G.R. No.

L-20357 November 25, 1967

IN THE MATTER OF THE PETITION FOR THE ALLOWANCE OF THE WILL OF GREGORIO
GATCHALIAN, deceased. PEDRO REYES GARCIA, petitioner-appellant,
vs.
FELIPE GATCHALIAN, AURORA G. CAMINS, ANGELES G. COSCA, FEDERICO G. TUBOG,
VIRGINIA G. TALANAY and ANGELES G. TALANAY, oppositors-appellees.

E. Debuque for petitioner-appellant.

E. L. Segovia for oppositors-appellees.

DIZON, J.:

This is an appeal taken by Pedro Reyes Garcia from the decision of the Court of First Instance
of Rizal in Special Proceedings No. 2623 denying the allowance of the will of the late Gregorio
Gatchalian, on the ground that the attesting witnesses did not acknowledge it before a
notary public, as required by law.

On March 15, 1967, Gregorio Gatchalian, a widower of 71 years of age, died in the
municipality of Pasig, Province of Rizal, leaving no forced heirs. On April 2 of the same year,
appellant filed a petition with the above named court for the probate of said alleged will
(Exhibit "C") wherein he was instituted as sole heir. Felipe Gatchalian, Aurora G. Camins,
Angeles G. Cosca, Federico G. Tubog, Virginia G. Talanay and Angeles G. Talanay, appellees
herein, opposed the petition on the ground, among others, that the will was procured by
fraud; that the deceased did not intend the instrument signed by him to be as his will; and
that the deceased was physically and mentally incapable of making a will at the time of the
alleged execution of said will.

After due trial, the court rendered the appealed decision finding the document Exhibit "C" to
be the authentic last will of the deceased but disallowing it for failure to comply with the
mandatory requirement of Article 806 of the New Civil Code — that the will must be
acknowledged before a notary public by the testator and the witnesses.

An examination of the document (Exhibit "C") shows that the same was acknowledged
before a notary public by the testator but not by the instrumental witnesses.

Article 806 of the New Civil Code reads as follows:

Every will must be acknowledged before a notary public by the testator and the witnesses.
The notary public shall not be required to retain a copy of the will, or file another with the
office of the Clerk of Court.

We have held heretofore that compliance with the requirement contained in the above legal
provision to the effect that a will must be acknowledged before a notary public by the
testator and also by the witnesses is indispensable for its validity (In re: Testate Estate of
Alberto, G. R. No. L-11948, April 29, 1959). As the document under consideration does not
comply with this requirement, it is obvious that the same may not be probated.

WHEREFORE, the decision appealed from is affirmed, with costs.

1
G.R. No. 122880 April 12, 2006
FELIX AZUELA, Petitioner,
vs.
COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO,
Respondents.
DECISION
TINGA, J.:
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E.
Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal
recognition to the due execution of this document, the Court is provided the opportunity to
assert a few important doctrinal rules in the execution of notarial wills, all self-evident in
view of Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on which the will is
written is fatally defective. A will whose attestation clause is not signed by the instrumental
witnesses is fatally defective. And perhaps most importantly, a will which does not contain an
acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient
to deny probate. A notarial will with all three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog
of imperatives for the proper execution of a notarial will. Full and faithful compliance with all
the detailed requisites under Article 805 of the Code leave little room for doubt as to the
validity in the due execution of the notarial will. Article 806 likewise imposes another
safeguard to the validity of notarial wills — that they be acknowledged before a notary public
by the testator and the witnesses. A notarial will executed with indifference to these two
codal provisions opens itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial
Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate
the notarial will of Eugenia E. Igsolo, which was notarized on 10 June 1981. Petitioner is the
son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam
(79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang
aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o
testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa
kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito
ay magtatayo ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na
si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na
nakatirik sa lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din
ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero
43, Block 24 na pag-aari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat
ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila
kay Felix Azuela at ang pagkakaloob kong ito ay walang pasubali’t at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling
ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981.
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling dahong ito, na ipinahayag sa
amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa
kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at
bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t
dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAÑO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
2
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
Doc. No. 1232 ; NOTARIO PUBLIKO
Page No. 86 ; Until Dec. 31, 1981
Book No. 43 ; PTR-152041-1/2/81-Manila
Series of 1981 TAN # 1437-977-81
The three named witnesses to the will affixed their signatures on the left-hand margin of
both pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent,
namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided
abroad. Petitioner prayed that the will be allowed, and that letters testamentary be issued to
the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented
herself as the attorney-in-fact of "the 12 legitimate heirs" of the decedent.2 Geralda Castillo
claimed that the will is a forgery, and that the true purpose of its emergence was so it could
be utilized as a defense in several court cases filed by oppositor against petitioner,
particularly for forcible entry and usurpation of real property, all centering on petitioner’s
right to occupy the properties of the decedent.3 It also asserted that contrary to the
representations of petitioner, the decedent was actually survived by 12 legitimate heirs,
namely her grandchildren, who were then residing abroad. Per records, it was subsequently
alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965,4 and the mother
of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by three (3) months.5
Oppositor Geralda Castillo also argued that the will was not executed and attested to in
accordance with law. She pointed out that decedent’s signature did not appear on the
second page of the will, and the will was not properly acknowledged. These twin arguments
are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992.6 The
RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino
Agrava, Lamberto Leano, and Juanito Estrada. The RTC also called to fore "the modern
tendency in respect to the formalities in the execution of a will x x x with the end in view of
giving the testator more freedom in expressing his last wishes;"7 and from this perspective,
rebutted oppositor’s arguments that the will was not properly executed and attested to in
accordance with law.
After a careful examination of the will and consideration of the testimonies of the subscribing
and attesting witnesses, and having in mind the modern tendency in respect to the
formalities in the execution of a will, i.e., the liberalization of the interpretation of the law on
the formal requirements of a will with the end in view of giving the testator more freedom in
expressing his last wishes, this Court is persuaded to rule that the will in question is authentic
and had been executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will
after the signature of the testatrix, the following statement is made under the sub-title,
"Patunay Ng Mga Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa
amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa
kaliwang panig ng lahat at bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at
bawa’t isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa’t
dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the acknowledgement and
is considered by this Court as a substantial compliance with the requirements of the law.
On the oppositor’s contention that the attestation clause was not signed by the subscribing
witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing
witnesses on the left margin of the second page of the will containing the attestation clause
and acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of
identification and attestation of the will.
With regard to the oppositor’s argument that the will was not numbered correlatively in
letters placed on upper part of each page and that the attestation did not state the number
of pages thereof, it is worthy to note that the will is composed of only two pages. The first
page contains the entire text of the testamentary dispositions, and the second page contains
the last portion of the attestation clause and acknowledgement. Such being so, the defects
are not of a serious nature as to invalidate the will. For the same reason, the failure of the
testatrix to affix her signature on the left margin of the second page, which contains only the
last portion of the attestation clause and acknowledgment is not a fatal defect.
As regards the oppositor’s assertion that the signature of the testatrix on the will is a forgery,
the testimonies of the three subscribing witnesses to the will are convincing enough to
establish the genuineness of the signature of the testatrix and the due execution of the will.8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his
since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the
Court of Appeals reversed the trial court and ordered the dismissal of the petition for
probate.9 The Court of Appeals noted that the attestation clause failed to state the number
of pages used in the will, thus rendering the will void and undeserving of probate.10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the number
of pages used in a notarial will be stated in the attestation clause" is merely directory, rather
than mandatory, and thus susceptible to what he termed as "the substantial compliance
rule."11
3
The solution to this case calls for the application of Articles 805 and 806 of the Civil Code,
which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by
the testator himself or by the testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by three or more credible
witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental
witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be numbered correlatively in letters placed on
the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the
fact that the testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of the instrumental witnesses,
and that the latter witnessed and signed the will and all the pages thereof in the presence of
the testator and of one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to
them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the
witnesses. The notary public shall not be required to retain a copy of the will, or file another
with the office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the attestation
clause to state the number of pages of the will. But an examination of the will itself reveals
several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of
the will.12 There was an incomplete attempt to comply with this requisite, a space having
been allotted for the insertion of the number of pages in the attestation clause. Yet the blank
was never filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the process
Uy Coque v. Navas L. Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court noted that
among the defects of the will in question was the failure of the attestation clause to state the
number of pages contained in the will.15 In ruling that the will could not be admitted to
probate, the Court made the following consideration which remains highly relevant to this
day: "The purpose of requiring the number of sheets to be stated in the attestation clause is
obvious; the document might easily be so prepared that the removal of a sheet would
completely change the testamentary dispositions of the will and in the absence of a
statement of the total number of sheets such removal might be effected by taking out the
sheet and changing the numbers at the top of the following sheets or pages. If, on the other
hand, the total number of sheets is stated in the attestation clause the falsification of the
document will involve the inserting of new pages and the forging of the signatures of the
testator and witnesses in the margin, a matter attended with much greater difficulty."16
The case of In re Will of Andrada concerned a will the attestation clause of which failed to
state the number of sheets or pages used. This consideration alone was sufficient for the
Court to declare "unanim[ity] upon the point that the defect pointed out in the attesting
clause is fatal."17 It was further observed that "it cannot be denied that the x x x
requirement affords additional security against the danger that the will may be tampered
with; and as the Legislature has seen fit to prescribe this requirement, it must be considered
material."18
Against these cited cases, petitioner cites Singson v. Florentino19 and Taboada v. Hon.
Rosal,20 wherein the Court allowed probate to the wills concerned therein despite the fact
that the attestation clause did not state the number of pages of the will. Yet the appellate
court itself considered the import of these two cases, and made the following distinction
which petitioner is unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation
does not state the number of pages used upon which the will is written. Hence, the Will is
void and undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus
Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al.,
118 SCRA 195," to the effect that a will may still be valid even if the attestation does not
contain the number of pages used upon which the Will is written. However, the Decisions of
the Supreme Court are not applicable in the aforementioned appeal at bench. This is so
because, in the case of "Manuel Singson versus Emilia Florentino, et al., supra," although the
attestation in the subject Will did not state the number of pages used in the will, however,
the same was found in the last part of the body of the Will:
"x x x
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall state the number of pages or sheets upon
which the will is written, which requirement has been held to be mandatory as an effective
safeguard against the possibility of interpolation or omission of some of the pages of the will
to the prejudice of the heirs to whom the property is intended to be bequeathed (In re Will
of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50
Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio
decidendi of these cases seems to be that the attestation clause must contain a statement of
the number of sheets or pages composing the will and that if this is missing or is omitted, it
will have the effect of invalidating the will if the deficiency cannot be supplied, not by
evidence aliunde, but by a consideration or examination of the will itself. But here the
situation is different. While the attestation clause does not state the number of sheets or
pages upon which the will is written, however, the last part of the body of the will contains a
statement that it is composed of eight pages, which circumstance in our opinion takes this
case out of the rigid rule of construction and places it within the realm of similar cases where
a broad and more liberal view has been adopted to prevent the will of the testator from
being defeated by purely technical considerations." (page 165-165, supra) (Underscoring
supplied)
4
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement
in the Will states the number of pages used in the:
"x x x
We have examined the will in question and noticed that the attestation clause failed to state
the number of pages used in writing the will. This would have been a fatal defect were it not
for the fact that, in this case, it is discernible from the entire will that it is really and actually
composed of only two pages duly signed by the testatrix and her instrumental witnesses. As
earlier stated, the first page which contains the entirety of the testamentary dispositions is
signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at
the left margin. The other page which is marked as "Pagina dos" comprises the attestation
clause and the acknowledgment. The acknowledgment itself states that "this Last Will and
Testament consists of two pages including this page" (pages 200-201, supra) (Underscoring
supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in any
part of the Will. The will does not even contain any notarial acknowledgment wherein the
number of pages of the will should be stated.21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950,
at a time when the statutory provision governing the formal requirement of wills was Section
618 of the Code of Civil Procedure.22 Reliance on these cases remains apropos, considering
that the requirement that the attestation state the number of pages of the will is extant from
Section 618.23 However, the enactment of the Civil Code in 1950 did put in force a rule of
interpretation of the requirements of wills, at least insofar as the attestation clause is
concerned, that may vary from the philosophy that governed these two cases. Article 809 of
the Civil Code states: "In the absence of bad faith, forgery, or fraud, or undue and improper
pressure and influence, defects and imperfections in the form of attestation or in the
language used therein shall not render the will invalid if it is proved that the will was in fact
executed and attested in substantial compliance with all the requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated that
"the underlying and fundamental objective permeating the provisions on the [law] on [wills]
in this project consists in the [liberalization] of the manner of their execution with the end in
view of giving the testator more [freedom] in [expressing] his last wishes. This objective is in
accord with the [modern tendency] in respect to the formalities in the execution of wills."24
However, petitioner conveniently omits the qualification offered by the Code Commission in
the very same paragraph he cites from their report, that such liberalization be "but with
sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of
undue and improper pressure and influence upon the testator."25
Caneda v. Court of Appeals26 features an extensive discussion made by Justice Regalado,
speaking for the Court on the conflicting views on the manner of interpretation of the legal
formalities required in the execution of the attestation clause in wills.27 Uy Coque and
Andrada are cited therein, along with several other cases, as examples of the application of
the rule of strict construction.28 However, the Code Commission opted to recommend a
more liberal construction through the "substantial compliance rule" under Article 809. A
cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should be
applied:
x x x The rule must be limited to disregarding those defects that can be supplied by an
examination of the will itself: whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the subscribing witnesses are three
or the will was notarized. All these are facts that the will itself can reveal, and defects or even
omissions concerning them in the attestation clause can be safely disregarded. But the total
number of pages, and whether all persons required to sign did so in the presence of each
other must substantially appear in the attestation clause, being the only check against
perjury in the probate proceedings.29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision,
considering that the failure to state the number of pages of the will in the attestation clause
is one of the defects which cannot be simply disregarded. In Caneda itself, the Court refused
to allow the probate of a will whose attestation clause failed to state that the witnesses
subscribed their respective signatures to the will in the presence of the testator and of each
other,30 the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be
lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission
which can be supplied by an examination of the will itself, without the need of resorting to
extrinsic evidence, will not be fatal and, correspondingly, would not obstruct the allowance
to probate of the will being assailed. However, those omissions which cannot be supplied
except by evidence aliunde would result in the invalidation of the attestation clause and
ultimately, of the will itself."31 Thus, a failure by the attestation clause to state that the
testator signed every page can be liberally construed, since that fact can be checked by a
visual examination; while a failure by the attestation clause to state that the witnesses signed
in one another’s presence should be considered a fatal flaw since the attestation is the only
textual guarantee of compliance.32
The failure of the attestation clause to state the number of pages on which the will was
written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the
clause to state the number of pages on which the will is written is to safeguard against
possible interpolation or omission of one or some of its pages and to prevent any increase or
decrease in the pages.33 The failure to state the number of pages equates with the absence
of an averment on the part of the instrumental witnesses as to how many pages consisted
the will, the execution of which they had ostensibly just witnessed and subscribed to.
Following Caneda, there is substantial compliance with this requirement if the will states
elsewhere in it how many pages it is comprised of, as was the situation in Singson and
Taboada. However, in this case, there could have been no substantial compliance with the
requirements under Article 805 since there is no statement in the attestation clause or
anywhere in the will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal
requirements as enumerated under Article 805. Whatever the inclinations of the members of
the Code Commission in incorporating Article 805, the fact remains that they saw fit to
prescribe substantially the same formal requisites as enumerated in Section 618 of the Code
of Civil Procedure, convinced that these remained effective safeguards against the forgery or
5
intercalation of notarial wills.34 Compliance with these requirements, however picayune in
impression, affords the public a high degree of comfort that the testator himself or herself
had decided to convey property post mortem in the manner established in the will.35 The
transcendent legislative intent, even as expressed in the cited comments of the Code
Commission, is for the fruition of the testator’s incontestable desires, and not for the
indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an examination of
the will itself reveals a couple of even more critical defects that should necessarily lead to its
rejection.
For one, the attestation clause was not signed by the instrumental witnesses. While the
signatures of the instrumental witnesses appear on the left-hand margin of the will, they do
not appear at the bottom of the attestation clause which after all consists of their averments
before the notary public.
Cagro v. Cagro36 is material on this point. As in this case, "the signatures of the three
witnesses to the will do not appear at the bottom of the attestation clause, although the
page containing the same is signed by the witnesses on the left-hand margin."37 While three
(3) Justices38 considered the signature requirement had been substantially complied with, a
majority of six (6), speaking through Chief Justice Paras, ruled that the attestation clause had
not been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not appear at
the bottom of the attestation clause, although the page containing the same is signed by the
witnesses on the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation
clause is "a memorandum of the facts attending the execution of the will" required by law to
be made by the attesting witnesses, and it must necessarily bear their signatures. An
unsigned attestation clause cannot be considered as an act of the witnesses, since the
omission of their signatures at the bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand
margin conform substantially to the law and may be deemed as their signatures to the
attestation clause. This is untenable, because said signatures are in compliance with the legal
mandate that the will be signed on the left-hand margin of all its pages. If an attestation
clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it
would be easy to add such clause to a will on a subsequent occasion and in the absence of
the testator and any or all of the witnesses.39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates
the requirement that the instrumental witnesses sign each page of the will, from the
requisite that the will be "attested and subscribed by [the instrumental witnesses]." The
respective intents behind these two classes of signature are distinct from each other. The
signatures on the left-hand corner of every page signify, among others, that the witnesses
are aware that the page they are signing forms part of the will. On the other hand, the
signatures to the attestation clause establish that the witnesses are referring to the
statements contained in the attestation clause itself. Indeed, the attestation clause is
separate and apart from the disposition of the will. An unsigned attestation clause results in
an unattested will. Even if the instrumental witnesses signed the left-hand margin of the
page containing the unsigned attestation clause, such signatures cannot demonstrate these
witnesses’ undertakings in the clause, since the signatures that do appear on the page were
directed towards a wholly different avowal.
The Court may be more charitably disposed had the witnesses in this case signed the
attestation clause itself, but not the left-hand margin of the page containing such clause.
Without diminishing the value of the instrumental witnesses’ signatures on each and every
page, the fact must be noted that it is the attestation clause which contains the utterances
reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not
the testator, who are required under Article 805 to state the number of pages used upon
which the will is written; the fact that the testator had signed the will and every page
thereof; and that they witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another. The only proof in the will that the witnesses
have stated these elemental facts would be their signatures on the attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the
instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition should also
hinge. The requirement under Article 806 that "every will must be acknowledged before a
notary public by the testator and the witnesses" has also not been complied with. The
importance of this requirement is highlighted by the fact that it had been segregated from
the other requirements under Article 805 and entrusted into a separate provision, Article
806. The non-observance of Article 806 in this case is equally as critical as the other cited
flaws in compliance with Article 805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at
ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no
manner of contemplation can those words be construed as an acknowledgment. An
acknowledgment is the act of one who has executed a deed in going before some competent
officer or court and declaring it to be his act or deed.41 It involves an extra step undertaken
whereby the signor actually declares to the notary that the executor of a document has
attested to the notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not hew to the
usual language thereof. A jurat is that part of an affidavit where the notary certifies that
before him/her, the document was subscribed and sworn to by the executor.42 Ordinarily,
the language of the jurat should avow that the document was subscribed and sworn before
the notary public, while in this case, the notary public averred that he himself "signed and
notarized" the document. Possibly though, the word "ninotario" or "notarized" encompasses
the signing of and swearing in of the executors of the document, which in this case would
involve the decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will would
nonetheless remain invalid, as the express requirement of Article 806 is that the will be
"acknowledged", and not merely subscribed and sworn to. The will does not present any
textual proof, much less one under oath, that the decedent and the instrumental witnesses
6
executed or signed the will as their own free act or deed. The acknowledgment made in a will
provides for another all-important legal safeguard against spurious wills or those made
beyond the free consent of the testator. An acknowledgement is not an empty meaningless
act.43 The acknowledgment coerces the testator and the instrumental witnesses to declare
before an officer of the law that they had executed and subscribed to the will as their own
free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for
the criminal prosecution of persons who participate in the execution of spurious wills, or
those executed without the free consent of the testator. It also provides a further degree of
assurance that the testator is of certain mindset in making the testamentary dispositions to
those persons he/she had designated in the will.

It may not have been said before, but we can assert the rule, self-evident as it is under Article
806. A notarial will that is not acknowledged before a notary public by the testator and the
witnesses is fatally defective, even if it is subscribed and sworn to before a notary public.

