PHIL. RABBIT VS.

GOIMCO (2005) Before us is a petition for certiorari seeking to set aside the Resolutions of the Court of Appeals dated February 3, 1998 in CA-G.R. CV No. 56176 dismissing the appeal filed by the Philippine Rabbit Bus Liner, Inc., herein petitioner, for its failure to file the required appellants brief within the reglementary period. Petitioner is a corporation organized and existing under the Philippine laws and is engaged in business as a common carrier. On October 17, 1983, petitioners bus No. 309 collided with a ten-wheeler truck in Dolores, Mabalacat, Pampanga. As a result, several passengers were injured. Nelson Goimco, Sr., herein respondent and one of the passengers, filed with the Regional Trial Court (RTC), Branch 65, Tarlac City, a complaint for breach of contract of carriage against petitioner, docketed as Civil Case No. 6977. Spouses Isabelo and Remegia Ladia (also impleaded herein as respondents), parents of Isabelo Ladia, Jr. who died, likewise instituted a similar complaint with the same court, docketed as Civil Case No. 7054. The two cases were consolidated and jointly heard by the trial court. After trial, the RTC rendered a Joint Decision, the dispositive portion of which reads: WHEREFORE, judgment is rendered in favor of the plaintiffs and against the defendant as follows: (1) Defendant is ordered to pay to plaintiff Nelson Goimco, Sr., the amount of P248,157.38 as and by way of actual damages; the amount of P100,000.00 as and by way of moral damages; the amount of P100,000.00 as and by way of exemplary damages; and the amount of P50,000.00 as and by way of attorneys fees; (2) Defendant is ordered to pay to the heirs of Isabelo Ladia, Jr., the amount of P50,000.00 for the death of Isabelo Ladia, Jr., the amount of P75,000.00 as and by way of actual damages, and amount of P15,000.00 as and by way of attorneys fees. (3) Third-party defendant First Integrated Bonding and Insurance Company is ordered to pay to the defendant the amount ofP50,000.00 by way of reimbursement of liabilities incurred by the defendant as a result of the accident. SO ORDERED.
[2] [1]

Both parties filed their respective motions for reconsideration of the Decision. Petitioner sought to be exonerated from all civil liabilities, while respondents asked for an award corresponding to the loss of income of respondent Nelson Goimco and the late Isabelo Ladia, Jr. In an Order dated September 7, 1995, the trial court denied petitioners motion but granted those of respondents Goimco and spouses Ladia, thus:

WHEREFORE, the decision of this court is hereby amended awarding the amount of P679,629,60 to Nelson Goimco andP100,980.00 to the heirs of Isabelo Ladia, Jr., for loss of income. SO ORDERED.
[3]

Petitioner then, through the law office of Escudero, Marasigan, Sta. Ana & E.H. Villareal, interposed an appeal to the Court of Appeals.

On October 2, 1997, petitioner received a copy of the Order of the Appellate Court directing it to file its appellants brief within fifteen (15) days or until October 17, 1997. However, despite notice, petitioner did not file the required appellants brief. Hence, on February 3, 1998, the Court of Appeals dismissed petitioners appeal pursuant to Section 1 (3), Rule 50 of the 1997 Rules of Civil Procedure, as amended. Petitioner filed a motion for reconsideration alleging that the expiration of the reglementary period fell during more or less at the time that the office log book (of its counsel), containing the schedules of hearings and deadlines for pleadings, motions and [4] other documents, inadvertently got lost. Hence, its failure to file the appellants brief was due to its (counsels) mistake or excusable negligence. On July 29, 1998, the Court of Appeals denied petitioners motion for reconsideration, holding that its counsel could have, with ordinary prudence, updated the schedule of hearings and deadlines for the filing of pleadings, briefs and other court papers [5] within a lesser period of 4 months. Hence, the instant petition for certiorari. This petition lacks merit. What petitioner should have filed is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, not a petition for certiorari under Rule 65 of the same Rules. We have consistently held thatcertiorari is not a substitute [6] for a lost appeal. The extraordinary writ of certiorari issues only for the correction of errors of jurisdiction or grave abuse of discretion [7] amounting to lack or excess of jurisdiction. Grave abuse of discretion is such capricious and whimsical exercise of judgment which is equivalent to an excess or lack of jurisdiction, meaning that the abuse of discretion must be so patent and so gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as [8] where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. We find that in dismissing petitioners appeal, the Court of Appeals did not gravely abuse its discretion. Moreover, the right to appeal is not a natural right or a part of due process. It is merely a procedural remedy of [9] statutory origin and may be exercised only in the manner prescribed by the provisions of law authorizing its exercise. Hence, its [10] requirements must be strictly complied with. Section 7, Rule 44 of the same Rules provides: SEC. 7. Appellants brief. It shall be the duty of the appellant to file with the court within forty-five (45) days from receipt of the notice of the clerk that all evidence, oral and documentary, are attached to record, seven (7) copies of his legibly typewritten, mimeographed or printed brief, with proof of service of two (2) copies thereof upon the appellee.

Section 1 (e), Rule 50 likewise states: SEC. 1. Grounds for dismissal of appeal. An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds:

xxx (e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time prescribed by these Rules;

In Casim v. Floredeliza, we stressed that the above Rules are designed for the proper and prompt disposition of cases before the Appellate Court, for they provide for a system under which litigants may be heard in the correct form and mannerat the prescribed time in an orderly confrontation before a court whose authority is unquestioned. We note that petitioners previous counsel is a large law firm with several lawyers in its roster. Yet it took said counsel four (4) months, from the expiration of the reglementary period, within which to file the appellants brief. It is settled [12] that failure to file brief for a client constitutes inexcusable negligence. Petitioners flimsy excuse that its counsels logbook containing the schedules for the filing of pleadings and hearings was lost is, to say the least, most unpersuasive. Said counsel should have examined consistently the records of its cases to find out what appropriate actions have to be taken thereon. The notice to file the appellants brief was in the records of the instant cases all along. Had counsel been efficient in the handling of its cases, the required appellants brief could have been filed on time. Its failure to do so is an inexcusable negligence.
[13]

[11]

It is settled that the mistakes, negligence, and omissions of counsel are binding upon his client. instant cases.

So should it be in the

On petitioners insistence that it was denied due process, suffice it to say that there is no denial of due process where the [14] adverse ruling was attributable to its counsels negligence. WHEREFORE, the petition is DISMISSED. Costs against petitioner. SO ORDERED.

CONCEPCION VS. COMELEC (2009) Before us is the petition for certiorari filed by Jose Concepcion, Jr. (petitioner) seeking to set aside the En Banc [2] Resolution dated 02 April 2007 and Order dated 8 May 2007 of respondent Commission on Elections (COMELEC).
[1]

The petition cites and quotes the assailed rulings, then recites that on January 5, 2007, the National Citizens Movement for Free Elections (NAMFREL) filed a Petition for Accreditation to Conduct the Operation Quick Count with the COMELEC, docketed as SSP [3] No. 07-001. The present petitioner then the incumbent Punong Barangay of Barangay Forbes Park, Makati City was one of the signatories of the NAMFREL petition in his capacity as the National Chairman of NAMFREL. On the same date, COMELEC promulgated Resolution No. 7798 (Resolution 7798) that reads in full WHEREAS, Section 3 of Executive Order [EO] No. 94 dated March 2, 1987, provides as follows: Sec. 3. Prohibition on barangay officials. No barangay official shall be appointed as member of the Board of Election Inspectors or as official watcher of each duly registered major political party or any socio-civic, religious, professional or any similar organization of which they may be members. WHEREAS, the barangay is the smallest political unit of government and it is a widely accepted fact that barangay officials wield tremendous influence on their constituents or the residents in the barangay;
[4]

WHEREAS, the Boards of Election Inspectors [BEIs] are charged with the duty of maintaining the regularity and orderliness of the election proceedings in each precinct to the end that elections will be honest, orderly, peaceful and credible: WHEREAS, records of past political exercises show that on election day, the Commission on Elections usually receive numerous complaints against barangay officials entering polling places and interfering in proceedings of the BEIs thereby causing not only delay in the proceedings, but also political tension among the BEIs, the voters and the watchers in the polling place;

NOW THEREFORE, to insure that elections are peaceful, orderly, regular and credible, the Commission on Elections, by virtue of the powers vested in it by the Constitution, the Omnibus Election Code [OEC], EO No. 94, and other election laws RESOLVED to prohibit, as it hereby RESOLVES to prohibit: 1. The appointment of barangay officials which includes the Punong Barangay, Barangay Kagawad, Barangay Secretary, BarangayTreasurer, and Barangay Tanod, as Chairman/person and/or Member of the BEIs or as official watcher of any candidate, duly registered major political party, or any similar organization, or any socio-civic, religious, professional [sic], in the May 14, 2007 National and Local Elections. The prohibition extends to barangay officials, employees and tanods, who are members of accredited citizens arms.

2. The barangay officials, employees and tanods from staying inside any polling place, except to cast their vote. Accordingly, they should leave the polling place immediately after casting their vote.

This Resolution shall take effect on the seventh day after the publication in two (2) newspapers of general circulation in the Philippines. The Education and Information Department shall cause the publication of this Resolution in two (2) daily newspapers of general circulation and shall furnish copies thereof to all field officers of the Commission and the Department of Interior and Local Government, other deputies and heads of accredited political parties.

SO ORDERED. [Emphasis supplied.]

The COMELEC ruled on NAMFRELs petition for accreditation on April 2, 2007 in the assailed Resolution (April 2, 2007 [5] Resolution), conditionally granting NAMFRELs petition in the following tenor:

Having already discussed above the reasons, both factual and legal, for the dismissal of the Verified Opposition, we find the instant petition for accreditation as the citizens arm of the petitioner NAMFREL meritorious. Pursuant to Section 2(5), Article IX (C) of the 1987 Philippine Constitution and Section 52(k) of the Omnibus Election Code, as amended, this Commission en banc hereby resolves to accredit petitioner NAMFREL as its citizens arm in the 14 May 2007 national and local elections, subject to its direct and immediate control and supervision.

There is, however, one important condition that must be fulfilled by the petitioner before its accreditation as citizens arm could legally take effect. Accordingly, Mr. Jose S. Concepcion, Jr., the National Chairman of NAMFREL, must first be removed both as a member and overall Chairman of said organization. As correctly pointed out by the oppositor, Mr. Concepcion, being the Barangay Chairman of BarangayForbes Park, Makati City, cannot be a member much more the overall chairman of the citizens arm such as NAMFREL. This is explicitly provided for in COMELEC Resolution No. 7798 promulgated on 5 January 2007, pertinent of which we quote:

WHEREAS, Section 3 of Executive Order No. 94 dated March 2, 1987 provides as follows:

Sec. 3. Prohibition on Barangay officials No barangay official shall be appointed as member of the Board of Election Inspectors or as watcher of each duly registered major political party or any socio-civic, religious, professional or any similar organization of which they may be members.

xxx

xxx

xxx

NOW THEREFORE, to insure that the elections are peaceful, orderly, regular and credible, the Commission on Elections, by virtue of the powers vested in it by the Constitution, the OEC, EO No. 94, and other election laws, RESOLVED to prohibit, as it is hereby RESOLVES to prohibit:

1. The appointment of barangay officials which include the Punong Barangay, Kagawad, Barangay Secretary, Barangay Treasurer, and Barangay Tanod, as Chairman / person and/or Members of the BEIs or as official watcher of any candidate, duly registered major political party, or any similar organization, or any socio-civic, religious, professional, in the May 14, 2007 National and Local Elections. The prohibition extends to the barangay officials, employees and tanods, who are members of the accredited citizens arms.

xxxx

WHEREFORE, premises considered, this Commission en banc RESOLVED as it hereby RESOLVES, to grant the instant petition for accreditation finding it imbued with merit.

xxxx

The ACCREDITATION herein GRANTED is further SUBJECT TO THE FOLLOWING CONDITIONS:

1. The petitioner is hereby enjoined and encouraged by the Commission to re-organize in accordance with its own internal rules and procedures as an independent organization, and to submit before election day a list of its responsible officers and members, deleting therefrom the names of any previous officer or member similarly situated with Mr. Jose S. Concepcion, Jr. who are disqualified to be part of the citizens arm in view of the passage of COMELEC Resolution No. 7798 on 5 January 2007;

xxxx

9. This accreditation shall be deemed automatically revoked in case petitioner violates any of the provisions and conditions set forth herein. [Italics supplied.]

Soon thereafter, NAMFREL filed a Manifestation and Request for Re-Examination that: (1) contains information regarding NAMFRELs reorganization and its new set of officers showing that the petitioner had stepped down as National Chair and had been replaced by a new Chair; (2) manifests NAMFRELs acceptance of the conditional grant of its petition for accreditation; and (3) includes NAMFRELs request for a re-examination without further arguments of the April 2, 2007 Resolution as it specifically affected the petitioners membership with NAMFREL. In this Manifestation and Request for Re-examination, NAMFREL outlined its various objections and concerns on the legality or validity of Resolution 7798.

The COMELEC, in its Order of May 8, 2007, noted the information relating to NAMFRELs current officers, and denied the request to examine its (COMELECs) interpretation of the April 2, 2007 Resolution prohibiting petitioners direct participation as member and National Chairman of NAMFREL. The COMELEC reasoned out that the April 2, 2007 Resolution is clear, and NAMFREL had not presented any convincing argument to warrant the requested examination.

NAMFREL did not question the COMELECs ruling.

THE PETITION

Instead of a direct reaction from NAMFREL, the petitioner filed the present petition, ostensibly questioning the COMELECs April 2, 2007 Resolution, but actually raising issues with respect to Resolution 7798. To illustrate this point, the headings of the petitioners cited grounds were as follows:

COMELEC HAS ACTED WITHOUT JURISDICTION OR IN EXCESS OF ITS JURISDICTION WHEN IT ISSUED COMELEC RESOLUTION NO. [6] 7798 WHICH HAS NO STATUTORY BASIS.

COMELEC SERIOUSLY ERRED AND GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OF JURISDICTION OR IN EXCESS OF ITS [7] JURISDICTION WHEN IT RETROACTIVELY APPLIED COMELEC RESOLUTION NO. 7798 TO NAMFRELS PETITION.

NAMFREL CHAIRMAN JOSE CONCEPCION WAS NOT ACCORDED DUE PROCESS WHEN HE WAS NEITHER GIVEN THEOPPORTUNITY TO [8] QUESTION COMELEC RESOLUTION NO. 7798 NOR THE OPPORTUNITY TO PRESENT HIS SIDE REGARDING THE PROHIBITION.

The petitioner expounded on the invalidity of Resolution 7798 with the following arguments which, for brevity and ease of presentation, we summarize below:

1. EO No. 94 issued by then President Corazon Aquino on December 17, 1986 prohibits the appointment of barangay officials as members of the BEI or as official watchers of each duly registered major political party or any socio-civic, religious, professional or any similar organization of which they may be members. This law, according to the petitioner, could not however be the statutory basis of Resolution 7798 because:

a. the prohibition under EO No. 94 applies only to the February 2, 1987 plebiscite. The restrictive application is evident from a [9] [10] reading of the EOs title and of one of its whereas clauses.

b. nothing in EO No. 94 prohibits the petitioners membership with NAMFREL or the petitioners appointment as Chair or member of a duly accredited COMELECs citizen arm. The petitioner, who then chaired NAMFREL, was never appointed as BEI member or as poll watcher.

c. the underlying purpose of Resolution 7798 is to prevent barangay officials from wielding their influence during the voting and canvassing stages by entering polling places under the pretext of acting as poll watchers. The petitioner was not a poll watcher; the COMELEC could have therefore simply prohibited the appointment of barangay chairmen as BEI members or poll watchers, and would have already achieved its purpose.

d. the COMELEC cannot, in the guise of regulation, go beyond or expand the mandate of a law because the COMELEC has no lawmaking powers.

e. Resolution 7798 cannot be applied retroactively. Its effectivity clause provides that it shall be effective on the 7 day after its publication in a newspaper of general circulation, that is, only on January 14, 2007. Since NAMRELs petition was filed on January 5, 2007 (or before Resolution 7798s effectivity), it could not have applied to NAMFRELs petition.

th

2. Resolution 7798 is an invalid implementing regulation, as it failed to comply with the following requisites for the validity of implementing rules and regulations:

a.

the rules and regulations must have been issued on the authority of law;

b. the rules and regulations must be within the scope and purview of the law;

c.

the rules and regulations must be reasonable;

d. the rules and regulations must not be contrary to laws or to the Constitution. 3. On constitutional grounds, the petitioner objected to Resolution 7798 because:

a. the Resolution is unreasonable, as it bears no relation to the very purpose of the law; its prohibition is harsh, oppressive, and serves no purpose at all.

b. Resolution 7798 violates the petitioners right to association through its enforced removal of the petitioner as member and Chair of NAMFEL.

c. the COMELEC denied him of his right to procedural due process; he was not afforded the cardinal administrative due process [11] right to a hearing, as he was not given the opportunity to be heard or at least to comment on Resolution 7798 upon which his removal as National Chair and member of NAMFREL was based. He should have been heard since he was not a party to the petition for accreditation in his personal capacity. Thus, the April 2, 2007 Resolution conditionally granting NAMFRELs petition for accreditation should be nullified insofar as it required the petitioners resignation from NAMFREL as a pre-condition for the effectivity of its accreditation.

