Title (TCT) No. T-
44306 registered in the name of the Heirs of Victoriana
Ramos.6 Raymunda Maglapuz is purportedly one of the heirs.7
Rem Rev 1 Civ Pro – KPL
The complaint alleged that spouses Alfred and Maxima Reyes
(Spouses Reyes) paid rent to the Spouses Jose and Raymunda
Maglapuz (Spouses Maglapuz) for the use of the property from 1994
to August 1997 at the rate of P3,500.00 per month; that beginning
September 1997, however, Spouses Reyes stopped paying
rent;8 that spouses Maglapuz served a letter dated August 9, 1999
on Spouses Reyes demanding that the latter pay their rentals and
vacate the property;9 that this was received by Spouses Reyes on
August 12, 1999;10 that when no payment was made, Spouses
Maglapuz filed said Civil Case No. 5663 against Spouses Reyes
impleading Jimmy Banting (Banting) with whom Spouses Reyes
entered into a partnership for the operation of a grocery store on the
subject property.
Defendants Spouses Reyes and Banting filed an Answer with
Counterclaim.11 They argued that Spouses Maglapuz have no cause
of action against them for their possession of the subject property is
lawful as it is based on a contract of lease executed in their favor by
one named Carmencita dela Cruz, allegedly the rightful owner of the
property. They demanded compensation by way of moral damages
in the amount of P1,000,000.00 for the allegedly vexatious suit filed
against them. 12
After preliminary conference and submission of position papers, the
MeTC rendered judgment in favor of Spouses Maglapuz. The
decretal portion of the August 13, 2002 Decision of the MeTC reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff
and against the defendants for the following:
1) Ordering the defendants to vacate the plaintiff’s property and to
return possession thereof to the plaintiffs;
2) Ordering the defendant to pay rental of P3,500.00 per month from
September 1997 up to the time they have finally vacated the
premises;
3) Ordering the defendant to pay plaintiff the amount of P20,000.00
attorney’s fees and P1,000.00 per court appearance;
23

4) To pay cost of suit.
SO ORDERED.13
From the foregoing decision, Spouses Reyes and Banting appealed
to the RTC (Branch 199, Las Pinas City)14which issued an Order
dated September 27, 2002 directing the parties to file their
respective memoranda on appeal within thirty (30) days from receipt
thereof.15 The records reveal that defendants-appellants Spouses
Reyes and Banting received copy of the Order on October 7,
2002.16 Plaintiffs-appellees Spouses Maglapuz filed a Memorandum
on Appeal.17 Spouses Reyes and Banting did not file any
memorandum.
In an Order dated November 21, 2002, the RTC dismissed the
appeal, thus:
It appearing that Defendants-Appellants failed to comply with the
Order of this Court dated September 27, 2002 and pursuant to
Section 3 Rule 7 of the Revised Rules of Civil Procedure, the Appeal
is hereby DISMISSED.
SO ORDERED.18
Spouses Reyes and Banting received copy of the Order on
December 4, 2002.19
Earlier, however, on December 2, 2002, Atty. Dionisio Landero,
collaborating counsel of the counsel of record, Atty. Jose Espinas,
filed an Entry of Appearance with Omnibus Motion for
Reconsideration and to Admit Late Memorandum for Defendants-
Appellants.20 He attached thereto a "Memorandum for Defendants
Spouses Alfred Reyes and Maxima Arceno Reyes."21 Counsel
explained that the delay in filing the memorandum on appeal was
due to excusable negligence attributable to his clients who called his
attention to the need to file a memorandum on appeal only on
November 27, 2002. Prior to that date, counsel was not aware of any
order for submission of memorandum as he did not receive copy of
the September 27, 2002 Order.22 He asked that the memorandum on
Rem Rev 1 Civ Pro – KPL
appeal be admitted for it is meritorious in substance. Specifically, it
impugns the jurisdiction of the MeTC to issue the August 13, 2002
Decision on the following grounds: first, the complaint for ejectment
was premature as Spouses Maglapuz failed to comply, much less
allege compliance, with the requirement of prior referral of a case to
the barangay council for conciliation under Section 12, Rule 70 of
the Rules of Court in relation to paragraph c, Section 409, Chapter 7,
Republic Act (R.A.) No. 7160 (Local Government Code); second, the
case is actually one of accionpubliciana cognizable by the RTC for it
was filed only in 1999, more than one year from the time possession
of the subject property by Spouses Reyes and Banting allegedly
became unlawful in 1997; and third, Spouses Maglapuz utterly failed
to establish their title to the property as would justify their claim to a
better right of possession of the property.23
The RTC rebuffed the motion for reconsideration. It held in its Order
of January 7, 2003 that the delay in filing the memorandum on
appeal was due to the inexcusable negligence of both counsel and
clients who were given sufficient notice to file memorandum but, for
lack of coordination, failed to do so.24 Spouses Reyes and Banting
received copy of this Order on January 20, 2003.25 On that same
day, they filed with the RTC a Notice of Appeal.26The RTC, in an
Order dated January 23, 2003, disapproved the Notice of Appeal for
failure of Spouses Reyes and Banting to pay appellate court docket
fees.27 The latter received copy of this Order on January 27, 2003.
On the next day, it filed a Motion for Reconsideration on the ground
that appellate court docket fees were actually paid on January 21,
2003 as shown by copies of receipts attached to the motion.28 The
RTC granted said Motion for Reconsideration in an Order dated
January 30, 2003,29 in effect giving due course to the Notice of
Appeal to the CA.
On February 4, 2003, however, the RTC issued the following Order:
This court notes that the Notice of Appeal availed of by the
defendants is misplaced under the circumstances. The proper
remedy provided for by law is the filing of a Verified Petition for
Review with the Court of Appeals paying at the same time to the
said court the corresponding docket fees and furnishing this court
and adverse party with a copy of the Petition.
24