There are two other requirements under Article 805 which were not fully satisfied by the will
in question. We need not discuss them at length, as they are no longer material to the

disposition of this case. The provision requires that the testator and the instrumental
witnesses sign each and every page of the will on the left margin, except the last; and that all
the pages shall be numbered correlatively in letters placed on the upper part of each page. In
this case, the decedent, unlike the witnesses, failed to sign both pages of the will on the left
margin, her only signature appearing at the so-called "logical end"44 of the will on its first
page. Also, the will itself is not numbered correlatively in letters on each page, but instead
numbered with Arabic numerals. There is a line of thought that has disabused the notion that
these two requirements be construed as mandatory.45 Taken in isolation, these omissions,
by themselves, may not be sufficient to deny probate to a will. Yet even as these omissions
are not decisive to the adjudication of this case, they need not be dwelt on, though indicative
as they may be of a general lack of due regard for the requirements under Article 805 by
whoever executed the will.

All told, the string of mortal defects which the will in question suffers from makes the
probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner.

SO ORDERED.

7
G.R. No. 92989 July 8, 1991
PERFECTO DY, JR. petitioner,
vs.
COURT OF APPEALS, GELAC TRADING INC., and ANTONIO V. GONZALES, respondents.
Zosa & Quijano Law Offices for petitioner.
Expedito P. Bugarin for respondent GELAC Trading, Inc.
GUTIERREZ, JR., J.:
This is a petition for review on certiorari seeking the reversal of the March 23, 1990 decision
of the Court of Appeals which ruled that the petitioner's purchase of a farm tractor was not
validly consummated and ordered a complaint for its recovery dismissed.
The facts as established by the records are as follows:
The petitioner, Perfecto Dy and Wilfredo Dy are brothers. Sometime in 1979, Wilfredo Dy
purchased a truck and a farm tractor through financing extended by Libra Finance and
Investment Corporation (Libra). Both truck and tractor were mortgaged to Libra as security
for the loan.
The petitioner wanted to buy the tractor from his brother so on August 20, 1979, he wrote a
letter to Libra requesting that he be allowed to purchase from Wilfredo Dy the said tractor
and assume the mortgage debt of the latter.
In a letter dated August 27, 1979, Libra thru its manager, Cipriano Ares approved the
petitioner's request.
Thus, on September 4, 1979, Wilfredo Dy executed a deed of absolute sale in favor of the
petitioner over the tractor in question.
At this time, the subject tractor was in the possession of Libra Finance due to Wilfredo Dy's
failure to pay the amortizations.
Despite the offer of full payment by the petitioner to Libra for the tractor, the immediate
release could not be effected because Wilfredo Dy had obtained financing not only for said
tractor but also for a truck and Libra insisted on full payment for both.
The petitioner was able to convince his sister, Carol Dy-Seno, to purchase the truck so that
full payment could be made for both. On November 22, 1979, a PNB check was issued in the
amount of P22,000.00 in favor of Libra, thus settling in full the indebtedness of Wilfredo Dy
with the financing firm. Payment having been effected through an out-of-town check, Libra
insisted that it be cleared first before Libra could release the chattels in question.
Meanwhile, Civil Case No. R-16646 entitled "Gelac Trading, Inc. v. Wilfredo Dy", a collection
case to recover the sum of P12,269.80 was pending in another court in Cebu.
On the strength of an alias writ of execution issued on December 27, 1979, the provincial
sheriff was able to seize and levy on the tractor which was in the premises of Libra in
Carmen, Cebu. The tractor was subsequently sold at public auction where Gelac Trading was
the lone bidder. Later, Gelac sold the tractor to one of its stockholders, Antonio Gonzales.
It was only when the check was cleared on January 17, 1980 that the petitioner learned
about GELAC having already taken custody of the subject tractor. Consequently, the
petitioner filed an action to recover the subject tractor against GELAC Trading with the
Regional Trial Court of Cebu City.
On April 8, 1988, the RTC rendered judgment in favor of the petitioner. The dispositive
portion of the decision reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendant, pronouncing that the plaintiff is the owner of the tractor, subject matter of this
case, and directing the defendants Gelac Trading Corporation and Antonio Gonzales to return
the same to the plaintiff herein; directing the defendants jointly and severally to pay to the
plaintiff the amount of P1,541.00 as expenses for hiring a tractor; P50,000 for moral
damages; P50,000 for exemplary damages; and to pay the cost. (Rollo, pp. 35-36)
On appeal, the Court of Appeals reversed the decision of the RTC and dismissed the
complaint with costs against the petitioner. The Court of Appeals held that the tractor in
question still belonged to Wilfredo Dy when it was seized and levied by the sheriff by virtue
of the alias writ of execution issued in Civil Case No. R-16646.
The petitioner now comes to the Court raising the following questions:
A.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS MISAPPREHENDED THE FACTS AND
ERRED IN NOT AFFIRMING THE TRIAL COURT'S FINDING THAT OWNERSHIP OF THE FARM
TRACTOR HAD ALREADY PASSED TO HEREIN PETITIONER WHEN SAID TRACTOR WAS LEVIED
ON BY THE SHERIFF PURSUANT TO AN ALIAS WRIT OF EXECUTION ISSUED IN ANOTHER CASE
IN FAVOR OF RESPONDENT GELAC TRADING INC.
B.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS EMBARKED ON MERE CONJECTURE
AND SURMISE IN HOLDING THAT THE SALE OF THE AFORESAID TRACTOR TO PETITIONER
WAS DONE IN FRAUD OF WILFREDO DY'S CREDITORS, THERE BEING NO EVIDENCE OF SUCH
FRAUD AS FOUND BY THE TRIAL COURT.
C.
WHETHER OR NOT THE HONORABLE COURT OF APPEALS MISAPPREHENDED THE FACTS AND
ERRED IN NOT SUSTAINING THE FINDING OF THE TRIAL COURT THAT THE SALE OF THE
TRACTOR BY RESPONDENT GELAC TRADING TO ITS CO-RESPONDENT ANTONIO V. GONZALES
ON AUGUST 2, 1980 AT WHICH TIME BOTH RESPONDENTS ALREADY KNEW OF THE FILING OF
THE INSTANT CASE WAS VIOLATIVE OF THE HUMAN RELATIONS PROVISIONS OF THE CIVIL
8
CODE AND RENDERED THEM LIABLE FOR THE MORAL AND EXEMPLARY DAMAGES SLAPPED
AGAINST THEM BY THE TRIAL COURT. (Rollo, p. 13)
The respondents claim that at the time of the execution of the deed of sale, no constructive
delivery was effected since the consummation of the sale depended upon the clearance and
encashment of the check which was issued in payment of the subject tractor.
In the case of Servicewide Specialists Inc. v. Intermediate Appellate Court. (174 SCRA 80
[1989]), we stated that:
xxx xxx xxx
The rule is settled that the chattel mortgagor continues to be the owner of the property, and
therefore, has the power to alienate the same; however, he is obliged under pain of penal
liability, to secure the written consent of the mortgagee. (Francisco, Vicente, Jr., Revised
Rules of Court in the Philippines, (1972), Volume IV-B Part 1, p. 525). Thus, the instruments of
mortgage are binding, while they subsist, not only upon the parties executing them but also
upon those who later, by purchase or otherwise, acquire the properties referred to therein.
The absence of the written consent of the mortgagee to the sale of the mortgaged property
in favor of a third person, therefore, affects not the validity of the sale but only the penal
liability of the mortgagor under the Revised Penal Code and the binding effect of such sale on
the mortgagee under the Deed of Chattel Mortgage.
xxx xxx xxx
The mortgagor who gave the property as security under a chattel mortgage did not part with
the ownership over the same. He had the right to sell it although he was under the obligation
to secure the written consent of the mortgagee or he lays himself open to criminal
prosecution under the provision of Article 319 par. 2 of the Revised Penal Code. And even if
no consent was obtained from the mortgagee, the validity of the sale would still not be
affected.
Thus, we see no reason why Wilfredo Dy, as the chattel mortgagor can not sell the subject
tractor. There is no dispute that the consent of Libra Finance was obtained in the instant
case. In a letter dated August 27, 1979, Libra allowed the petitioner to purchase the tractor
and assume the mortgage debt of his brother. The sale between the brothers was therefore
valid and binding as between them and to the mortgagee, as well.
Article 1496 of the Civil Code states that the ownership of the thing sold is acquired by the
vendee from the moment it is delivered to him in any of the ways specified in Articles 1497
to 1501 or in any other manner signing an agreement that the possession is transferred from
the vendor to the vendee. We agree with the petitioner that Articles 1498 and 1499 are
applicable in the case at bar.
Article 1498 states:
Art. 1498. When the sale is made through a public instrument, the execution
thereof shall be equivalent to the delivery of the thing which is the object of the contract, if
from the deed the contrary does not appear or cannot clearly be inferred.
xxx xxx xxx
Article 1499 provides:
Article 1499. The delivery of movable property may likewise be made by the mere
consent or agreement of the contracting parties, if the thing sold cannot be transferred to
the possession of the vendee at the time of the sale, or if the latter already had it in his
possession for any other reason. (1463a)
In the instant case, actual delivery of the subject tractor could not be made. However, there
was constructive delivery already upon the execution of the public instrument pursuant to
Article 1498 and upon the consent or agreement of the parties when the thing sold cannot
be immediately transferred to the possession of the vendee. (Art. 1499)
The respondent court avers that the vendor must first have control and possession of the
thing before he could transfer ownership by constructive delivery. Here, it was Libra Finance
which was in possession of the subject tractor due to Wilfredo's failure to pay the
amortization as a preliminary step to foreclosure. As mortgagee, he has the right of
foreclosure upon default by the mortgagor in the performance of the conditions mentioned
in the contract of mortgage. The law implies that the mortgagee is entitled to possess the
mortgaged property because possession is necessary in order to enable him to have the
property sold.
While it is true that Wilfredo Dy was not in actual possession and control of the subject
tractor, his right of ownership was not divested from him upon his default. Neither could it
be said that Libra was the owner of the subject tractor because the mortgagee can not
become the owner of or convert and appropriate to himself the property mortgaged. (Article
2088, Civil Code) Said property continues to belong to the mortgagor. The only remedy given
to the mortgagee is to have said property sold at public auction and the proceeds of the sale
applied to the payment of the obligation secured by the mortgagee. (See Martinez v. PNB, 93
Phil. 765, 767 [1953]) There is no showing that Libra Finance has already foreclosed the
mortgage and that it was the new owner of the subject tractor. Undeniably, Libra gave its
consent to the sale of the subject tractor to the petitioner. It was aware of the transfer of
rights to the petitioner.
Where a third person purchases the mortgaged property, he automatically steps into the
shoes of the original mortgagor. (See Industrial Finance Corp. v. Apostol, 177 SCRA 521
[1989]). His right of ownership shall be subject to the mortgage of the thing sold to him. In
the case at bar, the petitioner was fully aware of the existing mortgage of the subject tractor
to Libra. In fact, when he was obtaining Libra's consent to the sale, he volunteered to assume
the remaining balance of the mortgage debt of Wilfredo Dy which Libra undeniably agreed
to.
The payment of the check was actually intended to extinguish the mortgage obligation so
that the tractor could be released to the petitioner. It was never intended nor could it be
9
considered as payment of the purchase price because the relationship between Libra and the
petitioner is not one of sale but still a mortgage. The clearing or encashment of the check
which produced the effect of payment determined the full payment of the money obligation
and the release of the chattel mortgage. It was not determinative of the consummation of
the sale. The transaction between the brothers is distinct and apart from the transaction
between Libra and the petitioner. The contention, therefore, that the consummation of the
sale depended upon the encashment of the check is untenable.

The sale of the subject tractor was consummated upon the execution of the public
instrument on September 4, 1979. At this time constructive delivery was already effected.
Hence, the subject tractor was no longer owned by Wilfredo Dy when it was levied upon by
the sheriff in December, 1979. Well settled is the rule that only properties unquestionably
owned by the judgment debtor and which are not exempt by law from execution should be
levied upon or sought to be levied upon. For the power of the court in the execution of its
judgment extends only over properties belonging to the judgment debtor. (Consolidated
Bank and Trust Corp. v. Court of Appeals, G.R. No. 78771, January 23, 1991).

The respondents further claim that at that time the sheriff levied on the tractor and took
legal custody thereof no one ever protested or filed a third party claim.

It is inconsequential whether a third party claim has been filed or not by the petitioner during
the time the sheriff levied on the subject tractor. A person other than the judgment debtor
who claims ownership or right over levied properties is not precluded, however, from taking
other legal remedies to prosecute his claim. (Consolidated Bank and Trust Corp. v. Court of
Appeals, supra) This is precisely what the petitioner did when he filed the action for replevin
with the RTC.

Anent the second and third issues raised, the Court accords great respect and weight to the
findings of fact of the trial court.1âwphi1 There is no sufficient evidence to show that the sale
of the tractor was in fraud of Wilfredo and creditors. While it is true that Wilfredo and
Perfecto are brothers, this fact alone does not give rise to the presumption that the sale was
fraudulent. Relationship is not a badge of fraud (Goquiolay v. Sycip, 9 SCRA 663 [1963]).
Moreover, fraud can not be presumed; it must be established by clear convincing evidence.

We agree with the trial court's findings that the actuations of GELAC Trading were indeed
violative of the provisions on human relations. As found by the trial court, GELAC knew very
well of the transfer of the property to the petitioners on July 14, 1980 when it received
summons based on the complaint for replevin filed with the RTC by the petitioner.
Notwithstanding said summons, it continued to sell the subject tractor to one of its
stockholders on August 2, 1980.

WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals
promulgated on March 23, 1990 is SET ASIDE and the decision of the Regional Trial Court
dated April 8, 1988 is REINSTATED.

SO ORDERED.