THE OSG RESPONSE

The Office of the Solicitor General (OSG) defends the validity of Resolution 7798 with the following arguments:

1. Resolution 7798 was issued by the COMELEC as a valid exercise of its quasi-legislative power to implement elections laws. Hence, notice and hearing are not required for its validity. The OSG cites Section 52 (c) of the OEC empowering the COMELEC to promulgate rules and regulations implementing the provisions of this Code (the OEC) or other laws which the Commission is required to enforce and administer in relation with the settled principle [citing Central Bank v. Cloribel (44 SCRA 307 [1972])] that [12] notice and hearing are not required when an administrative agency exercises its quasi-legislative power, as opposed to quasi[13] judicial power which requires notice and hearing; and

2. EO No. 94 applies to the May 14, 2007 national and local elections. While EO No. 94 may have been issued primarily for the February 2, 1987 plebsicite, its spirit and intent find applicability and relevance to future elections. Thus, the COMELECs reliance on EO No. 94 when it issued Resolution 7798 is certainly valid and proper;

3. While the petitioner is not appointed as member of the BEI or as watcher, he nonetheless labors under a conflict of interest, given that a COMELEC-accredited citizens arm is also entitled, under Section 180 of the OEC to appoint a watcher in every polling place. Additionally, the fact that the petitioner is a barangay chairman and at the same time the NAMFREL Chair clearly raises questions on his neutrality and non-partisanship; COMELEC non-partisanship may at the same time be compromised, as it is the COMELEC which accredits its citizens arm.

The OSG in arguing that Resolution 7798 was issued pursuant to the COMELECs mandate and is not, therefore, tainted with grave abuse of discretion also harks back at the extent of the power of the COMELEC under Section 2(1) of Article IX(C) of the Constitution that gives COMELEC the broad power to administer the conduct of an election, plebiscite, initiative, referendum and [14] recall ; there can hardly be any doubt that the text and intent of the constitutional provision is to give COMELEC all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and credible elections.

THE COURTS RULING

We resolve to DISMISS the petition for blatant misuse of Rule 65 of the Rules of Court.

A primary consideration for us in looking at the petition is its thrust or focus. The petition mentions three legal instruments related with the case, namely: (1) EO No. 94 issued by then President Aquino; (2) COMELECs April 2, 2007 Resolutionconditionally granting NAMFRELs accreditation, subject to the conditions that the petitioner and similarly situated barangay officials shall not be included as members or officials of NAMFREL; and (3) COMELEC Resolution 7798, issued pursuant to EO No. 94 and which in turn is the basis for the April 2, 2007 Resolution.

We reiterate that the present petition, by its express terms, seeks to set aside the En Banc Resolution dated 02 April 2007 and the Order dated 8 May 2007 of Respondent Comelec who, in grave abuse of discretion and in gross violation of Petitioners right to due process of law, denied Petitioners right to associate when the Respondent Comelec, as a condition of NAMFRELs accreditation as citizen arm, directed the removal of Petitioner as overall Chairman and member. In arguing for this objective, the petitioner directs his attention at Resolution 7798, not at the April 2, 2007 Resolution, as can be seen from the grounds summarized above. In the process, he likewise raises issues that call for the interpretation of Resolution 7798s underlying basis EO No. 94.

Expressed in procedural terms, the petitioner now seeks to assail, in his individual capacity, a COMELEC adjudicatoryresolution (i.e., the April 2, 2007 Resolution) for its adverse effects on him when he was not a party to that case. NAMFREL (the direct party to the case and who had accepted the COMELEC accreditation ruling), on the other hand, is not a party to the present petition. Its non-participation is apparently explained by the position it took with respect to the April 2, 2007 Resolution; in its Manifestation and Request for Examination, it asked for a re-examination of the April 2, 2007 Resolution, but interestingly stated that

21. NAMFREL accepts the terms of the accreditation and further manifests that it has commenced full efforts into preparing for the performance of its duties and obligations as the Commissions citizen arm. [Emphasis supplied.]

Thus, the present petition is clearly the petitioners own initiative, and NAMFREL, the direct party in the COMELECsApril 2, 2007 Resolution, has absolutely no participation.

Another unusual feature of this case is the focus of the petition. While its expressed intent is to assail the COMELECs April 2, 2007 Resolution (an exercise of the COMELECs quasi-judicial functions), its focus is on the alleged defects of Resolution 7798, a regulation issued by the COMELEC in the exercise of its rulemaking power.

The above features of the petition render it fatally defective. The first defect lies in the petitioners personality to file a petition for certiorari to address an adjudicatory resolution of the COMELEC in which he was not a party to, and where the direct party, NAMFREL, does not even question the assailed resolution. It would have been another matter if NAMFREL had filed the present petition with the petitioner as intervenor because of his personal interest in the COMELEC ruling. He could have intervened, too, before the COMELEC as an affected party in NAMFRELs Manifestation and Request for Examination. As a last recourse, the petitioner could have expressly stated before this Court the procedural problems he faced and asked that we suspend the rules based on the unusual circumstances he could have pointed out. None of these actions, however, took place. Instead, the petitioner simply questioned the COMELECs April 2, 2007 Resolution without explaining to this Court his reason for using Rule 65 as his

medium, and from there, proceeded to attack the validity of COMELEC Resolution 7798. Under these questionable circumstances, we cannot now recognize the petitioner as a party-in-interest who can directly assail the COMELECs April 2, 2007 Resolution in an original Rule 65 petition before this Court.

The requirement of personality or interest is sanctioned no less by Section 7, Article IX of the Constitution which provides thata decision, order, or ruling of a constitutional commission may be brought to this Court on certiorari by the aggrieved party within [15] thirty days from receipt of a copy thereof. This requirement is repeated in Section 1, Rule 65 of the Rules of Court, which applies to petitions for certiorari under Rule 64 of decisions, orders or rulings of the constitutional commissions pursuant to Section 2, Rule [16] 64. Section 1, Rule 65 essentially provides that a person aggrieved by any act of a tribunal, board or officer exercising judicial or quasi-judicial functions rendered without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction may file a petition for certiorari.

An aggrieved party under Section 1, Rule 65 is one who was a party to the original proceedings that gave rise to the original action for certiorari under Rule 65. We had occasion to clarify and explain the aggrieved party requirement in Tang v. Court of [17] Appeals where we said:

Although Section 1 of Rule 65 provides that the special civil action of certiorari may be availed of by a "person aggrieved" by the orders or decisions of a tribunal, the term "person aggrieved" is not to be construed to mean that any person who feels injured by the lower courts order or decision can question the said courts disposition via certiorari. To sanction a contrary interpretation would open the floodgates to numerous and endless litigations which would undeniably lead to the clogging of court dockets and, more importantly, the harassment of the party who prevailed in the lower court.

In a situation wherein the order or decision being questioned underwent adversarial proceedings before a trial court, the "person aggrieved" referred to under Section 1 of Rule 65 who can avail of the special civil action of certiorari pertains to one who was a party in the proceedings before the lower court. The correctness of this interpretation can be gleaned from the fact that a special civil action for certiorari may be dismissed motu proprio if the party elevating the case failed to file a motion for reconsideration of the questioned order or decision before the lower court. Obviously, only one who was a party in the case before the lower court can file a motion for reconsideration since a stranger to the litigation would not have the legal standing to interfere in the orders or decisions of the said court. In relation to this, if a non-party in the proceedings before the lower court has no standing to file a motion for reconsideration, logic would lead us to the conclusion that he would likewise have no standing to question the said order or decision before the appellate court via certiorari. (emphasis supplied)

More importantly, we had this to say in Development Bank of the Philippines v. Commission on Audit - a case that involves a certiorari petition, under Rule 64 in relation with Rule 65, of a ruling of the Commission on Audit (a constitutional commission like COMELEC):

[18]

The novel theory advanced by the OSG would necessarily require persons not parties to the present case the DBP employees who are members of the Plan or the trustees of the Fund to avail of certiorari under Rule 65. The petition for certiorari under Rule 65, however, is not available to any person who feels injured by the decision of a tribunal, board or officer exercising judicial or quasijudicial functions. The person aggrieved under Section 1 of Rule 65 who can avail of the special civil action of certiorari pertains only to one who was a party in the proceedings before the court a quo, or in this case, before the COA. To hold otherwise would open the courts to numerous and endless litigations. Since DBP was the sole party in the proceedings before the COA, DBP is the proper party to avail of the remedy of certiorari.

The real party in interest who stands to benefit or suffer from the judgment in the suit must prosecute or defend an action. We have held that interest means material interest, an interest in issue that the decision will affect, as distinguished from mere interest in the question involved, or a mere incidental interest.

The second fatal defect lies in the petitions thrust; it opened with and professed to be an express challenge to the COMELECs adjudicatory April 2, 2007 Resolution, but in its arguments solely attacks and prays for the partial nullity of COMELEC Resolution 7798 issued in the exercise of the COMELECs rule making power. This approach is fatally defective because the petition thereby converts an express challenge of an adjudicatory resolution made without the requisite standing into a challenge for the nullity of a regulation through an original Rule 65 petition for certiorari.

To be sure, a COMELEC adjudicatory action can be challenged on the basis of the invalidity of the law or regulation that underlies the action. But to do this, a valid challenge to the adjudicatory action must exist; at the very least, the petitioner must have the [19] requisite personality to mount the legal challenge to the COMELEC adjudicatory action. Where this basic condition is absent, the challenge is unmasked for what it really is a direct challenge to the underlying law or regulation masquerading as a challenge to a COMELEC adjudicatory action.

What is significant in appreciating this defect in the petition is the legal reality that the petitioner was not without any viable remedy to directly challenge Resolution 7798. A stand-alone challenge to the regulation could have been made through appropriate mediums, particularly through a petition for declaratory relief with the appropriate Regional Trial Court under the terms of Rule 63 of the Rules of Court, or through a petition for prohibition under Rule 65 to prevent the implementation of the regulation, as the petitioner might have found appropriate to his situation. As already mentioned, a challenge can likewise be made in the course of validlycontesting an adjudicatory order of the COMELEC. Such challenge, however, cannot be made in an original petition for certiorariunder Rule 65 dissociated from any COMELEC action made in the exercise of its quasi-judicial functions.

The petitioners unusual approaches and use of Rule 65 of the Rules of Court do not appear to us to be the result of any error in reading Rule 65, given the way the petition was crafted. Rather, it was a backdoor approach to achieve what the petitioner could not directly do in his individual capacity under Rule 65. It was, at the very least, an attempted bypass of other available, albeit lengthier, modes of review that the Rules of Court provide. While we stop short of concluding that the petitioners approaches constitute an abuse of process through a manipulative reading and application of the Rules of Court, we nevertheless resolve that the petition should be dismissed for its blatant violation of the Rules. The transgressions alleged in a petition, however weighty they may sound, cannot be justifications for blatantly disregarding the rules of procedure, particularly when remedial measures were available under these same rules to achieve the petitioners objectives. For our part, we cannot and should not in the name of liberality and the transcendental importance doctrine entertain these types of petitions. As we held in the very recent case [20] of Lozano, et al. vs. Nograles, albeit from a different perspective, our liberal approach has its limits and should not be abused.

WHEREFORE, premises considered, the petition is DISMISSED.

Cost against the petitioner.

SO ORDERED.

UY KIAO ENG vs. NIXON LEE (2010) Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the August 23, 2006 Amended [1] [2] Decision of the Court of Appeals (CA) in CA-G.R. SP No. 91725 and the February 23, 2007 Resolution, denying the motion for reconsideration thereof.

The relevant facts and proceedings follow.

Alleging that his father passed away on June 22, 1992 in Manila and left a holographic will, which is now in the custody of petitioner Uy Kiao Eng, his mother, respondent Nixon Lee filed, on May 28, 2001, a petition for mandamus with damages, docketed as Civil Case No. 01100939, before the Regional Trial Court (RTC) of Manila, to compel petitioner to produce the will so that probate proceedings for the allowance thereof could be instituted. Allegedly, respondent had already requested his mother to settle and liquidate the patriarchs estate and to deliver to the legal heirs their respective inheritance, but petitioner refused to do so without [3] any justifiable reason.

In her answer with counterclaim, petitioner traversed the allegations in the complaint and posited that the same be dismissed for failure to state a cause of action, for lack of cause of action, and for non-compliance with a condition precedent for the filing thereof. Petitioner denied that she was in custody of the original holographic will and that she knew of its whereabouts. She, moreover, asserted that photocopies of the will were given to respondent and to his siblings. As a matter of fact, respondent was able to introduce, as an exhibit, a copy of the will in Civil Case No. 224-V-00 before the RTC of Valenzuela City. Petitioner further contended that respondent should have first exerted earnest efforts to amicably settle the controversy with her before he filed the [4] suit.

The RTC heard the case. After the presentation and formal offer of respondents evidence, petitioner demurred, contending that her son failed to prove that she had in her custody the original holographic will. Importantly, she asserted that the pieces of documentary evidence presented, aside from being hearsay, were all immaterial and irrelevant to the issue involved in the petitionthey did not prove or disprove that she unlawfully neglected the performance of an act which the law specifically enjoined [5] as a duty resulting from an office, trust or station, for the court to issue the writ of mandamus.

The RTC, at first, denied the demurrer to evidence. In its February 4, 2005 Order, however, it granted the same on petitioners motion for reconsideration. Respondents motion for reconsideration of this latter order was denied on September 20, [8] 2005. Hence, the petition was dismissed.

[6]

[7]

Aggrieved, respondent sought review from the appellate court. On April 26, 2006, the CA initially denied the appeal for lack of merit. It ruled that the writ of mandamus would issue only in instances when no other remedy would be available and sufficient to afford redress. Under Rule 76, in an action for the settlement of the estate of his deceased father, respondent could ask for the presentation or production and for the approval or probate of the holographic will. The CA further ruled that respondent, in the proceedings before the trial court, failed to present sufficient evidence to prove that his mother had in her custody the original copy [9] of the will.

Respondent moved for reconsideration. The appellate court, in the assailed August 23, 2006 Amended Decision, granted the motion, set aside its earlier ruling, issued the writ, and ordered the production of the will and the payment of attorneys fees. It ruled this time that respondent was able to show by testimonial evidence that his mother had in her possession the holographic will.

[10]

Dissatisfied with this turn of events, petitioner filed a motion for reconsideration. The appellate court denied this motion in the [11] further assailed February 23, 2007 Resolution.

Left with no other recourse, petitioner brought the matter before this Court, contending in the main that the petition for mandamus is not the proper remedy and that the testimonial evidence used by the appellate court as basis for its ruling is [12] inadmissible.

The Court cannot sustain the CAs issuance of the writ.

The first paragraph of Section 3 of Rule 65 of the Rules of Court pertinently provides that

SEC. 3. Petition for mandamus.When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the [13] petitioner by reason of the wrongful acts of the respondent.

Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a particular duty therein [14] specified, which duty results from the official station of the party to whom the writ is directed or from operation of law. This definition recognizes the public character of the remedy, and clearly excludes the idea that it may be resorted to for the purpose of [15] enforcing the performance of duties in which the public has no interest. The writ is a proper recourse for citizens who seek to enforce a public right and to compel the performance of a public duty, most especially when the public right involved is mandated [16] by the Constitution. As the quoted provision instructs, mandamus will lie if the tribunal, corporation, board, officer, or person [17] unlawfully neglects the performance of an act which the law enjoins as a duty resulting from an office, trust or station.

The writ of mandamus, however, will not issue to compel an official to do anything which is not his duty to do or which it is his [18] duty not to do, or to give to the applicant anything to which he is not entitled by law. Nor will mandamus issue to enforce a right which is in substantial dispute or as to which a substantial doubt exists, although objection raising a mere technical question will be [19] disregarded if the right is clear and the case is meritorious. As a rule, mandamus will not lie in the absence of any of the following grounds: [a] that the court, officer, board, or person against whom the action is taken unlawfully neglected the performance of an act which the law specifically enjoins as a duty resulting from office, trust, or station; or [b] that such court, officer, board, or person [20] has unlawfully excluded petitioner/relator from the use and enjoyment of a right or office to which he is entitled. On the part of the relator, it is essential to the issuance of a writ of mandamus that he should have a clear legal right to the thing demanded and it [21] must be the imperative duty of respondent to perform the act required.