In view thereof, the Order dated January 23, 2003 is hereby
RECALLED and the Order of the Court dated January 30, 2003 is
hereby amended accordingly.
SO ORDERED.30
Through counsel, Spouses Reyes and Banting received copy of the
foregoing Order on February 19, 2003.31
Straightaway, they filed on February 24, 2003 a Petition for Review
with the CA and paid on the same day the corresponding appellate
docket fees.32 They also served copies of the petition on the RTC
and the adverse parties.33
The CA dismissed the petition in the herein assailed Resolution
dated May 16, 2003, portions of which read:
The petition deserves but a short shrift.
1. We cannot review, much less declare null and void, the Decision
of the MeTC xxx dated August 13, 2002 (not August 6, 1992 as
stated in the prayer of the petitioners; or August 13, 2003, as alleged
in page 3 of the petition) for the simple reason that we have no
appellate jurisdiciton over it.
2. For the same reason of lack of jurisdiction we cannot order the
dismissal of the compliant for ejectment x x x;
3. The Order of the RTC dated January 23, 2003 is correct at
bottom, as the RTC rightly denied due course to the petitioners’
notice of appeal; only its reasoning was faulty;
4. We have no legal basis for awarding private respondents
damages and attorney’s fees.
WHEREFORE, the instant petition is DISMISSED outright.
SO ORDERED. 34
Rem Rev 1 Civ Pro – KPL
Petitioners Spouses Reyes and Banting filed a Motion for
Reconsideration35 from the foregoing resolution but this was denied
by the CA in a Resolution dated June 19, 2003.36 Undaunted,
petitioners’ newly appointed counsel filed an Urgent Motion to Admit
Supplemental Motion for Reconsideration with a Motion for
Reconsideration attached thereto.37 The CA merely took note of this
motion.38
Hence, the present petition raising the following issues:
I
WHETHER THE COURT OF APPEALS IS COMPETENT TO
REVIEW OR DECLARE NULL AND VOID THE DECISION DATED
AUGUST 13, 2002 RENDERED BY THE METROPOLITAN TRIAL
COURT.
II.
WHETHER THE COURT OF APPEALS ERRED IN RULING THAT
THE REGIONAL TRIAL COURT’S OUTRIGHT DENIAL OF THE
HEREIN PETITIONERS’ NOTICE OF APPEAL IS CORRECT.
III.
WHETHER THE COURT OF APPEALS ERRED IN DISMISSING
THE CASE DESPITE ITS BEING MERITORIOUS, CONSIDERING
THAT THE TRIAL COURT, WHICH DECIDED THE CASE ON THE
MERITS, DID NOT ACQUIRE JURISDICTION.
IV.
WHETHER THE COURT OF APPEALS ERRED IN DISMISSING
THE CASE DESPITE ITS BEING MERITORIOUS, CONSIDERING
THAT THE PROPER ACTION TO BE FILED SHOULD HAVE BEEN
ACTION PUBLICIANA OR ACTION REIVI[N]DICATORIA, RATHER
THAN A CASE FOR EJECTMENT.
V.
25

WHETHER THE COURT OF APPEALS ERRED IN DISMISSING
THE CASE DESPITE THE GROSS NEGLIGENCE OF
PETITIONERS’ FORMER COUNSEL IN FAILING TO FILE A
MEMORANDUM OF APPEAL TO THE UTTER PREJUDICE OF
THE HEREIN PETITIONERS.39
Upon motion of respondents, we granted the substitution of
deceased-respondent Raymunda Bandin-Maglapuz by her heirs,
namely: Jose Maglapuz, Ricardo Manahan, Angelita Maglapuz,
Rodelio Maglapuz, Mauro Maglapuz, Emelita Maglapuz, Lolita
Maglapuz-Lagmay, and Rosalinda Maglapuz-Agulay,40 as party
respondents.
The petition lacks merit.
The principal issue underlying the petition is whether the CA is
correct in dismissing the Petition for Review of petitioners.
Appeal by petition for review under Rule 42 filed with the CA is the
appropriate remedy from decisions or final orders issued by the RTC
in the exercise of its appellate jurisdiction.41 Section 1 of Rule 42
reads:
Section 1. How appeal taken; time for filing. – A party desiring to
appeal from a decision of the Regional Trial Court rendered in the
exercise of its appellate jurisdiction may file a verified petition for
review with the Court of Appeals x x x. The petition shall be filed and
served within fifteen (15) days from notice of the decision sought to
be reviewed or of the denial of petitioner’s motion for new trial or
reconsideration filed in due time after judgment. x x x.
An order of the RTC dismissing an appeal from a decision of the
MeTC for failure of appellant to file a memorandum on appeal is one
such final order.42 It is appealable by petition for review under Rule
42.43
In the instant case, the November 21, 2002 and January 7, 2003
RTC Orders dismissed petitioners’ Appeal from the August 13, 2002
MeTC Decision for their failure to file a memorandum on appeal.
Rem Rev 1 Civ Pro – KPL
These orders were therefore appealable by petition for review with
the CA. The Notice of Appeal petitioners initially filed was clearly
erroneous. Petitioners sought to rectify their error by filing the
Petition for Review with the CA on February 24, 2003. The question
then is whether such recourse would prosper.
In Neypes v. Court of Appeals,44 we fixed a uniform period for
appeals filed under Rules 40, 42, 43 and 45. Specifically, we set the
period to appeal at 15 days from notice of the decision or final order
appealed from or, where a motion for new trial or reconsideration is
seasonably filed from the said decision or final order, within a fresh
period of 15 days from receipt of the order denying the motion for
new trial or reconsideration.
Applying the foregoing rule to the present case, petitioners should
have filed the Petition for Review on February 5, 2003. To recall,
petitioners received notice of the November 21, 2002 RTC Order on
December 4, 2002. Even before that, however, they were able to file
an Omnibus Motion for Reconsideration on December 2, 2002. This
was denied by the RTC in its January 7, 2003 Order. Notice of said
Order was received by petitioners on January 20, 2003. Hence, they
had a fresh period of 15 days or until February 5, 2003 to file a
petition for review.
As it were, however, petitioners filed instead a Notice of Appeal on
January 20, 2003. Such mode of appeal under Section 2 (a) of Rule
41 was faulty. Recourse to it did not toll the running of the period
within which to file a petition for review. It is axiomatic that a fatally
defective or erroneous appeal or motion will not toll the running of a
period to appeal. A detour from the proper course of an appeal will
not earn for the errant party a fresh start.45
Petitioners therefore got entangled in an erroneous mode of appeal
and squandered away the remaining time it had to file a petition for
review. The Petition for Review they filed with the CA on February
24, 2003 was out of time.
Moreover, the said Petition for Review was fatally defective. The
petitioners prayed for the following reliefs:
26