10
G.R. No. 77502 January 15, 1988
EMILIA B. SANTIAGO, plaintiff-appellant,
vs.
PIONEER SAVINGS AND LOAN BANK, ET. AL., defendants-appellees.
MELENCIO-HERRERA, J.:
An appeal certified by the Court of Appeals to this Tribunal for determination since only a
question of law is involved.
The facts are not controverted.
Plaintiff-appellant, Emilia P. Santiago, is the registered owner of a parcel of land situated at
Polo, Valenzuela, Metro Manila, with an area of approximately 39,007 square meters,
covered by T.C.T. No. B-41669 (briefly, the Title) of the Register of Deeds of Caloocan City
(hereinafter, simply the Disputed Property).
On 7 April 1983, plaintiff-appellant executed a Special Power of Attorney in favor of
Construction Resources Corporation of the Philippines (CRCP, for short) authorizing and
empowering CRCP:
1. To borrow money and make, execute, sign and deliver mortgages of real estate now
owned by me and standing in my name and to make, sign, execute and deliver any and all
promissory notes necessary in the premises.
2. For the purpose of these presents, or for the purpose of securing the payment of
any loan, indebtedness or obligation which my attorney-in-fact may obtain or contract with
the bank, its renewal, extension of payment of the whole or any part thereof, said attorney-
in-fact is hereby authorized and empowered to transfer and convey by way of mortgage in
favor of the bank, ... (the Disputed Property).
On 8 April 1983, CRCP executed a Real Estate Mortgage over the Disputed Property in favor
of FINASIA Investment and Finance Corporation to secure a loan of P1 million. The mortgage
contract specifically provided that in the event of default in payment, the mortgagee may
immediately foreclose the mortgage judicially or extrajudicially. The promissory note
evidencing the indebtedness was dated 4 March 1983.
The Special Power of Attorney executed by plaintiff-appellant in CRCP's favor, the Real Estate
Mortgage by CRCP in favor of FINASIA, together with the Board Resolution dated 28 March
1983 authorizing the CRCP President to sign for and on its behalf, were duly annotated on
the Title on 12 April 1983.
On 29 July 1983, FINASIA executed in favor of defendant-appellee, Pioneer Savings & Loan
Bank, Inc. (Defendant Bank, for brevity), an "Outright Sale of Receivables without Recourse"
including the receivable of P610,752.59 from CRCP.
On 21 May 1984, FINASIA executed a "Supplemental Deed of Assignment" in favor of
Defendant Bank confirming and ratifying the assignment in the latter's favor of the receivable
of P610,752.59 from CRCP and of the mortgage constituted by CRCP over the disputed
property.
On 12 July 1984, the aforesaid Supplemental Deed of Assignment was inscribed on the Title.
CRCP failed to settle its obligation and Defendant Bank opted for extrajudicial foreclosure of
the mortgage. The notice of auction sale was scheduled on 16 May 1985.
On 13 May 1985, on learning of the intended sale, plaintiff-appellant filed before the
Regional Trial Court of Valenzuela, Metro Manila, Branch CLXXII, an action for declaration of
nullity of the real estate mortgage with an application for a Writ of Preliminary Injunction
(Civil Case No. 2231-V-55).
On 14 May 1985, the Trial Court 1 issued a Temporary Restraining Order enjoining the sale at
public auction of the Disputed Property.
Basically, plaintiff-appellant claimed in her Complaint that she was not aware of any real
estate mortgage she had executed in favor of Defendant Bank; that she had not authorized
anyone to execute any document for the extrajudicial foreclosure of the real estate mortgage
constituted on the Disputed Property and that since the notice of Sheriffs sale did not include
her as a party to the foreclosure proceedings, it is not binding on her nor on her property.
Defendant Bank opposed the application for Preliminary Injunction and asserted its right to
extrajudicially foreclose the mortgage on the Disputed Property based on recorded public
documents.
During the hearing on the petition for Preliminary Injunction, plaintiff-appellant, through
counsel, admitted the due execution of plaintiff-appellant's Special Power of Attorney in
favor of CRCP, the Real Estate Mortgage by CRCP to FINASIA, the Outright Sale of Receivables
by FINASIA to Defendant Bank, as well the Supplemental Deed of Assignment by FINASIA to
Defendant Bank.
On 30 May 1985, the Trial Court granted the Petition for Preliminary Injunction enjoining the
public auction sale of the mortgaged property upon plaintiff-appellant's posting of a bond in
the amount of P100,000.00.
On 7 June 1985, Defendant Bank filed a Motion to Dismiss the main case on the ground that
the complaint did not state a cause of action followed on 24 June 1985 with a Motion for
Reconsideration of the Order granting the Writ of Preliminary Injunction, both of which
Motions plaintiff-appellant opposed.
On 30 August 1985, the Trial Court reconsidered its Order of 30 May 1985, dissolved the Writ
of Preliminary Injunction, and ordered the dismissal of the case for lack of cause of action.
Plaintiff-appellant appealed to the Court of Appeals, which, as stated at the outset, certified
the case to us on a pure question of law.
11
In the meantime, with the dissolution of the Preliminary Injunction, it appears that defendant
Bank completed its extrajudicial foreclosure and the Disputed Property was sold at public
auction on January 1986, after a re-publication of the notice of sale, since the first scheduled
sale was enjoined by the Trial Court.
Plaintiff-appellant maintains that:
I. The Lower Court erred in dismissing the complaint and lifting the Preliminary Injunction by
relying solely on the admission of the counsel of the plaintiff-appellant of certain
documentary exhibits presented by the counsel of the defendant-appellee.
II. The Lower Court erred in relying on the case of Wenceslao Vinzons Tan vs. Director
of Forestry which it qualifies as "on all fours with the case at bar."
III. The Lower Court erred in ignoring the pertinent doctrines in the Supreme Court cases
cited by the plaintiff-appellant in her Opposition to Motion to Dismiss.
IV. The Lower Court erred in holding that notice of the scheduled sale of the land sent to the
agent (CRCP) is also Notice to the principal (Plaintiff Appellant), the land owner.
and prays that she be given "a real day in Court" so that she may testify and give her side of
the case.
Upon the factual and legal context, the errors assigned are without merit.
It is true that the determination of the sufficiency of a cause of action must be limited to the
facts alleged in the Complaint and no other should be considered. 2 In this case, however, a
hearing was held and documentary evidence was presented, not on the Motion to Dismiss
but on the question of granting or denying plaintiff-appellant's application for a Writ of
Preliminary Injunction, Counsel for plaintiff-appellant admitted an the evidence presented.
That being so, the Trial Court committed no reversible error in considering said evidence in
the resolution of the Motion to Dismiss.
Furthermore, "even if the complaint stated a valid cause of action, a motion to dismiss for
insufficiency of cause of action will be granted if documentary evidence admitted by
stipulation disclosing facts sufficient to defeat the claim enabled the court to go beyond
disclosure in the complaint" (LOCALS No. 1470, No. 1469, and No. 1512 of the International
Longshoremen's Association vs. Southern Pacific Co., 6 Fed. Rules Service, p. 107; U.S. Circuit
Court of Appeals, Fifth Circuit, Dec. 7, 1952; 131 F. 2d 605). Thus, although the evidence of
the parties were presented on the question of granting or denying petitioner-appellant's
application for a writ of preliminary injunction, the trial court correctly applied said evidence
in the resolution of the motion to dismiss. ... 3
While, as contended by plaintiff-appellant, some aspects of this case differ from those in Tan,
the doctrinal ruling therein, as quoted above, is squarely applicable to the case at bar. The
cases which plaintiff-appellant cites express the general rule when there is no "documentary
evidence admitted by stipulation disclosing facts sufficient to defeat the claim." Where,
however, such evidence is before the Court and has been stipulated upon, a Court can go
"beyond the disclosure in the complaint." 4
Moreover, the rule is explicit that "rules of procedure are not to be applied in a very rigid,
technical sense; rules of procedure are used only to help secure substantial justice." 5
The evidence on record sufficiently defeats plaintiff-appellant's claim for relief from
extrajudicial foreclosure. Her Special Power of Attorney in favor of CRCP specifically included
the authority to mortgage the Disputed Property. The Real Estate Mortgage in favor of
FINASIA explicitly authorized foreclosure in the event of default. Indeed, foreclosure is but a
necessary consequence of non-payment of a mortgage indebtedness. Plaintiff-appellant,
therefore, cannot rightfully claim that FINASIA, as the assignee of the mortgagee, cannot
extrajudicially foreclose the mortgaged property. A mortgage directly and immediately
subjects the property upon which it is imposed to the fulfillment of the obligation for whose
security it was constituted. 6
The assignment of receivables made by the original mortgagee, FINASIA, to Defendant Bank
was valid, since a mortgage credit may be alienated or assigned to a third person, in whole or
in part, with the formalities required by law. 7 Said formalities were complied with in this
case. The assignment was made in a public instrument and proper recording in the Registry
of Property was made. 8 While notice may not have been given to plaintiff-appellant
personally, the publication of the Notice of Sheriff's Sale, as required by law, is notice to the
whole world.
The full-dress hearing that plaintiff-appellant prays for wherein she intends to prove that she
tried to contact the President of CRCP to urge him to pay the mortgage loan, that she had
failed to do so despite several attempts; that she did not know that FINASIA had sold its
receivables including that of CRCP to Defendant Bank; and that she was not informed by
CRCP of the scheduled foreclosure sale will not tilt the scales of justice in her favor in the face
of incontrovertible documentary evidence before the Court.
Plaintiff-appellant's recourse is against CRCP, specially considering her allegation that the
latter had failed to observe their agreement.
WHEREFORE, the Order appealed from is hereby AFFIRMED, with costs against plaintiff-
appellant.
SO ORDERED.
12
G.R. Nos. 147933-34 December 12, 2001
PUBLIC ESTATES AUTHORITY, petitioner,
vs.
ELPIDIO S. UY, doing business under the name and style EDISON DEVELOPMENT &
CONSTRUCTION, AND THE COURT OF APPEALS, respondents.
YNARES-SANTIAGO, J.:
This is a petition for review of the Joint Decision dated September 25, 20001 and the Joint
Resolution dated April 25, 20012 of the Court of Appeals in the consolidated cases CA-G.R. SP
Nos. 59308 and 59849.
Petitioner Public Estates Authority is the government agency tasked by the Bases Conversion
Development Authority to develop the first-class memorial park known as the Heritage Park,
located in Fort Bonifacio, Taguig, Metro Manila. On November 20, 1996, petitioner executed
with respondent Elpidio S. Uy, doing business under the name and style Edison Development
& Construction, a Landscaping and Construction Agreement, whereby respondent undertook
to perform all landscaping works on the 105-hectare Heritage Park. The Agreement
stipulated that the completion date for the landscaping job was within 450 days,
commencing within 14 days after receipt by respondent of petitioner's written notice to
proceed. Due to delays, the contracted period was extended to 693 days. Among the causes
of the delay was petitioner's inability to deliver to respondent 45 hectares of the property for
landscaping, because of the existence of squatters and a public cemetery.
Respondent instituted with the Construction Industry Arbitration Commission an action,
docketed as CIAC Case No. 02-2000, seeking to collect from petitioner damages arising from
its delay in the delivery of the entire property for landscaping. Specifically, respondent
alleged that he incurred additional rental costs for the equipment which were kept on
standby and labor costs for the idle manpower. Likewise, the delay incurred by petitioner
caused the topsoil at the original supplier to be depleted, which compelled respondent to
obtain the topsoil from a farther source, thereby incurring added costs. He also claims that
he had to mobilize water trucks for the plants and trees which have already been delivered at
the site. Furthermore, it became necessary to construct a nursery shade to protect and
preserve the young plants and trees prior to actual transplanting at the landscaped area.
On May 16, 2000, the CIAC rendered a decision, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the Claimant Contractor ELPIDIO S. UY
and Award is hereby made on its monetary claim as follows:
Respondent PUBLIC ESTATES AUTHORITY is directed to pay the Claimant the following
amounts:
P19,604,132.06
— for the cost of idle time of equipment.
2,275,721.00
— for the cost of idled manpower.
6,050,165.05
— for the construction of the nursery shade net area.
605,016.50
— for attorney's fees.
Interest on the amount of P6,050,165.05 as cost for the construction of the nursery shade
net area shall be paid at the rate of 6% per annum from the date the Complaint was filed on
12 January 2000. Interest on the total amount of P21,879,853.06 for the cost of idled
manpower and equipment shall be paid at the same rate of 6% per annum from the date this
Decision is promulgated. After finality of this Decision, interest at the rate of 12% per annum
shall be paid on the total of these 3 awards amounting to P27,930,018.11 until full payment
of the awarded amount shall have been made, "this interim period being deemed to be at
that time already a forbearance of credit" (Eastern Shipping Lines Inc. v. Court of Appeals et
al., 243 SCRA 78 [1994]; Keng Hua Paper Products Co., Inc. v. Court of Appeals, 286 SCRA 257
[1998]; Crismina Garments Inc. v. Court of Appeals, G.R. No. 128721, March 9, 1999).
SO ORDERED.3
Both petitioner and respondent filed petitions for review with the Court of Appeals. In CA-
G.R. SP No. 59308, petitioner contested the monetary awards given by the CIAC. On the
other hand, respondent filed CA-G.R. SP No. 59849, arguing that the CIAC erred in awarding a
reduced amount for equipment stand-by costs and for denying his claims for additional costs
for topsoil hauling and operating costs of water trucks.
The two petitions were consolidated. On September 25, 2000, the Court of Appeals rendered
the now assailed Joint Decision, dismissing the petitions, to wit:
WHEREFORE, premises considered, the petitions in CA-G.R. SP No. 59308, entitled "Public
Estates Authority v. Elpidio S. Uy, doing business under the name and style of Edison
Development & Construction," and CA-G.R. SP No. 59849, "Elpidio S. Uy, doing business
under the name and style of Edison Development & Construction v. Public Estates Authority,"
are both hereby DENIED DUE COURSE and accordingly, DISMISSED, for lack of merit.
Consequently, the Award/Decision issued by the Construction Industry Arbitration
Commission on May 16, 2000 in CIAC Case No. 02-200, entitled "Elpidio S. Uy, doing business
under the name and style of Edison Development & Construction v. Public Estates Authority,"
is hereby AFFIRMED in toto.
No pronouncement as to costs.
SO ORDERED.4
13
Both parties filed motions for reconsideration. Subsequently, petitioner filed with the Court
of Appeals an Urgent Motion for Issuance of a Temporary Restraining Order and/or Writ of
Preliminary Injunction, seeking to enjoin the CIAC from proceeding with CIAC Case No. 03-
2001, which respondent has filed. Petitioner alleged that the said case involved claims by
respondent arising from the same Landscaping and Construction Agreement, subject of the
cases pending with the Court of Appeals.
On April 25, 2001, the Court of Appeals issued the assailed Joint Resolution, thus:
WHEREFORE, the present Motion/s for Reconsideration in CA-G.R. SP No. 59308 and CA-G.R.
SP No. 59849 are hereby both DENIED, for lack of merit.
Accordingly, let an injunction issue permanently enjoining the Construction Industry
Arbitration Commission from proceeding with CIAC Case No. 03-2001, entitled ELPIDIO S. UY,
doing business under the name and style of EDISON DEVELOPMENT & CONSTRUCTION v.
PUBLIC ESTATES AUTHORITY and/or HONORABLE CARLOS P. DOBLE.
SO ORDERED.5
Hence, this petition for review, raising the following arguments:
I
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN DENYING DUE COURSE
PETITIONER'S (SIC) PETITION FILED PURSUANT TO RULE 43 OF THE 1997 RULES OF CIVIL
PROCEDURE APPEALING THE ADVERSE DECISION OF THE CIAC A QUO.
II
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN DENYING THE HEREIN PETITIONER'S
MOTION FOR RECONSIDERATION ON THE JOINT DECISION PROMULGATED ON SEPTEMBER
25, 2000.
III
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT ALLOWING THE APPEAL ON
THE MERITS TO BE THRESHED OUT PURSUANT TO EXISTING LAWS AND JURISPRUDENCE ALL
IN INTEREST OF DUE PROCESS.
IV
THE HONORABLE COURT OF APPEALS ERRED IN DENYING PETITIONER'S CLAIM FOR
UNRECOUPED BALANCE IN THE 15% ADVANCE PAYMENT; UNRECOUPED BALANCE ON PRE-
PAID MATERIALS, AND OVERPAYMENT BASED ON ACTUAL PAYMENT MADE AS AGAINST
PHYSICAL ACCOMPLISHMENTS.
V resolution authorizing petitioner's Officer-in-Charge to represent it in the petition, the
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE CIAC DECISION FINDING
RESPONDENT ENTITLED TO ATTORNEY'S FEES IN THE AMOUNT OF P605,096.50 — WHICH IS
10% OF THE AMOUNT AWARDED FOR THE CLAIM OF NURSERY SHADE CONSTRUCTION
WHILE DENYING PETITIONER'S COUNTERCLAIM FOR ATTORNEY'S FEES.
VI
THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING THAT PETITIONER'S
OBLIGATION, IF ANY, HAS BEEN EFFECTIVELY EXTINGUISHED.
VII
THE HONORABLE COURT OF APPEALS ERRED IN NOT ORDERING THE RESPONDENT TO
REIMBURSE THE PETITIONER THE AMOUNT OF P345,583.20 THE LATTER PAID TO THE
CONSTRUCTION INDUSTRY ARBITRATION COMMISSION.6
After respondent filed its comment 7 on August 20, 2001, this Court issued a resolution
dated September 3, 20018 requiring petitioner to file its reply within ten days from notice.
Despite service of the resolution on petitioner and its counsel on October 1, 2001, no reply
has been filed with this Court to date. Therefore, we dispense with the filing of petitioner's
reply and decide this case based on the pleadings on record.
The petition is without merit.
Petitioner assails the dismissal of its petition by the Court of Appeals based on a technicality,
i.e., the verification and certification of non-forum shopping was signed by its Officer-in-
Charge, who did not appear to have been authorized by petitioner to represent it in the case.
Petitioner moreover argues that in an earlier resolution, the First Division of the Court of
Appeals gave due course to its petition. Despite this, it was the Seventeenth Division of the
Court of Appeals which rendered the Joint Decision dismissing its petition.
The contention is untenable. Petitioner, being a government owned and controlled
corporation, can act only through its duly authorized representatives. In the case of Premium
Marble Resources, Inc. v. Court of Appeals,9 which the Court of Appeals cited, we made it
clear that in the absence of an authority from the board of directors, no person, not even the
officers of the corporation, can validly bind the corporation.10 Thus, we held in that case:
We agree with the finding of public respondent Court of Appeals, that "in the absence of any
board resolution from its board of directors the [sic] authority to act for and in behalf of the
corporation, the present action must necessary fail. The power of the corporation to sue and
be sued in any court is lodged with the board of directors that exercises its corporate powers.
Thus, the issue of authority and the invalidity of plaintiff-appellant's subscription which is still
pending, is a matter that is also addressed, considering the premises, to the sound judgment
of the Securities and Exchange Commission."11
Therefore, the Court of Appeals did not err in finding that, in view of the absence of a board
verification and certification of non-forum shopping executed by said officer failed to satisfy
14
the requirement of the Rules. In this connection, Rule 43, Section 7, of the 1997 Rules of Civil
Procedure categorically provides:
Effect of failure to comply with requirements. — The failure of the petition to comply with
any of the foregoing requirements regarding the payment of the docket and other lawful
fees, the deposit for costs, proof of service of the petition, and the contents of and the
documents which should accompany the petition shall be sufficient ground for the dismissal
thereof.
Anent petitioner's contention that its petition had already been given due course, it is well to
note that under the Internal Rules of the Court of Appeals, each case is raffled to a Justice
twice — the first raffle for completion of records and the second raffle for study and
report.12 Hence, there was nothing unusual in the fact that its petition was first raffled to
the First Division of the Court of Appeals but was later decided by the Seventeenth Division
thereof. Petitioner's imputations of irregularity have no basis whatsoever, and can only be
viewed as a desperate attempt to muddle the issue by nit-picking on non-essential matters.
Likewise, the giving of due course to a petition is not a guarantee that the same will be
granted on its merits.
Significantly, the dismissal by the Court of Appeals of the petition was based not only on its
fatal procedural defect, but also on its lack of substantive merit; specifically, its failure to
show that the CIAC committed gross abuse of discretion, fraud or error of law, such as to
warrant the reversal of its factual findings.
We have carefully gone over the decision of the CIAC in CIAC Case No. 02-2000, and we have
found that it contains an exhaustive discussion of all claims and counterclaims of respondent
and petitioner, respectively. More importantly, its findings are well supported by evidence
which are properly referred to in the record. In all, we have found no ground to disturb the
decision of the CIAC, especially since it possesses the required expertise in the field of
construction arbitration. It is well settled that findings of fact of administrative agencies and
quasi-judicial bodies, which have acquired expertise because their jurisdiction is confined to
specific matters, are generally accorded not only respect, but finality when affirmed by the
Court of Appeals.13
Thus, we affirm the factual findings and conclusions of the CIAC as regards the arbitral
awards to respondent. The records clearly show that these are amply supported by
substantial evidence.
Coming now to petitioner's counterclaims, we find that the CIAC painstakingly sifted through
the records to discuss these, despite its initial observation that petitioner "absolutely omitted
to make any arguments" to substantiate the same.14 As far as the unrecouped balance on
prepaid materials are concerned, the CIAC found:
The Arbitral Tribunal finds the evidence adduced by the Respondents (petitioner herein)
sorely lacking to establish this counterclaim. The affidavit of Mr. Jaime Millan touched on this
matter by merely stating this "additional claim a) Unrecouped balance on prepaid materials
amounting to P45,372,589.85." No further elaboration was made of this bare statement. The
affidavit of Mr. Roigelio A. Cantoria merely states that as Senior Accountant, it was he who
prepared the computation for the recoupment of prepaid materials and advance payment
marked as "Annex "B" of Respondent's Compliance/Submission dated 16 March 2000.
Examination of that single page document shows that for the 2nd Billing, the amount of
P32,695,138.86 was "75% Prepaid" for some unspecified "Materials on Hand." The rest of the
other items were payments for "trees and shrubs RCP Baluster & Cons. Paver, and GFRC
(Baluster)" in various amounts taken from other billings. The billings themselves have not
been introduced in evidence. No testimonial evidence was also offered to explain how these
computations were made, if only to explain the meaning of those terms above-quoted and
why the recoupment of amounts of the various billings were generally much lower than the
payment for materials. As stated at the outset of the discussion of these additional claims, "it
is not the burden of this Tribunal to dig into the haystack to look for the proverbial needle to
support these counterclaims."15
On the other hand, we find that the CIAC correctly deferred determination of the
counterclaim for unrecouped balance on the advance payment. It explained that the amount
of this claim is determined by deducting from respondent's progress billing a proportionate
amount equal to the percentage of work accomplished. However, this could not be done
since petitioner terminated the construction contract. At the time the CIAC rendered its
decision, the issue of the validity of the termination was still pending determination by the
Regional Trial Court of Parañaque. Thus, in view of the non-fulfillment of that "precondition
to the grant" of petitioner's counterclaim, the CIAC deferred resolution of the same.16 In the
case at bar, petitioner still failed to show that its termination of the construction contract
was upheld by the court as valid.
Anent petitioner's claim for attorney's fees, suffice it to state that it was represented by the
Government Corporate Counsel in the proceedings before the CIAC. Attorney's fees are in
the nature of actual damages, which must be duly proved.17 Petitioner failed to show with
convincing evidence that it incurred attorney's fees.
Petitioner further argues that its liability to respondent has been extinguished by novation
when it assigned and turned over all its contracted works at the Heritage Park to the Heritage
Park Management Corporation.18 This, however, can not bind respondent, who was not a
party to the assignment. Moreover, it has not been shown that respondent gave his consent
to the turn-over. Article 1293 of the Civil Code expressly provides:
Novation which consists in substituting a new debtor in the place of the original one, may be
made even without the knowledge or against the will of the latter, but not without the
consent of the creditor. Payment by the new debtor gives him the rights mentioned in
articles 1236 and 1237. (emphasis ours)
Lastly, petitioner argues that respondent should reimburse to it all fees paid to the CIAC by
reason of the case. To be sure, this contention is based on the premise that the suit filed by
respondent was unwarranted and without legal and factual basis. But as shown in the CIAC
decision, this was not so. In fact, respondent was adjudged entitled to the arbitral awards
made by the CIAC. These awards have been sustained by the Court of Appeals, and now by
this Court.
It appears that there is a pending motion to consolidate the instant petition with G.R. No.
147925-26, filed by respondent. Considering, however, that the instant petition has no merit,
the motion for consolidation is rendered also without merit, as there will be no more petition
15
to consolidate with the said case. Hence, the motion to consolidate filed in this case must be
denied.

However, in order not to prejudice the deliberations of the Court's Second Division in G.R.
No. 147925-26, it should be stated that the findings made in this case, especially as regards
the correctness of the findings of the CIAC, are limited to the arbitral awards granted to
respondent Elpidio S. Uy and to the denial of the counterclaims of petitioner Public Estates
Authority. Our decision in this case does not affect the other claims of respondent Uy which
were not granted by the CIAC in its questioned decision, the merits of which were not
submitted to us for determination in the instant petition.

WHEREFORE, in view of the foregoing, the petition for review is DENIED. The Motion to
Consolidate this petition with G.R. No. 147925-26 is also DENIED.

SO ORDERED.

16
 Before this Court is a petition for review on certiorari assailing the Resolution[1] of the Court
of Appeals (CA) dated October 5, 2000 which dismissed Rolando Clavecillas petition on the
ground that the verification and certification of non-forum shopping was signed by counsel
without the proper authority from petitioner, as well as the Resolution dated March 28,
ROLANDO CLAVECILLA, G.R. No. 147989 2001[2] which denied petitioners motion for reconsideration.

Petitioner,

Present: The facts are as follows:

PANGANIBAN, C.J., Teresito and Rico Quitain (Quitains) filed on March 7, 1997, a complaint against Rolando
Clavecilla (Clavecilla) before the Municipal Trial Court in Cities, Branch 6, Davao City (MTCC)
(Chairperson) for the enforcement of the amicable settlement entered into by them on August 19, 1996
before the Lupon Tagapamayapa, Barangay Talomo, Davao. Pertinent portions of said
YNARES-SANTIAGO, settlement reads:

- versus - AUSTRIA-MARTINEZ,
1. That the respondent (Clavecilla) agreed to purchase the property on October 15, 1996.
CALLEJO, SR., and
2. Failure to pay the property on the said date the respondent will voluntarily vacate the
CHICO-NAZARIO, JJ. place with the assistance of five thousand (P5,000.00) pesos only.

3. The complainant (Rico Quitain) agreed to the demand of the respondent.[3]

TERESITO QUITAIN and The Quitains alleged that Clavecilla failed to pay the amount agreed upon and six months had
already passed since the agreement was entered into and yet Clavecilla has still not left the
RICO QUITAIN, et al., Promulgated: premises.[4]

Respondents. February 20, 2006

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x Clavecilla answered that the August 19, 1996 agreement was no longer enforceable since it
was novated by an agreement dated October 29, 1996.[5] Said agreement reads:

xxx
DECISION
1. That both parties agreed to meet again on Nov. 5, 1996 at the Barangay for another
round of talk (sic).

2. That on Nov. 5, 1996 the respondent will pay the 50% total amount of the selling price
AUSTRIA-MARTINEZ, J.: of the said lot, 111 sq.m. more or less located at Lot 1989-A being a portion of Lot 1989
(T.C.T. # T-6615) at Talomo proper.