Recognized further in this jurisdiction is the principle that mandamus cannot be used to enforce contractual [22] obligations. Generally, mandamus will not lie to enforce purely private contract rights, and will not lie against [23] an individual unless some obligation in the nature of a public or quasi-public duty is imposed. The writ is not appropriate to [24] enforce a private right against an individual. The writ of mandamus lies to enforce the execution of an act, when, otherwise, justice would be obstructed; and, regularly, issues only in cases relating to the public and to the government; hence, it is called a [25] prerogative writ. To preserve its prerogative character, mandamus is not used for the redress of private wrongs, but only in [26] matters relating to the public.

Moreover, an important principle followed in the issuance of the writ is that there should be no plain, speedy and adequate [27] remedy in the ordinary course of law other than the remedy of mandamus being invoked. In other words, mandamus can be [28] issued only in cases where the usual modes of procedure and forms of remedy are powerless to afford relief. Although classified [29] as a legal remedy, mandamus is equitable in its nature and its issuance is generally controlled by equitable principles. Indeed, the grant of the writ of mandamus lies in the sound discretion of the court.

In the instant case, the Court, without unnecessarily ascertaining whether the obligation involved herethe production of the original holographic willis in the nature of a public or a private duty, rules that the remedy of mandamus cannot be availed of by respondent Lee because there lies another plain, speedy and adequate remedy in the ordinary course of law. Let it be noted that respondent has a photocopy of the will and that he seeks the production of the original for purposes of probate. The Rules of Court, however, does not prevent him from instituting probate proceedings for the allowance of the will whether the same is in his possession or not. Rule 76, Section 1 relevantly provides:

Section 1. Who may petition for the allowance of will.Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time, after the death of the testator, petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed.

An adequate remedy is further provided by Rule 75, Sections 2 to 5, for the production of the original holographic will. Thus

SEC. 2. Custodian of will to deliver.The person who has custody of a will shall, within twenty (20) days after he knows of the death of the testator, deliver the will to the court having jurisdiction, or to the executor named in the will.

SEC. 3. Executor to present will and accept or refuse trust.A person named as executor in a will shall within twenty (20) days after he knows of the death of the testator, or within twenty (20) days after he knows that he is named executor if he obtained such knowledge after the death of the testator, present such will to the court having jurisdiction, unless the will has reached the court in any other manner, and shall, within such period, signify to the court in writing his acceptance of the trust or his refusal to accept it.

SEC. 4. Custodian and executor subject to fine for neglect.A person who neglects any of the duties required in the two last preceding sections without excuse satisfactory to the court shall be fined not exceeding two thousand pesos.

SEC. 5. Person retaining will may be committed.A person having custody of a will after the death of the testator who neglects without reasonable cause to deliver the same, when ordered so to do, to the court having jurisdiction, may be committed [30] to prison and there kept until he delivers the will.

There being a plain, speedy and adequate remedy in the ordinary course of law for the production of the subject will, the remedy of mandamus cannot be availed of. Suffice it to state that respondent Lee lacks a cause of action in his petition. Thus, the Court grants the demurrer.

WHEREFORE, premises considered, the petition for review on certiorari is GRANTED. The August 23, 2006 Amended Decision and the February 23, 2007 Resolution of the Court of Appeals in CA-G.R. SP No. 91725 are REVERSED and SET ASIDE. Civil Case No. 01100939 before the Regional Trial Court of Manila is DISMISSED.

SO ORDERED.

MASIKIP vs. CITY OF PASIG Where the taking by the State of private property is done for the benefit of a small community which seeks to have its own sports and recreational facility, notwithstanding that there is such a recreational facility only a short distance away, such taking cannot be considered to be for public use. Its expropriation is not valid. In this case, the Court defines what constitutes a genuine necessity for public use.

This petition for review on certiorari assails the Decision of the Court of Appeals dated October 31, 1997 in CA-G.R. SP No. [2] 41860 affirming the Order of the Regional Trial Court, Branch 165, Pasig City, dated May 7, 1996 in S.C.A. No. 873. Likewise [3] assailed is the Resolution of the same court dated November 20, 1998 denying petitioners Motion for Reconsideration. The facts of the case are: Petitioner Lourdes Dela Paz Masikip is the registered owner of a parcel of land with an area of 4,521 square meters located at Pag-Asa, Caniogan, Pasig City, Metro Manila. In a letter dated January 6, 1994, the then Municipality of Pasig, now City of Pasig, respondent, notified petitioner of its intention to expropriate a 1,500 square meter portion of her property to be used for the sports development and recreational activities of the residents of Barangay Caniogan. This was pursuant to Ordinance No. 42, Series of 1993 enacted by the thenSangguniang Bayan of Pasig. Again, on March 23, 1994, respondent wrote another letter to petitioner, but this time the purpose was allegedly in line with the program of the Municipal Government to provide land opportunities to deserving poor sectors of our community. On May 2, 1994, petitioner sent a reply to respondent stating that the intended expropriation of her property is unconstitutional, invalid, and oppressive, as the area of her lot is neither sufficient nor suitable to provide land opportunities to deserving poor sectors of our community. In its letter of December 20, 1994, respondent reiterated that the purpose of the expropriation of petitioners property is to provide sports and recreational facilities to its poor residents. Subsequently, on February 21, 1995, respondent filed with the trial court a complaint for expropriation, docketed as SCA No. 873. Respondent prayed that the trial court, after due notice and hearing, issue an order for the condemnation of the property; that commissioners be appointed for the purpose of determining the just compensation; and that judgment be rendered based on the report of the commissioners. On April 25, 1995, petitioner filed a Motion to Dismiss the complaint on the following grounds: I PLAINTIFF HAS NO CAUSE OF ACTION FOR THE EXERCISE OF THE POWER OF EMINENT DOMAIN, CONSIDERING THAT: (A) THERE IS NO GENUINE NECESSITY FOR THE TAKING OF THE PROPERTY SOUGHT TO BE EXPROPRIATED. (B) PLAINTIFF HAS ARBITRARILY AND CAPRICIOUSLY CHOSEN THE PROPERTY SOUGHT TO BE EXPROPRIATED. (C) EVEN ASSUMING ARGUENDO THAT DEFENDANTS PROPERTY MAY BE EXPROPRIATED BY PLAINTIFF, THE FAIR MARKET VALUE OF THE PROPERTY TO BE EXPROPRIATED FAR EXCEEDS SEVENTY-EIGHT THOUSAND PESOS (P78,000.00)

[1]

II PLAINTIFFS COMPLAINT IS DEFECTIVE IN FORM AND SUBSTANCE, CONSIDERING THAT: (A) PLAINTIFF FAILS TO ALLEGE WITH CERTAINTY THE PURPOSE OF THE EXPROPRIATION. (B) PLAINTIFF HAS FAILED TO COMPLY WITH THE PREREQUISITES LAID DOWN IN SECTION 34, RULE VI OF THE RULES AND REGULATIONS IMPLEMENTING THE LOCAL GOVERNMENT CODE; THUS, THE INSTANT EXPROPRIATION PROCEEDING IS PREMATURE.

III THE GRANTING OF THE EXPROPRIATION WOULD VIOLATE SECTION 261 (V) OF THE OMNIBUS ELECTION CODE. IV PLAINTIFF CANNOT TAKE POSSESSION OF THE SUBJECT PROPERTY BY MERELY DEPOSITING AN AMOUNT EQUAL TO FIFTEEN [4] PERCENT (15%) OF THE VALUE OF THE PROPERTY BASED ON THE CURRENT TAX DECLARATION OF THE SUBJECT PROPERTY. On May 7, 1996, the trial court issued an Order denying the Motion to Dismiss, on the ground that there is a genuine necessity to expropriate the property for the sports and recreational activities of the residents of Pasig. As to the issue of just compensation, the trial court held that the same is to be determined in accordance with the Revised Rules of Court. Petitioner filed a motion for reconsideration but it was denied by the trial court in its Order of July 31, 1996. Forthwith, it appointed the City Assessor and City Treasurer of Pasig City as commissioners to ascertain the just compensation. This prompted petitioner to file with the Court of Appeals a special civil action for certiorari, docketed as CA-G.R. SP No. 41860. On October 31, 1997, the Appellate Court dismissed the petition for lack of merit. Petitioners Motion for Reconsideration was denied in a Resolution dated November 20, 1998. Hence, this petition anchored on the following grounds: THE QUESTIONED DECISION DATED 31 OCTOBER 1997 (ATTACHMENT A) ANDRESOLUTION DATED 20 NOVEMBER 1998 (ATTACHMENT B) ARE CONTRARY TO LAW, THE RULES OF COURT AND JURISPRUDENCE CONSIDERING THAT:
[5]

I A. THERE IS NO EVIDENCE TO PROVE THAT THERE IS GENUINE NECESSITY FOR THE TAKING OF THE PETITIONERS PROPERTY. B. THERE IS NO EVIDENCE TO PROVE THAT THE PUBLIC USE REQUIREMENT FOR THE EXERCISE OF THE POWER OF EMINENT DOMAIN HAS BEEN COMPLIED WITH. C. THERE IS NO EVIDENCE TO PROVE THAT RESPONDENT CITY OF PASIG HAS COMPLIED WITH ALL CONDITIONS PRECEDENT FOR THE EXERCISE OF THE POWER OF EMINENT DOMAIN. THE COURT A QUOS ORDER DATED 07 MAY 1996 AND 31 JULY 1996, WHICH WERE AFFIRMED BY THE COURT OF APPEALS, EFFECTIVELY AMOUNT TO THE TAKING OF PETITIONERS PROPERTY WITHOUT DUE PROCESS OF LAW:

II THE COURT OF APPEALS GRAVELY ERRED IN APPLYING OF RULE ON ACTIONABLE DOCUMENTS TO THE DOCUMENTS ATTACHED TO RESPONDENT CITY OF PASIGSCOMPLAINT DATED 07 APRIL 1995 TO JUSTIFY THE COURT A QUOS DENIAL OF PETITIONERS RESPONSIVE PLEADING TO THE COMPLAINT FOR EXPROPRIATION (THE MOTION TO DISMISS DATED 21 APRIL 1995).

III THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE RULE ON HYPOTHETICAL ADMISSION OF FACTS ALLEGED IN A COMPLAINT CONSIDERING THAT THE MOTION TO DISMISS FILED BY PETITIONER IN THE EXPROPRIATION CASE BELOW WAS THE RESPONSIVE PLEADING REQUIRED TO BE FILED UNDER THE THEN RULE 67 OF THE RULES OF COURT AND NOT AN ORIDNARY MOTION TO DISMISS UNDER RULE 16 OF THE RULES OF COURT. The foregoing arguments may be synthesized into two main issues one substantive and one procedural. We will first address the procedural issue.

Petitioner filed her Motion to Dismiss the complaint for expropriation on April 25, 1995. It was denied by the trial court on May 7, 1996. At that time, the rule on expropriation was governed by Section 3, Rule 67 of the Revised Rules of Court which provides: SEC. 3. Defenses and objections. Within the time specified in the summons, each defendant, in lieu of an answer, shall present in a single motion to dismiss or for other appropriate relief, all his objections and defenses to the right of the plaintiff to take his property for the use or purpose specified in the complaint. All such objections and defenses not so presented are waived. A copy of the motion shall be served on the plaintiffs attorney of record and filed with the court with proof of service. The motion to dismiss contemplated in the above Rule clearly constitutes the responsive pleading which takes the place of an answer to the complaint for expropriation. Such motion is the pleading that puts in issue the right of the plaintiff to expropriate the defendants property for the use specified in the complaint. All that the law requires is that a copy of the said motion be served [6] on plaintiffs attorney of record. It is the court that at its convenience will set the case for trial after the filing of the said pleading. The Court of Appeals therefore erred in holding that the motion to dismiss filed by petitioner hypothetically admitted the truth of the facts alleged in the complaint, specifically that there is a genuine necessity to expropriate petitioners property for public use. Pursuant to the above Rule, the motion is a responsive pleading joining the issues. What the trial court should have done was to set the case for the reception of evidence to determine whether there is indeed a genuine necessity for the taking of the property, instead of summarily making a finding that the taking is for public use and appointing commissioners to fix just compensation. This is especially so considering that the purpose of the expropriation was squarely challenged and put in issue by petitioner in her motion to dismiss. Significantly, the above Rule allowing a defendant in an expropriation case to file a motion to dismiss in lieu of an answer was amended by the 1997 Rules of Civil Procedure, which took effect on July 1, 1997. Section 3, Rule 67 now expressly mandates that any objection or defense to the taking of the property of a defendant must be set forth in an answer. The fact that the Court of Appeals rendered its Decision in CA-G.R. SP No. 41860 on October 31, after the 1997 Rules of Civil Procedure took effect, is of no moment. It is only fair that the Rule at the time petitioner filed her motion to dismiss should govern. The new provision cannot be applied retroactively to her prejudice. We now proceed to address the substantive issue. In the early case of US v. Toribio, this Court defined the power of eminent domain as the right of a government to take and appropriate private property to public use, whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. It has also been described as the power of the State or its instrumentalities to take [8] private property for public use and is inseparable from sovereignty and inherent in government. The power of eminent domain is lodged in the legislative branch of the government. It delegates the exercise thereof to local [9] government units, other public entities and public utility corporations, subject only to Constitutional limitations. Local [10] governments have no inherent power of eminent domain and may exercise it only when expressly authorized by statute. Section 19 of the Local Government Code of 1991 (Republic Act No. 7160) prescribes the delegation by Congress of the power of eminent domain to local government units and lays down the parameters for its exercise, thus: SEC. 19. Eminent Domain. A local government unit may, through its chief executive and acting pursuant to an ordinance, exercise the power of eminent domain for public use, purpose or welfare for the benefit of the poor and the landless, upon payment of just compensation, pursuant to the provisions of the Constitution and pertinent laws: Provided, however, That, the power of eminent domain may not be exercised unless a valid and definite offer has been previously made to the owner and such offer was not accepted: Provided, further, That, the local government unit may immediately take possession of the property upon the filing of expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided,finally, That, the amount to be paid for expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property.
[7]

Judicial review of the exercise of eminent domain is limited to the following areas of concern: (a) the adequacy of the [11] compensation, (b) the necessity of the taking, and (c) the public use character of the purpose of the taking.

In this case, petitioner contends that respondent City of Pasig failed to establish a genuine necessity which justifies the condemnation of her property. While she does not dispute the intended public purpose, nonetheless, she insists that there must be a genuine necessity for the proposed use and purposes. According to petitioner, there is already an established sports development and recreational activity center at Rainforest Park in Pasig City, fully operational and being utilized by its residents, including those from Barangay Caniogan. Respondent does not dispute this. Evidently, there is no genuine necessity to justify the expropriation.

The right to take private property for public purposes necessarily originates from the necessity and the taking must be [12] limited to such necessity. In City of Manila v. Chinese Community of Manila, we held that the very foundation of the right to exercise eminent domain is a genuine necessity and that necessity must be of a public character. Moreover, the ascertainment of [13] the necessity must precede or accompany and not follow, the taking of the land. In City of Manila v. Arellano Law College, we ruled that necessity within the rule that the particular property to be expropriated must be necessary, does not mean an absolute but only a reasonable or practical necessity, such as would combine the greatest benefit to the public with the least inconvenience and expense to the condemning party and the property owner consistent with such benefit.

Applying this standard, we hold that respondent City of Pasig has failed to establish that there is a genuine necessity to expropriate [14] petitioners property. Our scrutiny of the records shows that the Certification issued by the Caniogan Barangay Council dated November 20, 1994, the basis for the passage of Ordinance No. 42 s. 1993 authorizing the expropriation, indicates that the intended beneficiary is the Melendres Compound Homeowners Association, a private, non-profit organization, not the residents of Caniogan. It can be gleaned that the members of the said Association are desirous of having their own private playground and recreational facility. Petitioners lot is the nearest vacant space available. The purpose is, therefore, not clearly and categorically public. The necessity has not been shown, especially considering that there exists an alternative facility for sports development and community recreation in the area, which is the Rainforest Park, available to all residents of Pasig City, including those of Caniogan.

The right to own and possess property is one of the most cherished rights of men. It is so fundamental that it has been written into organic law of every nation where the rule of law prevails. Unless the requisite of genuine necessity for the expropriation of ones property is clearly established, it shall be the duty of the courts to protect the rights of individuals to their private property. Important as the power of eminent domain may be, the inviolable sanctity which the Constitution attaches to the property of the individual requires not only that the purpose for the taking of private property be specified. The genuine necessity for the taking, which must be of a public character, must also be shown to exist.

WHEREFORE, the petition for review is GRANTED. The challenged Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 41860 are REVERSED. The complaint for expropriation filed before the trial court by respondent City of Pasig, docketed as SCA No. 873, is ordered DISMISSED.