WHEREFORE, premises considered, Defendants-Appellants, now
the herein Petitioners respectfully pray this Honorable Court, the
following:
a) To issue a writ of Preliminary Injunction or Restraining Order ex-
parte upon the filing of this Petition;
b) That upon due consideration of the Petition, an order be issued
making the Preliminary Injunction and/or Restraining Order
permanent until after the final resolution of the instant Petition;
That after due notice and consideration of the herein Petition,
Petitioner further pray the following:
c) To issue an Order declaring the subject Decision Annex "C" of the
Lower Court dated August 6, 1992 [sic]46 null and void;
d) Ordering the Complaint dated September 21, 1999 (Annex "D")
dismissed with prejudice.
e) Ordering the Order [sic] of the Public Respondent Court RTC 199
dated January 23, 2003 null and void; and
f) Furthermore, ordering the Private Respondent to pay the herein
Petitioner damages and attorneys fees to be determined by the
Honorable Court.47
The Petition for Review was directed at both the August 13, 2002
Decision of the MeTC and the January 23, 2003 Order of the RTC.
This is odd. The August 13, 2002 MeTC Decision and the January
23, 2003 RTC Order are matters not proper for a petition for review
under Rule 42. As correctly declared by the CA, it has no appellate
jurisdiction over the MeTC and it cannot entertain a direct appeal
from said decision. As to the RTC January 23, 2003 Order
disapproving the Notice of Appeal, this was expressly reconsidered
by the RTC in its January 30, 2003 Order,48 in effect allowing the
Notice of Appeal. This however was further amended by the RTC in
its Order dated February 4, 2003 declaring that the Notice of Appeal
to the CA was misplaced and that the proper remedy is the filing of a
Rem Rev 1 Civ Pro – KPL
petition for review. When petitioners filed their Petition for Review,
they did not question the February 4, 2003 Order of the RTC.
All told, the CA did not err in dismissing their Petition for Review for it
was not only tardy but also fatally defective.
We will, nonetheless, briefly treat the substance of the petition for
review with the CA, if only to settle the issue whether or not the RTC
committed an error in dismissing petitioners’ appeal on the ground
that no memorandum on appeal has been filed by them.
The RTC validly dismissed the appeal of petitioners from the August
13, 2002 Decision of the MeTC.
The appeal was deemed abandoned when petitioners failed to file
their memorandum on appeal despite sufficient time given to them
by the court. A memorandum on appeal or an appeal brief is vital to
an appeal for only errors specifically assigned and properly argued
in the brief or memorandum will be considered in the decision on the
merits, except those affecting jurisdiction over the subject matter as
well as plain and clerical errors. Hence, the lack of a memorandum
on appeal is ground for the dismissal of an appeal.49
The excuse proffered by counsel for petitioners for their failure to file
the memorandum of appeal did not help their cause any. Assuming
that he did not receive copy of the September 27, 2002 Order, he
could have nonetheless informed himself of this requirement by
checking on the progress of the case from time to time. A counsel is
required to inquire about the status of the cases assigned to him and
the motions he has filed for a client.50 He cannot pass this burden to
his client and blame the latter for every mishap.51 It was therefore
due to the inexcusable negligence of counsel that the memorandum
on appeal was not filed on time.
We stop short, however, from declaring the negligence of counsel as
gross so as to liberate petitioners from the effects of their failure to
file a memorandum on appeal. This is actually what petitioners
would have us uphold. 52They claim that their counsel’s negligence
27
 Rem Rev 1 Civ Pro – KPL

was so gross that they were virtually deprived of due process and WHEREFORE, the petition is hereby DENIED for lack of merit.
representation in the proceedings below.
Costs against petitioners.
Such argument fails to impress. We refer petitioners to their Entry of
Appearance with Omnibus Motion for Reconsideration and to Admit SO ORDERED.
Late Memorandum for Defendants-Appellants.53 There they
specifically argued that the failure of their counsel to file the
memorandum on appeal was "x x x by reason of his excusable
negligence."54Petitioners cannot now turn around and claim that the
negligence of their counsel is gross and that they may be said to
have been deprived of due process.

In the interest of substantial justice, we deem it likewise necessary to

resolve the other issues raised by petitioners.

They argue that the MeTC had no jurisdiction to issue the August 13,
2002 Decision for respondents failed to comply with the requirement
of barangay conciliation; and that the case was actually one
of accion publicianacognizable by the RTC.55

Such arguments lack merit.

It is settled that the requirement under Section 412 of the Local

Government Code that a case be referred for conciliation before the
Lupon as a precondition to its filing in court applies only to those
cases where the real parties-in-interest actually reside in the same
city or municipality.56 Here, the complaint filed with the MeTC
specifically alleged that the parties reside in different barangays and
cities.57

As to the jurisdiction of the MeTC, this can be determined from the

complaint itself. It plainly states that the last demand was made by
respondents upon petitioners on August 9, 1999. The complaint for
ejectment was filed on September 21, 1999 or before the lapse of
the one-year period. It was therefore properly filed with the MeTC.58

All told, the appeal of petitioners fell short even on the merits. It was
properly dismissed by the RTC. The Court of Appeals did not err in
sustaining the RTC.
28
 Rem Rev 1 Civ Pro – KPL

SECOND DIVISION on a "month-to-month" basis pursuant to Article 1670

of the Civil Code.
G.R. No. 96914 July 23, 1992
One of the terms and conditions of the said Contract
CECILIA U. LEDESMA, petitioner, of Lease, that of monthly rental payments, was
vs. violated by private respondent and that as of October
THE HON. COURT OF APPEALS, and JOSE T. 31, 1988, said private respondent has incurred
DIZON, respondents. arrears for both units in the total sum of P14,039.00
for which letters of demand were sent to, and
received by, private respondent.