3. Price per sq.m. P1,000.00 only.

17
4. Failure to accomplished (sic) this Nov. 5, 1996 requirement, the respondent will
voluntarily vacate the said lot with a P5,000.00 assistance for their effort.
5. All agreement is final upon signing.[6]
xxx
Clavecilla claims that on November 5, 1996, he appeared at the barangay and was supposed
to pay Quitains the 50% price of the lot in question but they were not present.[7] Rico
Quitain asserts however that he was present that day as shown by a certification made by
the office of the lupon of said barangay.[8]
On March 8, 2000, the MTCC rendered its Decision in favor of the Quitains finding that there
was no novation, as the October 29, 1996 was not incompatible with the August 19, 1996
agreement but was only a reiteration of the earlier agreement.[9]
Clavecilla filed a notice of appeal.[10]
On June 20, 2000, the Regional Trial Court of Davao City, Branch 33 (RTC) dismissed the
appeal for Clavecillas failure to file the memorandum on appeal within the period prescribed
by the Rules.[11]
Clavecilla filed a Motion for Reconsideration and For Leave of Court to Admit Appeal
Memorandum claiming that his counsel was not able to file the memorandum on appeal on
time since said counsel was diagnosed with pneumonia and had to rest for more than ten
days.[12] Clavecilla then filed an Appeal Memorandum claiming that the MTCC erred in
rendering judgment against him since he did not sign the agreement but it was his wife
Erlinda who signed the same without authority from him.[13]
On July 5, 2000, the RTC denied Clavecillas motion stating that the reason advanced by
Clavecillas counsel for his failure to file the appeal memorandum on time is not a compelling
reason, and even if such memorandum was given due course, the arguments raised by
Clavecilla therein are not sufficient to justify a reversal of the Decision of the lower court.[14]
Petitioner filed another motion for reconsideration dated July 21, 2000 which was denied by
the RTC on the same day.[15]
On September 13, 2000, petitioner filed a petition for review under Rule 42 of the Rules of
Court with the CA which rendered the herein assailed Resolution on October 5, 2000 thus:
The Verification and Certification of non-forum shopping, which accompanied the petition at
bench, was executed and signed by petitioners counsel Atty. Oswaldo A. Macadangdang,
without the proper authority from petitioner, in violation of Sec. 5, Rule 7 and Sec. 2, Rule 42
of the 1997 Rules of Civil Procedure. The duty to certify under oath is strictly addressed to
petitioner, Rolando Clavecilla. To allow delegation of said duty to anyone would render
Revised Circular No. 28-91 inutile.[16]
xxx
xxxx
Accordingly, the Court Resolves to DENY DUE COURSE and to DISMISS the petition.
SO ORDERED.[17]
Petitioners motion for reconsideration was also denied on March 28, 2001 as follows:
Petitioner moves for the reconsideration of our Resolution dated 05 October 2000 dismissing
the petition for the reason that the certificate of non-forum shopping was signed by
petitioners counsel and not by the petitioner.
Admitting that the duty to sign under oath the certificate is addressed to the petitioner,
petitioner attached to his motion a Special Power of Attorney dated 09 August 2000
authorizing his counsel to sign the certificate. The court believes that this authorization was
made after the petition had been filed, in a vain attempt to cure the fatal defect, for if Atty.
Maca[d]angdang had such authority, he would have indicated that in the Verification and
Certification he signed on 25 August 2000 attached to the petition.
18

In any event, it is a settled rule that the certificate against forum shopping must be executed
by the petitioner and not by counsel. xxx To merit the Courts Consideration, petitioner must
show reasonable cause for failure to personally sign the certification. x x x This petitioner
failed to show. (citations omitted)
WHEREFORE, the Motion for Reconsideration is DENIED for lack of merit.
SO ORDERED.[18]
Hence, the present petition alleging that:
THE HONORABLE COURT OF APPEALS ERRED IN DEPARTING FROM THE ACCEPTED
JURISPRUDENCE OF ALLOWING LIBERAL INTERPRETATION OF THE RULES OF COURT
PROVIDED PETITIONER SUBSTANTIALLY COMPLIED WITH CIRCULAR NO. 28-91 AS SHOWN IN
THE SPECIAL POWER OF ATTORNEY WHICH HE ATTACHED TO HIS MOTION FOR
RECONSIDERATION.[19]
Petitioner avers that: his lawyer had the authority to sign the certification against forum
shopping; the CA was hasty in concluding that the authorization of petitioners lawyer was
made after the petition had been filed; the CA should have granted petitioner the benefit of
the doubt that he gave such authorization to his lawyer at the time that his lawyer signed the
verification and certification against forum shopping; petitioners failure to have a properly
executed certification against forum shopping attached to his petition for review is not fatal;
the rules of procedure are used only to help secure and not override substantial justice, and
the CA departed from the established liberal interpretation of the rules despite petitioners
substantial compliance with the rule on non-forum shopping.[20]
Rico Quitain in his Comment countered that: the petition is not sufficient in form and
substance and is utterly deficient in factual and procedural bases; petitioner named Teresito
Quitain, Rico Quitain, et al. as respondents without specifying who et al. referred to; Teresito
Quitain is already deceased and the MTCC as early as June 5, 1998 already ordered Teresitos
substitution; the spouse and children of Teresito, to wit, Lolita, Rene, Ruel, Radi and Romy,
all surnamed Quitain, have the right to be informed of the filing of the petition and the fact
that they were not so specifically named as respondents but were referred to as et al. makes
the petition a sham pleading; petitioner failed to attach certified true copies of the MTCC
Decision dated March 8, 2000 and the RTC Order dated July 5, 2000 which should have been
included as annexes in the present petition as they are material to the case, and the petition
does not allege a good and valid defense which, if appreciated, could probably cause the
reversal of the July 5, 2000 and March 8, 2000 issuances.[21]
The parties filed their respective Memoranda reiterating their respective contentions.[22]
After evaluating the records of the case and the issues raised by the parties, the Court finds
that the CA did not err in denying the petition and motion for reconsideration filed by
Clavecilla before it. The Court however finds different grounds for denying Clavecillas
petition.
First, it must be determined whether there existed a special power of attorney in favor of
petitioners counsel when the petition before the CA was filed.
The CA in its Resolution dated March 28, 2001, stated that it believes that the special power
of attorney in favor of the lawyer attached to petitioners motion for reconsideration was
only made after the petition had been filed reasoning that if the counsel had such authority
from the beginning, he would have attached the same when the petition was first filed.
The Court disagrees.
The rule is that any suspicion on the authenticity and due execution of the special power of
attorney which is a notarized document, thus a public document, cannot stand against the
presumption of regularity in their favor absent evidence that is clear, convincing and more
than merely preponderant.[23]
In this case, the petition before the CA was filed on September 13, 2000.[24] The special
power of attorney meanwhile was dated August 9, 2000.[25] Absent any proof that the
special power of attorney was not actually in existence before the petition was filed, this
Court has no recourse but to believe that it was indeed in existence at such time.
19
The next matter to be determined is whether the CA was correct in dismissing Clavecillas
petition and motion for reconsideration, notwithstanding the authority given by Clavecilla in
favor of his lawyer to sign the verification and certification in his behalf.
The Court answers in the affirmative.
Obedience to the requirements of procedural rules is needed if we are to expect fair results
therefrom, and utter disregard of the rules cannot justly be rationalized by harking on the
policy of liberal construction.[26] Time and again, this Court has strictly enforced the
requirement of verification and certification of non-forum shopping under the Rules of
Court.[27] This case is no exception.
Verification is required to secure an assurance that the allegations of the petition have been
made in good faith, or are true and correct and not merely speculative.[28]
In this case, petitioners counsel signed the verification alleging that he had read the petition
and the contents thereof are true and correct of his own knowledge and belief.[29]
On this ground alone, the petition should already be dismissed for as provided for in Section
4 Rule 7 of the Rules of Court, as amended by A.M. No. 00-2-10-SC dated May 1, 2000:
Sec. 4. Verification. ---xxx
A pleading is verified by an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his personal knowledge or based on authentic
records.
A pleading required to be verified which contains a verification based on information and
belief, or upon knowledge, information and belief, or lacks a proper verification, shall be
treated as an unsigned pleading.
While the Court has exercised leniency in cases where the lapse in observing the rules was
committed when the rules have just recently taken effect,[30] the attendant circumstances
in this case however do not warrant such leniency.
The certification against forum shopping in this case was signed by petitioners counsel
despite the clear requirement of the law that petitioners themselves must sign the
certification. The certification must be made by petitioner himself and not by counsel, since it
is petitioner who is in the best position to know whether he has previously commenced any
similar action involving the same issues in any other tribunal or agency.[31] And the lack of a
certification against forum shopping, unlike that of verification, is generally not cured by its
submission after the filing of the petition.[32]
As explained by this Court in Gutierrez v. Sec. of Dept. of Labor and Employment:[33]
x x x [T]he certification (against forum shopping) must be signed by the plaintiff or any of the
principal parties and not by the attorney. For such certification is a peculiar personal
representation on the part of the principal party, an assurance given to the court or other
tribunal that there are no other pending cases involving basically the same parties, issues and
causes of action.
x x x Obviously it is the petitioner, and not always the counsel whose professional services
have been retained for a particular case, who is in the best position to know whether he or it
actually filed or caused the filing of a petition in that case. Hence, a certification against
forum shopping by counsel is a defective certification.[34]
In Mariveles Shipyard Corp. v. Court of Appeals,[35] this Court further elucidated that:
x x x In the case of natural persons, the Rule requires the parties themselves to sign the
certificate of non-forum shopping. x x x [I]n the case of the corporations, the physical act of
signing may be performed, on behalf of the corporate entity, only by specifically authorized
individuals for the simple reason that corporations, as artificial persons, cannot personally do
the task themselves.[36] (emphasis supplied)
In the case of Santos v. Court of Appeals,[37] the Court further clarified, that even with a
special power of attorney executed by the petitioners in favor of their counsel to sign the
certification on their behalf, still the rule stands. Thus:
20
We are aware of our ruling in BA Savings Bank v. Sia that a certification against forum
shopping may be signed by an authorized lawyer who has personal knowledge of the facts
required to be disclosed in such document. However, BA Savings Bank must be distinguished
from the case at bar because in the former, the complainant was a corporation, and hence, a
juridical person. Therefore, that case made an exception to the general rule that the
certification must be made by the petitioner himself since a corporation can only act through
natural persons. In fact, physical actions, e.g., signing and delivery of documents, may be
performed on behalf of the corporate entity only by specifically authorized individuals. In the
instant case, petitioners are all natural persons and there is no showing of any reasonable
cause to justify their failure to personally sign the certification. It is noteworthy that PEPSI in
its Comment stated that it was petitioners themselves who executed the verification and
certification requirements in all their previous pleadings. Counsel for petitioners argues that
as a matter of policy, a Special Power of Attorney is executed to promptly and effectively
meet any contingency relative to the handling of a case. This argument only weakens their
position since it is clear that at the outset no justifiable reason yet existed for counsel to
substitute petitioners in signing the certification. In fact, in the case of natural persons, this
policy serves no legal purpose. Convenience cannot be made the basis for a circumvention of
the Rules.[38] (emphasis supplied)
While there are cases when the Court has relaxed the rule requiring that in case of a natural
person, he shall personally sign the non-forum shopping certification, in such cases the Court
found compelling and justifiable reasons to relax observance of the rules.
In Donato v. Court of Appeals[39] and Wee v. Galvez[40] the Court noted that the petitioners
were already in the United States, thus the signing of the certification by their authorized
representatives was deemed sufficient compliance with the rules. In Orbeta v. Sendiong[41]
the Court found that the annulment of judgment filed by the parties was meritorious thus
the certification signed by the daughter of petitioner who had a general power of attorney in
her favor was deemed sufficient. In Sy Chin v. Court of Appeals[42] the Court also upheld
substantial justice and ruled that the failure of the parties to sign the certification may be
overlooked as the parties case was meritorious.
No such justifiable or compelling reasons exist in the case at bar.
In this case, petitioner did not present any cause for his failure to personally sign the
certification against forum shopping at the time that the petition was filed at the CA. He
merely acknowledged in his motion for reconsideration of the October 5, 2000 Resolution of
the CA that he has the duty to certify under oath.[43] He then asked for a reconsideration of
the said Resolution and attached a Special Power of Attorney executed by him in favor of his
lawyer.[44]
There is also no showing that there is substantial merit in petitioners claims. In his petition
before the CA and in his Appeal Memorandum filed with the RTC, petitioner argues that he is
not a party to the amicable settlement as it was his wife who signed the same without
authority from him.[45] Petitioner in his Answer however admitted having entered into an
agreement with the Quitains, before the lupon of their barangay on August 19, 1996.[46]
Petitioner also claims that the August 19, 1996 agreement was novated by the one dated
October 29, 1996. The claim has no merit.
Novation cannot be presumed but must be clearly shown either by the express assent of the
parties or by the complete incompatibility between the old and the new agreements.[47] In
this case, the October 29, 1996 agreement merely held that the parties shall meet again on
November 5, 1996 at which time petitioner shall pay 50% of the purchase price or he will
vacate the property. His obligation to pay the purchase price or to vacate the property in
case of his failure to do so, still exists and was not extinguished by the October 29, 1996
agreement.
Records also show that Rico Quitain was ready to comply with his part of the agreement as
he was present at the barangay on November 5, 1996 to receive the payment from
Clavecilla.[48] Quitain also consigned the amount of P5,000.00 to the court, which is the
amount he agreed to give Clavecilla to assist him and his family when they leave the
property.[49]
As correctly pointed out by the RTC, even if petitioners appeal was allowed to proceed, still
the arguments raised are not sufficient to overturn the ruling of the MTCC.
It is also worth mentioning that the petitioner erred in including the name of Teresito in the
caption of the petition and using only the phrase et al. to refer to the heirs who substituted
him after his death. As pointed out by respondent Rico Quitain, Teresito is already deceased
and was already substituted by his heirs, namely: Lolita, widow of Teresito, Rene, Ruel, Radi,
and Romy, sons of Teresito, in the Order of the MTCC dated June 5, 1998.[50] Consequently,
the above-named heirs are deemed co-respondents in the present petition.
WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner.
21
HEIRS OF DICMAN, namely: G.R. No. 146459
AUSTRIA-MARTINEZ, J.:
ERNESTO DICMAN, PAUL

DICMAN, FLORENCE DICMAN Present:

This refers to the petition for review on certiorari under Rule 45 of the Rules of Court
FELICIANO TORRES, EMILY questioning the Decision[1] dated June 30, 2000 of the Court of Appeals (CA) in C.A.-G.R. CV
No. 33731, which affirmed in toto the Decision dated November 28, 1990 of the Regional
TORRES, TOMASITO TORRES PANGANIBAN, C.J. Trial Court (RTC), Branch 7 (Baguio City), La Trinidad, Benguet; and the CA Resolution dated
December 15, 2000 which denied the petitioners motion for reconsideration.
and HEIRS OF CRISTINA (Chairperson)

ALAWAS and BABING COSIL, *YNARES-SANTIAGO,

The petition originated from an action for recovery of possession of the eastern half of a
Petitioners, AUSTRIA-MARTINEZ, parcel of land situated in Residence Section J, Camp Seven, Baguio City, consisting of 101,006
square meters, more or less, and identified as Lot 46, Ts-39, Plan SWO-37115.[2]
CALLEJO, SR., and

CHICO-NAZARIO, JJ.
The antecedent facts are clear:

- versus -
The subject land, at the turn of the 20th century, had been part of the land claim of Mateo
Cario. Within this site, a sawmill and other buildings had been constructed by H.C. Heald in
connection with his lumber business. On March 14, 1916, H.C. Heald sold the buildings to
Sioco Cario, son of Mateo Cario and grandfather of private respondent Jose Cario. Sioco Cario
then took possession of the buildings and the land on which the buildings were situated.
JOSE CARIO and COURT OF

APPEALS, Promulgated:
Ting-el Dicman,[3] predecessor-in-interest of the petitioners, namely, Ernesto Dicman, Paul
Respondents. June 8, 2006 Dicman, Florence Dicman, Babing Cosil, Feliciano Torres, Cristina Alawas, Emily Torres and
Tomasito Torres, and resident of Atab, a sitio within the City of Baguio but located at some
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x distance from the land in controversy, had been employed by Sioco Cario as his cattle herder.
On the advice of his lawyers, and because there were already many parcels of land recorded
in his name,[4] Sioco Cario caused the survey of the land in controversy in the name of Ting-
el Dicman.

On October 22, 1928, Ting-el Dicman executed a public instrument entitled Deed of
Conveyance of Part Rights and Interests in Agricultural Land with Sioco Cario. The deed
reads:
DECISION

22
DEED OF CONVEYANCE OF PART RIGHTS AND
INTERESTS IN AGRICULTURAL LAND.
KNOW ALL PERSONS BY THESE PRESENTS:
That I, Ting-el Diac-man, of legal age, widower, and resident of the sitio known as Atab, near
Camp Seven, City of Baguio, Philippine Islands, DO HEREBY STATE, viz:
That I am the applicant for a free-patent of a parcel of land (public), having a surface of over
ten (10) hectares, surveyed by the District Land Office of Baguio for me, and located in the
place known as Camp Seven, Baguio;
That to-date I have not as yet received the plan for said survey;
That Mr. Sioco Cario has advanced all expenses for said survey for me and in my name, and
also all other expenses for the improvement of said land, to date;
That for and in consideration of said advance expenses, to me made and delivered by said
Mr. Sioco Cario, I hereby pledge and promise to convey, deliver and transfer unto said Sioco
Cario, of legal age, married to Guilata Acop, and resident of Baguio, P.I., his heirs and assigns,
one half (1/2) of my title, rights, and interest to and in the aforesaid parcel of land; same to
be delivered, conveyed and transferred in a final form, according to law, to him, his heirs and
assigns, by me, my heirs, and assigns, as soon as title for the same is issued to me by proper
authorities.
That this conveyance, transfer, or assignment, notwithstanding its temporary nature, shall
have legal force and effect; once it is approved by the approving authorities all the final
papers and documents, this instrument shall be considered superseded.
After I have received my title to said parcel of land I bind myself, my heirs and assigns, to
execute the final papers and forward same for approval of the competent authorities at Mr.
Sioco Carios expense.
WITNESS MY HAND in the City of Baguio, P.I., this, the 22nd day of October, 1928, A.D.
his right
TING-EL DIAC-MAN
thumbmark[5]
After the execution of the foregoing deed, Sioco Cario, who had been in possession of the
land in controversy since 1916, continued to stay thereon.
On January 10, 1938, Sioco Cario executed, as seller, a public instrument entitled Deed of
Absolute Sale covering the subject land and its improvements with his son, Guzman Cario, as
buyer. The contract states in part:
x x x for and in consideration of the sum of ONE PESO (P 1.00) Philippine Currency and other
valuable considerations which I had received from my son, Guzman A. Cario x x x have ceded,
transferred and conveyed as by these presents do hereby cede, convey and transfer unto the
[sic] said Guzman A. Cario, his heirs, executors, administrators and assigns, all my rights, title,
interests in and participation to that parcel of land (public) covered by an application for free
patent with a surface area of Ten (10) hectares, surveyed by the District Land Office of Baguio
in the name of Pingel Dicman, and who ceded, conveyed and transferred one half of his title,
rights and interests to me under an instrument executed by the said owner in the city of
Baguio, Philippines, on the 22nd day of October, 1928 A.D. and duly ratified before Notary
Public x x x together with all improvements therein, consisting of oranges, mangoes, and
other fruit trees and a building of strong materials (half finished) x x x, which building was
purchased by me from H.C. Heald on March 14, 1916, free from all liens and encumbrances,
with full rights and authority to the said Guzman A. Cario to perfect his claim with any
government agency the proper issuance of such patent or title as may be permitted to him
under existing laws.
x x x x[6]
In a letter dated January 15, 1938, Sioco Cario asked his son, Guzman Cario, who had been
doing business in Damortis, Sto. Tomas, La Union, to take possession of the subject land and
building.[7] Guzman Cario moved to Baguio as requested and occupied the property.
Evidence was adduced in the RTC to the effect that Guzman Cario took possession of the
property publicly, peacefully, and in the concept of owner: the directory of Baguio
Telephones published in October 1940 lists the residence of Guzman A. Cario at Camp 7,
23
Baguio City, along with his telephone number; pictures were taken of him and his family,
including the private respondent who was then an infant, depicting the property in the
background; U.S. Army authorities obtained permission from Guzman Cario to use a part of
the land in question after the war; he introduced various improvements on the property over
the years and exercised acts of ownership over them; he permitted the use of portions of the
land to Governor Eulogio Rodriguez, Jr. and the Boy Scouts of Rizal Province; he leased out
portions of the land to Bayani Pictures, Inc.; and his neighbors confirmed the possession and
occupation over the property of Guzman Cario and, after him, his son, herein private
respondent Jose Cario. These findings of fact were either confirmed or uncontroverted by the
CA.[8]
On July 27, 1954, Guzman Cario had the entire Lot 46 resurveyed so as to indicate the half
portion that belonged to him and the other half that belonged to the petitioners. The
resurvey evenly divided the lot into Lot 76-A and 76-B, and purportedly indicated that Lot 76-
A, consisting of 50,953 square meters, belonged to the petitioners, while Lot 76-B, also
consisting of 50,953 square meters, formerly pertained to Sioco Cario and, later, to Guzman
Cario. Additionally, the resurvey indicated the house where private respondent Jose Cario
resided and, before him, where his predecessors-in-interest, Sioco and Guzman Cario, also
resided.
On May 23, 1955, Guzman Cario filed a Free Patent Application over the land in question. The
application was given due course, but Guzman later withdrew it when he decided to file his
opposition to the petition later filed by the heirs of Ting-el Dicman. This petition, entitled
Petition of the Heirs of Dicman to Reopen Civil Reservation Case No. 1, G.L.R.O. 211, was filed
by Felipe Dicman, Bobing Dicman and Cating Dicman, in their capacity as compulsory heirs of
Ting-el Dicman on April 24, 1959 with the Court of First Instance of Baguio. The petition
sought to establish ownership over Lot 76-A and Lot 76-B which, taken together, covered an
area of 10.1006 hectares. Guzman Cario opposed the petition insofar as he insisted
ownership over Lot 76-B, the land in controversy. The Estate of Sioco Cario likewise filed an
opposition.
On March 6, 1963, the trial court rendered a partial judgment and confirmed that the title
over Lot 76-A belonged to the heirs of Ting-el Dicman, there having been no adverse claim.
But as to Lot 76-B, the trial court found it necessary to hold further hearing in order to decide
on the adverse claims of the parties.
Meanwhile, on January 8, 1960, while the foregoing petition was pending in the trial court,
President Carlos P. Garcia issued Proclamation No. 628 excluding from the operation of the
Baguio Townsite Reservation certain parcels of public land known as Igorot Claims situated in
the City of Baguio and declaring the same open to disposition under the provisions of
Chapter VII of the Public Land Act. The Proclamation further provided that the Igorot Claims
enumerated therein shall be subject to the condition that except in favor of the government
or any of its branches, units, or institutions, lands acquired by virtue of this proclamation
shall not be encumbered or alienated within a period of fifteen years from and after the date
of issuance of patent. One such claim pertained to the Heirs of Dicman, to wit:
Name Lot No. Survey Plan Residence Section Area (Sq.m.)
Heirs of 46 Swo-37115 J 101,006
Dicman
Before the trial court could dispose of the case, the Supreme Court promulgated Republic v.
Marcos[9] which held that Courts of First Instance of Baguio have no jurisdiction to reopen
judicial proceedings on the basis of Republic Act No. 931. As a consequence, on July 28, 1978,
the trial court dismissed the petition to reopen Civil Reservation Case No. 1, G.L.R.O. 211
insofar as Lot 76-B was concerned, and the certificate of title issued pursuant to the partial
decision involving Lot 76-A was invalidated. The trial court stated that the remedy for those
who were issued titles was to file a petition for revalidation under Presidential Decree No.
1271, as amended by Presidential Decrees No. 1311 and 2034.
After the dismissal of the case, Guzman Cario was left undisturbed in his possession of the
subject property until his death on August 19, 1982. His remains are buried on the land in
question, next to the large house purchased in 1916 by his father, Sioco Cario (the
grandfather of private respondent), from H.C. Heald. Guzmans widow and son, private
respondent Jose Sioco C. Cario, continued possession of the subject property.[10]
On April 20, 1983, petitioners, suing as compulsory heirs of Ting-el Dicman, revived the
foregoing case by filing a complaint for recovery of possession with damages involving the
subject property with the RTC, docketed as Civil Case No. 59-R. As earlier stated, petitioners,
then complainants, originally sought to recover possession of the eastern half of the parcel of
land situated in Residence Section J, Camp Seven, Baguio City, consisting of 101,006 square
meters, more or less, and identified as Lot 46, Ts-39, Plan SWO-37115.
Petitioners, then plaintiffs, averred in their complaint:
10. That however, this Honorable Court was not able to decide the [ ] petition for reopening
as far as the remaining eastern half portion of the above-described property is concerned
due to the fact that the said petition was dismissed for alleged lack of jurisdiction; x x x
24