THIRD DIVISION [G.R. No. 156078, March 14, 2008] HEIRS OF CESAR MARASIGAN NAMELY: LUZ REGINA, CESAR JR., BENITO, SANTIAGO, RENATO, JOSE, GERALDO, ORLANDO, PETER, PAUL, MAURICIO, ROMMEL, MICHAEL, GABRIEL, AND MARIA LUZ, ALL SURNAMED MARASIGAN, PETITIONERS, VS. APOLONIO, LILIA, OCTAVIO, JR., HORACIO, BENITO JR., AND MARISSA, ALL SURNAMED MARASIGAN, AND THE COURT OF APPEALS, RESPONDENTS. DECISION

CHICO-NAZARIO, J.:

This is a Petition for Review under Rule 45 of the Revised Rules of Court, with petitioners praying for the reversal of the Decision of [2] the Court of Appeals dated 31 July 2002 and its Resolution dated 13 November 2002 denying the Petition forCertiorari and Prohibition, with prayer for the issuance of a writ of preliminary injunction and restraining order, in CA- G.R. SP No. 67529. Petitioners are asking this Court to (a) give due course to their petition; and (b) reverse and set aside, and thus, declare null and void the Decision of the Court of Appeals in CA-G.R. SP No. 67529. However, petitioners are asking for the following reliefs in their Memorandum: (a) the dismissal of the complaint for partition of the estate of the late Alicia Marasigan, docketed as Special Civil Action No. P-77-97, filed before the Regional Trial Court (RTC) of Pili, Camarines Sur; (b) annulment or rescission of the public th auction sale of petitioners' 1/7 undivided share in the estate of Alicia Marasigan, and direct Apolonio Marasigan to restore the same to petitioners; or (c) in the alternative, allowance of the physical partition of the entire 496 hectares of Hacienda Sta. Rita. Central to the instant Petition is the estate of Alicia Marasigan (Alicia). Alicia was survived by her siblings: Cesar, Apolonio, Lilia, and Benito; Marissa, a sister-in-law; and the children of her brothers who predeceased her: Francisco, Horacio, and Octavio. She died intestate and without issue on 21 January 1995. On 17 December 1997, a Complaint for Judicial Partition of the Estate of Alicia Marasigan was filed before the RTC by several of her heirs and private respondents herein, namely, Apolonio, Lilia, Octavio, Jr., Horacio, Benito, Jr., and Marissa, against Cesar, docketed as Special Civil Action No. P-77-97. According to private respondents, Alicia owned in common with her siblings 13 parcels of land called Hacienda Sta. Rita in Pili and Minalabac, Camarines Sur, with an aggregate area of 4,960,963 square meters or 496 hectares, and more particularly described as follows: ORIGINAL CERTIFICATE OF TITLE NO. 626 "A parcel of land denominated as Lot 516-B of the Subdivision Survey Plan Csd-05-001020, situated at Sagurong, Pili, Camarines Sur, bounded on the NE., by PNR; on the SE., by Bgy. Road; on the SW., by Lot 2870; and on the NW., by Lot 512, containing an area of EIGHT THOUSAND SEVEN HUNDRED TWELVE (8,712) SQUARE METERS, more or less, declared under A.R.P. No. 014 166 and assessed at P12, 860.00." ORIGINAL CERTIFICATE OF TITLE NO. 627 "A parcel of land denominated as Lot 4237, Cad-291, Pili Cadastre, Plan Cen-05-000006, situated at Saguron, Pili, Camarines Sur, bounded on the N., by Irr. ditch beyond Lot 445; on the E., by Lots 517 and 518; on the S., by Creek, Lot 468, 467; and on the W., by Lot 2948 and Mun. of Minalabac, containing an area of EIGHT HUNDRED SIXTY ONE THOUSAND ONE HUNDRED SIXTY THREE (861,163) SQUARE METERS, more or less, declared under A.R.P. No. 016 268 and assessed at P539,020.00." ORIGINAL CERTIFICATE OF TITLE NO. 628

[1]

"A parcel of land denominated as Lot 2870 Cad. 291, Pili Cadastre Plan Swo-05000607, situated at Sagurong, Pili, Camarines Sur, bounded on the N., by Binasagan River; on the E., by Lots 512 and 516; on the S., by Barangay Road; and on the W., by Lot 469, containing an area of THIRTEEN THOUSAND FOUR HUNDRED SIXTY TWO (13,462) SQUARE METERS, mote or less, declared under A.R.P. No. 014 130 and assessed at P15,180.00." ORIGINAL CERTIFICATE OF TITLE NO. 629 "A parcel of land denominated as Lot 517-B of the Subdivision Survey Plan Csd-05-001020, situated at Sagurong, Pili, Camarines Sur, bounded on the NE., by PNR; on the SE., by Lot 519; on the SW., by Lots 2025 and 2942; and on the NW., by Brgy. Road, containing an area of THIRTEEN THOUSAND SEVEN HUNDRED SIXTY FIVE (13,765) SQUARE METERS, more or less, declared under A.R.P. No. 014 167 and assessed at P20,310.00." ORIGINAL CERTIFICATE OF TITLE NO. 652 "A parcel of land denominated as Lot 4207-B of the subdivision survey Plan Csd-05-011349-D, situated at Sagurong (San Jose), Pili, Camarines Sur, bounded on the NE., by Lot 4207-C, Lot 6157; on the SE., by Irr. ditch, Lot 2942; and on the NW., by Lot 4298 (3051B), containing an area of FIFTY FOUR (54) SQUARE METERS, mote or less, declared under A.R.P. No. 014 384 and assessed at P40.00." ORIGINAL CERTIFICATE OF TITLE NO. 653 "A parcel of land denominated as Lot 4207-A of the subdivision survey Plan Csd-05-011349-D, situated at Sagurong (San Jose), Pili, Camarines Sur, bounded on the NE., by Lot 4205 (I0T 443-A Csd-05-001019); on the SE., and SW., by Irr. ditch (Lot 2942); on the W., by Lot 4207-C Lot 6157; and on the NW., by Lot 4208 (Lot 3051-B, Csd-05-001019), containing an area of TWENTY SEVEN THOUSAND THREE HUNDRED THIRTY SEVEN (27,33) SQUARE METERS, more or less, declared under A.R.P. No. 014 383 and assessed at P20,150.00." A.R.P. NO. 014 385 "A parcel of land denominated as Lot 4207-C Lot 6157 of the subdivision survey Plan Csd-05-001019, situated at Sagurong (San Jose), Pili, Camarines Sur, bounded on the NE., by Lot 4207-A Lot 6155; on the SE., by Lot 4207-A Lot 6155; on the SW., by Lot 4207-B Lot 6156 and Irr, ditch; and on the NW., by Lot 4208 (3051-B), containing an area of THREE HUNDRED SIXTY ONE (361) SQUARE METERS, more or less, declared under A.R.P. No. 014 385 and assessed at P270.00." ORIGINAL CERTIFICATE OF TITLE NO. 654 "A parcel of land denominated as Lot 443-A of the subdivision survey Plan Csd-05-001019, situated at Sagurong (San Jose), Pili, Camarines Sur, bounded on the NE., by Lots 474, 4019, 4018, 4027, creek; on the SE., by Hrs. of Benito Marasigan; and on the NW., by Lot 443-B, Ireneo Llorin; containing an area of TWO HUNDRED FORTY FOUR THOUSAND EIGHT HUNDRED FIFTY EIGHT (244,858) SQUARE METERS, more or less, declared under A.R.P. No. 014 382 and assessed at P195,400.00." ORIGINAL CERTIFICATE OF TITLE NO. 655 "A parcel of land denominated as Lot 2942-A of the subdivision survey Plan Csd-05-010854-D, situated at Sagurong (San Jose/San Agustin), Pili, Camarines Sur, bounded on the N., by Creek; on the NE., by Lot 3049; on the SE., by Creek; and on the W., by Lots 3184, 3183, 2942-13, 3183, 3060 and 3177; containing an area of FOUR HUNDRED SIXTY SIX THOUSAND SIX HUNDRED TWENTY TWO (466,622) SQUARE METERS, more or less, declared under A.R.P. No. 014 386 and assessed at P287,160.00."

ORIGINAL CERTIFICATE OF TITLE NO. 656 "A parcel of land denominated as Lot 2 Plan Cen-05-000007, situated at San Jose, Pili, Camarines Sur, bounded on the N., by Lots 509 and 508, Binasagan River; on the E., by Lots 523, 521 and 520; on the S., by Lot 522; and on the W., by Phil. Nat'l. Railways; containing an area of ONE HUNDRED FIVE THOUSAND TWO HUNDRED TWELVE (105,212) SQUARE METERS, more or less, declared under A.R.P. No. 016 939 and assessed at P524,220.00." ORIGINAL CERTIFICATE OF TITLE NO. 657 "A parcel of land denominated as Lot 1, Plan Cen-05-000007, situated at San Jose, Pili, Camarines Sur, bounded on the N., by Lots 525, 526, 527; on the E., by Lots 528-A, 529, 530, 531, 532 and Nat'l. Road; on the S., by Lots 533 and 522 pt.; and on the W., by Lots 521, 523; containing an area of FIFTY SIX THOUSAND SIX HUNDRED FIFTY TWO (56,652) SQUARE METERS, more or less, declared under A.R.P. No. 016 993 and assessed at P292,090.00" TRANSFER CERTIFICATE OF TITLE NO. 16841 "A parcel of land denominated as Lots 1 and 2, Plan II-10759, situated at Manapao, Minalabac, Camarines Sur, bounded on the N., by Lots 3061, 3059, 4119, 3178, 3185, 3186, 3187, 3188, Borabodan Creek, 4350, 4401; and on the W., by Lots 4380, 3030, 3057. 3286, 3053, 3056; containing an area of TWO MILLION NINE HUNDRED TWENTY TWO THOUSAND FIFTY NINE (2,922,059) SQUARE METERS, more or less, declared under A.R.P. No. 014 0372 and assessed at P888,200.00." TRANSFER CERTIFICATE OF TITLE NO. 16842 "A parcel of land denominated as Lot 443-A of Plan Psu-62335, situated at Manapao, Minalaban, Camarines Sur (San Jose, Pili, Cam. Sur); bounded on the NE., by Shannon Richmond and Eugenio Dato; on the E., by Eugenio Dato; on the S., by Eugenio Dato and Creek; and on the SW and NW., by Shannon Richmond; containing an area of TWO HUNDRED FORTY THOUSAND SEVEN HUNDRED [3] SIX (240,706) SQUARE METERS, more or less, declared under A.R.P. No. 014 245 and assessed at P146,830.00." Alicia left behind her 2/21 shares in the afore-described 13 parcels of land. In answer to the private respondents' Complaint, Cesar enumerated Alicia's several other properties and assets which he also wanted included in the action for partition, to wit: 1. 2. 3. 4. 5. 6. 7. 1/8 share in the parcel of land covered by TCT No. 10947 located at Poblacion, San Juan, Batangas, containing an area of 4,827 square meters, more or less; 1/8 share in the parcel of land with improvements thereon (cockpit arena) located in Poblacion, San Juan, Batangas covered by TCT No. 0-3255; A parcel of commercial land under property Index No. 024-21-001-25-005 situated in Poblacion, San Juan Batangas containing an area of 540 square meters, more or less; A parcel of land situated in Yabo, Sipocot, Camarines Sur containing an area of 2,000 hectares and covered by Tax Declaration No. 7546; A parcel of land located at Brgy. Yabo, Sipocot, Camarines Sur with an area of 21,000 square meters, more or less, covered by Tax Declaration No. 6622; A parcel of land located at Brgy. Yabo, Sipocot, Camarines Sur with an area of 2,6750 hectares under Tax Declaration No. 5352; A parcel of land located at Barrio Yabo, Sipocot, Camarines Sur with an area of 2,3750 hectares and covered by Tax Declaration No. 3653, and

8.

Shares of Stock in Bolbok Rural Bank, Inc., a family owned rural bank consisting of 3,230 shares at P100.00 per share.

[4]

Cesar's request for inclusion was contested by private respondents on the ground that the properties he enumerated had already [5] been previously partitioned and distributed to the appropriate parties. On 4 February 2000, the RTC decided in favor of private respondents and issued an Order of Partition of the Estate of Alicia Marasigan, decreeing that: As regards to [sic] the real properties located in Hacienda Sta. Rita in the municipalities of Pili and Minilabac, Camarines Sur as described in par. 3 of the complaint, the actual area representing the 2/21 pro-indiviso share having been determined consisting of 422,422.65 sq. meters, more or less (Exhibit 0-2) therefore, the share of each heir of the late Alicia Marasigan is 1/7 or equivalent to 67,496.09 square meters each (Exh. 0-3). Wherefore, in view of the foregoing, decision is hereby rendered. 1. Ordering the partition of the estate of Alicia Marasigan in Hacienda Sta. Rita located in the municipalities of Pili and Minalabac, Camarines Sur consisting of 422,422.65 sq. meters among her surviving brothers and sisters namely: APOLONIO, LILIA, BENITO and CESAR, all surnamed MARASIGAN who will inherit per capita and her nephews and nieces who are the children of deceased brothers - the children of Francisco Marasigan and children of Horacio Marasigan who will inherit per stirpes and Octavio Marasigan, Jr., who will inherit by right of representation of his deceased father, Octavio Marasigan, Sr. Declaring the partition of the San Juan, Batangas properties made by the heirs of Alicia Marasigan as contained in the minutes of the Board Meeting of the Rural Bank of Bolbok valid and binding among them. Ordering the partition of the real properties located in San Juan, Batangas as shown and reflected in Exhibits 1 to 10 inclusive presented by defendant, in the same sharing and proportion as provided in paragraph one above-cited in this dispositive portion. No pronouncement as to costs.
[6]

2. 3.

4.

As the parties could not agree on how they shall physically partition among themselves Alicia's estate, private respondents filed a [7] Motion to Appoint Commissioners following the procedure outlined in Sections 4, 5, 6 and 7 of Rule 69 of the Rules of Court, citing, among other bases for their motion: That unfortunately, the parties could not agree to make the partition among themselves which should have been submitted for the confirmation of the Honorable Court more so because no physical division could be had on the 2/21 pro-indiviso shares of the decedent [Alicia] due to different locations, contours and conditions; The RTC granted the Motion and appointed Myrna V. Badiong, Assistant Provincial Assessor of Camarines Sur, as Chairman of the [8] Board of Commissioners. Private respondents nominated Sandie B. Dacara as the second commissioner. Cesar failed to nominate a third commissioner despite due notice. Upon lapse of the period given, only two commissioners were appointed. On 26 October 2000, the two Commissioners conducted an ocular inspection of Hacienda Sta. Rita, together with the Local Assessment Operations Officer IV of the Provincial Assessor's Office, the Barangay Agrarian Reform Committee (BARC) Chairman, and the Marasigans' caretaker. However, Cesar contended that he did not receive any notice from the Commissioners to attend the ocular inspection and he was, thus, not present on said occasion. The Commissioners' Report was released on 17 November 2000 stating the following findings and recommendations: The undersigned Commissioners admit the 472,472.65 (47.2472.65) square meters representing the 2/21 pro-indiviso share of the deceased Alicia Marasigan and the 1/7 share of each of the heirs of Alicia N. Marasigan equivalent to 67,496.09 square meters or 6.7496.09 hectares determined by Geodetic Engineer Roberto R. Revilla in his Compliance with the Order of the Honorable Court dated November 18, 1998. Considering that the physical division of the 2/21 pro-indiviso share of the decedent, Alicia Marasigan cannot be done because of the different locations and conditions of the properties, undersigned Commissioners hereby recommend that the heirs may assign their 1/7 share to one of the parties willing to buy the same (Sec. 5, Rule 69 of the Rules of Court) provided he pays to the heir[s] willing to assign his/her 1/7 share such amounts the Commissioners have recommended and duly approved by the Honorable Court. In consideration of such findings and after a careful and thorough deliberations by the undersigned on the subject matter,
[9]

considering the subject properties' classification and actual predominant use, desirability and demand and together with the benefits that may be derived therefrom by the landowners, we have decided to recommend as it is hereby recommended that the price of the 1/7 share of each of the heir[s] is P700,000.00 per hectare, thus: P700,000.00 x 6.7496.09 hectares = P4,724,726.30 or in words: FOUR MILLION SEVEN HUNDRED TWENTY FOUR THOUSAND SEVEN HUNDRED TWENTY SIX AND 30/100 PESOS FOR THE 1/7 SHARE [10] (6.7496.09 HECTARES) OF EACH OF THE HEIRS. Cesar opposed the foregoing findings and prayed for the disapproval of the Commissioners' Report. In his Comment/Opposition to the Commissioners' Report, he maintained that: He does not expect that he would be forced, to buy his co-owner's share or to sell his share instead. Had he known that it would be the recourse he would have appealed the judgment [with petitioners referring to the RTC Order of Partition]. But the findings of facts in the Decision as well [as] dispositive do not show that any valid grounds for exception to partition is even present in the instant [11] case. Cesar alleged that the estate is not indivisible just because of the different locations and conditions of the parcels of land constituting the same. Section 5, Rule 69 of the Rules of Court can only be availed of if the partition or division of the real properties involved would be prejudicial to the interest of any of the parties. He asserted that despite the segregation of his share, the remaining parcels of land would still be serviceable for the planting of rice, corn, and sugarcane, thus evidencing that no prejudice would be caused to the interests of his co-heirs. Countering Cesar's arguments, private respondents contended that physical division is impossible because Alicia's estate is equivalent to 2/21 shares in Hacienda Sta. Rita, which is composed of 13 parcels under different titles and tax declarations, situated in different barangays and municipalities, and covers an area of 496 hectares. After a serious consideration of the matters raised by the parties, the RTC issued an Order dated 22 June 2001 approving in toto the recommendations embodied in the Commissioners' Report, particularly, the recommendation that the property be assigned to one [12] of the heirs at P700,000.00 per hectare or a total amount ofP4,724,726.00, after finding the same to be in accordance with the Rules of Court and the New Civil Code. Pertinent portions of the Order are reproduced below: WHEREFORE, in view of all the foregoing, the Commissioners Report dated November 17, 2000 is hereby approved in toto, more specifically its recommendation to assign the property to any one of the heirs interested at the price of P700,000.00 per hectare or in the total amount of P4,724,726.00 per share. Regarding the properties of deceased Alicia Marasigan located at San Juan, Batangas, the herein Commissioners, Mrs. Myrna V. Badiong and Engr. Sandie B. Dacara are hereby directed to proceed with utmost dispatch to San Juan, Batangas and inspect said properties (Exhibits 1 to 10 inclusive) and thereafter to submit a Supplemental Report as to its partition or other disposition with notice to all parties and their counsels all at the expense of the estate, within a period of thirty (30) days from receipt hereof. Dissatisfied, Cesar filed a Motion for Reconsideration,
[13]

which was denied by the RTC for lack of merit.