NOCON, J.: Upon failure of private respondent to honor the

demand letters, petitioner referred the matter to the
Barangay for conciliation which eventually issued a
Petitioner Cecilia U. Ledesma prays before this Court for the reversal
certification to file action. Petitioner was assisted by
of the Decision of the respondent Court of Appeals of August 30,
her son, Raymond U. Ledesma, (who is not a lawyer)
1990 1 ordering the dismissal of her ejectment complaint before the
during the barangay proceeding as she was suffering
Manila Metropolitan Trial Court for lack of cause of action due to
from recurring psychological and emotional ailment
non-compliance with Sections 6 and 9 of P.D. 1508 (Katarungang
as can be seen from the receipts and prescriptions
Pambarangay Law) as well as the Resolution of January 7,
issued by her psychiatrist, copies of which are
1991 2 denying petitioner's Motion for Reconsideration of said
attached as Annexes "E-E10" of the said Petition.
Decision.
Due to the stubborn refusal of the private respondent
The facts of this case as summarized by the petitioner in her
to vacate the premises, petitioner was constrained to
Memorandum are as follows:
retain the services of counsel to initiate this
ejectment proceeding. 3
Petitioner is the owner-lessor of an apartment
building located at 800-802 Remedios Street, Malate,
The Metropolitan Trial Court, Branch 10, Manila, rendered a decision
Manila. Two (2) units of said apartment building were
on June 21, 1989 ordering private respondent to vacate the
leased (now being unlawfully occupied) to private
premises, to pay rentals falling due after May 1989 and to pay
respondent at monthly rates of P3,450.00 for the
attorney's fees in the amount of P2,500.00. 4 The Regional Trial
unit/apartment located at 800 Remedios Street,
Court of Manila, Branch IX, on appeal, affirmed the MTC ruling
Malate, Manila and P2,300.00 for the unit/apartment
except for the award of attorney's fees which it reduced to
located at 802 Remedios Street, Malate, Manila,
P1,000.00. 5
respectively. . . .
Private respondent, however, found favor with the respondent Court
Said lease was originally covered by written
of Appeals when he elevated the case in a Petition for Review, when
contracts of lease both dated December 10, 1984
it ruled, thus:
and except for the rates and duration, the terms and
conditions of said contracts were impliedly renewed
29

IN VIEW WHEREOF, the Decision dated October 13,
1989 of the RTC of Manila, Br. IX in Civil Case No.
89-49672 is reversed and set aside and the
Complaint for Ejectment against petitioner is
dismissed for lack of cause of action. No costs. 6
Thus, this appeal, raising several assignments of error, namely, that
the Court of Appeals erred —
1. In holding that private respondent raised the issue
of non-compliance with Sections 6 and 9 of P.D.
1508 in the lower court when in fact and in truth his
answer and position paper failed to do so, contrary to
evidence on record;
2. In failing to consider that private respondent had
waived his right to question the lack of cause of
action of the complaint, if there is any, contrary to
law, established jurisprudence, and evidence on
record;
3. In giving undue weight and credence to the self-
serving allegations of the private respondent that
summons was not served him, contrary to law,
established jurisprudence and evidence on record.
4. In disregarding the well-known principle of law that
barangay authorities are presumed to have
performed their official duties and to have acted
regularly in issuing the certificate to file action and
grossly and manifestly erred in making an opposite
conclusion to this effect, contrary to law, established
jurisprudence and evidence on record.
5. In not holding that the settlement was repudiated,
contrary to law and evidence on record.
Rem Rev 1 Civ Pro – KPL
6. In not affirming the judgment rendered by the
Metropolitan Trial Court and Regional Trial Court
below.
Petitioner assails private respondent for raising the issue of non-
compliance with Sections 6 and 9 of P.D. 1508 only in his petition for
review with the appellate court and which mislead the court to
erroneously dismiss her complaint for ejectment.
Section 6 of P.D. 1508 states:
Sec. 6. Conciliation pre-condition to filing of
complaint. — No complaint, petition, action or
proceeding involving any matter within the authority
of the Lupon as provided in Section 2 hereof shall be
filed or instituted in court or any other government
office for adjudication unless there has been a
confrontation of the parties before the Lupon
Chairman or the Pangkat and no conciliation or
settlement has been reached as certified by the
Lupon Secretary or the Pangkat Secretary, attested
by the Lupon or Pangkat Chairman, or unless the
settlement has been repudiated. . . .
xxx xxx xxx
while Section 9 states that:
Sec. 9. Appearance of parties in person. — In all
proceedings provided for herein, the parties must
appear in person without the assistance of
counsel/representative, with the exception of minors
and incompetents who may be assisted by their next
of kin who are not lawyers.
Petitioner submits that said issue, not having been raised by private
respondent in the court below, cannot be raised for the first time on
appeal, specially in the Court of Appeals, citing Saludes
vs. Pajarillo. 7 Private respondent had waived said objection,
30