11. That because of the above-mentioned dismissal, the conflict between herein plaintiffs
and defendant over the half eastern portion of the above-described property which was one
of the issues supposed to be decided in the said judicial reopening case remains undecided;
12. That after the dismissal of the abovementioned petition and before the dispute between
herein plaintiffs and defendant over the eastern half portion of the above-described
property, defendant unlawfully and illegally continue to occupy portion [sic] of the above-
described property to the clear damage and prejudice of herein plaintiffs;
13. That the defendant has no valid claim of ownership and possession over any of the
portions of the above-described property;
14. That plaintiffs and their predecessors-in-interest have been religiously paying the realty
taxes covering the above-described property x x x[11]
Private respondent Jose Cario filed his answer and prayed for dismissal. He alleged that his
predecessors-in-interest had acquired the land by onerous title through the Deed of Absolute
Sale dated January 10, 1938 executed by his grandfather, Sioco Cario, as seller, and his
father, Guzman Cario, as buyer; that the property was earlier acquired by Sioco Cario by
virtue of the Deed of Conveyance of Part Rights and Interests in Agricultural Land dated
October 22, 1928 executed between Sioco Cario and Ting-el Dicman; and that he has been in
possession of the subject property for 55 years peacefully, in good faith, and in concept of
owner and therefore perfected title over the same through acquisitive prescription.
On June 13, 1983, the administratrix of the Estate of Sioco Cario filed a motion to intervene
with the RTC. On July 1, 1983, the RTC granted said motion. On July 11, 1983, the Estate of
Sioco Cario filed its Complaint-in-Intervention, praying for quieting of title among the adverse
claimants.
The RTC, through an ocular inspection on February 15, 1984, found that the larger building
still stands on the land in controversy and, together with the surrounding area, constituted
the residence and was in the possession of private respondent and his family.
On November 28, 1990, the RTC rendered its decision in favor of private respondent, the
dispositive portion of which states:
IN VIEW OF THE FOREGOING, judgment is hereby rendered as follows:
1. Plaintiffs complaint is hereby DISMISSED;
2. Plaintiffs-Intervenors complaint-in-intervention is hereby dismissed;
3. Defendant is hereby declared the lawful possessor and as the party who has the better
right over the land subject matter [sic] of this action and as such he may apply for the
confirmation of his title thereto in accordance with law (R.A. No. 8940[12])[.] Defendants
counterclaim is dismissed;
4. Costs is [sic] adjudged against the plaintiff and plaintiff-intervenor.
SO ORDERED.
To support its ruling, the RTC found that the tax declarations and their revisions submitted as
evidence by the petitioners made no reference to the land in question;[13] that no tax
declaration over the land declared in the name of the Estate of Sioco Cario had been
submitted as evidence, and that the intervenor-estate presented tax declarations over the
building only; that it was Guzman Cario alone who declared for taxation purposes both the
land and the improvements thereon in his name;[14] that there is no evidence to the
effect that petitioners ever filed any action to challenge the validity of the Deed of
Conveyance of Part Rights and Interests in Agricultural Land dated October 22, 1928; that
even assuming that this instrument may be invalid for whatever reason, the fact remains that
Sioco Cario and his successors-in-interest had been in possession of the subject property
publicly, adversely, continuously and in concept of owner for at least 55 years before the
filing of the action;[15] that Siocos successor, Guzman Cario, had been in open and
continuous possession of the property in good faith and in the concept of owner from 1938
25
until his death in 1982 and, hence, the Estate of Sioco Cario has lost all rights to recover
possession from Guzman Cario or his heirs and assigns; and that although the Estate of Sioco
Cario attempted to assail the genuineness and due execution of the Deed of Absolute Sale
dated January 10, 1938 executed by Sioco Cario in favor of his son, Guzman Cario, the
challenge failed since no evidence had been adduced to support the allegation of forgery.[16]
On January 23, 1991, petitioners seasonably filed their notice of appeal. The RTC, however,
denied the motion for reconsideration and motion to admit appeal filed by the Estate of
Sioco Cario on July 3, 1991 for being filed out of time.
Petitioners raised the following issues before the Court of Appeals:
1. THE HONORABLE TRIAL COURT SERIOUSLY ERRED IN NOT CONSIDERING THE
DOCUMENTARY EVIDENCE OF THE PLAINTIFFS-APPELLANTS AND THE STRAIGHTFORWARD
DECLARATIONS OF THEIR WITNESS.
2. THE HONORABLE TRIAL COURT ERRED IN CONSIDERING THE DEED OF CONVEYANCE [OF]
PART RIGHTS AND INTERESTS IN AGRICULTURAL LAND EXECUTED BY DICMAN IN FAVOR OF
SIOCO CARIO DESPITE ITS NULLITY.
3. THE HONORABLE TRIAL COURT ERRED IN DECLARING DEFENDANT-APPELLEE TO HAVE A
BETTER RIGHT TO THE PROPERTY IN DISPUTE.
4. THE HONORABLE TRIAL COURT ERRED IN DISMISSING THE COMPLAINT AND NOT
GRANTING THE RELIEFS PRAYED FOR THEREIN.
On June 30, 2000, the CA dismissed the petition and affirmed in toto the ruling of the RTC.
On December 15, 2000, the CA issued a Resolution denying petitioners motion for
reconsideration.
The CA based its ruling on the following reasons: that the petitioners raised for the first time
on appeal the issue on whether the Deed of Conveyance of Part Rights and Interests in
Agricultural Land is void ab initio under Sections 145 and 146 of the Administrative Code of
Mindanao and Sulu[17] (which was made applicable later to the Mountain Province and
Nueva Viscaya by Act 2798, as amended by Act 2913, and then to all other cultural minorities
found within the national territory by virtue of Section 120 of the Public Land Act[18]) and,
hence, cannot be considered by the reviewing court;[19] that, even if this issue were
considered, the records fail to show that Ting-el Dicman, though an Igorot, is a non-Christian
and, hence, the foregoing laws are not applicable;[20] that there was sufficient proof of
consideration for the said deed;[21] and that even if the deed were a mere contract to sell
and not an absolute sale, under Borromeo v. Franco[22] the obligation on the part of the
purchaser to perfect the title papers within a certain time is not a condition subsequent nor
essential to the obligation to sell, but rather the same is an incidental undertaking the failure
to comply therewith not being a bar to the sale agreed upon.[23]
On February 12, 2001, petitioners, through newly retained counsel, filed their petition for
review on certiorari under Rule 45.
Petitioners raise the following grounds for the petition:
A.
THE COURT OF APPEALS ERRED IN RULING THAT THE PROVISIONS OF ACT NO. 2798 ARE NOT
APPLICABLE TO THE DEED OF CONVEYANCE EXECUTED BY PING-EL DICMAN ON THE
GROUNDS THAT THERE IS NO PROOF THAT HE WAS A NON-CHRISTIAN AND THAT BAGUIO
CITY IS NOT COVERED BY THE SAID ACT.
B.
THE COURT OF APPEALS ERRED IN THE APPLICATION OF THE RULING IN BORROMEO V.
FRANCO (5 PHIL 49 [1905]) THAT AN AGREEMENT ON THE PART OF THE PARTY TO A
CONTRACT TO PERFECT THE TITLE PAPERS TO A CERTAIN PROPERTY WITHIN A CERTAIN TIME
IS NOT A CONDITION SUBSEQUENT OR ESSENTIAL OF THE OBLIGATION TO SELL [sic].
C.
26
THE COURT OF APPEALS ERRED IN RULING THAT THE PROPERTY SUBJECT OF LITIGATION AND
OVER WHICH RESPONDENTS IMPROVEMENTS ARE BUILT BELONGS TO RESPONDENT
NOTWITHSTANDING UNCONTROVERTED EVIDENCE THAT PETITIONERS PREDECESSOR-IN-
INTEREST PING-EL DICMAN HAD APPLIED FOR FREE PATENT OVER THE SUBJECT AREA AND
HAD BEEN ISSUED PLAN SWO-37115 IN HIS NAME BY THE BUREAU OF LANDS IN 1954 AND
HAD BEEN IN ACTUAL, OPEN, PEACEFUL, ADVERSE AND CONTINUOUS POSSESSION OF THE
PROPERTY SINCE THE EARLY 1900s UNTIL HIS DEATH WHEN HIS GRANCHILDREN AND
SUCCESSORS-IN-INTEREST, THE PETITIONERS, TOOK OVER AND CONTINUED THE POSSESSION
OF THEIR GRANDFATHER, PING-EL DICMAN.
On March 2, 2001, petitioners filed their Manifestation and Motion to Substitute Babing Cosil
and Cristina Alawas With Their Respective Heirs stating, among others, that Julio F. Dicman,
son of petitioner Ernesto Dicman, had been appointed by the petitioners to sign the petition
for and in their behalf, but due to distance and time constraints between Makati City and
Baguio, he was not able to submit the same in time for the deadline for the petition on
February 12, 2001. Petitioners attached the Special Power of Attorney seeking to formalize
the appointment of Julio F. Dicman as their attorney-in-fact and to ratify his execution of the
verification and certification of non-forum shopping for and on behalf of the petitioners.
On March 15, 2001, private respondent filed with this Court a Motion for Leave of Court to
File Motion to Dismiss and/or Deny Due Course, arguing that the petition failed to comply
with the requirements for verification and certification of non-forum shopping. The affiant of
the petition, according to private respondent, is not a principal party in the case; rather, he is
merely the son of Ernesto Dicman, one of the petitioners. The verification and certification
reads:
VERIFICATION AND CERTIFICATION
I, JULIO F. DICMAN, of legal age, Filipino, with residence address at Camp 7, Montecillo Road,
Baguio City, after being first duly sworn in accordance with law, do hereby depose and state:
1. I am one of the petitioners in the above-entitled case;
x x x (emphasis supplied)
To private respondent, since Ernesto Dicman, one of the petitioners, appears to be alive, he
excludes his son as the successor-in-interest of Ting-el Dicman. The verification, therefore, is
false in view of the statement under oath that Julio F. Dicman is a petitioner when in fact he
is not, and should be cause for the dismissal of the case and indirect contempt of court,
without prejudice to administrative and criminal action.
On May 2, 2001, in their Manifestation and Motion for Leave to File the Attached Reply and
Reply, petitioners argued that while it may be true that the verification and certification to
the petition were signed by Julio F. Dicman, the son of one of the petitioners, they
subsequently confirmed his authority to sign on behalf of all the petitioners through the
Special Power of Attorney submitted to the Court in a Manifestation and Motion to
Substitute Babing Cosil and Cristina Alawas With Their Respective Heirs filed on March 2,
2001. Petitioners invoked substantial compliance and prayed that the Court overlook the
procedural lapse in the interest of substantial justice. The parties thereafter submitted their
respective memoranda.
The petition must be dismissed on the following grounds:
1. Section 5, Rule 7 of the 1997 Rules of Civil Procedure, which requires the pleader to submit
a certificate of non-forum shopping to be executed by the plaintiff or principal party, is
mandatory, and non-compliance therewith is a sufficient ground for the dismissal of the
petition.[24] The forum shopping certification must be signed by the party himself as he has
personal knowledge of the facts therein stated.[25] Obviously, it is the plaintiff or principal
party who is in the best position to know whether he actually filed or caused the filing of a
petition in the case.[26] Where there are two or more plaintiffs or petitioners, all of them
must sign the verification and non-forum certification, and the signature of only one of them
is insufficient,[27] unless the one who signs the verification and certification has been
authorized to execute the same by, and on behalf of, the co-plaintiff or co-petitioner.[28] But
it must be stressed that the requirement the principal party himself should sign the
certification applies only to a natural person and not to a juridical person which can only act
through its officer or duly authorized agent.[29]
27
However, the Court has also held that the rules on forum shopping were designed to
promote and facilitate the orderly administration of justice and thus should not be
interpreted with such absolute literalness as to subvert its own ultimate and legitimate
objective. The rule of substantial compliance may be availed of with respect to the contents
of the certification. This is because the requirement of strict compliance with the provisions
regarding the certification of non-forum shopping merely underscores its mandatory nature
in that the certification cannot be altogether dispensed with or its requirements completely
disregarded.[30] Thus, under justifiable circumstances, the Court has relaxed the rule
requiring the submission of such certification considering that although it is obligatory, it is
not jurisdictional.[31]
But a perusal of the relevant decisions handed down by this Court consistently shows that
substantial compliance may be invoked and the procedural lapse overlooked provided that,
where the petitioner is a natural person as in the case at bar, the authorized signatory must
also be a principal party or co-petitioner.[32] Petitioners, as natural persons, cannot
therefore appoint a non-party to sign for them, especially since only the petitioners occupy
the best position to know whether they actually filed or caused the filing of a petition in this
case and who personally know the facts stated in the petition. On this point alone the
petition should be dismissed.
2. It is a settled rule that in the exercise of the Supreme Courts power of review, the Court is
not a trier of facts and does not normally undertake the re-examination of the evidence
presented by the contending parties during the trial of the case considering that the findings
of facts of the CA are conclusive and binding on the Court. While jurisprudence has
recognized several exceptions in which factual issues may be resolved by this Court, namely:
(1) when the findings are grounded entirely on speculation, surmises or conjectures; (2)
when the inference made is manifestly mistaken, absurd or impossible; (3) when there is
grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5)
when the findings of facts are conflicting; (6) when in making its findings the CA went beyond
the issues of the case, or its findings are contrary to the admissions of both the appellant
and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings
are conclusions without citation of specific evidence on which they are based; (9) when the
facts set forth in the petition as well as in the petitioners main and reply briefs are not
disputed by the respondent; (10) when the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on record; and (11) when the CA
manifestly overlooked certain relevant facts not disputed by the parties, which, if properly
considered, could justify a different conclusion,[33] none of these exceptions has been
shown to apply in the present case and, hence, this Court may not review the findings of fact
made by the lower courts.
3. Petitioners argue on appeal that the Deed of Conveyance of Part Rights and Interests in
Agricultural Land dated October 22, 1928 executed between Sioco Cario and Ting-el Dicman
is void ab initio for lack of approval of competent authorities as required under Section 145
in relation to Section 146 of the Administrative Code of Mindanao and Sulu, the application
of which was later extended to the Mountain Province and Nueva Viscaya and, thereafter,
throughout the entire national territory;[34] that the sale was without valid consideration;
and that the said deed is not an absolute sale but merely a contract to sell subject to the
suspensive condition that the papers evidencing the title must first be perfected. These
arguments were lumped under the following issue in their appeal to the CA:
2. THE HONORABLE TRIAL COURT ERRED IN CONSIDERING THE DEED OF CONVEYANCE [OF]
PART RIGHTS AND INTERESTS IN AGRICULTURAL LAND EXECUTED BY DICMAN IN FAVOR OF
SIOCO CARIO DESPITE ITS NULLITY.
The foregoing issue and the incidents thereunder were never raised by the petitioners during
the proceedings before the RTC. Suffice it to say that issues raised for the first time on appeal
and not raised timely in the proceedings in the lower court are barred by estoppel.[35]
Matters, theories or arguments not brought out in the original proceedings cannot be
considered on review or appeal where they are raised for the first time. To consider the
alleged facts and arguments raised belatedly would amount to trampling on the basic
principles of fair play, justice and due process.[36]
4. Even if this Court should declare the sale null and void or the agreement merely a contract
to sell subject to a suspensive condition that has yet to occur, private respondent
nonetheless acquired ownership over the land in question through acquisitive
prescription.[37]
The records show that as early as 1938, the land in controversy had been in the possession of
Guzman Cario, predecessor-in-interest of private respondent, continuously, publicly,
peacefully, in concept of owner, and in good faith with just title, to the exclusion of the
petitioners and their predecessors-in-interest, well beyond the period required under law to
acquire title by acquisitive prescription which, in this case, is 10 years.[38] The findings of fact
of the lower courts, and which this Court has no reason to disturb, inescapably point to this
conclusion: immediately after the Deed of Absolute Sale, a public instrument dated January
10, 1938, had been executed by Sioco Cario in favor of his son, Guzman Cario (the father of
private respondent), the latter immediately occupied the property; the 1940 directory of
Baguio Telephones lists his residence at Camp 7, Baguio City along with his telephone
number; his permitting the use of portions of the property to various third parties; his
introduction of improvements over the land in controversy; the testimonial accounts of his
neighbors; and that it was Guzman Cario alone who declared for tax purposes both the land
and the improvements thereon in his name, while the tax declarations of the other claimants
made no reference to the subject property.[39] Although arguably Sioco Cario may not have
been the owner of the subject property when he executed the Deed of Absolute Sale in 1938
in favor of his son, the requirement of just title is nonetheless satisfied, which means that the
28
mode of transferring ownership should ordinarily have been valid and true, had the grantor
been the owner.[40] By the time the successors-in-interest of Ting-el Dicman sought to
establish ownership over the land in controversy by filing their Petition of the Heirs of
Dicman to Reopen Civil Reservation Case No. 1, G.L.R.O. 211 on April 24, 1959 with the trial
court, and which Guzman timely opposed, more than 20 years had already elapsed. Thus, the
10-year period for acquisitive prescription is deemed satisfied well before Guzmans
possession can be said to be civilly interrupted by the filing of the foregoing petition to
reopen.[41] After the dismissal of that case on July 28, 1978, Guzman Cario was left
undisturbed in his possession of the subject property until his death on August 19, 1982. His
remains are buried on the land in question. Thereafter, Guzmans widow and son, herein
private respondent, continued possession of the subject property in the same manner. When
petitioners, heirs of Ting-el Dicman, tried to revive the case on April 20, 1983, they had, far
before that time, lost all rights to recover possession or ownership.
5. Prescinding from the issue on prescription, the petitioners and their predecessors-in-
interest are nonetheless guilty of laches.
Laches has been defined as such neglect or omission to assert a right, taken in conjunction
with the lapse of time and other circumstances causing prejudice to an adverse party, as will
operate as a bar in equity.[42] It is a delay in the assertion of a right which works
disadvantage to another[43] because of the inequity founded on some change in the
condition or relations of the property or parties.[44] It is based on public policy which, for the
peace of society,[45] ordains that relief will be denied to a stale demand which otherwise
could be a valid claim.[46] It is different from and applies independently of prescription.
While prescription is concerned with the fact of delay, laches is concerned with the effect of
delay. Prescription is a matter of time; laches is principally a question of inequity of
permitting a claim to be enforced, this inequity being founded on some change in the
condition of the property or the relation of the parties. Prescription is statutory; laches is not.
Laches applies in equity, whereas prescription applies at law. Prescription is based on a fixed
time, laches is not.[47] Laches means the failure or neglect for an unreasonable and
unexplained length of time, to do that which, by exercising due diligence, could or should
have been done earlier; it is negligence or omission to assert a right within a reasonable time,
warranting the presumption that the party entitled to assert it either has abandoned or
declined to assert it.[48] It has been held that even a registered owner of property under the
Torrens Title system may be barred from recovering possession of property by virtue of
laches.[49]
Given the foregoing findings of fact, all the four (4) elements of laches, as prescribed by the
decisions of this Court, are present in the case, to wit:
1.a. Conduct on the part of the defendant, or of one under whom he claims, giving rise to the
situation of which complaint is made and for which the complaint seeks a remedy;
2.b. Delay in asserting the complainants rights, the complainant having had knowledge or
notice, of the defendants conduct and having been afforded an opportunity to institute a
suit;
3.c. Lack of knowledge or notice on the part of the defendant that the complainant would
assert the right on which he bases his suit; and
d. Injury or prejudice to the defendant in the event relief is accorded to the complainant,
or the suit is not held to be barred.[50]
As correctly held by the RTC, there is no evidence to the effect that Ting-el Dicman or his
successors-in-interest ever filed any action to question the validity of the Deed of
Conveyance of Part Rights and Interests in Agricultural Land after its execution on October
22, 1928[51] despite having every opportunity to do so. Nor was any action to recover
possession of the property from Guzman Cario instituted anytime prior to April 24, 1959, a
time when the period for acquisitive prescription, reckoned from Guzmans occupation of the
property in 1938, had already transpired in his favor. No evidence likewise appears on the
record that Sioco Cario or his Estate ever filed any action to contest the validity of the Deed
of Absolute Sale dated January 10, 1938.[52] Though counsel for the Estate of Sioco Cario
tried to assail the deed as a forgery in the trial court, the attempt failed and no appeal was
lodged therefrom. It will be difficult for this Court to assume that the petitioners and their
predecessors were all the while ignorant of the adverse possession of private respondent
and his predecessors given the publicity of their conduct and the nature of their acts. Private
respondent and his predecessors-in-interest were made to feel secure in the belief that no
action would be filed against them by such passivity. There is no justifiable reason for
petitioners delay in asserting their rightsthe facts in their entirety show that they have slept
on them. For over 30 years reckoned from the Deed of Conveyance of Part Rights and
Interests in Agricultural Land dated October 22, 1928, or 20 years reckoned from the Deed of
Absolute Sale dated January 10, 1938, they neglected to take positive steps to assert their
dominical claim over the property. With the exception of forgery, all other issues concerning
the validity of the two instruments abovementioned, as well as the averment that the former
was in the nature of a contract to sell, were issues raised only for the first time on appeal and
cannot therefore be taken up at this late a stage. The features of this case are not new. The
Court has on several occasions held in particular that despite the judicial pronouncement
that the sale of real property by illiterate ethnic minorities is null and void for lack of
approval of competent authorities, the right to recover possession has nonetheless been
barred through the operation of the equitable doctrine of laches.[53]
29
6. Petitioners argue that Proclamation No. 628 issued by then President Carlos P. Garcia on
January 8, 1960 had the effect of segregating and reserving certain Igorot claims identified
therein, including one purportedly belonging to the Heirs of Dicman, and prohibiting any
encumbrance or alienation of these claims for a period of 15 years from acquisition of
patent. But by the time the Proclamation had been issued, all rights over the property in
question had already been vested in private respondent. The executive issuance can only go
so far as to classify public land, but it cannot be construed as to prejudice vested rights.
Moreover, property rights may not be altered or deprived by executive fiat alone without
contravening the due process guarantees[54] of the Constitution and may amount to
unlawful taking of private property to be redistributed for public use without just
compensation.[55]