[14]

In the meantime, Cesar died on 25 October 2001. He was substituted by his heirs and herein petitioners, namely, Luz Regina, Cesar, Jr., Benito, Santiago, Renato, Jose, Geraldo, Orlando, Peter, Paul, Mauricio, Rommel, Michael, Gabriel, and Maria Luz, all surnamed Marasigan. Upon the denial by the RTC of Cesar's Motion for Reconsideration, petitioners elevated their case to the Court of Appeals via a [15] Petition for Certiorari and Prohibition under Rule 65 of the Rules of Court, docketed as Special Civil Action No. 67529. They claimed that the RTC judge acted with grave abuse of discretion amounting to lack or excess of jurisdiction in approving the Commissioners' Report although the facts would clearly indicate the following: (a) The procedure taken by the Commissioners violated the procedure for partition provided in Section 4, Rule 69 of the 1997 Rules of Procedure because there was no notice sent to them for the viewing and examination of the properties of the estate; neither were they heard as to their preference in the portion of the estate, thus depriving them of due process; (b) The ground used by the Commissioners resulting in their recommendation to assign the property is not one of those grounds provided under the Rules (c) Article 492 of the New Civil Code is inapplicable

(d) Assignment of the real properties to one of the parties will not end the co-ownership. Moreover, petitioners accused the RTC of committing grave abuse of discretion in solely relying on the testimony of Apolonio to the effect that physical division is impractical because, while other portions of the land are suitable for agriculture, the others are not, citing the different contours of the land and unavailability of water supply in some parts. The Court of Appeals dismissed petitioners' Petition for Certiorari and Prohibition in a Decision promulgated on 31 July 2002, and ruled that the RTC acted within its authority in issuing the Order of 22 June 2001. The Court of Appeals found that petitioners failed to discharge the burden of proving that the proceedings before the Board of Commissioners were unfair and prejudicial. It likewise found that the petitioners were not denied due process considering that they were afforded the opportunity to be heard during the hearing for approval of the Commissioners' Report on 18 January 2001. According to the appellate court, whether or not the physical division of the estate will cause prejudice to the interests of the parties is an issue addressed to the discretion of the Commissioners. It further held that it would be absurd to believe that the prejudice referred to in Section 5, Rule 69 of the Rules of Court does not embrace physical impossibility and impracticality. It concurred in the finding of the RTC that: It is not difficult to believe that a physical partition/division of the 2/21 pro-indiviso shares of the decedent Alicia Marasigan contained in and spread throughout thirteen (13) parcels of the Hacienda Sta. Rita with a total area of 946 (sic) hectares would be quite impossible if totally impractical. The said parcels are of different measurements in terms of areas and shapes located in [17] different barrages of the Municipalities of Pili and Minalabac, Camarines Sur. The Court of Appeals also noted that whether or not the RTC correctly applied Section 5, Rule 69 of the Rules of Court and Article 492 of the New Civil Code, would involve an error of judgment, which cannot be reviewed on certiorari. Finally, the Court of Appeals found unmeritorious petitioners' argument that the assignment of the estate to one of the parties does not end the co-ownership, [18] considering that it questions the 4 February 2000 Decision of the RTC which had already become final and executory. Petitioners filed a Motion for Reconsideration of the foregoing Decision but the same was denied by the Court of Appeals in a Resolution dated 13 November 2002. Still aggrieved, petitioners filed on 31 December 2002 this Petition for Review under Rule 45 of the Revised Rules of Court, docketed as G.R. No. 156078. Pending resolution of the instant Petition by this Court, the RTC granted private respondents' Urgent Motion for Execution on 26 December 2002. The RTC ordered the sale of petitioners' 1/7 pro-indiviso share in Alicia's estate upon the urgent motion of private respondents dated 27 September 2002 for the partial execution of the judgment of the Court approving the Commissioners' report [20] pending certiorari. Petitioners' share in Alicia's estate was sold in a public auction on 26 February 2003. Based on the Commissioners' Report on the Auction Sale, there were two bidders, Apolonio Marasigan and Amado Lazaro. Apolonio, with a bid of P701,000.00 per hectare, won over Amado Lazaro, whose bid was P700,000.00 per hectare. Petitioners' 1/7 share as Cesar's heirs in Alicia's estate was sold in the public auction for P3,777,689.00. This amount is lower than the P4,724,726.30 price of the 1/7 share in Alicia's estate as earlier determined by the Commissioners due allegedly to the acquisition by the Department of Agrarian Reform (DAR) of a portion of Hacienda Sta. Rita located in Minilabac, Camarines Sur which was placed under Republic Act No. 6657, or the Comprehensive Agrarian Reform Law, with 100.00 hectares thereof compulsorily acquired. On 24 March 2003, petitioners filed with the RTC a Motion to Declare Failure of Bidding and to Annul Public Auction Sale. On 5 May 2003, however, the RTC released an Omnibus Order ruling, among other things, that the objection of petitioners as to the difference of the value of their 1/7 share as determined by the Commissioners vis--vis the winning bid was no longer an issue since Apolonio Marasigan indicated his willingness to pay for the deficiency. Following the public auction and sale of their 1/7 share in the property, petitioners filed a Notice of Appeal with the RTC on 26 [25] May 2003 indicating that they were appealing the 5 May 2003 Omnibus Order of the RTC to the Court of Appeals. Thereafter, or [26] on 9 June 2003, petitioners filed a Record on Appeal pursuant to Section 3, Rule 41 of the Rules of Court, praying that it be [27] approved and transmitted to the Court of Appeals. On 2 July 2003, the RTC issued an Order denying due course to petitioners' Notice of Appeal on the ground that the proper remedy is not appeal, but certiorari. Petitioners then filed on 27 August 2003 another Petition before the Court of Appeals [28] forCertiorari and Mandamus, docketed as CA-G.R. SP No. 78912, praying that the RTC be directed to approve their Notice of
[23] [24] [22] [21] [19] [16]

Appeal and Record on Appeal, and to forward the same to the appellate court. In a Resolution dated 10 October 2003, the Court of Appeals dismissed CA-G.R. SP No. 78912 outright on the ground that the verification and certificate of non-forum shopping of the petition was signed by only Cesar Marasigan, Jr., without any accompanying document to prove his authority to sign on behalf of the other petitioners. Petitioners filed a Motion for Reconsideration but it was [30] [31] denied by the Court of Appeals in a Resolution dated 12 July 2004. Cesar G. Marasigan, Jr., in a Petition for Certiorari filed with this Court on 4 September 2004 and docketed as G.R. No. 164970, prayed for the reversal and setting aside of the Court of Appeals Resolution dated 10 October 2003 dismissing CA-G.R. SP No. 78912, and Resolution dated 12 July 2004 denying the Motion for Reconsideration thereof. This Court, however, issued a Resolution on 13 October 2004 denying the petition for failure of the petitioner to show that the Court of Appeals committed a reversible error. The same has become final and executory. Going back to the Petition at bar, petitioners raise before this Court the following assignment of errors: I. THE COURT A QUO HAS DECIDED A QUESTION OF SUBSTANCE NOT THEREFORE DETERMINED BY THE SUPREME COURT IN FINDING THAT THERE IS NO NEED FOR DUE NOTICE TO THE PARTIES TO ATTEND THE VIEWING AND EXAMINATION OF THE REAL ESTATE SUBJECT OF PARTITION WHEN THE COMMISSIONERS HAVE DECIDED NOT TO PARTITION THE PROPERTY AND SUCH NOTICE UNDER SECTION 4 OF RULE 69 IS INDISPENSABLE ONLY WHEN THEIR DECISION IS TO PARTITION. THE DECISION OF THE COURT OF APPEALS IS NOT IN ACCORDANCE WITH LAW PARTICULARLY WITH ARTICLES 494 AND 495 OF THE NEW CIVIL CODE AND SECTIONS 5 RULE 69 OF THE RULES. THAT THE FINDINGS OF THE COURT OF APPEALS OF PHYSICAL IMPOSSIBILITY AND IMPRACTICALITY IF EMBRACED IN `PREJUDICE' REFERRED IN SECTION 5, RULE 69 OF THE RULES SHALL MAKE SAID RULE VIOLATIVE OF THE CONSTITUTIONAL LIMITATIONS ON THE RULE MAKING POWER OF THE SUPREME COURT THAT ITS RULES SHALL NOT INCREASE, DECREASE OR [32] MODIFY SUBSTANTIVE RIGHTS.
[29]

II. III.

In their Memorandum, however, petitioners submitted for resolution the following issues. I. II. RESPONDENTS HAVE NO CAUSE OF ACTION FOR PARTITION BECAUSE THE SUBJECT MATTER OF THE CASE CONSISTS OF UNDIVIDED SHARES WHICH CANNOT BE PARTITIONED. THE REGIONAL TRIAL COURT HAS NO JURISDICTION TO PARTITION UNDIVIDED OR UNIDENTIFIED LAND AND HAS NOT ACQUIRED JURISDICTION OVER 496 HECTARES OF UNDIVIDED LAND WHICH SHOULD BE THE PROPER SUBJECT OF PARTITION. THE JUDGMENT OF PARTITION AND ALL SUBSEQUENT PROCEEDINGS ARE NULL AND VOID AB INITIO, INCLUDING THE PUBLIC AUCTION SALE OF PETITIONERS' SHARES WHICH HAD NOT RENDERED THIS PETITION MOOT. EVEN ASSUMING ARGUENDO THAT LACK OF CAUSE OF ACTION AND LACK OF JURISDICTION, AS DISCUSSED, CAN BE IGNORED, THE PROCEEDINGS BELOW ARE TAINTED WITH SERIOUS IRREGULARITIES THAT CALL FOR THE EXERCISE OF THE SUPERVISORY POWERS OF THIS HONORABLE COURT. CERTIORARI AS A SPECIAL CIVIL ACTION UNDER RULE 65 AND APPEAL BY CERTIORARI UNDER RULE 45, BOTH OF THE 1997 [33] RULES OF CIVIL PROCEDURE, WERE EMPLOYED AS PROPER REMEDIES IN THIS CASE.
[34]

III. IV.

V.

This Court significantly notes that the first three issues, alleging lack of jurisdiction and cause of action, are raised by petitioners for the first time in their Memorandum. No amount of interpretation or argumentation can place them within the scope of the assignment of errors they raised in their Petition. The parties were duly informed by the Court in its Resolution dated 17 September 2003 that no new issues may be raised by a party in his/its Memorandum and the issues raised in his/its pleadings but not included in the Memorandum shall be deemed waived or abandoned. The raising of additional issues in a memorandum before the Supreme Court is irregular, because said memorandum is supposed to be in support merely of the position taken by the party concerned in his petition, and the raising of new issues amounts [35] to the filing of a petition beyond the reglementary period. The purpose of this rule is to provide all parties to a case a fair opportunity to be heard. No new points of law, theories, issues or arguments may be raised by a party in the Memorandum for the [36] reason that to permit these would be offensive to the basic rules of fair play, justice and due process. Petitioners failed to heed the Court's prohibition on the raising of new issues in the Memorandum.

Moreover, Section 1 of Rule 9 of the Rules of Court provides that: SECTION 1. Defenses and objections not pleaded. - Defenses and objections not pleaded either in a motion to dismiss or in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has not jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. First, it bears to point out that Cesar, petitioners' predecessor, did not file any motion to dismiss, and his answer before the RTC did not bear the defenses/objections of lack of jurisdiction or cause of action on these grounds; consequently, these must be considered waived. The exception that the court may still dismiss a case for lack of jurisdiction over the subject matter, although the same is not pleaded, but is apparent in the pleadings or evidence on record, does not find application to the present Petition. Second, [37] petitioners' arguments on the lack of jurisdiction of the RTC over the case more appropriately pertain to venue, rather than jurisdiction over the subject matter, and are, moreover, not apparent from the pleadings and evidence on record. Third, the property subject of partition is only the 47.2 hectare pro-indiviso area representing the estate of Alicia. It does not include the entire 496 hectares of land comprising Hacienda Sta. Rita. Even petitioners' argument that non-payment of appropriate docket fees by private respondents deprived the RTC of jurisdiction to [38] [39] partition the entire Hacienda Sta. Rita deserves scant consideration. In National Steel Corporation v. Court of Appeals, the Court ruled: x x x while the lack of jurisdiction of a court may be raised at any stage of an action, nevertheless, the party raising such question may be estopped if he has actively taken part in the very proceedings which he questions and he only objects to the court's jurisdiction because the judgment or the order subsequently rendered is adverse to him. Irrefragably, petitioners raised the issues of jurisdiction for lack of payment of appropriate docket fees and lack of cause of action belatedly in their Memorandum before this Court. Cesar and petitioners were noticeably mum about these in the proceedings before. In fact, Cesar actively participated in the proceedings conducted before the RTC by seeking affirmative reliefs therefrom, such as the inclusion of more properties in the partition. Hence, petitioners are already estopped from assailing the jurisdiction of the RTC on this ground. It is conceded that this Court adheres to the policy that "where the court itself clearly has no jurisdiction over the subject matter or [40] the nature of the action, the invocation of this defense may de done at any time." While it is the general rule that neither waiver nor estoppel shall apply to confer jurisdiction upon a court, the Court may rule otherwise under meritorious and exceptional [41] circumstances. One such exception isTijam v. Sibonghanoy, which finds application in this case. This Court held inTijam that "after voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court." This Court further notes that while petitioners filed their last pleading in this case, their Memorandum, on 26 December 2003, they [42] failed to mention therein that the Court of Appeals had already dismissed CA-G.R. SP No. 78912. To recall, CA-G.R. No. 78912 is a Petition for Certiorari and Mandamus involving the RTC Order dated 2 July 2003, which denied petitioners' Notice of Appeal. Petitioners intended to appeal the RTC Omnibus Order dated 5 May 2003 sustaining the public auction and sale of petitioners' share in Alicia's estate. Petitioners' failure to provide this Court with information on the developments in CA-G.R. SP No. 78912 is not only in violation of the rules on non-forum shopping, but is also grossly misleading, because they are raising in their Memorandum in the present case the same issues concerning the public auction and sale of their share in Alicia's estate. The purpose of the rule against forum shopping is to promote and facilitate the orderly administration of justice. Forum shopping "occurs when a party attempts to have his action tried in a particular court or jurisdiction where he feels he will receive the most favorable judgment or verdict." In our jurisdiction, it has taken the form of filing multiple petitions or complaints involving the same issues before two or more tribunals or agencies in the hope that one or the other court would make a favorable disposition. There is also forum shopping when, because of an adverse decision in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another. The rationale against forum shopping is that a party should not be allowed to pursue simultaneous remedies in two different fora. Filing multiple petitions or complaints constitutes abuse of court processes, which tends to degrade the administration of justice, wreaks havoc upon orderly judicial procedure, and adds to the congestion of the heavily burdened dockets of the courts. Thus, the rule proscribing forum shopping seeks to promote candor and transparency among lawyers and their clients in the pursuit of their cases before the courts to promote the orderly administration of justice, prevent undue inconvenience upon the other party, and save the precious time of the courts. It also aims to prevent the [43] embarrassing situation of two or more courts or agencies rendering conflicting resolutions or decisions upon the same issue.