following the line of reasoning in Royales vs. Intermediate Appelate
Court. 8
Private respondent denies having waived the defenses of non-compliance with Sections 6 and 9
of P.D. 1508. His Answer before the Metropolitan Trial Court, specifically paragraphs 4, 7, & 8,
substantially raised the fact of non-compliance by petitioner with Sections 6 and 9 of P.D. 1508
and consequently, subjected petitioner's complaint to dismissal for lack of cause of action, to wit:
xxx xxx xxx
4. Answering defendant denies the allegations of
paragraph 8, the truth of the matter being that he was
not duly summoned nor subpoenaed by the
Barangay Chairman, who issued the alluded
certification, to appear for hearing. 9
xxx xxx xxx
7. Plaintiff has no cause of action against answering
defendant.
8. The certification to file action (annex D of the
complaint) was improperly or irregularly issued as the
defendant was never summoned nor subpoenaed by
the Barangay Chairman to appear for hearing in
connection with the alleged complaint of the plaintiff.
In effect the mandatory provision of P.D. 1508 was
not complied with warranting the dismissal of the
instant complaint.
xxx xxx xxx 10
We do not agree with petitioner that the issue of non-compliance
with Sections 6 and 9 of P.D. 1508 was raised only for the first time
in the Court of Appeals. When private respondent stated that he was
never summoned or subpoenaed by the Barangay Chairman, he, in
effect, was stating that since he was never summoned, he could not
appear in person for the needed confrontation of the parties before
the Lupon Chairman for conciliation and/or amicable settlement.
Without the mandatory personal confrontation, no complaint could
Rem Rev 1 Civ Pro – KPL
be filed with the MTC. Private respondent's allegation in paragraph 4
of his Answer that he was never summoned or subpoenaed by the
Barangay Chairman; that plaintiff has no cause of action against him
as alleged in paragraph 7 of the Answer; and that the certification to
file action was improperly issued in view of the foregoing allegations
thereby resulting in non-compliance with the mandatory
requirements of P.D. No. 1508, as stated in paragraph 8 of the
Answer are in substantial compliance with the raising of said issues
and/or objections in the court below.
Petitioner would like to make it appear to this Court that she
appeared before the Lupon Chairman to confront private
respondent. She stated in her Petition 11 and her
Memorandum 12 that:
Upon failure of private respondent to honor the
demand letters, petitioner referred the matter to the
barangay for conciliation which eventually issued a
certification to file action. Petitioner was assisted by
her son, Raymond U. Ledesma, (who is not a lawyer)
during the barangay proceeding as she was suffering
from recurring psychological and emotional ailment
as can be seen from the receipt and prescriptions
issued by her psychiatrist copies of which are
attached herewith as Annexes
"E-E10."
However, as found out by the respondent court:
We agree with the petitioner that private respondent
Cecile Ledesma failed to comply with section 6 of
P.D. 1508. The record of the case is barren showing
compliance by the private respondent. Indeed, the
documentary evidence of the private respondent
herself attached to the complaint buttresses this
conclusion. They show that it is not the private
respondent but her son. Raymund U. Ledesma, and
her lawyer, Atty. Epifania Navarro who dealt with the
petitioner regarding their dispute. Thus, the demand
letter dated October 18, 1988 sent to the petitioner
31
 Rem Rev 1 Civ Pro – KPL

for payment of rentals in the sum of P14,039.00 was
signed by Raymund Ledesma. On the other hand,
the demand letter dated November 14, 1988 was
signed by Atty. Epifania Navarro. More telling is the
Certification to File Action signed by Barangay
Chairman, Alberto A. Solis where it appears that the
complainant is Raymund U. Ledesma and not the
private respondent. 13
As stated earlier, Section 9 of P.D. 1508 mandates personal
confrontation of the parties because:
mandatory language. Moreover, pursuant to the
familiar maxim in statutory construction dictating that
"expressio unius est exclusio alterius", the express
exceptions made regarding minors and incompetents
must be construed as exclusive of all others not
mentioned. 17
Petitioner's non-compliance with Secs. 6 and 9 of P.D. 1508 legally
barred her from pursuing the ejectment case in the MTC of
Manila.18 Having arrived at this conclusion, there is no need for Us to
discuss the other issues involved.

. . . a personal confrontation between the parties
without the intervention of a counsel or
representative would generate spontaneity and a
favorable disposition to amicable settlement on the
part of the disputants. In other words, the said
procedure is deemed conducive to the successful
resolution of the dispute at the barangay level. 14
WHEREFORE, the questioned decision and resolution of the
respondent Court are affirmed in toto with treble costs against
petitioner.
SO ORDERED.
Narvasa, C.J., Padilla and Regalado, JJ., concur.

Petitioner tries to show that her failure to personally appear before

the barangay Chairman was because of her recurring psychological
ailments. But for the entire year of 1988 15 — specifically September
to December 6 — there is no indication at all that petitioner went to
see her psychiatrist for consultation. The only conclusion is that
1988 was a lucid interval for petitioner. There was, therefore, no
excuse then for her non-appearance at the Lupon Chairman's office.

Petitioner, not having shown that she is incompetent, cannot be

represented by counsel or even by attorney-in-fact who is next of
kin. 16

As explained by the Minister of Justice with whom We agree:

To ensure compliance with the requirement of

personal confrontation between the parties, and
thereby, the effectiveness of the barangay
conciliation proceedings as a mode of dispute
resolution, the above-quoted provision is couched in

32

THIRD DIVISION
[ G.R. No. 200612, April 05, 2017 ]
RAFAEL C. UY (CABANGBANG STORE), PETITIONER, V.
ESTATE OF VIPA FERNANDEZ, RESPONDENT.
DECISION
REYES, J.:
This is a Petition for Review on Certiorari[1] under Rule 45 of the
Rules of Court seeking to annul and set aside the Decision[2] dated
November 26, 2010 and Resolution[3] dated January 24, 2012 issued
by the Court of Appeals (CA) in CA-G.R. SP No. 04481.
Facts
Vipa Fernandez Lahaylahay (Vipa) is the registered owner of a
parcel of land situated in Lopez Jaena Street, Jaro, Iloilo City
covered by Transfer Certificate of Title No. T-26576 (subject
property).[4] Vipa and her husband, Levi Lahaylahay (Levi), have two
children – Grace Joy Somosierra (Grace Joy) and Jill Frances
Lahaylahay (Jill Frances).[5]
Sometime in 1990, a contract of lease was executed between Vipa
and Rafael Uy (Rafael) over the subject property and the
improvements thereon, pursuant to which, Rafael bound himself to
pay Vipa, as consideration for the lease of the property, the amount
of P3,000.00 permonth, with a provision for a 10% increase every
year thereafter.[6]
On March 5, 1994, Vipa died leaving no will or testament
whatsoever. Grace Joy became the de facto administrator of the
estate of Vipa. After Vipa's death, Levi lived in Aklan.[7]
In June 1998, Rafael stopped paying the monthly
rents.[8] Consequently, on June 12, 2003, the Estate of Vipa, through
Grace Joy, filed a complaint[9] for unlawful detainer with the
Municipal Trial Court in Cities (MTCC) of Iloilo City against Rafael. It
was alleged therein that, as of June 1998, Rafael was already bound
to pay rent at the amount of P3,300.00 per month and that his last
Rem Rev 1 Civ Pro – KPL
payment was made in May 1998. Accordingly, at the time of the filing
of the Complaint, Rafael's unpaid rents amounted to
P271,150.00.[10] The Estate of Vipa claimed that despite repeated
demands, Rafael refused to pay the rents due.[11]
In his Answer,[12] Rafael denied that he refused to pay the rent for
the lease of the subject property. He claimed that sometime in June
1998 Patria Fernandez-Cuenca (Patria), Vipa's sister, demanded for
the payment of the rents, claiming that she is the rightful heir of
Vipa.[13] Since he had no idea on who is entitled to receive the rent
for the subject property, he deposited the amount of P10,000.00 with
the Office of the Clerk of Court of the Regional Trial Court (RTC) of
Iloilo City on November 20, 1998 and that Grace Joy was informed
of such consignation.[14] He claimed that a case for the settlement of
the Estate of Vipa was instituted by Patria with the RTC, which was
docketed as Special Proceeding No. 6910. He averred that he is
willing to pay the rent on the leased property to the rightful heirs of
Vipa and that he made another consignation with the RTC in the
amount of P6,000.00.[15]
On June 12, 2008, the MTCC rendered a Decision,[16] the decretal
portion of which reads:
WHEREFORE, in the light of the foregoing ratiocination, judgment is
hereby rendered in favor of the [Estate of Vipa] and against [Rafael],
ordering the latter, to wit:
1. to vacate the premises subject of this case and covered by
TCT No. T-26576 and to peacefully turn over the possession
of the same to the [Estate of Vipa];
2. to pay the [Estate of Vipa] the amount of Php271,150.00 as
payment for the unpaid rentals with 12% interest per annum
from the last demand on May 3, 2003 until the whole amount
is paid;
3. to pay the [Estate of Vipa] the amount of Php3,000.00 per
month with 12% interest per annum for the use and
occupancy of the premises computed from the date of the
filing of this case on June 12, 2003 until fully paid;
4. to pay the [Estate of Vipa] attorney's fees in the amount of
Php20,000.00; [and]
5. to pay the costs of suit.
33