The recognition, respect, and protection of the rights of indigenous peoples to preserve and
develop their cultures, traditions, and institutions are vital concerns of the State and
constitute important public policies which bear upon this case. To give life and meaning unto
these policies the legislature saw it fit to enact Republic Act No. 8371, otherwise known as
The Indigenous Peoples Rights Act of 1997, as a culminating measure to affirm the views and
opinions of indigenous peoples and ethnic minorities

on matters that affect their life and culture.[56] The provisions of that law unify an otherwise
fragmented account of constitutional, jurisprudential and statutory doctrine which enjoins
the organs of government to be vigilant for the protection of indigenous cultural
communities as a marginalized sector,[57] to protect their ancestral domain and ancestral
lands and ensure their economic, social, and cultural well-being,[58] and to guard their
patrimony from those inclined to prey upon their ignorance or ductility.[59] As the final
arbiter of disputes and the last bulwark of the Rule of Law this Court has always been mindful
of the highest edicts of social justice especially where doubts arise in the interpretation and
application of the law. But when in the pursuit of the loftiest ends ordained by the
Constitution this Court finds that the law is clear and leaves no room for doubt, it shall decide
according to the principles of right and justice as all people conceive them to be, and with
due appreciation of the rights of all persons concerned.

WHEREFORE, the instant petition is DENIED and the assailed Decision and Resolution of the
Court of Appeals are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

30

G.R. No. 132007 August 5, 1998
SOLAR TEAM ENTERTAINMENT, INC., petitioner,
vs.
HON. HELEN BAUTISTA RICA-FORT, in her capacity as Presiding Judge of the Regional Trial
Court of Parañaque, Metro Manila (Branch 260), TEAM IMAGE ENTERTAINMENT, INC., FELIX
S. CO, JEFFREY C. CAL, and KING CUISIA, respondents.
DAVIDE, JR., J.:
At issue is whether respondent judge committed grave abuse of discretion amounting to lack
or excess of jurisdiction in denying petitioner's motion to expunge private respondents'
answer with counterclaims on the ground that said pleading was not served personally;
moreover, there was no written explanation as to why personal service was not
accomplished, as required by Section 11 of Rule 13 of the 1997 Rules of Civil Procedure.
The antecedents are not disputed.
On 10 July 1997, petitioner, as plaintiff, filed before the Regional Trial Court (RTC) in
Parañaque, Metro Manila, a complaint for recovery of possession and damages with prayer
for a writ of replevin 1 against herein private respondents. The case was docketed as Civil
Case No. 97-0304 and was assigned to Branch 260 of said court, presided over by public
respondent Judge Helen Bautista-Ricafort.
Summonses and copies of the complaint were forthwith served on private respondents. On
25 July 1997, their counsel filed a notice of appearance with urgent ex-parte motion for
extension of time to plead, 2 which the court granted in its order of 4 August 1997.3
On 8 August 1997, private respondents, as defendants, filed their "Answer (with
Counterclaims).'' 4 A copy thereof was furnished counsel for petitioner by registered mail;
however, the pleading did not contain any written explanation as to why service was not
made personally upon petitioner-plaintiff, as required by Section 11 of Rule 13 of the 1997
Rules of Civil Procedure.
On 11 August 1997, petitioner filed a motion to expunge the "Answer (with Counterclaims)"
and to declare herein private respondents in default, 5 alleging therein that the latter did not
observe the mandate of the aforementioned Section 11, and that there was:
[A]bsolutely no valid reason why defendant[s] should not have personally served plaintiff's . .
. counsel with [a] copy of their answer [as] (t)he office of defendant's (sic) counsel, Atty.
Froilan Cabaltera, is just a stone [sic] throw away from the office of [petitioner's] counsel,
with an estimate (sic) distance of about 200 meters more or less.
Petitioner further alleged that the post office was "about ten (10) times farther from the
office of Atty. Cabaltera,"
On 15 August 1997, private respondents filed their opposition 6 to the abovementioned
motion, alleging that petitioner's "rigid and inflexible reliance on the provisions of Section 11,
Rule 13 . . . is an adventitious resort to technicality and is contrary to Section 6 of Rule 3 . . .
which admonishes that said Rules 'shall be liberally construed in order to promote their
objective in securing a just, speedy and inexpensive disposition of [e]very action and
proceeding;'" and that Section 11, Rule 13 notwithstanding, private respondents "religiously
complied with [Section 5 of Rule 13] by personally present[ing] to the clerk of court their said
Answer . . . furnishing a copy thereof to the counsel for [petitioner] by way of registered
mail."
On 8 September 1997, public respondent Judge Bautista-Ricafort issued an order 7 stating
that under Section 11 of Rule 13 "it is within the discretion of the [trial court] whether to
consider the pleading as filed or not," and denying, for lack of merit, petitioner's motion to
expunge the "Answer (with Counterclaims)" and to declare private respondents in default.
Petitioner immediately moved for reconsideration 8 of the order, but public respondent
Judge Bautista-Ricafort denied this motion in her order 9 of 17 November 1997. The order
justified the denial in this wise:
Sec. 6 [of] Rule 1 of the 1997 Rules of Civil Procedure ordains that the Rules shall be liberally
construed in order to promote their objective of securing a just, speedy and inexpensive
disposition of every action and proceeding.
Liberal construction of the rules and the pleading is the controlling principle to effect
substantial justice.
As pointed out by the Supreme Court in Alonso vs. Villamor, 16 Phil. 315, "the error in this
case is purely technical. To take advantage of it for other purposes than to cure it, does not
appeal to a fair sense of justice. Its presentation as fatal to plaintiff a [sic] case smacks of skill
rather than right. A litigation is not a game of technicalities in which one, more deeply
schooled and skilled in the subtle art of movement and position, entraps and destroys the
other. It is rather, a contest in which each contending party fully and fairly lays before the
Court the facts in issue and then, brushing aside as wholly trivial and indecisive all
imperfections or form of technicalities of procedure, asks that justice be done upon the
merits. Lawsuits, unlike duels, are not to be won by a rapier's thrust."
While it is desirable that the above Rules be faithfully and even meticulously observed,
courts should not strict about procedural lapses that do not really impair the proper
administration of justice. Furthermore, it is well settled that litigations should, as much as
possible be decided on their merits and not on technicalities.
Petitioner thus filed the instant special civil action of certiorari, contending that public
respondent Judge Bautista-Ricafort committed grave abuse of discretion amounting to lack
or excess of jurisdiction when she admitted private respondents' "Answer (with
Counterclaims)" notwithstanding private respondents' clear, admitted and inexcusable
violation of Section 11, Rule 13 of the 1997 Rules of Civil Procedure, in that: (a) the "Answer
(with Counterclaims)" was not served personally upon petitioner's counsel despite the
undisputed fact that the offices of private respondents' counsel and that of petitioner's
31
counsel are only about 200 meters away from each other; and (b) the Answer did not contain
any explanation as to why the answer was not served personally.
In their Comment, filed in compliance with the resolution of 2 February 1998, and to which
petitioner filed a Reply, private respondents aver that public respondent Judge Bautista-
Ricafort correctly admitted private respondents' "Answer (with Counterclaims)" in light of
Section 6, Rule 1 of the 1997 Rules of Civil Procedure; that Section 11 of Rule 13 begins with
the phrase "whenever practicable," thereby suggesting that service by mail may still be
effected depending on the relative priority of the pleading sought to be filed; and when
service is not done personally, it is more prudent and judicious for the courts to require a
written explanation rather than to expunge the pleading outright or consider the same as not
being filed.
In view of the importance of the issue raised, which is, undoubtedly, one of the first
impression, the Court resolved to give due course to the petition and consider it submitted
for decision on the basis of the pleadings filed by the parties.
Sec. 5, Rule 13 of the 1997 Rules of Civil Procedure prescribes two modes of service of
pleadings, motions, notices, orders, judgments and other papers, namely: (1) personal
service; and (2) service by mail. The first is governed by Section 6, while the second, by
Section 7 of said Rule. If service cannot be done either personally or by mail, substituted
service may be resorted to under Section 8 thereof.
Pursuant, however, to Section 11 of Rule 13, service and filing of pleadings and other papers
must, whenever practicable, be done personally; and if made through other modes, the party
concerned must provide a written explanation as to why the service or filing was not done
personally. The section reads:
Sec. 11. Priorities in modes of service and filing. — Whenever practicable, the service and
filing of pleadings and other papers shall be done personally. Except with respect to papers
emanating from the court, a resort to other modes must be accompanied by a written
explanation why the service or filing was not done personally. A violation of this Rule may be
cause to consider the paper as not filed. (n)
Note that Section 11 refers to both service of pleadings and other papers on the adverse
party or his counsel as provided for in Sections 6, 7 and 8; and to the filing of pleadings and
other papers in court.
Personal service and filing are preferred for obvious reasons. Plainly, such should expedite
action or resolution on a pleading, motion or other paper; and conversely, minimize, if not
eliminate, delays likely to be incurred if service or filing is done by mail, considering the
inefficiency of the postal service. Likewise, personal service will do away with the practice of
some lawyers who, wanting to appear clever, resort to the following less than ethical
practices: (1) serving or filing pleadings by mail to catch opposing counsel off-guard, thus
leaving the latter with little or no time to prepare, for instance, responsive pleadings or an
opposition; or (2) upon receiving notice from the post office that the registered parcel
containing the pleading of or other paper from the adverse party may be claimed, unduly
procrastinating before claiming the parcel, or, worse, not claiming it at all, thereby causing
undue delay in the disposition of such pleading or other papers.
If only to underscore the mandatory nature of this innovation to our set of adjective rules
requiring personal service whenever practicable, Section 11 of Rule 13 then gives the court
the discretion to consider a pleading or paper as not filed if the other modes of service or
filing were resorted to and no written explanation was made as to why personal service was
not done in the first place. The exercise of discretion must, necessarily, consider the
practicability of personal service, for Section 11 itself begins with the clause "whenever
practicable."
We thus take this opportunity to clarify that under Section 11, Rule 13 of the 1997 Rules of
Civil Procedure, personal service and filing is the general rule, and resort to other modes of
service and filing, the exception. Henceforth, whenever personal service or filing is
practicable, in light of the circumstances of time, place and person, personal service or filing
is mandatory. Only when personal service or filing is not practicable may resort to other
modes be had, which must then be accompanied by a written explanation as to why personal
service or filing was not practicable to begin with. In adjudging the plausibility of an
explanation, a court shall likewise consider the importance of the subject matter of the case
or the issues involved therein, and the prima facie merit of the pleading sought to be
expunged for violation of Section 11. This Court cannot rule otherwise, lest we allow
circumvention of the innovation introduced by the 1997 Rules in order to obviate delay in the
administration of justice.
Here, the proximity between the offices of opposing counsel was established; moreover, that
the office of private respondents' counsel was "ten times farther" from the post office than
the distance separating the offices of opposing counsel. Of course, proximity would seem to
make personal service most practicable, but exceptions may nonetheless apply. For instance,
where the adverse party or opposing counsel to be served with a pleading seldom reports to
office and no employee is regularly present to receive pleadings, or where service is done on
the last day of the reglementary period and the office of the adverse party or opposing
counsel to be served is closed, for whatever reason.
Returning, however, to the merits of this case, in view of the proximity between the offices
of opposing counsel and the absence of any attendant explanation as to why personal service
of the answer was not effected, indubitably, private respondents' counsel violated Section 11
of Rule 13 and the motion to expunge was prima facie meritorious. However, the grant or
denial of said motion nevertheless remained within the sound exercise of the trial court's
discretion. Thus, as guided by Section 6, Rule 1 of the 1997 Rules of Civil Procedure, which
ordains that the Rules shall be liberally construed in order to promote their objective of
securing a just, speedy and inexpensive disposition of every action or proceeding, as well as
by the dictum laid down in Alonso v. Villamor, 16 Phil. 315 [1910], the trial court opted to
exercise its discretion in favor of admitting the "Answer (with Counterclaims)," instead of
expunging it from the record.
To our mind, if motions to expunge or strike out pleadings for violation of Section 11 of Rule
13 were to be indiscriminately resolved under Section 6 of Rule 1 or Alonzo v. Villamor and
other analogous cases, then Section 11 would become meaningless and its sound purpose
negated. Nevertheless, we sustain the challenged ruling of the trial court, but for reasons
other than those provided for in the challenged order.
32
The 1997 Rules of Civil Procedure took effect only on 1 July 1997, while the questioned
"Answer (with Counterclaims)" was filed only on 8 August 1997, or on the 39th day following
the effectivity of the 1997 Rules. Hence, private respondents' counsel may not have been
fully aware of the requirements and ramifications of Section 11, Rule 13. In fact, as pointed
out by petitioner's counsel, in another case where private respondents' counsel was likewise
opposing counsel, the latter similarly failed to comply with Section 11.

It has been several months since the 1997 Rules of Civil Procedure took effect. In the interim,
this Court has generally accommodated parties and counsel who failed to comply with the
requirement of a written explanation whenever personal service or filing was not practicable,
guided, in the exercise of our discretion, by the primary objective of Section 11, the
importance of the subject matter of the case, the issues involved and the prima facie merit of
the challenged pleading. However, as we have in the past, for the guidance of the Bench and
Bar, strictest compliance with Section 11 of Rule 13 is mandated one month from
promulgation of this Decision.

WHEREFORE, the instant petition is DISMISSED considering that while the justification for the
denial of the motion to expunge the "Answer (with Counterclaims)" may not necessarily be
correct, yet, for the reasons above stated, the violation of Section 11 of Rule 13 may be
condoned.

No pronouncement as to costs.

SO ORDERED.