Petitioners have indeed managed to muddle the issues in the instant case by raising issues for the first time in their Memorandum, as well as including issues that were already pending before another tribunal and have eventually been decided with finality, for which reason petitioners are herein admonished by this Court. The Court, nonetheless, manages to strip the issues in this Petition down to the singular issue of whether or not the Court of Appeals erred in affirming in toto the RTC Order adopting the Commissioners' recommendation on the manner of partition of the estate of Alicia Marasigan. After an exhaustive study of the merits of the case and the pleadings submitted by the parties, this Court is convinced that the Court of Appeals did not err in affirming the Order of the RTC which approved the Commissioners' recommendations as to the manner of implementing the Order of Partition of Alicia's estate. There is no reason to reverse the Court of Appeal's dismissal of petitioners' Petition for Certiorari and Prohibition and ruling that the RTC acted well-within its jurisdiction in issuing the assailed Order. Nowhere is it shown that the RTC committed such patent, gross and prejudicial errors of law or fact, or a capricious disregard of settled law and jurisprudence, as to amount to a grave abuse of discretion or lack of jurisdiction on its part, in adopting and confirming the recommendations submitted by the Commissioners, and which would have warranted the issuance of a writ of certiorari. This petition originated from an original action for partition. It is governed by Rule 69 of the Rules of Court, and can be availed of under the following circumstances: Section 1. Complaint in action for partition of real estate. A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property. In this jurisdiction, an action for partition is comprised of two phases: first, the trial court, after determining that a co-ownership in fact exists and that partition is proper, issues an order for partition; and, second, the trial court promulgates a decision confirming the sketch and subdivision of the properties submitted by the parties (if the parties reach an agreement) or by the appointed [44] commissioners (if the parties fail to agree), as the case may be. The delineations of these two phases have already been thoroughly discussed by this Court in several cases where it explained: The first phase of a partition and/or accounting suit is taken up with the determination of whether or not a co-ownership in fact exists, (i.e., not otherwise legally proscribed) and may be made by voluntary agreement of all the parties interested in the property. This phase may end with a declaration that plaintiff is not entitled to have a partition either because a co-ownership does not exist, or partition is legally prohibited. It may end, upon the other hand, with an adjudgment that a co-ownership does in truth exist, partition is proper in the premises and an accounting of rents and profits received by the defendant from the real estate in question is in order. In the latter case, the parties may, if they are able to agree, make partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon. In either case - i.e., either the action is dismissed or partition and/or accounting is decreed - the order is a final one, and may be appealed by any party aggrieved thereby. The second phase commences when it appears that "the parties are unable to agree upon the partition" directed by the court. In that event, partition shall be done for the parties by the court with the assistance of not more than three (3) commissioners. This second stage may well also deal with the rendition of the accounting itself and its approval by the court after the parties have been accorded opportunity to be heard thereon, and an award for the recovery by the party or parties thereto entitled of their just share [45] in the rents and profits of the real estate in question. Such an order is, to be sure, final and appealable. Trouble arose in the instant petition in the second phase. Petitioners postulate that the Court of Appeals erred in holding that notice to the heirs regarding the examination and viewing of the estate is no longer necessary given the circumstances. They aver that, in effect, the Court of Appeals was saying that such notice is only necessary when the Commissioners actually distribute the properties, but is not mandatory when the Commissioners recommend the assignment of the properties to any of the heirs. Petitioners contend that this is prejudicial to their right to due process since they are deprived of the opportunity to be heard on the valuation of their share in the estate. Petitioners' opposition is anchored on Section 4 of Rule 69 of the Rules of Court, which reads: Section 4. Oath and duties of commissioners. Before making such partition, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. In making the partition, the commissioners shall view and examine the real estate, after due notice to the parties to attend at such view and examination, and shall hear the parties as to their preference in the portion of the property to be set apart to them and

the comparative value thereof, and shall set apart the same to the parties in lots or parcels as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof. Petitioners insist that the above provision is explicit and does not allow any qualification, contending that it does not require that the lack of notice must first be proven to have caused prejudice to the interest of a party before the latter may object to the Commissioners' viewing and examination of the real properties on the basis thereof. They maintain that they were prejudiced by the mere lack of notice. We, on the other hand, find that the scales of justice have remained equal throughout the proceedings before the RTC and the Commissioners. This Court, in the performance of its constitutionally mandated duty to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government, is duty-bound to ensure that due process is afforded to all the parties to a case. As the Court of Appeals declared, due process is not a mantra, the mere invocation of which shall warrant a reversal of a decision. [46] Well-settled is the rule that the essence of due process is the opportunity to be heard. In Legarda v. Court of Appeals, the Court held that as long as parties to a case were given the opportunity to defend their interest in due course, they cannot be said to have been denied due process of the law. Neither do the records show any indicia that the preference of petitioners for the physical subdivision of the property was not taken into consideration by the Commissioners. Petitioners' persistent assertion that their rights were prejudiced by the lack of notice is not enough. Black's Law Dictionary defines [47] the word prejudice as damage or detriment to one's legal rights or claims. Prejudice means injury or damage. No competent proof was adduced by petitioners to prove their allegation. Mere allegations cannot be the basis of a finding of prejudice. He who alleges a [48] fact has the burden of proving it and a mere allegation is not evidence. It should not be forgotten that the purpose of the rules of procedure is to secure for the parties a just, speedy and inexpensive [49] determination of every action or proceeding. The ultimate purpose of the rules of procedure is to attain, not defeat, substantial [50] justice. Records reveal that the parties were given sufficient opportunity to raise their concerns. From the time the action for partition was filed by private respondents, all the parties, including the late Cesar, petitioners' predecessor, were given a fair opportunity to be heard. Since the parties were unable to agree on how the properties shall be divided, Commissioners were appointed by the Court pursuant to Section 3 of Rule 69 of the Rules of Court. Section 3. Commissioners to make partition when parties fail to agree. - If the parties are unable to agree upon the partition, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. While the lack of notice to Cesar of the viewing and examination by the Commissioners of the real properties comprising Alicia's estate is a procedural infirmity, it did not violate any of his substantive rights nor did it deprive him of due process. It is a matter of record, and petitioners cannot deny, that Cesar was able to file his Comment/Opposition to the Commissioners' Report. And after the RTC adopted and confirmed the Commissioners' recommendations in its Order dated 22 June 2001, Cesar was able to file a Motion for Reconsideration of the said Order. He had sufficient opportunity to present before the RTC whatever objections or oppositions he may have had to the Commissioners' Report, including the valuation of his share in Alicia's estate. Petitioners also allege that the ruling of the Court of Appeals -- that physical impossibility and impracticality are embraced by the word "prejudice," referred to in Section 5 of Rule 69 of the Rules of Court -- violates the constitutional limitation on the rule-making power of the Supreme Court, according to which, the Rules of Court shall not increase, decrease or modify substantive rights. According to petitioners, Section 5 of Rule 69 of the Rules of Court, which provides: Section 5. Assignment or sale of real estate by commissioners. - When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be divided without prejudice to the interests of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such amounts as the commissioners deem equitable, unless one of the interested parties asks that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine.

should be read in conjunction with Articles 494 and 495 of the New Civil which provide for the following substantive rights: Article 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any time the partition of the thing owned in common, insofar as his share is concerned. Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten years, shall be valid. This term may be extended by a new agreement. A donor or testator may prohibit partition for a period which shall not exceed twenty years. Neither shall there be any partition when it is prohibited by law. No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership. Article 495. Notwithstanding the provisions of the preceding article, the co-owners cannot demand a physical division of the thing owned in common, when to do so would render unserviceable for the use for which it is intended. But the co-ownership may be terminated in accordance with Article 498. Article 498 of the New Civil Code, referred to by Article 495 of the same Code, states: Article 498. Whenever the thing is essentially indivisible and the co-owners cannot agree that it be allotted to one of them who shall indemnify the others, it shall be sold and its proceeds distributed. Evidently, the afore-quoted Civil Code provisions and the Rules of Court must be interpreted so as to give effect to the very purpose thereof, which is to put to an end to co-ownership in a manner most beneficial and fair to all the co-owners. As to whether a particular property may be divided without prejudice to the interests of the parties is a question of fact. To answer it, the court must take into consideration the type, condition, location, and use of the subject property. In appropriate cases such as the one at bar, the court may delegate the determination of the same to the Commissioners. The Commissioners found, after a viewing and examination of Alicia's estate, that the same cannot be divided without causing prejudice to the interests of the parties. This finding is further supported by the testimony of Apolonio Marasigan that the estate cannot be divided into smaller portions, since only certain portions of the land are suitable to agriculture, while others are not, due to the contours of the land and unavailability of water supply. The impracticality of physically dividing Alicia's estate becomes more apparent, considering that Hacienda Sta. Rita is composed of parcels and snippets of land located in two different municipalities, Pili and Minalabac, Camarines Sur. The actual area representing Alicia's 2/21 pro-indiviso shares in Hacienda Sta. Rita is 422,422.65 square meters, more or less. Each of Alicia's heirs is entitled to [51] 1/7 share in her estate equivalent to 67,496.09 square meters or roughly seven hectares. Cesar and his heirs are entitled only to his 1/7 share in the yet unidentified, unsegregated 2/21 pro-indiviso shares of Alicia in each of the 13 parcels of land that comprises Hacienda Sta. Rita. Dividing the parcels of land even further, each portion allotted to Alicia's heirs, with a significantly reduced land area and widely scattered in two municipalities, would irrefragably diminish the value and use of each portion, as compared to keeping the entire estate intact. The correctness of the finding of the RTC and the Commissioners that dividing Alicia's estate would be prejudicial to the parties cannot be passed upon by the Court of Appeals in a petition for certiorari. Factual questions are not within the province of a petition for certiorari. There is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. As to whether the court a quo decided the question wrongly is immaterial in a petition for certiorari. It is a legal presumption that findings of fact of a trial court carry great weight and are entitled to respect on appeal, absent any strong and cogent reason to the contrary, since it is in [52] a better position to decide the question of credibility of witnesses. The writ of certiorari issues for the correction of errors of jurisdiction only or grave abuse of discretion amounting to lack or excess [53] of jurisdiction. The writ of certioraricannot be legally used for any other purpose. At most, the petition pertains to an error of judgment, and not of jurisdiction, for clearly under Section 5 of Rule 69, the question of whether a party's interest shall be prejudiced by the division of the real property is left to the determination and discretion of the Commissioners. Hence, it is totally unnecessary for this Court to address the issue raised by petitioners concerning the alleged unconstitutionality of Section 5, Rule 69 of the Rules of Court for having been issued beyond the constitutional limitation on the rule-making power of this

Court. Basic is the principle that a constitutional issue may only be passed upon if essential to the decision of a case or [54] controversy. A purported constitutional issue raised by petitioners may only be resolved if essential to the decision of a case and controversy. Even if all the requisites for judicial review are present, this Court will not entertain a constitutional question unless it is [55] the very lis mota of the case or if the case can be disposed of on some other grounds, such as the application of a statute or general law. The present problem of partition by co-heirs/co-owners can be resolved without elevating their case to one of constitutionality. In the absence of evidence to the contrary, this Court can only presume that the proceedings in Special Civil Action No. P-77-97 before the RTC, including the recommendation made by the Commissioners, were fairly and regularly conducted, meaning that both the RTC and the appointed Commissioners had carefully reviewed, studied, and weighed the claims of all the parties. Petitioners' argument that the assignment of the property will not terminate the co-ownership is specious, considering that [56] partition, in general, is the separation, division, and ASSIGNMENT of a thing held in common by those to whom it may belong. Inasmuch as the parties continued to manifest their desire to terminate their co-ownership, but the co-heirs/co-owners could not agree on which properties would be allotted to each of them, this Court finds that the Court of Appeals was correct in ruling that the RTC did not act with grave abuse of discretion amounting to lack or excess of jurisdiction when it approved the Commissioners' recommendation that the co-heirs/co-owners assign their shares to one of them in exchange for proper compensation. This Court has consistently held that one of the purposes for which courts are organized is to put an end to controversy in the determination of the respective rights of the contending parties. With the full knowledge that courts are not infallible, the litigants submit their respective claims for judgment, and they have a right at some time or another to have final judgment on which they can [57] rely over a final disposition of the issue or issues submitted, and to know that there is an end to the litigation; otherwise, there [58] would be no end to legal processes. Finally, petitioners raise before this Court the issue that the public auction sale of their shares is null and void; at the same time they allege deficiency in the bid price for their 1/7 share in Alicia's estate vis--vis the valuation of the same by the [59] Commissioners. This Court is already barred from ruling on the validity of the public auction sale. This Court's ruling dated 13 October 2004 in G.R. No. 164970 denying their petition for certiorari lays to rest petitioners' questioning of the Court of Appeals' Resolution dismissing their appeal therein of the issue of the validity of the public sale of their share in Alicia's estate. Such decision [60] or order can no longer be disturbed or reopened no matter how erroneous it may have been. Indeed, while it is understandable for petitioners to protect their rights to their portions of the estate, the correlative rights of the other co-owners/co-heirs must also be taken into consideration to balance the scales of justice. And, by finding the course of action, within the boundaries of law and jurisprudence, that is most beneficial and equitable for all of the parties, the courts' duty has been satisfactorily fulfilled. Thus, contrary to petitioners' averments, this Court finds that the Court of Appeals did not err in ruling that the RTC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in adopting and confirming the recommendations of the Commissioners. WHEREFORE, premises considered, the Petition for Review on Certiorari is herebyDENIED for lack of merit, and the assailed Decision dated 31 July 2002 of the Court of Appeals in docket no. CA-G.R. SP No. 67529 is hereby AFFIRMED. Costs against petitioners. SO ORDERED. Ynares-Santiago, (Chairperson), Austria-Martinez, Nachura, and Reyes, JJ., concur.

ABAYA INVESTMENTS CORPORATION, Petitioner, vs. MERIT PHILIPPINES and SERVULO C. DOMINISE, Respondents. YNARES-SATIAGO, J.:

This Petition for Review on Certiorari assails the August 24, 2006 Decision of the Court of Appeals in CA-G.R. SP No. 79495 which reversed and set aside the Decision of the Regional Trial Court of Manila, Branch 36 affirming with modification the Decision of the [2] Metropolitan Trial Court of Manila, Branch 12, as well as the January 17, 2007 Resolution denying the motion for reconsideration. Petitioner leased a commercial building known as "Carmen Building" located at Sampaloc, Manila to respondents for the period September 1, 2000 to August 31, 2005. The contract contained a stipulation prohibiting respondents from subleasing any portion of the building. Thereafter, respondents failed to pay the rentals for the months of January, February, March and April 2001 totaling P450,000.00. After several demands, respondents paid petitioner P150,000.00 in April 2001, P150,000.00 on May 7, 2001 and P150,000.00 on May 9, 2001. However, respondents again failed to pay the rentals for the succeeding months. Petitioner also discovered that respondents subleased a portion of the building to a computer gaming entity without its consent. Hence, on July 30, 2001, petitioner sent a letter demanding respondents to pay the arrearages, electricity and water bills in the amount of P531,069.50 and to terminate the sublease. Respondents made payments in August and September, 2001. However, they again reneged on their obligation to pay the rents due and to terminate the sublease contract which compelled petitioner to send another demand letter dated October 22, 2001. Petitioner categorically demanded payment of the balance due and for respondents to vacate the premises. Respondents made partial payments in November and December, 2001. However, with the accrual of rentals, interest, and electricity bill, respondents' obligation amounted to P352,232.70. Finally, on January 2, 2002, petitioner filed a Complaint for Unlawful Detainer against respondents for non-payment of rentals and illegal subleasing before the Metropolitan Trial Court of Manila, docketed as Civil Case No. 171849-CV. Respondents admitted that as of December 10, 2001, it owed petitioner P352,232.70 but denied subleasing a portion of the premises to another entity and repudiated petitioner's right to damages. It also assailed petitioner's personality to file the Complaint for ejectment stating that Ms. Abaya was not duly authorized to file the same. During the pendency of the case, respondents paid petitioner P300,000.00 and vacated the premises in May, 2002. Petitioner however claimed that respondents left the premises stealthily sometime in June 2002 without paying the rentals due for the period January to May 2002. On December 10, 2002, the Metropolitan Trial Court of Manila, Branch 12, rendered a Decision in favor of petitioner the dispositive portion of which reads: WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in favor of the plaintiff and against the defendants and all persons claiming rights under them, ordering them to immediately vacate the premises located at Carmen Building, 886 Espana corner Cataluna Street, Sampaloc Manila and to solidarily pay herein plaintiff: 1. 2. Php 482,885.02 - As earlier indicated; and Php 20,000.00 - Representing reasonable reimbursement of attorney's fees and litigation expenses.
[4] [3]

[1]

SO ORDERED.