SO ORDERED.[17]
The MTCC found that after Vipa's death in 1994 until 1998, Rafael
was paying the rent for the lease of the subject property to Grace
Joy.[18] That the real reason why Patria claimed to be the heir of Vipa
is because she owed Rafael money which she could not pay. Patria
then charged the debt she owes to Rafael from the monthly rent of
the subject property, an arrangement that Rafael took advantage to
avoid paying Grace Joy the monthly rents. The MTCC further opined
that the consignations made by Rafael in the total amount of
P16,000.00 are not valid since there was no prior tender of
payment.[19]
On appeal, the RTC, in its Decision[20] dated April 15, 2009, reversed
the MTCC's Decision dated June 12, 2008 and, thus, dismissed the
complaint for unlawful detainer filed by the Estate of Vipa. Thus:
WHEREFORE, premises considered, the Decision appealed from is
REVERSED and SET ASIDE; and the herein complaint is hereby
DISMISSED for lack of merit; and further DISMISSING [Rafael's]
counterclaim for failure to substantiate the same.
SO ORDERED.[21]
The RTC opined that Grace Joy was actually the plaintiff in the case
and not the Estate of Vipa. It then pointed out that Grace Joy failed
to bring the dispute to the barangay for conciliation prior to filing the
complaint for unlawful detainer.[22]
The RTC further held that the MTCC erred in including the entire
subject property as part of the Estate of Vipa. The RTC explained
that the subject property was acquired by Vipa during the
subsistence of her marriage with Levi and, as such, is part of their
conjugal properties. That after Vipa's death, the conjugal partnership
was terminated, entitling Levi to one-half of the property.[23] The RTC
then pointed out that Levi sold his share in the subject property to
Rafael, as evidenced by a Deed of Sale[24] dated December 29,
2005.[25]Accordingly, the RTC ruled that Rafael, as co-owner of the
subject property, having bought Levi's one-half share thereof, had
the right to possess the same.[26]
Rem Rev 1 Civ Pro – KPL
The Estate of Vipa sought a reconsideration[27] of the Decision dated
April 15, 2009, but it was denied by the RTC in its Order dated July
28; 2009.[28]
The Estate of Vipa then filed a Petition for Review[29] with the CA. On
November 26, 2010, the CA rendered a Decision,[30] which declared:
WHEREFORE, in view of all the foregoing, the instant petition for
review is GRANTED and the April 15, 2009 Decision of the court a
quo in Civil Case No. 08-29842 is hereby REVERSED and SET
ASIDE. Accordingly, the June 12, 2008 Decision of the Municipal
Trial Court, Branch 4, Iloilo City, in Civil Case No. 03-208 is hereby
REINSTATED.
SO ORDERED.[31]
The CA held that there was no necessity to bring the dispute before
the barangay for conciliation since the Estate of Vipa, being a
juridical person, cannot be impleaded to a barangay conciliation
proceeding. The CA likewise pointed out that any allegations against
Grace Joy's authority to represent the Estate of Vipa had been laid
to rest when she was appointed as administrator of the Estate of
Vipa in Special Proceedings No. 6910 pending before the RTC.[32]
Further, the CA held that Rafael raised the issue of ownership of the
subject property, i.e., Levi's sale of his one-half share in the subject
property to Rafael, only for the first time in his appeal with the RTC.
Accordingly, it was error on the part of the RTC to have resolved the
issue of ownership of the subject property.[33] Furthermore, the CA
agreed with the MTCC that Rafael's consignation of the rent to the
RTC is ineffective. It ruled that Rafael made the consignation only
twice and the amount consigned was patently insignificant compared
to the amount of rent due.[34]
Rafael's motion for reconsideration[35] was denied by the CA in its
Resolution[36] dated January 24, 2012.
Hence, the instant petition.
Rafael maintains that Grace Joy has no authority to represent the
Estate of Vipa and, when she filed the complaint for unlawful
detainer with the MTCC, she did so in her personal capacity. Thus,
Rafael claims that the dispute should have been brought to the
34