33
G.R. No. L-40945 November 10, 1986
IGMEDIO AZAJAR, petitioner,
vs.
THE HONORABLE COURT OF APPEALS (Second Division) and CHAM SAMCO & SONS, INC.,
respondents.
NARVASA, J.:
Petitioner seeks reversal of the Resolution of the respondent Court of Appeals (now
Intermediate Appellate Court) dated March 25, 1975 setting aside the judgment by default
rendered against private respondent by the Court of First Instance, and directing that said
respondent be allowed to file its answer to the complaint and after joinder of issues, trial be
had and judgment rendered on the merits.
This case originated from a complaint filed by petitioner Igmedio Azajar against respondent
Cham Samco and Sons, Inc. in the Court of First Instance (now Regional Trial Court) of
Camarines Sur. 1 Azajar's claim, briefly, is that he had purchased from defendant (hereafter
referred to simply as Cham Samco), thru the latter's agent, 100 Kegs of nails of various sizes,
specified in one of Cham Samco's printed order forms, and had given to the agent P18,000.00
in fun payment thereof; but in breach of contract, Cham Samco had offered to deliver only a
part of the quantity ordered.
Cham Samco filed a motion to dismiss on two grounds: (1) failure of the complaint to state a
cause of action-the complaint's language indicating not a perfected sale but merely an "offer
to buy by plaintiff that was partly accepted by defendant," and failing to show that as
explicitly required by the order form prices had been confirmed by Cham Samco's "Manila
Office,"2 and (2) that venue was improperly laid-Cham Samco's invariable conditions in
transactions of this nature, as Azajar well knew from many such transactions in the past,
being that "any legal action thereon must be instituted in the City of Manila. 3
The motion to dismiss contained a notice addressed to the Clerk of Court reading as follows:
The Clerk of Court
Court of First Instance of Camarines Sur
Naga City
Sir:
Please submit the foregoing motion to the Court for its consideration and resolution
immediately upon receipt thereof.
Makati, Rizal for Naga City, February 4, 1974
(SGD) POLO S. PANTALEON
Copy furnished:
Atty. Augusta A. Pardalias
Naga City
NF-9274
It is this notice that has given rise to the controversy at bar.
Contending that such a notice was fatally defective and rendered the Motion to Dismiss
incapable of to the period to answer, Azajar filed a motion dated February 20, 1974 to
declare Cham Samco in default, which the Court granted. By Order dated February 22, 1974
the Court pronounced Cham Samco in default and allowed Azajar to present evidence ex
parte. The Court justified the order of default in the wise:
On February 4, 1974, defendant thru counsel instead of an answer to the complaint, filed a
"Motion to Dismiss" which, in legal contemplation, is not a motion at an because the
."notice" therein is directed to the Clerk of Court instead of to the party concerned (as
required by Section 5, Rule 15 of the Rules of Court) and is without the requisite notice of
time and place of hearing; that a motion "with a notice of hearing (a) directed to the Clerk of
Court not to the parties; and (b) merely stating that the same be "submitted for resolution of
the Honorable Court upon receipt thereof," copy of which motion was duly furnished to and
received by "the adverse counsel is fatally defective and did not toll the running of the period
to appeal" (Cladera v. Sarmiento, 39 SCRA 552). Consequently, inasmuch as the "motion to
dismiss in this case is a mere scrap of paper because it is without the requisite notice of time
and place of hearing (Manakil v. Hevilla, 42 Phil. 81; Roman Catholic Bishop v. Unisan, 44 Phil.
866; Director of Lands v. Sanz, 45 Phil. 117; and Manila Surety v. Bath, 14 SCRA 435), the
filing thereof did not suspend the running ' of the period to file the required responsive
pleading. That from' February 4, 1974 to February 21, 1974, seventeen (17) days had lapsed
and defendant failed to file any responsive pleading ... 5
Then on March 30, 1974, the Trial Court rendered judgment by default against defendant
Cham Samco ordering it:
... to deliver immediately to the plaintiff the nails mentioned in the Order Form No. 9020
(Exhibit A); (2) requiring defendant to pay plaintiff the sum of P15,000.00 by way of actual
damages, the sum of P10,000.00 by way of consequential damages, plus interest in both
instances, and the additional sum of P5,000.00, for exemplary damages; (3) ordering
defendant to pay plaintiff the sum of P7,500.00 for attorney's fees and related expenses of
litigation; and (4) to pay the costs.
Cham Samco filed a Motion for New Trial on April 9, 1974. It contended that its failure to
observe the rules governing notice of motions was due to excusable negligence, "because the
grounds alleged in the Motion to Dismiss were all in such nature and character that
addressed themselves to a motu proprio resolution by the court and thus rendered a hearing
dispensable. 6 It also alleged certain defenses available to it which if duly alleged and proven,
would absolve it from any liability. 7 This motion was denied.
Cham Samco went to the Court of Appeals on certiorari asserting that the trial court acted
with grave abuse of discretion amounting to lack of jurisdiction in declaring it in default and
34
then rendering judgment by default. 8 The petition was dismissed for lack of merit by the
Court of Appeals on November 20, 1974. 9
But on motion for reconsideration seasonably presented, the Court of Appeals reversed
itself. By Resolution dated March 25, 1975, 10 it set aside the Trial Court's order of default of
February 22, 1974, judgment by default of March 13, 1974, and Order dated June 4, 1974
denying Cham Samco's motion for new trial, and directed the lower Court to allow Cham
Samco to file its answer to the complaint and upon due joinder of issues, to try and decide
the case on the merits.
The Court held that:
... (t)he notice in the motion which was addressed to the clerk of court asking him to submit
the motion for the consideration of the court is a substantial compliance with the provision
of section 3 Rule 16 of the Rules of Court. Verily under the said rule, the Court has the
alternative of either hearing the case or deferring the hearing and determination thereof
until the trial on the merits. Thus upon the filing of said motion the court should have set the
motion for hearing or outrightly deny the motion, or otherwise postpone the hearing until
the trial on the ground that the grounds thereof do not appear to be indubitable. The prompt
filing and apparently valid grounds invoked in the motion are not the acts and declarations of
a defaulting party.
... (E)ven assuming that the declaration of default of the petitioner was in order we find that
the trial court committed a grave abuse of discretion when it denied the motion for new trial
that was filed by the petitioner not only on the ground of excusable negligence we have
above discussed but also on the ground that it has a meritorious defense. and
... (E)xcessive damages have been awarded to the private respondent. In addition to ordering
the petitioner to deliver to the private respondent the nails ordered by the latter, the
petitioner was also ordered to pay not only P15,000 actual damages for profits that the
private respondent could have earned but also consequential damages of P10,000 for the
unrealized profits that the said earnings and capital of the plaintiff could have earned, plus
interest in both instances, exemplary damages of P5,000 and P7,500 for attorney's fees and
related expenses of litigation. Thus for the capital of respondent of P18,100.00 in the
purchase of the nails, the petitioner was ordered to pay damages of a total of P37,500.00,
which including the interest awarded can amount to over P40,000, more than double the
value of the said investment of respondent. Under Section 1, Rule 37 of the Rules of Court
award of excessive damages could be a ground for new trial.
The Court concluded its opinion with the observation that "the ends of justice would be
better served in this case if we brush aside technicality and afford the petitioner its day in
court.
It was wrong, of course, for Cham Samco to have failed to set its motion to dismiss for
hearing on a specified date and time. The law explicitly requires that notice of a motion shall
be served by the appellant to all parties concerned at least three (3) days before the hearing
thereof, together with a copy of the motion, and of any affidavits and other papers
accompanying it; 11 and that the notice shag be directed to the parties concerned, stating
the time and place for the hearing of the motion. 12 The uniform holding of this Court has
been that a failure to comply with the requirement is a fatal flaw. 13 Such notice is required
to avoid surprises upon the opposite party and give the latter time to study and meet the
arguments of the motion, as well as to determine or make determinable the time of
submission of the motion for resolution. 14
Cham Samco quite frankly admits its error. It pleads however that under the circumstances
the error be not regarded as irremediable or that it be deemed as constituting excusable
negligence, warranting relief. It argues that legal and logical considerations, which it took to
be tenable, caused it to theorize that a hearing on the motion was dispensable. It also
adverts to its position of affirmative defenses in addition to those set out in its motion to
dismiss which if ventilated and established at the trial would absolve it from all liability under
the complaint.
Cham Samco's belief that it was not necessary that its motion to dismiss be set for hearing
was avowedly engendered by two factors, namely:
1) the fact that while the Rules of Court "specify the motions which can be heard only
with prior service upon adverse parties, 15 said Rules "do not point out which written
motions may be ex parte, preferring, it appears, to leave to the court, in motions other than
those specified, the discretion either to ex parte resolve ... or to call the parties to a hearing
...; 16 and
2) the further fact that its motion to dismiss was based on two grounds on which a
hearing was superfluous, the first, failure of the complaint to state a cause of action, being
determinable exclusively from the allegations of the complaint and no evidence being
allowable thereon; and the second, that venue is improperly laid, being resolvable exclusively
on the basis of documents annexed to the motion. 17
These considerations, to be sure, did not erase movant's duty to give notice to the adverse
party of the date and time of the hearing on its motion, the purpose of said notice being, as
already stressed, not only to give the latter time to oppose the motion if so minded, but also
to determine the time of its submission for resolution. Without such notice, the occasion
would not arise to determine with reasonable certitude whether and within what time the
adverse party would respond to the motion, and when the motion might already be resolved
by the Court. The duty to give that notice is imposed on the movant, not on the Court.
Withal the reasons for Cham Samco's erroneous notion of the dispensability of a hearing on
its motion to dismiss are not utterly without plausibility. This circumstance, taken together
with the fact, found by the Intermediate Appellate Court and not disputed by petitioner
Azajar, that Cham Samco has meritorious defenses which if proven would defeat Azajar's
claim against it, and the eminent desirability more than once stressed by this Court that
cases should be determined on the merits after full opportunity to all parties for ventilation
of their causes and defenses, rather than on technicality or some procedural imperfections,
18 all conduce to concurrence with the Court of Appeals that "the ends of justice would be
better served in this case if we brush aside technicality and afford the petitioner its day in
court.
WHEREFORE, the Resolutions of the Court of Appeals appealed from, are affirmed. Costs
against petitioner.
35
[A.M. No. RTJ-05-1896. April 29, 2005]
ATTY. JULIUS NERI, complainant, vs. JUDGE JESUS S. DE LA PEA, respondent.
RESOLUTION
CORONA, J.:
This is a case for grave misconduct, gross ignorance of the law and/or incompetence filed by
Atty. Julius Z. Neri against Judge Jesus S. de la Pea. It originated from a civil case for damages
filed by Emmanuel Aznar against Citibank (which was represented by complainant as
counsel), docketed as Civil Case No. CEB-16474 and raffled to the Regional Trial Court of
Cebu, Branch XX, presided over by Judge Ferdinand J. Marcos.[1]
Plaintiff Aznar had filed suit due to the alleged blacklisting of his Citibank Preferred
Mastercard which, according to him, was dishonored in several establishments in Singapore
and Malaysia while he was on holiday, causing him great inconvenience and embarrassment.
He presented, as evidence, several receipts, plane tickets, a computer print-out allegedly
showing that his card had been declined for being over limit, a statement of account and his
lone testimony.[2] Defendant Citibank presented several documentary exhibits to the effect
that Aznars card had not been placed on any hot list and could not possibly have been
blacklisted.[3] After trial, Judge Marcos dismissed the case for lack of merit.[4]
Dissatisfied with the decision, Aznar filed through counsel a motion for reconsideration, with
motion to re-raffle the case. In an order dated September 11, 1998, Acting Presiding Judge
Ramon Codilla (who succeeded Marcos), citing the fact that he was occupied with two (2)
salas and the fact that the Presiding Judge who originally penned the decision is a credit card
holder of CITIBANKwhose membership could naturally influence the outcome of this case in
favor of the defendant bank, directed the re-raffling of the case to RTC Cebu Branch X,
presided over by respondent Judge Jesus de la Pea.[5] Respondent then ordered Citibank to
file its comment on Aznars motion for reconsideration.[6] Citibank filed its opposition
instead. In an order dated November 25, 1998, respondent granted Aznars motion for
reconsideration:
WHEREFORE, the Motion for Reconsideration is hereby GRANTED. The DECISION dated May
29, 1998 is hereby reconsidered, and consequently, the defendant is hereby condemned
liable to pay the following sums of money:
a) P10,000,000.00 as moral damages;
b) P 5,000,000.00 as exemplary damages;
c) P 1,000,000.00 as attorneys fees; and
d) P200,000.00 as litigation expenses.
SO ORDERED.[7]
As a result of the Order, complainant filed this administrative case on July 16, 1999, which
was docketed as Control No. 41-99-P. Charging respondent with dishonesty, he alleged that
respondent, contrary to his pronouncement in his order, had rendered his decision without
ever having read the transcripts of the case.[8] To support this contention, complainant
presented certifications from the Clerk of Court of Branch XX[9] and the Clerk of Court of the
RTC of Cebu City[10] that the transcripts of the case had remained in their custody and that
the respondent never borrowed them all throughout.
Complainant also charged respondent with gross ignorance of the law and/or incompetence.
He alleged that respondent had improperly considered as a business record Aznars computer
print-out which in reality did not meet the requisites to be rightly considered as such. Aznar
never testified as to the date and time the subject print-out was encoded, or who encoded
and printed the same, nor did he establish personal knowledge of who prepared the print-
out, or whether it was prepared by one responsible for it in his professional capacity or in the
performance of his official duty or in the regular course of his business. Finally, the person
who prepared it did not testify in court or on deposition.
Complainant went on to say that respondents incompetence and dishonesty showed in his
failure to appreciate and evaluate Citibanks extensive documentary evidence which clearly
established that it did not blacklist Aznars Mastercard.
Finally, complainant pointed out that the damages respondent awarded to plaintiff Aznar
were scandalously exorbitant. He prayed for respondents dismissal from the service.
On September 3, 1999, respondent filed his comment.[11] He principally contended that,
having appealed from his decision to the Court of Appeals, the complainant should not have
filed this administrative case. Respondent decried complainants case as forum-shopping. In
his defense, respondent asserted that he had in fact read the transcripts, having received
copies thereof attached to an ex parte manifestation filed by plaintiff Aznar.[12] He also
defended the amount of damages he awarded by comparing them to those awarded in a
1973 case, with inflation taken into account.
Complainant then filed his reply to the comment,[13] assailing the ex parte manifestation
which respondent had supposedly relied upon in deciding the case. He pointed out that
respondent should not have even considered the said manifestation because Citibank had
not been served a copy and it was filed after office hours. He likewise refuted respondents
allegations of forum-shopping and impropriety in filing an administrative case while an
appeal was pending.
In his rejoinder, respondent defended his appreciation of the ex parte manifestation. He
likewise reiterated his claim that the administrative complaint should not have been filed
with the appeal.[14]
On February 28, 2001, the Second Division of this Court resolved to hold the administrative
case in abeyance until the final resolution of the Court of Appeals of CA-GR CV No. 62554,
Aznar v. Citibank. By this time, the case had been re-docketed as AM No. 01-1131-RTJ.[15]
On January 8, 2004, the Court of Appeals decided in favor of Citibank, vacating respondents
decision and reinstating the dismissal of the case by Judge Marcos.[16] On June 8, 2004,
36
complainant filed a manifestation, with the Court of Appeals decision attached, pointing out
that this administrative complaint was now ready for resolution.
In a manifestation dated June 14, 2004, respondent prayed for the resolution of the case and
once more asked for its dismissal. He cited the fact that the Court of Appeals decision made
no mention of his administrative lapses and that his decision was an exercise of purely
judicial discretion. He also listed the various posts he had held as a Regional Trial Court judge
as well as the commendations he had received from the Honorable Chief Justice. He also
pointed out that this administrative complaint was the only one ever filed against him in all
his years of service.[17]
In a memorandum dated August 27, 2004, the Office of the Court Administrator reported its
findings.
Because respondent based his assailed order mostly on the ex parte manifestation submitted
by the counsel for plaintiff Aznar, the OCA found him liable for violating Section 4, Rule 13, in
relation to Section 5, Rule 15 of the Revised Rules of Civil Procedure:
(Rule 13)
SEC. 4. Papers required to be filed and served. Every judgment, resolution, order, pleading
subsequent to the complaint, written motion, notice, appearance, demand, offer of
judgment or similar papers shall be filed with the court, and served upon the parties
affected.
(Rule 15)
SEC. 4. Hearing of motion. Except for motions which the court may act upon without
prejudicing the rights of the adverse party, every written motion shall be set for hearing by
the applicant.
According to the OCA, the fact that plaintiff Aznar had failed to serve a copy of his ex parte
manifestation upon Citibank should have been reason enough for respondent to disregard
the same.
Likewise noting the fact that the ex parte manifestation was filed beyond office hours, the
OCA found that this created an idea that there was a covert attempt to favor Aznar.
However, citing the absence of substantial evidence, it pointed out that it should not be
presumed that the procedural lapse committed by respondent (was) attended by corrupt
motive of flagrant disregard of the rules. The OCA also considered in respondents favor his
defense that he was merely trying to help decongest the dockets. Finally, the OCA found the
charges of gross ignorance of law and incompetence to be without basis, and found him
liable instead for simple misconduct. The OCA recommended a fine of P10,000.
We adopt part of the findings of the Court Administrator.
But we disagree with its finding that the respondent violated both Rules 13 and 15 of the
1997 Revised Rules of Civil Procedure.
Section 4, Rule 13 requires that adverse parties be served copies of all pleadings and similar
papers. Section 4, Rule 15 requires a movant to set his motion for hearing, unless it is one of
those which a court can act upon without prejudicing the rights of the other party. The
prevailing doctrine in our jurisdiction is that a motion without a notice of hearing addressed
to the parties is a mere scrap of paper.[18] In Cui v. Judge Madayag,[19] we held that any
motion that does not contain proof of service of notice to the other party is not entitled to
judicial cognizance. (Such) motion is nothing but a (mere) scrap of paper. It is important,
however, to note that these doctrines refer exclusively to motions.
The logic for such a requirement is simple: a motion invariably contains a prayer which the
movant makes to the court, which is usually in the interest of the adverse party to oppose.
The notice of hearing to the adverse party is therefore a form of due process; it gives the
other party the opportunity to properly vent his opposition to the prayer of the movant. In
keeping with the principles of due process, therefore, a motion which does not afford the
adverse party the chance to oppose it should simply be disregarded. The same principle
applies to objections to interrogatories which also require a notice of hearing like motions
under Section 3, Rule 25 of the Rules.[20]
However, the same cannot be said for manifestations which, unless otherwise indicated, are
usually made merely for the information of the court. There is generally nothing to contest or
argue; the manifesting party is just making a statement for the knowledge of the court, such
as in this case. There is nothing in either the Rules or in jurisprudence that requires judges to
disregard a manifestation that does not have proof of service.
This is not to say, however, that respondent is off the hook. While it is true that he was under
no obligation to disregard Aznars ex parte manifestation, he should have at least called
attention to its irregularity, both by admonishing Aznar and by informing the adverse party of
its filing. That he acted on it indeed, based his decision on it while Citibank was totally
unaware of its existence ran seriously afoul of the precepts of fair play, specially since
respondent only mentioned the document after this administrative case was filed against
him. Indeed, there seems to be something gravely amiss in respondents sense of fairness and
righteousness, the primary requisites of a good judge.
Furthermore, we cannot help but find extreme bias and bad intent in respondents award to
Aznar of a whopping P16.2 million in damages considering that, not having tried the case
himself, the only records he actually read came from no one else but Aznar himself. By itself,
the unconscionable amount of the award evinces indubitable malice on respondents part
and the shady circumstances in which he granted it show that he knowingly rendered a
manifestly unjust decision.
As a member of the judiciary, respondents every action is supposed to be beyond reproach
and above suspicion. The 2004 Code of Judicial Conduct clearly states that Judges shall avoid
impropriety and the appearance of impropriety in all of their activities.[21] By acting on a
document which was sorely defective (for two reasons: failure to serve a copy on the adverse
party and failure to file it during office hours), and by making an egregiously large award of
damages in favor of plaintiff Aznar, he inevitably opened himself up to suspicion of having
entered into a dirty, secret deal with Aznar and thereby severely tarnished the impartiality
with which he was at all times supposed to conduct himself.
37
Given respondents actions, we disagree with the OCAs findings of simple misconduct.
Because of the highly anomalous manner in which respondent rendered his decision, as well
as the questionable content of the decision itself, which was eventually overturned by the
Court of Appeals, we find him guilty of knowingly rendering an unjust judgment or order as
determined by a competent court in an appropriate proceeding.[22]

The penalty for this offense ranges from a fine of P20,000, to suspension from three to six
months, to dismissal from the service.[23] In this case, the penalty of suspension for six
months is appropriate, with a warning that another such infraction of this nature will warrant
a more severe penalty.

WHEREFORE, Judge JESUS S. DE LA PEA is hereby found GUILTY of knowingly rendering an

unjust judgment or order as determined by a competent court in an appropriate proceeding
and is hereby SUSPENDED from office for six months. Considering the gravity of this offense,
he is hereby warned that another infraction of this kind will merit a penalty beyond mere
suspension from public office.

SO ORDERED.