Respondents appealed before the Regional Trial Court of Manila arguing that petitioner is not properly clothed with authority to file the ejectment case; that the case was considered moot since it vacated the premises; and that the award of damages is not proper. On July 28, 2003, the Regional Trial Court of Manila, Branch 36, rendered a Decision Court but deleted the award of damages.
[5]

sustaining the ruling of the Metropolitan Trial

Thus, respondents filed a Petition for Review before the Court of Appeals which rendered the assailed Decision reversing the decisions of the Regional Trial Court and the Metropolitan Trial Court. The dispostive portion of the Decision reads: WHEREFORE, premises considered, the instant petition for review is hereby GRANTED. ACCORDINGLY, the decision of the Regional Trial Court of Manila, Branch 36, dated July 28, 2003, affirming with modification the decision of the Metropolitan Trial Court of Manila is hereby SET ASIDE. SO ORDERED.
[6]

The Court of Appeals ruled that the trial court was without jurisdiction when it took cognizance of the complaint filed before it. It held that the issue was not one of possession but rather rescission of contracts over which the Metropolitan Trial Court is without jurisdiction, thus: Evidently, under those circumstances, ejectment is not the proper remedy. This is because proof of any violation is a condition precedent to resolution or rescission of the contract. It is only when the violation has been established that the contract can be declared rescinded. Hence, it is only upon such rescission that there can be a pronouncement that possession of the realty has become unlawful.Thus, the basic issue is not possession but one of rescission of a contract, which is beyond the jurisdiction of the trial court to hear and determine. In the case of Nera vs. Vacante, the Supreme Court said that: "A violation by a party of any of the stipulations of a contract on agreement to sell real property would entitle the other party to resolve or rescind it. An allegation of such violation in a detainer suit may be proved by competent evidence. And if proved a justice of the peace court might make a finding to that effect, but it certainly cannot declare and hold that the contract is resolved or rescinded. It is beyond its power so to do. And as the illegality of the possession of realty by a party to a contract to sell is premised upon the resolution of the contract, it follows that an allegation and proof of such violation, a condition precedent to such resolution or rescission, to render unlawful the possession of the land or building erected thereon by the party who has violated the contract, cannot be taken cognizance of by a justice of the peace court..." Hence, where the unlawful possession of the property by a party to a contract is premised upon the rescission of the contract, an allegation and proof of such violation is a condition precedent to such rescission to render unlawful the possession of the property by the party who has violated the contract which cannot be taken cognizance of by a Metropolitan Trial Court. The rescission of the contract is the basis of, and therefore a condition precedent for, the illegality of a party's possession of a piece of realty. Without judicial intervention and determination, even a stipulation entitling one party to take possession of the land and building in case the other party violates the contract cannot confer upon the former the right to take possession thereof, if that move is objected to. In the instant case, the ejectment case filed by respondent before the trial court will not prosper. This is because the proof of violation is a condition precedent to rescission of the contract. Since violation has not been established, the pronouncement by the trial court that the possession by the petitioners of the building has become unlawful is premature. While it is true that the contract between the parties provided for extrajudicial rescission, nevertheless, a judicial determination is necessary where it is objected to by the other party. As said by the Supreme Court in the case of JOSE ZULUETA vs. HON. HERMINIANO MARIANO, "A stipulation entitling one party to take possession of the land and building if the other party violates the contract does not ex proprio vigore confer upon the former the right to take possession thereof if objected to without judicial [7] intervention and determination." (Citations omitted) Petitioner filed a motion for reconsideration but it was denied. Hence, the instant petition for review on certiorari raising the following errors: 1. 2. The MTC and the RTC saw the Complaint as one for ejectment, but the Court of Appeals erroneously read it out of context and saw it as one for rescission, contrary to the very allegations of said Complaint; The Decision of the Court of Appeals is contrary to Art. 1673 of the New Civil Code, among others, existing Rules, opinions of experts and jurisprudence. It even encourages multiplicity of suit, and it is based on inapplicable decisions with totally different factual milieu;

3.

The Court of Appeals went beyond its jurisdiction over the case and the issue raised in the petition for review; and it [8] deprived herein petitioner of due process of law.

Petitioner argues that the subject Complaint is one for unlawful detainer and not rescission of contract; that the Complaint alleged the existence of the lease of land and building evidenced by a lease contract; that the lessee was in arrears for several months; and that the lessee, without any right, subleased part of the building in violation of the lease contract; that the legal bases of the ejectment case were violation of law and contract, specifically, Articles 1673, 1650, 1159, and 1315 of the Civil Code; that the reliefs prayed for in the Complaint are constitutive of those in an ejectment suit: vacate the subject premises, to pay the unpaid rentals and attorney's fees and other damages. On the other hand, respondents contend that the filing of a complaint for rescission is a condition sine qua non before the ejectment; that in unilaterally terminating the lease contract without first rescinding the same, the respondents' right to address the alleged violation was effectively foreclosed. This Court has consistently held that jurisdiction is determined by the nature of the action as pleaded in the complaint. The test of the sufficiency of the facts alleged in the complaint is whether or not admitting the facts alleged therein, the court could render a [9] valid judgment upon the same in accordance with the prayer of the plaintiff. In a complaint for unlawful detainer an allegation that the withholding of the possession or the refusal to vacate is unlawful without necessarily employing the terminology of the law is [10] sufficient. A review of the averments of the Complaint reveals that there is an allegation that respondents' occupancy of the premises was by virtue of a lease contract and that infractions were committed which served as basis for terminating the same and for respondents to vacate the premises. Clearly, the complaint avers ultimate facts required for a cause of action in an unlawful detainer case which is within the jurisdiction of the Metropolitan Trial Court. The ruling of the Court of Appeals requiring prior rescission of the subject lease contract is misplaced. Nera v. Vacante and Zulueta [12] v. Mariano are inapplicable to the instant case. In the cases cited, the basis for the occupation of the parties thereon are contracts to sell the premises on installment. Thus, the contractual relations between the parties are more than that of a lessorlessee. They involved violations of contracts to sell in installments the validity of which was the basis of the defendants' possession of the subject premises. The instant case however involves a contract of lease. Article 1673 of the Civil Code provides that the lessor may judicially eject the lessee for non-payment of the price stipulated and violation of any of the conditions agreed upon in the contract. In instituting [14] an action for unlawful detainer, Section 2, Rule 70 of the Rules of Court requires the lessor to make a demand upon the lessee to comply with the conditions of the lease and to vacate the premises. It is the owner's demand for the tenant to vacate the premises and the tenant's refusal to do so which makes unlawful the withholding of possession. Such refusal violates the owner's right of [15] possession giving rise to an action for unlawful detainer. The availability of the action for rescission does not preclude the lessor to avail of the remedy of ejectment. In Dayao v. Shell [16] Company of the Philippines, Ltd., where a complaint for unlawful detainer on the ground of violation of contract was filed, the Court held that a lessor is not required to bring first an action for rescission but could ask the Court to do so and simultaneously seek [17] to eject the lessee in a single action for illegal detainer. Respondents next claim that the Complaint before the Metropolitan Trial Court of Manila was instituted by Ofelia C. Abaya, petitioner's Chairman and President, who signed the Verification and Certification against Forum Shopping without however proof of authority to sign for plaintiff-corporation. Section 5, Rule 7 of the Rules of Court requires the plaintiff or principal party to execute a certification against forum shopping [18] simultaneous with the filing of the complaint. In Fuentebella v. Castro, the Court ruled that, if, for any reason, the principal party cannot sign the petition, the one signing on his behalf must have been duly authorized. Where such party is a corporate body, an officer of the corporation can sign the certification against forum shopping so long as he has been duly authorized by a resolution of its board of directors and a certification which had been signed without the proper authorization is defective and constitutes a valid [19] cause for the dismissal of the petition. However, in Shipside Inc. v. Court of Appeals, the Court ruled that technical rules of procedure should be used to promote, and not frustrate justice. While the requirement of the certificate of non-forum shopping is mandatory, nonetheless the requirements must not be interpreted too literally and thus defeat the objective of preventing the undesirable practice of forum shopping. The Court also held that on several occasions, it has excused non-compliance with the requirement as to the certificate of non-forum shopping and with more reason should it allow the petition submitted therein since petitioner did submit a certification on non[20] [13] [11]

forum shopping, failing only to show that the signatory was authorized.

[21]

In view of the merits of the case and to avoid a re-litigation of the issues and further delay in the administration of justice, we find it more in accord with substantial justice to relax the application of procedural rules and sustain the validity of the proceedings before the trial courts in the present case. In any event, we note that Ms. Abaya's authority to sign the certification was ratified by the [22] Board. In Benguet Corporation v. Cordillera Caraballo Mission, Inc, the Court gave due course to the petition considering that the signatory's authority to sign the certification was ratified by the Board and the purpose of the certification, which is to prohibit and [24] penalize the evils of forum shopping, was not circumvented. Likewise, in China Banking Corporation v. Mondragon International [25] Philippines, Inc., the Court ruled that the complaint be decided on the merits despite the failure to attach the required proof of authority, because the board resolution subsequently attached recognized the signatory's preexisting status as an authorized [26] signatory. WHEREFORE, premises considered, the petition for review on certiorari isGRANTED. The Decision and Resolution of the Court Appeals dated August 24, 2006 and January 17, 2007, respectively, in CA-G.R. SP No. 79495 setting aside the Decision of the Regional Trial Court of Manila, Branch 36, are REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Manila, Branch 36, affirming with modification the Decision of the Metropolitan Trial Court of Manila, Branch 12, is REINSTATED and AFFIRMED. SO ORDERED.
[23]

MA. CONCEPCION L. REGALADO, Petitioner, vs. ANTONIO S. GO, Respondent. DECISION CHICO-NAZARIO, J.: This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, of the Resolution dated 30 August 2004 of the Court of Appeals, finding petitioner Ma. Concepcion L. Regalado (Atty. Regalado) guilty of indirect contempt. Likewise assailed in this 2 petition is the Resolution denying her Motion for Reconsideration. The dispositive portion of the Resolution reads: WHEREFORE, Atty. Ma. Concepcion Regalado of De Borja Medialdea Bello Guevarra and Gerodias Law Offices is declared GUILTY of INDIRECT CONTEMPT and is ordered to pay a fine of Five Thousand Pesos (P5,000), with a STERN WARNING that a repetition of the same or similar acts in the future will be dealt with more severely. The imposed fine should be paid to this Court upon finality hereof. Let a copy of this resolution be furnished the Bar Confidant (sic), the Integrated Bar of the Philippines and the Court Administrator 3 for investigation and possible administrative sanction. The present controversy stemmed from the complaint of illegal dismissal filed before the Labor Arbiter by herein respondent Antonio S. Go against Eurotech Hair Systems, Inc. (EHSI), and its President Lutz Kunack and General Manager Jose E. Barin. In a Decision dated 29 December 2000, the Labor Arbiter ruled that respondent Go was illegally dismissed from employment, the decretal portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered as follows: 1. Declaring [EHSI, Kunack and Barin] guilty of illegal dismissal; 2. Considering that reinstatement would not be feasible because of strained relations, [EHSI, Kunack and Barin] are ordered to pay [herein respondent Go] backwages in the amount of Php900,000.00 (Php60,000 x 15 months), separation pay of Php180,000.00 (one month pay for every year of service = Php60,000 x 3 years); 3. Ordering [EHSI, Kunack and Barin] to pay [respondent Go] Php500,000.00 as moral damages; 4. Ordering [EHSI, Kunack and Barin] to pay [respondent Go] Php300,000 as exemplary damages; 5. Ordering the payment of ten percent (10%) of the total monetary award as attorneys fees in the sum of Php188,000.00. All other claims are hereby dismissed for lack of merit. On appeal to the National Labor Relations Commission (NLRC), EHSI, Kunack and Barin employed the legal services of De Borja 5 Medialdea Bello Guevarra and Gerodias Law Offices where herein petitioner Atty. Regalado worked as an associate. On 11 June 2001, the NLRC rendered a Decision reversing the Labor Arbiters decision and declaring that respondent Gos separation from employment was legal for it was attended by a just cause and was validly effected by EHSI, Kunack and Barin. The dispositive part of the decision reads: WHEREFORE, the appealed decision is set aside. The complaint below is dismissed for being without merit. For lack of patent or palpable error, the Motion for Reconsideration interposed by respondent Go was denied by the NLRC in an 7 Order dated 20 December 2001. Aggrieved, respondent Go elevated the adverse decision to the Court of Appeals which was docketed as CA-G.R. SP No. 69909 entitled, Antonio S. Go v. National Labor Relations Commission, Eurotech Hair Systems, Inc., Lutz Kunack and Jose Barin.
6 4 1

On 9 July 2003, the Court of Appeals promulgated a Decision setting aside the ruling of the NLRC and reinstating the decision of the Labor Arbiter adjudging EHSI, Kunack and Barin guilty of illegal dismissal. The appellate court thus ordered EHSI, Kunack and Barin to pay respondent Go full backwages, separation pay, moral and exemplary damages. The fallo of the decision reads: WHEREFORE, the petition for certiorari is GRANTED. The assailed decision of the NLRC promulgated on July 30, 2001 and its Order dated December 20, 2001 are SET ASIDE while the decision of Labor Arbiter Waldo Emerson R. Gan dated December 29, 2000 declaring the dismissal of [herein respondent Go] as illegal is hereby REINSTATED with the modification that [EHSI] is hereby Ordered to pay [respondent Go]: 1. His full backwages from the time of his illegal dismissal until the finality of this decision; 2. Separation pay equal to one month pay for every year of service; 3. Moral damages in the amount of P50,000.00; and 4. Exemplary damages in the amount of P20,000.00 The award of attorneys fees is DELETED. EHSI, Kunack and Barin were able to receive a copy of the decision through registered mail on 17 July 2003 while respondent Go 9 received his copy on 21 July 2003. On 16 July 2003, after the promulgation of the Court of Appeals decision but prior to the receipt of the parties of their respective 10 copies, the parties decided to settle the case and signed a Release Waiver and Quitclaim with the approval of the Labor Arbiter. In 11 view of the amicable settlement, the Labor Arbiter, on the same day, issued an Order dismissing the illegal dismissal case with prejudice. The order thus reads: In view of the Release, Waiver and Quitclaim voluntarily executed by the [herein respondent] Antonio S. Go, let the instant case be as it is hereby DISMISSED WITH PREJUDICE. The execution of the compromise agreement was attended by the counsel for EHSI, Kunack and Barin, petitioner Atty. Regalado, and 12 respondent Go, but in the absence and without the knowledge of respondent Gos lawyer. After the receipt of a copy of the Court of Appeals decision, respondent Go, through counsel, filed, on 29 July 2003, a Manifestation 13 with Omnibus Motion seeking to nullify the Release Waiver and Quitclaim dated 16 July 2003 on the ground of fraud, mistake or undue influence. In the same motion, respondent Go, through counsel, moved that petitioner Atty. Regalado be made to explain her unethical conduct for directly negotiating with respondent Go without the knowledge of his counsel. The motion thus prays: WHEREFORE, premises considered, it is most respectfully prayed for the Honorable Court to declare Null and Void the dismissal of the instant (sic), with prejudice, by Labor (sic) Waldo Emerson Gan, as well as the Release Waiver and Quitclaim dated July 16, 2003 signed by [herein respondent Go] for having been obtained through mistake, fraud or undue influence committed by [EHSI, Kunack and Barin] and their counsels (sic). It is likewise prayed for *EHSI, Kunack and Barins+ counsel, particularly Atty. Ma. Concepcion Regalado, to be required to explain why no disciplinary action should be taken against them (sic) for their (sic), unethical conduct of directly negotiating with [respondent Go] without the presence of undersigned counsel, and for submitting the Release, Waiver and Quitclaim before Labor Arbiter Waldo Emerson Gan knowing fully well that the controversy between [respondent Go] and [EHSI] is still pending before this Honorable Court. [Respondent Go] likewise prays for such other relief [as may be] just and equitable under the premises.
15 14

For their part, EHSI, Kunack and Barin submitted a Manifestation and Motion with Leave of Court praying that CA-G.R. SP No. 69909 be considered settled with finality in view of the amicable settlement among the parties which resulted in the dismissal of respondent Gos complaint with prejudice in the Labor Arbiters Order dated 16 July 2003.