barangay for conciliation before the complaint was filed in the
MTCC.[37] He further claims that the CA erred in . reversing the
RTC's ruling on the issue of ownership of the subject property. He
insists that he already purchased Levi's one-half share in the subject
property.[38]
On the other hand, the Estate of Vipa, in its Comment,[39] avers that
the supposed lack of authority of Grace Joy to file the complaint for
unlawful detainer and the ownership of the subject property were
never raised in the proceedings before the MTCC and, hence, could
not be passed upon by the RTC in the appellate proceedings. In any
case, it pointed out that the RTC's Decision[40] dated October 28,
2005 in Special Proceedings No. 6910, which appointed Grace Joy
as the administrator of the intestate estate of Vipa, recognized that
the latter and Jill Frances are legitimate children of Vipa and Levi.
Issue
Essentially, the issue set forth for the Court's resolution is whether
the CA erred in reversing the RTC's Decision dated April 15, 2009.
Ruling of the Court
The petition is partly meritorious.
Rafael's claim that the complaint below should have been dismissed
since Grace Joy has no authority to represent the Estate of Vipa and
that there was lack of prior barangay conciliation is untenable.
Unlawful detainer cases are covered by the Rules on Summary
Procedure.[41] Section 5 of the 1991 Revised Rules on Summary
Procedure provides that affirmative and negative defenses not
pleaded in the answer shall be deemed waived, except lack of
jurisdiction over the subject matter.
Rafael failed to plead in the answer he filed with the MTCC that
Grace Joy has no authority to represent the Estate of Vipa. Neither
did he raise therein the lack of barangay conciliation between the
parties herein prior to the filing of the complaint for unlawful detainer.
Accordingly, the foregoing defenses are already deemed waived.
In any case, the issue of the supposed lack of authority of Grace Joy
to represent the Estate of Vipa had already been rendered moot with
Rem Rev 1 Civ Pro – KPL
the RTC's appointment of Grace Joy as the administrator of the
Estate of Vipa in Special Proceedings No. 6910.
Also, there was no need to refer the dispute between the parties
herein to the barangay for conciliation pursuant to the Katarungang
Pambarangay Law.[42] It bears stressing that only individuals may be
parties to barangay conciliation proceedings either as complainants
or respondents. Complaints by or against corporations, partnerships
or other juridical entities may not be filed with, received or acted
upon by the barangay for conciliation.[43] The Estate of Vipa, which is
the complainant below, is a juridical entity that has a personality,
which is separate and distinct from that of Grace Joy.[44] Thus, there
is no necessity to bring the dispute to the barangay for conciliation
prior to filing of the complaint for unlawful detainer with the MTCC.
The CA, nevertheless, erred in hastily dismissing Rafael's allegation
as regards the ownership of the subject property. In disregarding
Rafael's claim that he owns Levi's one-half undivided share in the
subject property, the CA ruled that the said issue was raised for the
first time on appeal and should thus not have been considered by
the RTC, viz.:
On the second issue, the records show that [Rafael] raised the issue
of ownership only for the first time on appeal; hence, the [RTC] erred
in deciding the appeal before it on the findings that part of the
subject premises is owned by petitioners, allegedly having bought
the same from [Levi], the husband of [Vipa].
The Court is not unmindful that in forcible entry and unlawful
detainer cases, the MTC may rule on the issue [of] ownership in
order to determine the issue of possession. However, the issue of
ownership must be raised by the defendant on the earliest
opportunity; otherwise, it is already deemed waived. Moreover, the
instant case was covered by the Rules on Summary Procedure,
which expressly provide that affirmative and negative defenses not
pleaded therein shall be deemed waived, except for lack of
jurisdiction over the subject matter. Thus, the [RTC] erred in
resolving the issue of ownership for the first time on
appeal.[45] (Citations omitted)
It is true that fair play, justice, and due process dictate that parties
should not raise for the first time on appeal issues that they could
35

have raised but never did during trial. However, before a party may
be barred from raising an issue for the first time on appeal, it is
imperative that the issue could have been raised during the
trial.[46] What escaped the appellate court's attention is that the sale
of the one-half undivided share in the subject property to Rafael was
consummated only on December 29, 2005, more than two years
after Rafael filed with the MTCC his answer to the complaint for
unlawful detainer on July 18, 2003.[47] Obviously, Rafael could not
have raised his acquisition of Levi's share in the subject property as
an affirmative defense in the answer he filed with the MTCC.
Moreover, Rafael's ownership of the one-half undivided share in the
subject property would necessarily affect the property relations
between the parties herein. Thus, the CA should have exerted
efforts to resolve the said issue instead of dismissing the same on
the flimsy ground that it was not raised during the proceedings
before the MTCC.
Levi and Vipa were married on March 24, 1961[48] and, in the
absence of a marriage settlement, the system of conjugal
partnership of gains governs their property relations.[49] It is
presumed that the subject property is part of the conjugal properties
of Vipa and Levi considering that the same was acquired during the
subsistence of their marriage and there being no proof to the
contrary.[50]
When Vipa died on March 5, 1994, the conjugal partnership was
automatically terminated.[51] Under Article 130 of the Family Code,
the conjugal partnership property, upon its dissolution due to the
death of either spouse, should be liquidated either in the same
proceeding for the settlement of the estate of the deceased or, in the
absence thereof, by the surviving spouse within one year from the
death of the deceased spouse. That absent any liquidation, any
disposition or encumbrance of the conjugal partnership property is
void. Thus:
Article 130. Upon the termination of the marriage by death, the
conjugal partnership property shall be liquidated in the same
proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving
spouse shall liquidate the conjugal partnership property either
Rem Rev 1 Civ Pro – KPL
judicially or extra-judicially within six months from the death of
the deceased spouse. If upon the lapse of the six-month period
no liquidation is made, any disposition or encumbrance
involving the conjugal partnership property of the terminated
marriage shall be void.
Should the surviving spouse contract a subsequent marriage without
compliance with the foregoing requirements, a mandatory regime of
complete separation of property shall govern the property relations
of the subsequent marriage. (Emphasis ours)
Article 130 of the Family Code is applicable to conjugal partnership
of gains already established between the spouses prior to the
effectivity of the Family Code pursuant to Article 105 thereof, viz.:
Article 105. In case the future spouses agree in the marriage
settlements that the regime of conjugal partnership of gains shall
govern their property relations during marriage, the provisions in this
Chapter shall be of supplementary application.
The provisions of this Chapter shall also apply to conjugal
partnerships of gains already established between spouses
before the effectivity of this Code, without prejudice to vested
rights already acquired in accordance with the Civil Code or other
laws as provided in Article 256. (Emphasis ours)
Rafael bought Levi's one-half share in the subject property in
consideration of P500,000.00 as evidenced by the Deed of
Sale[52] dated December 29, 2005. At that time, the conjugal
partnership properties of Levi and Vipa were not yet liquidated.
However, such disposition, notwithstanding the absence of
liquidation of the conjugal partnership properties, is not necessarily
void.
It bears stressing that under the regime of conjugal partnership of
gains, the husband and wife are co-owners of all the property of the
conjugal partnership.[53] Thus, upon the termination of the conjugal
partnership of gains due to the death of either spouse, the surviving
spouse has an actual and vested one-half undivided share of the
properties, which does not consist of determinate and segregated
properties until liquidation and partition of the conjugal
partnership.[54] With respect, however, to the deceased spouse's
36