38
[A.M. No. RTJ-04-1886. May 16, 2005]
ALFREDO G. BOISER, complainant, vs. JUDGE JOSE Y. AGUIRRE, JR., REGIONAL TRIAL COURT,
BRANCH 55, HIMAMAYLAN CITY, NEGROS OCCIDENTAL, respondent.
DECISION
CHICO-NAZARIO, J.:
The instant administrative case arose from the complaint[1] of Alfredo G. Boiser filed with
the Office of the Court Administrator (OCA) charging Judge Jose Y. Aguirre, Jr., Regional Trial
Court (RTC) of Himamaylan City, Negros Occidental, Branch 55, with Grave Abuse of
Discretion and Gross Ignorance of the Law.
Complainant Alfredo Boiser was the plaintiff in an ejectment case filed before the Municipal
Trial Court (MTC) of Himamaylan City, Negros Occidental. On 11 July 2003, the MTC rendered
a decision[2] in favor of complainant, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendant
as follows:
1) For the defendant to vacate subject land known as Lot No. 2023 situated at Brgy.
Candumarao, Hinigaran, Negros Occiental, consisting of 5.5536 hectares leased by the
plaintiff from Mary Nonasco and Ofelia Donado, heirs of the registered owners, the late
spouses Narciso Gayares and Paz Nava, and to peacefully turn over possession thereof to the
plaintiff;
2) For the defendant to pay plaintiff the amount of P200,000.00 by way of actual damages;
3) For defendant to pay plaintiff attorneys fees in the amount of P10,000.00 plus P1,000.00
as appearance fee and to pay the cost.
The writ of preliminary injunction issued by the Court is hereby ordered dismissed.
The case was appealed to the RTC of Negros Occidental, Branch 55.
On 15 October 2003, defendant-appellant Salvador Julleza filed a motion to release bond on
the ground that the MTC of Hinigaran, Negros Occidental, in its decision dated 11 July 2003,
had already resolved the writ of preliminary injunction without mentioning the applicants
liability.
On 16 October 2003, respondent judge granted the motion.[3]
Complainant alleged that the issuance by respondent judge of the Order dated 16 October
2003 is indicative of his ignorance of the law considering that the motion did not state that
he was furnished a copy of the motion thereby depriving him of his right to due process. He
also averred that the motion was a mere scrap of paper for failure to state the time and date
of hearing. He further alleged that respondent manifested gross ignorance when he resolved
to grant the motion to release the injunction bond considering that the same was meant to
answer for damages that he may suffer due to defendants continued illegal possession of the
land.
On 15 January 2004, the OCA required[4] respondent to file his comment.
In his comment[5] dated 12 February 2004, respondent judge maintained that the filing of
the administrative complaint against him is hasty and uncalled for. He said there must have
been a miscommunication between the complainant and his counsel because had either of
them exerted effort to find out the result of the appealed case, they would have discovered
that he affirmed in toto the decision of the lower court in favor of the complainant.
On 14 April 2004, complainant filed[6] a motion to withdraw complaint.
On 3 August 2004, the OCA submitted its recommendation,[7] thus:
Respectfully submitted to the Honorable Court our recommendation that this administrative
case be RE-DOCKETED as a regular administrative matter and that respondent Judge Jose Y.
Aguirre, Jr., be FINED in the amount of P21,000.00 for Gross Ignorance of the Law and be
STERNLY WARNED that a repetition of the same or similar acts will be dealt with more
severely.
On 17 November 2004, we referred[8] the case to Court of Appeals Justice Monina Zenarosa
for investigation, report and investigation. Consequently, the case was scheduled for
preliminary conference on 17 February 2005. On the said date, complainant Alfredo Boiser,
with his counsel Atty. Salvador Sabio, and respondent judge appeared. During the
preliminary conference, Atty. Sabio manifested that the complainant had already filed his
motion to withdraw the complaint and was no longer interested in pursuing the case. On the
other hand, respondent judge manifested he had retired from the service as of 01 November
2004 and is now appearing as a private citizen. He further informed the court that he was
submitting the case without further comment as he had already filed his comment to the
complaint.
After investigation, Justice Zenarosa submitted her report[9] recommending the dismissal of
the complaint.
Prefatorily, the Court must reiterate the rule that mere desistance on the part of the
complainant does not warrant the dismissal of an administrative complaint against any
member of the bench. The withdrawal of complaints cannot divest the Court of its
jurisdiction nor strip it of its power to determine the veracity of the charges made and to
discipline, such as the results of its investigation may warrant, an erring respondent. The
courts interest in the affairs of the judiciary is a paramount concern that must not know
bounds.[10]
Anent respondents retirement on 01 November 2004, it has been settled that the Court is
not ousted of its jurisdiction over an administrative case by the mere fact that the
respondent public official ceases to hold office during the pendency of respondents case.[11]
This was expounded in the case of Perez v. Abiera,[12] cited in the case of Judge Rolando G.
How v. Teodora Ruiz, et. al.,[13] thus:
39
[T]he jurisdiction that was Ours at the time of the filing of the administrative complaint was
not lost by the mere fact that the respondent public official had ceased to be in office during
the pendency of his case. The court retains its jurisdiction either to pronounce the
respondent official innocent of the charges or declare him guilty thereof. A contrary rule
would be fraught with injustices and pregnant with dreadful and dangerous implications. x x
x If only for reasons of public policy, this Court must assert and maintain its jurisdiction over
members of the judiciary and other officials under its supervision and control for acts
performed in office which are inimical to the service and prejudicial to the interests of
litigants and the general public. If innocent, respondent official merits vindication of his name
and integrity as he leaves the government which he served well and faithfully; if guilty, he
deserves to receive the corresponding censure and a penalty proper and imposable under
the situation.
We shall now discuss respondents liability relative to the lack of notice of hearing and proof
of service of the questioned motion.
The Rules of Court requires that every motion must be set for hearing by the movant, except
those motions which the court may act upon without prejudicing the rights of the adverse
party. The notice of hearing must be addressed to all parties and must specify the time and
date of the hearing, with proof of service. Sections 4, 5 and 6 of Rule 15 of the 1997 Rules on
Civil Procedure provide:
SECTION 4. Hearing of motion.- Except for motions which the court may act upon without
prejudicing the rights of the adverse party, every written motion shall be set for hearing by
the applicant.
Every written motion required to be heard and the notice of the hearing thereof shall be
served in such a manner as to ensure its receipt by the other party at least three (3) days
before the date of hearing, unless the court for good cause sets the hearing on shorter
notice.
SEC. 5. Notice of hearing.- The notice of hearing shall be addressed to all parties concerned,
and shall specify the time and date of the hearing which must not be later than ten (10) days
after the filing of the motion.
SEC. 6. Proof of service necessary.- No written motion set for hearing shall be acted upon by
the court without proof of service thereof.
It appears that the Motion to Release Bond was defective as it did not have a proper notice
of hearing. The date and time of the hearing were not specified. Neither complainant nor his
counsel was furnished a copy thereof. These were never controverted by respondent judge.
A motion without notice of hearing is pro forma, a mere scrap of paper. It presents no
question which the court could decide. The court has no reason to consider it and the clerk
has no right to receive it. The rationale behind the rule is plain: unless the movant sets the
time and place of hearing, the court will be unable to determine whether the adverse party
agrees or objects to the motion, and if he objects, to hear him on his objection, since the
rules themselves do not fix any period within which he may file his reply or opposition.[14]
The objective of the rule is to avoid a capricious change of mind in order to provide due
process to both parties and ensure impartiality in the trial.[15]
Also, without proof of service to the adverse party, a motion is nothing but an empty
formality deserving no judicial cognizance.[16] The rule mandates that the same shall not be
acted upon by the court. Proof of service is mandatory.[17]
As can be seen the law involved is simple and elementary, lack of conversance therewith
constitutes gross ignorance of the law. Judges are expected to exhibit more than just cursory
acquaintance with statutes and procedural laws. They must know the laws and apply them
properly in all good faith. Judicial competence requires no less.[18]
Clearly, respondent judge had ignored a fundamental rule. He acted too precipitately in
granting defendants motion despite the absence of the requirements as above prescribed. As
a judge, Judge Aguirre is expected to keep abreast of laws and prevailing jurisprudence.[19]
Unfamiliarity with the rules is a sign of incompetence. Basic rules must be at the palm of his
hand. A judge must be acquainted with legal norms and precepts as well as with procedural
rules.[20] When a judge displays utter lack of familiarity with the rules, he erodes the
confidence of the public in the courts.[21] Ignorance of the law by a judge can easily be the
mainspring of injustice.[22]
Thus, in the following cases a fine of Five Thousand Pesos was imposed:
1. In Mutilan v. Adiong,[23] A.M. No. RTJ-00-1581, 2 July 2002, 383 SCRA 513, the Court
found respondent judge guilty of gross ignorance of the law for granting a motion for
garnishment without compliance with the proof of service and notice of hearing
requirements, and was sentenced to pay a fine of Five Thousand (P5,000.00) Pesos with a
stern warning that repetition of the same or similar acts in the future will be dealt with more
severely.
2. In Espino v. Salubre,[24] the court found respondent judge guilty of gross ignorance of the
law and was sentenced to pay a fine of Five Thousand Pesos (P5,000.00), when respondent
judge continued with the investigation and subsequent issuance of a warrant of arrest
against complainant notwithstanding that the records of the case had been transmitted to
the provincial fiscal and an information has already been filed in court.
3. In Josefina M. Villanueva v. MTC Judge Benjamin E. Almazan,[25] the court found
respondent judge guilty of gross ignorance of the law and was sentenced to pay a fine of Five
Thousand Pesos (P5,000.00), with stern warning that a repetition of the same or similar act
shall be dealt with more severely, when he conducted a preliminary investigation in a case
cognizable by the Municipal Trial Court.
4. In Acting Solicitor General Romeo de la Cruz v. Judge Carlito A. Eisma, RTC, Branch 13,
Zamboanga City,[26] a fine of P5,000.00 was imposed on the respondent judge for gross
ignorance of the law and abuse of authority, for preventing the execution of the decision of
the RTC, Branch 17, a court of equal rank and jurisdiction.
Ignorance of the law, which everyone is bound to know, excuses no one[27] - much more so
judges. It is a truism that the life chosen by a judge as a dispenser of justice is one which is
40
demanding. By virtue of the delicate position which he occupies in the society, he is duty
bound to be the embodiment of competence and integrity.[28] Because of this, a judge who
is not knowledgeable of the law which he is obligated to implement will not be able to live up
to the judiciarys exacting standards.[29]

WHEREFORE, the Court finds Judge Jose Y. Aguirre, Jr., of the Regional Trial Court of Negros
Occidental, Branch 55, guilty of gross ignorance of the law, and hereby imposes on him a fine
of FIVE THOUSAND PESOS (P5,000.00) to be deducted from his retirement benefits.

SO ORDERED.

41
 A.M. No. RTJ-05-1921
(Formerly OCA IPI No. 04-1973-RTJ)
MA. TERESA H. DE JESUS,

Complainant,

Present:

DAVIDE, JR., C.J.

PUNO,

PANGANIBAN,

QUISUMBING,

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,

CARPIO,
- versus -
AUSTRIA-MARTINEZ,

CORONA,

CARPIO MORALES,

CALLEJO, SR.,

AZCUNA,

TINGA,

CHICO-NAZARIO, and

GARCIA, JJ.

JUDGE RENATO J. DILAG, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 73,
OLONGAPO CITY, Promulgated:

Respondent.

September 30, 2005

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

42
DECISION
SANDOVAL-GUTIERREZ, J:
In a complaint[1] dated February 4, 2004 filed with the Office of the Court Administrator
(OCA), complainant Maria Teresa H. De Jesus charged respondent Judge Renato J. Dilag of
the Regional Trial Court of Olongapo City, Branch 73, with gross ignorance of the law,
rendering unjust orders, abuse of authority and misuse of court processes.
Complainant alleged inter alia that on August 26, 2002, her husband Wolfgang Heinrich
Konrad Harlinghausen (Harlinghausen) filed a petition for declaration of nullity of their
marriage with the Regional Trial Court of Olongapo City, Branch 73, docketed as Civil Case
No. 364-0-2002.
On August 27, 2002, Harlinghausen, through counsel, filed an Urgent Ex-Parte Motion to
Preserve Properties to be Collated. On the same day, respondent judge issued an Order[2]
setting the hearing of the motion on August 30, 2002.
On August 29, 2002, complainant received summons in Civil Case No. 364-0-2002. Forthwith,
she filed a motion to dismiss the complaint on the ground of improper venue. This was
denied by respondent judge.
On August 30, 2002, respondent judge considered the Urgent Ex-Parte Motion to Preserve
Properties to be Collated submitted for resolution after hearing the testimonies of
Harlinghausens attorney-in-fact, Harry E. Joost, and his counsel of record, Atty. Edmundo S.
Carian.
On September 3, 2002, respondent judge issued an Order[3] granting the urgent ex-parte
motion and placing under legal custody the properties enumerated therein. The Register of
Deeds of Tarlac, among others, was directed to annotate the Order on the 62 land titles
allegedly purchased by Harlinghausens wife using his money without his consent.
On October 2, 2002, Harlinghausen, through counsel, filed another Ex-Parte Motion praying
for the issuance of an Order directing the Bureau of Immigration and Deportation (BID) to
allow him to enter this country in order to prosecute his petition for declaration of nullity of
marriage.
On October 4, 2002, respondent judge issued an Order granting Harlinghausens Ex-Parte
Motion.
Eventually, complainant filed with the Court of Appeals a petition for certiorari assailing
respondent judges Order dated September 3, 2002 granting Harlinghausens Urgent Ex-Parte
Motion to Preserve Properties to be Collated; Order dated October 4, 2002 granting his
Urgent Ex-Parte Motion to enter this country; and Order denying her (complainants) motion
to dismiss the complaint for improper venue. Complainant averred that in issuing the
challenged Orders, respondent judge acted with grave abuse of discretion tantamount to
lack or excess of jurisdiction. The petition was docketed as CA-G.R. SP No. 74167.
On February 20, 2003, the Court of Appeals rendered a Decision[4] granting complainants
petition, declaring void the assailed Orders dated September 3 and October 4, 2002 and
dismissing the complaint in Civil Case No. 364-0-2002 for declaration of marriage for
improper venue.
Harlinghausen filed a motion for reconsideration, but it was denied by the Appellate Court.
He then filed with this Court a petition for review on certiorari, docketed as G.R. No. 158333.
In a Resolution of June 23, 2003, we denied the petition for his failure to show that the Court
of Appeals committed a reversible error. Upon finality of our Resolution on August 12, 2003,
an Entry of Judgment was made on October 3, 2003.[5]
Complainant now contends that respondent judge, in issuing the Order of September 3, 2002
granting Harlinghausens Urgent Ex-Parte Motion to Preserve Properties to be Collated, is
ignorant of the law and abused his authority. The motion lacks the notice of hearing to be
served upon the adverse party three (3) days before the hearing; and proof of service of the
motion upon the adverse party.
Complainant further contends that in issuing the Order dated October 4, 2002 directing the
BID to allow Harlinghausen to enter this country, respondent judge abused his authority and
misused court processes.
In his comment, respondent judge explained that he did not disregard the basic procedural
rules. Although the Urgent Ex-Parte Motion to Preserve Properties to be Collated lacks a
notice of hearing, nevertheless he set the motion for hearing to enable the adverse party,
herein complainant, to participate therein or to file an opposition. Besides, the Rules allow
him to act upon an ex-parte motion requiring quick action, like the motion before him. There
was urgency considering that the conjugal funds are being misappropriated by complainant.
Moreover, he conducted clarificatory hearing. At any rate, his questioned Order is not
tainted with bad faith or fraud.
With respect to the Order of October 4, 2002, respondent judge explained that he did not
overstep his jurisdiction. He recognized the authority of the BID. In fact, he stated in his
questioned Order that it is without prejudice to the authority of the BID over Harlinghausen.
In his Report and Recommendation, Court Administrator Presbitero J. Velasco, Jr. stated inter
alia that:
A thorough examination of the instant case reveals abuse of authority bordering on gross
ignorance of the law. Records show that, relative to the petition for declaration of nullity of
marriage, respondent Judge issued at least two orders that were bluntly nullified by the
appellate court. The rules and principles ignored were so basic, and haste was
characteristically palpable from the incidents.
xxx
Likewise, respondent cannot take shield from the fact that his assailed orders were already
set aside by the appellate court through the proper judicial remedies. Precisely, his cited
jurisprudence itself explicitly states, It is only after the available judicial remedies have been
exhausted or when the appellate tribunal have spoken with finality that the door to an
43
inquiry to his administrative liability may be said to have opened or closed. A display of haste
and disregard of basic rules is a norm incompatible with the prudent attitude and sobriety
expected of a good judge.
He recommended that:
1. The instant complaint be RE-DOCKETED as a regular administrative matter;
2. The respondent Judge, for abuse of authority and gross ignorance of the law, be
accordingly meted a FINE in the amount of twenty thousand pesos (P20,000.00) with a
WARNING that future similar infractions shall be dealt with more severely.
In our Resolution[6] dated January 24, 2005, we required the parties to manifest whether
they are submitting the case for resolution on the basis of the pleadings and records filed.
Subsequently, both parties submitted their respective Manifestations stating their
willingness to submit the case for decision based on the records.
On the challenged Order of September 3, 2002, Sections 4, 5 and 6, Rule 15 of the 1997 Rules
of Civil Procedure, as amended, are pertinent, thus:
SECTION 4. Hearing of motion. Except for motions which the court may act upon without
prejudicing the rights of the adverse party, every written motion shall be set for hearing by
the applicant.
Every written motion required to be heard and the notice of the hearing thereof shall be
served in such a manner as to ensure its receipt by the other party at least three (3) days
before the date of hearing, unless the court for good cause sets the hearing on shorter
notice.
SECTION 5. Notice of hearing. The notice of hearing shall be addressed to all parties
concerned, and shall specify the time and date of the hearing which must not be later than
ten (10) days after the filing of the motion.
SECTION 6. Proof of service necessary. No written motion set for hearing shall be acted upon
by the court without proof of service thereof.
Obviously, respondent judge blatantly disregarded the above provisions. Instead of denying
the motion outright for being manifestly defective, he granted the same. While he set the
motion for hearing, still the three-day notice was not observed, thus complainant failed to
attend the hearing. Clearly, she was deprived of her right to due process.
When a judge fails to consider so basic and elemental a rule, a law, or a principle in the
discharge of his duties, he is either too incompetent and undeserving of his position, or is too
vicious that the oversight or omission was deliberately done in bad faith and in grave abuse
of judicial authority. In both instances, the judges dismissal is in order.[7]
Likewise, respondents failure to afford complainant the opportunity to be heard as a matter
of due process of law deserves administrative sanction.[8]
Relative to the challenged Order dated October 4, 2002, respondent judge shows his
ignorance of the Philippine Immigration Act of 1940, as amended. This law confers upon the
Commissioner of the BID, to the exclusion of the courts of justice, the power and authority to
enforce its provisions, specifically the admission of foreigners to this country.
We sustain the observation of the Court of Appeals[9] that the Order of respondent judge
directing the BID to allow the entry of Harlinghausen to this country would effectively
countermand the order of detention[10] issued by the BID and constitutes an intrusion into
its prerogatives as regards the entry, admission, exclusion, registration, repatriation,
monitoring and deportation of foreigners within our national territory.
In his desperate attempt to evade administrative sanction, respondent judge maintains that
since complainant has already resorted to a proper remedy, i.e., by filing a petition for
certiorari with the Court of Appeals questioning his twin Orders, she is barred from filing the
instant administrative complaint involving the same Orders. He cited our ruling in Hilario vs.
Ocampo III, 371 SCRA 260 (2001) that where some judicial means is available, an
administrative complaint is not the appropriate remedy for an act of a judge deemed
aberrant or irregular.
While it is true that the Court of Appeals has set aside the questioned twin Orders, the fact
remains that respondent judge has shown his ignorance of both substantive and procedural
laws which warrants an administrative sanction.
The Court recognizes that not every judicial error bespeaks ignorance of the law and that, if
committed in good faith, does not warrant administrative sanction, but only in cases within
the parameters of tolerable misjudgment. Where, however, the procedure is so simple and
the facts so evident as to be beyond permissible margins of error, as in this case, to still err
thereon amounts to ignorance of the law.[11]
In this case, respondent judge displayed a deplorable deficiency in his grasp of the basic
principles governing motions, specifically, the three-day notice rule and the requisite proof of
service. Also, he showed his utter lack of knowledge and understanding of our immigration
laws.
As an advocate of justice and a visible representation of the law, a judge is expected to keep
abreast with and be proficient in the application and interpretation of the law.[12] When the
law is sufficiently basic, as what is involved in the present case, a judge owes it to his office to
simply apply it; anything less than that would be gross ignorance of the law.[13]
44
In Tugot v. Coliflores,[14] we held that judicial competence demands that judges should be
proficient in both procedural and substantive aspects of the law. Anything less than this strict
standard would subject them to administrative sanction.

It is imperative that judges be conversant with basic legal principles. The Code of Judicial
Conduct, in fact, enjoins judges to be faithful to the law and maintain professional
competence.[15]

Under Section 1, Rule 140 of the Revised Rules of Court on the Discipline of Justices and
Judges, gross ignorance of the law is classified as a serious charge punishable by either
dismissal from the service, suspension from office or a fine of more than P20,000.00 but not
exceeding P40,000.00.

We believe that an imposition of P30,000.00 fine upon respondent judge is in order.

WHEREFORE, respondent Judge Renato J. Dilag is hereby found GUILTY of gross ignorance of
the law and is
ordered to pay a FINE of THIRTY THOUSAND PESOS (P30,000.00) upon notice.

SO ORDERED.

45