share in the conjugal partnership properties, an implied ordinary co-
ownership ensues among the surviving spouse and the other heirs
of the deceased.[55]
Thus, upon Vipa's death, one half of the subject property was
automatically reserved in favor of the surviving spouse, Levi, as his
share in the conjugal partnership. The other half, which is Vipa's
share, was transmitted to Vipa's heirs – Grace Joy, Jill Frances, and
her husband Levi, who is entitled to the same share as that of a
legitimate child. The ensuing implied co-ownership is governed by
Article 493 of the Civil Code, which provides:
Article 493. Each co-owner shall have the full ownership of his part
and of the fruits and benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it, and even substitute
another person in its enjoyment, except when personal rights are
involved. But the effect of the alienation or the mortgage, with
respect to the co-owners, shall be limited to the portion which
may be allotted to him in the division upon the termination of
the co-ownership. (Emphasis ours)
Although Levi became a co-owner of the conjugal partnership
properties with Grace Joy and Jill Frances, he could not yet assert or
claim title to any specific portion thereof without an actual partition of
the property being first done either by agreement or by judicial
decree. Before the partition of a land or thing held in common, no
individual or co-owner can claim title to any definite portion thereof.
All that the co-owner has is an ideal or abstract quota or
proportionate share in the entire land or thing.[56]
Nevertheless, a co-owner could sell his undivided share; hence, Levi
had the right to freely sell and dispose of his undivided interest.
Thus, the sale by Levi of his one-half undivided share in the subject
property was not necessarily void, for his right as a co-owner thereof
was effectively transferred, making the buyer, Rafael, a co-owner of
the subject property. It must be stressed that the binding force of a
contract must be recognized as far as it is legally possible to do so
(quando res non valet ut ago, valeat quantum valere potest).[57]
However, Rafael became a co-owner of the subject property only on
December 29, 2005 – the time when Levi sold his one-half undivided
share over the subject property to the former. Thus, from December
Rem Rev 1 Civ Pro – KPL
29, 2005 Rafael, as a co-owner, has the right to possess the subject
property as an incident of ownership. Otherwise stated, prior to his
acquisition of Levi's one-half undivided share, Rafael was a mere
lessee of the subject property and is thus obliged to pay the rent for
his possession thereof.
Accordingly, Rafael could no longer be directed to vacate the subject
property since he is already a co-owner thereof. Nevertheless,
Rafael is still bound to pay the unpaid rentals from June 1998 until
April 2003 in the amount of P271,150.00. In Nacar v. Gallery
Frames, et al.,[58] the Court pointed out that pursuant to Resolution
No. 796 of the Bangko Sentral ng Pilipinas Monetary Board, the
interest rate of loans or forbearance of money, in the absence of
stipulation shall be six percent (6%) effective only from July 1, 2013.
Thus, prior to July 1, 2013, the rate of interest on loans or
forbearance of money, in the absence of stipulation, is still 12%.
Accordingly, the amount of P271,150.00, representing the unpaid
rentals shall earn interest at the rates of 12% per annum from the
date of the last demand on May 3, 2003 until June 30, 2013 and
6% per annum from July 1, 2013 until fully paid.
Further, Rafael is likewise bound to pay reasonable rent for the use
and occupancy of the subject property from May 2003 until
December 28, 2005 at the rate of P3,000.00 per month with interest
at the rate of 12% per annum from the date of the last demand, i.e.,
the filing of the complaint with the MTCC on June 12, 2003, until
June 30, 2013 and 6% per annum from July 1, 2013 until fully paid.
The award of attorney's fees of P20,000.00 is likewise proper.
Attorney's fees can be awarded in the cases enumerated in Article
2208 of the Civil Code, specifically:
Article 2208. x x x
xxxx
(2) Where the defendant's act or omission has compelled the plaintiff
to litigate with third persons or to incur expenses to protect his
interest[.]
Certainly, because of Rafael's unjustified refusal to pay the rents due
on the lease of the subject prope1iy, the Estate of Vipa was put to
37
 Rem Rev 1 Civ Pro – KPL

unnecessary expense and trouble to protect its interest under

paragraph (2), Article 2208 of the Civil Code. In unlawful detainer
cases, where attorney's fees are awarded, the same shall not
exceed P20,000.00.[59]
WHEREFORE, in view of the foregoing disquisitions, the petition for
review on certiorari is PARTIALLY GRANTED. The Decision dated
November 26, 2010 and Resolution dated January 24, 2012 issued
by the Court of Appeals in CA-G.R. SP No. 04481 are
hereby REVERSED and SET ASIDE. Petitioner Rafael C. Uy is
hereby directed to pay the Estate of Vipa Fernandez the following:

1. The amount of P271,150.00, representing the unpaid rentals,

with interest at the rates of twelve percent (12%) per annum
from the date of the last demand on May 3, 2003 until June
30, 2013, and six percent (6%) per annum from July 1, 2013
until fully paid;
2. Reasonable rent for the use and occupancy of the subject
property from May 2003 until December 28, 2005 at the rate
of P3,000.00 per month with interest at the rates of twelve
percent (12%) per annum from the date of the last
demand, i.e., the filing of the complaint for unlawful detainer
on June 12, 2003, until June 30, 2013, and six percent
(6%) per annum from July 1, 2013 until fully paid; and
3. The amount of P20,000.00 as attorney's fees.

SO ORDERED.
Velasco, Jr. (Chairperson), Bersamin, Jardeleza, and Tijam, JJ.,
concur.

38