In addition, EHSI, Kunack and Barin also filed a Motion for Reconsideration with an ad cautelam that in case of unfavorable action on their foregoing Manifestation and Motion, the appellate court should reconsider its decision dated 9 July 2003. Acting on the motions, the appellate court issued a Resolution on 19 November 2003 annulling the Order of the Labor Arbiter dated 16 July 2003 for lack of jurisdiction. It also denied for lack of merit EHSI, Kunack and Barins Motion for Reconsideration Ad Cautelam. In the same resolution, petitioner Atty. Regalado was ordered to explain why she should not be cited for contempt of court for violating Canon 9 of the Canons of Professional Ethics. The decretal portion of the Resolution reads: WHEREFORE, premises considered, the Manifestation with Omnibus Motion is PARTIALLY GRANTED. The order of Labor Arbiter Gan dismissing the case with prejudice is hereby declared NULL and VOID for lack of jurisdiction. *EHSI, Kunack and Barins+ counsel, [herein petitioner] Atty. Ma. Concepcion Regalado is ordered to SHOW CAUSE within five (5) days from receipt of this Resolution why she should not be cited for contempt of court for directly negotiating with [herein respondent Go] in violation of Canon 9 of the Canons of Professional Ethics. On the other hand, the Motion for Reconsideration Ad Cautelam is hereby denied for lack of merit. EHSI, Kunack and Barin thus filed a Petition for Review on Certiorari before this Court, assailing the Court of Appeals decision promulgated on 9 July 2003 and its Resolution dated 19 November 2003, denying their Motion for Reconsideration. The case is cognized by another division of this Court. For her part, petitioner Atty. Regalado submitted a Compliance and explained that she never took part in the negotiation for the amicable settlement of the illegal dismissal case with respondent Go which led to the execution of a compromise agreement by the parties on 16 July 2003. EHSI, Kunack and Barin, through a Mr. Ragay, a former EHSI employee and a close ally of respondent Go, were the ones who negotiated the settlement. Further, petitioner Atty. Regalado maintained that she never met personally respondent Go, not until 16 July 2003, when the latter appeared before the Labor Arbiter for the execution of the Release Waiver and Quitclaim. Petitioner Atty. Regalado claimed that she was in fact apprehensive to release the money to respondent Go because the latter cannot present any valid identification card to prove his identity. It was only upon the assurance of Labor Arbiter Gan that Antonio S. Go and the person representing himself as such were one and the same, that the execution of the agreement was consummated. Considering the circumstances, petitioner Atty. Regalado firmly stood that there was no way that she had directly dealt with respondent Go, to the latters damage and prejudice, and misled him to enter into an amicable settlement with her client. On 30 August 2004, the Court of Appeals issued a Resolution disregarding petitioner Atty. Regalados defenses and adjudging her guilty of indirect contempt under Rule 71 of the Revised Rules of Court. As declared by the appellate court, even granting arguendo that petitioner Atty. Regalado did not participate in the negotiation process, she was nonetheless under the obligation to restrain her clients from doing acts that she herself was prohibited to perform as mandated by Canon 16 of the Canons of Professional Ethics. However, instead of preventing her clients from negotiating with respondent Go who was unassisted by his counsel, Atty. Regalado actively participated in the consummation of the compromise agreement by dealing directly with respondent Go and allowing him to sign the Release Waiver and Quitclaim without his lawyer. Undaunted, petitioner Atty. Regalado filed a Motion for Reconsideration which was also denied by the appellate court for lack of 20 merit. Hence, this instant Petition for Review on Certiorari, raising the following issues: I. WHETHER OR NOT THE COURT OF APPEALS COMPLETELY VIOLATED PETITIONERS CONSTITUTIONAL RIGHTS. II. WHETHER OR NOT THE COURT OF APPEALS TOTALLY DISREGARDED THE MANDATORY PROVISION OF RULE 71 OF THE 1997 RULES OF CIVIL PROCEDURE. III.
21 19 18 17

16

WHETHER OR NOT THE COURT OF APPEALS COMMITTED A MANIFEST ERROR OF LAW IN RULING THAT PETITIONER IS ESTOPPED FROM CHALLENGING ITS AUTHORITY TO ENTERTAIN THE CONTEMPT CHARGES AGAINST HER. IV. WHETHER OR NOT THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DISREGARDING THE OVERWHELMING EVIDENCE ON RECORD TO EFFECT THAT PETITIONER DID NOT COMMIT ANY CONTUMACIOUS CONDUCT. V. WHETHER OR NOT THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AND COMMITTED A GROSS MISAPPRECIATION OF FACTS IN FINDING THE PETITIONER GUILTY OF INDIRECT CONTEMPT ON THE BASIS OF THE CONFLICTING, UNCORROBORATED, AND UNVERIFIED ASSERTIONS OF THE RESPONDENT. Considering that the issues raised herein are both questions of law and fact, and consistent with our policy that this Court is not a trier of facts, we shall address only the pure questions of law and leave the factual issues, which are supported by evidence, as found by the appellate court. It is an oft-repeated principle 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 Court of Appeals, if supported by evidence, are conclusive and binding 22 upon this Court.1awphi1.net Contempt of court is a defiance of the authority, justice or dignity of the court; such conduct as tends to bring the authority and 23 administration of the law into disrespect or to interfere with or prejudice parties litigant or their witnesses during litigation. It is defined as disobedience to the Court by acting in opposition to its authority, justice, and dignity. It signifies not only a willful disregard or disobedience of the courts orders, but such conduct as tends to bring the authority of the court and the administration 24 of law into disrepute or in some manner to impede the due administration of justice. The power to punish for contempt is inherent in all courts and is essential to the preservation of order in judicial proceedings and to 25 the enforcement of judgments, orders, and mandates of the court, and consequently, to the due administration of justice. Thus, contempt proceedings has a dual function: (1) vindication of public interest by punishment of contemptuous conduct; and (2) coercion to compel the contemnor to do what the law requires him to uphold the power of the Court, and also to secure the rights 26 of the parties to a suit awarded by the Court. In our jurisdiction, the Rules of Court penalizes two types of contempt, namely direct contempt and indirect contempt.
27

Direct contempt is committed in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, and includes disrespect toward the court, offensive personalities toward others, or refusal to be sworn or answer as a witness, or to 28 subscribe an affidavit or deposition when lawfully required to do so. On the other hand, Section 3, Rule 71 of the Rules of Court enumerates particular acts which constitute indirect contempt, thus: (a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; (b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; (c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under Section 1 of this Rule; (d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;

(e) Assuming to be an attorney or an officer of a court, and acting as such without authority; (f) Failure to obey a subpoena duly served; (g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or 29 from holding him in custody pending such proceedings. (Emphasis supplied.) Section 4, Rule 71 of the same Rules provides how proceedings for indirect contempt should be commenced, thus: SEC. 4. How proceedings commenced. Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact butsaid petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision. (Emphases supplied.) As can be gleaned above, the provisions of the Rules are unequivocal. Indirect contempt proceedings may be initiated only in two ways: (1) motu proprio by the court; or (2) through a verified petition and upon compliance with the requirements for initiatory pleadings. Procedural requirements as outlined must be complied with. There is no doubt that the complained acts of Atty. Regalado would fall under paragraphs (a) and (d) of Section 3, Rule 71, as in fact, she was adjudged guilty of indirect contempt. But were the proceedings conducted in convicting petitioner done in accordance with law? In the instant case, the indirect contempt proceedings was initiated by respondent Go through a Manifestation with Omnibus 30 31 Motion. It was based on the aforesaid Motion that the appellate court issued a Resolution dated 19 November 2003, requiring petitioner Atty. Regalado to show cause why she should not be cited for contempt. Clearly, respondent Gos Manifestation with Omnibus Motion was the catalyst which set everything in motion and led to the eventual conviction of Atty. Regalado. It was respondent Go who brought to the attention of the appellate court the alleged misbehavior committed by petitioner Atty. Regalado. Without such positive act on the part of respondent Go, no indirect contempt charge could have been initiated at all. Indeed, the appellate court itself, in its Resolution dated 30 August 2004, made categorical findings as to how the contempt charge was initiated, to wit: In the present case, *respondents Go+ Manifestation With Omnibus Motion which led to our 19 November 2003 Resolution 32 requiring Atty. Regalado to explain why she should not be cited for contempt, x x x. We cannot, therefore, argue that the Court of Appeals on its own initiated the indirect contempt charge without contradicting the factual findings made by the very same court which rendered the questioned resolution. It is true in Leonidas v. Judge Supnet, this Court ruled that the contempt proceedings was considered commenced by the court motu proprio even if the show cause order came after the filing of the motions to cite for contempt filed by the adverse party. The Decision thus reads: Thus, independently of the motions filed by the Tamondong Spouses, it was the Pasay MTC which commenced the contempt proceedings motu proprio. No verified petition is required if proceedings for indirect contempt are initiated in this manner, and the absence of a verified petition does not affect the procedure adopted.
33

It is true that the Tamondong Spouses did file a Motion To Cite Plaintiff For Contempt Of Court, dated May 17, 2000. In this pleading they prayed that Union Bank be declared in indirect contempt of court for its disobedience to the Pasay MTCs Order dated May 9, 2000. This Order dated May 9, 2000 specifically directed Union Bank to "return immediately to the defendants the replevied motor vehicle." However, the Tamondong Spouses unverified motion dated May 17, 2000 cannot invalidate the contempt proceedings because these proceedings were initiated by respondent judge motu proprio in accordance with Section 4, Rule 71 of the 1997 Rules of Civil Procedure. This above-cited case, however, has no application in the case at bar for the factual milieu of the cases are different from each other. In Leonidas, there was an order of the court that was utterly violated by Union Bank. Thus, even in the absence of the motion of spouses Tamondong to cite Union Bank in contempt, the court a quo on its own can verily initiate the action. In the present case, the appellate court could not have acquired knowledge of petitioner Atty. Regalados misbehavior without respondent Gos Manifestation with Omnibus Motion reiterating the alleged deceitful conduct committed by the former. Having painstakingly laid down that the instant case was not initiated by the court motu proprio necessitates us to look into the second mode of filing indirect contempt proceedings. In cases where the court did not initiate the contempt charge, the Rules prescribe that a verified petition which has complied with the requirements of initiatory pleadings as outlined in the heretofore quoted provision of second paragraph, Section 4, Rule 71 of the Rules of Court, must be filed. The manner upon which the case at bar was commenced is clearly in contravention with the categorical mandate of the Rules. Respondent Go filed a Manifestation with Omnibus Motion, which was unverified and without any supporting particulars and documents. Such procedural flaw notwithstanding, the appellate court granted the motion and directed petitioner Atty. Regalado to show cause why she should not be cited for contempt. Upon petitioner Atty. Regalados compliance with the appellate courts directive, the tribunal proceeded in adjudging her guilty of indirect contempt and imposing a penalty of fine, completely ignoring the procedural infirmities in the commencement of the indirect contempt action. It bears to stress that the power to punish for contempt is not limitless. It must be used sparingly with caution, restraint, 34 judiciousness, deliberation, and due regard to the provisions of the law and the constitutional rights of the individual. The limitations in the exercise of the power to punish for indirect contempt are delineated by the procedural guidelines specified under Section 4, Rule 71 of the Rules of Court. Strict compliance with such procedural guidelines is mandatory considering that 35 proceedings against person alleged to be guilty of contempt are commonly treated as criminal in nature. As explained by Justice Florenz Regalado, the filing of a verified petition that has complied with the requirements for the filing of initiatory pleading, is mandatory, and thus states: 1. This new provision clarifies with a regularity norm the proper procedure for commencing contempt proceedings. While such proceeding has been classified as special civil action under the former Rules, the heterogenous practice tolerated by the courts, has been for any party to file a motion without paying any docket or lawful fees therefore and without complying with the requirements for initiatory pleadings, which is now required in the second paragraph of this amended section. xxxx Henceforth, except for indirect contempt proceedings initiated motu propio by order of or a formal charge by the offended court, all charges shall be commenced by a verified petition with full compliance with the requirements therefore and shall be disposed in accordance with the second paragraph of this section. Time and again we rule that the use of the word "shall" underscores the mandatory character of the Rule. The term "shall" is a word of command, and one which has always or which must be given a compulsory meaning, and it is generally imperative or 37 mandatory. In Enriquez v. Enriquez, this Court applied the word "shall" by giving it mandatory and imperative import and ruled that noncompliance with the mandatory requirements of the Rules goes into the very authority of the court to acquire jurisdiction over the subject matter of the case, thus:
38 36

"However, the 1997 Rules of Civil Procedure, as amended, which took effect on July 1, 1997, now require that appellate docket and other lawful fees must be paid within the same period for taking an appeal. This is clear from the opening sentence of Section 4, Rule 41 of the same rules that, "(W)ithin the period for taking an appeal, the appellant shall pay to the clerk of court which rendered the judgment or final order appealed from, the full amount of the appellate court docket and other lawful fees." xxxx Time and again, this Court has consistently held that payment of docket fee within the prescribed period is mandatory for the perfection of an appeal. Without such payment, the appellate court does not acquire jurisdiction over the subject matter of the 39 action and the decision sought to be appealed from becomes final and executory. (Emphases supplied.) In United States v. de la Santa, which bears parallelism in the instant case, we held: The objection in this case is not, strictly speaking, to the sufficiency of the complaint, but goes directly to the jurisdiction of the court over the crime with which the accused was charged. x x x. (Emphasis supplied.) Even if the contempt proceedings stemmed from the main case over which the court already acquired jurisdiction, the Rules direct that the petition for contempt be treated independently of the principal action. Consequently, the necessary prerequisites for the filing of initiatory pleadings, such as the filing of a verified petition, attachment of a certification on non-forum shopping, and the 41 payment of the necessary docket fees, must be faithfully observed. We now proceed to the issue of estoppel raised by the Court of Appeals. When petitioner Atty. Regalado brought to the attention of the appellate court through a Motion for Reconsideration the remedial defect attendant to her conviction, the Court of Appeals, instead of rectifying the palpable and patent procedural error it earlier committed, altogether disregarded the glaring mistake by interposing the doctrine of estoppel. The appellate court ruled that having actively participated in the contempt proceedings, petitioner Atty. Regalado is now barred from impugning the Court of Appeals jurisdiction over her contempt case citing the case of 42 People v. Regalario. We do not agree. Laches is defined as 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 length of time, 43 warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it." The ruling in People v. Regalario that was based on the landmark doctrine enunciated in Tijam v. Sibonghanoy on the matter of jurisdiction by estoppel is the exception rather than the rule. Estoppel by laches may be invoked to bar the issue of lack of jurisdiction only in cases in which the factual milieu is analogous to that in the cited case. In such controversies, laches should have been clearly present; that is, lack of jurisdiction must have been raised so belatedly as to warrant the presumption that the party 46 entitled to assert it had abandoned or declined to assert it. In Sibonghanoy, the defense of lack of jurisdiction was raised for the first time in a motion to dismiss filed by the Surety almost 15 49 years after the questioned ruling had been rendered. At several stages of the proceedings, in the court a quo as well as in the Court of Appeals, the Surety invoked the jurisdiction of the said courts to obtain affirmative relief and submitted its case for final adjudication on the merits. It was only when the adverse decision was rendered by the Court of Appeals that it finally woke up to 50 raise the question of jurisdiction. Clearly, the factual settings attendant in Sibonghanoy are not present in the case at bar. Petitioner Atty. Regalado, after the receipt of the Court of Appeals resolution finding her guilty of contempt, promptly filed a Motion for Reconsideration assailing the said courts jurisdiction based on procedural infirmity in initiating the action. Her compliance with the appellate courts directive to show cause why she should not be cited for contempt and filing a single piece of pleading to that effect could not be considered as an active participation in the judicial proceedings so as to take the case within the milieu of Sibonghanoy. Rather, it is the natural fear to disobey the mandate of the court that could lead to dire consequences that impelled her to comply. The provisions of the Rules are worded in very clear and categorical language. In case where the indirect contempt charge is not initiated by the courts, the filing of a verified petition which fulfills the requirements on initiatory pleadings is a prerequisite. Beyond question now is the mandatory requirement of a verified petition in initiating an indirect contempt proceeding. Truly, prior to the amendment of the 1997 Rules of Civil Procedure, mere motion without complying with the requirements for initiatory pleadings was
47 48 44 45 40

tolerated by the courts. At the onset of the 1997 Revised Rules of Civil Procedure, however, such practice can no longer be countenanced. Evidently, the proceedings attendant to the conviction of petitioner Atty. Regalado for indirect contempt suffered a serious procedural defect to which this Court cannot close its eyes without offending the fundamental principles enunciated in the Rules that we, ourselves, had promulgated. The other issues raised on the merits of the contempt case have become moot and academic. WHEREFORE, premises considered, the instant Petition is GRANTED. The indirect contempt proceedings before the Court of Appeals is DECLARED null and void. SO ORDERED.

51

EMILIO B. PACIOLES, JR., IN HIS CAPACITY AS ADMINISTRATOR AND HEIR OF THE INTESTATE ESTATE OF MIGUELITA CHING PACIOLES, petitioner, vs. MIGUELA CHUATOCO-CHING, respondent.

Often times death brings peace only to the person who dies but not to the people he leaves behind. For in death, a persons estate remains, providing a fertile ground for discords that break the familial bonds. Before us is another case that illustrates such reality. Here, a husband and a mother of the deceased are locked in an acrimonious dispute over the estate of their loved one. This is a petition for review on certiorari filed by Emilio B. Pacioles, Jr., herein petitioner, against Miguela Chuatoco-Ching, [1] [2] herein respondent, assailing the Court of Appeals Decision dated September 25, 1996 and Resolution dated January 27, 1997 in [3] CA-G.R. SP No. 41571. The Appellate Court affirmed the Order dated January 17, 1996 of the Regional Trial Court (RTC), Branch 99, Quezon City denyingpetitioners motion for partition and distribution of the estate of his wife, Miguelita Ching-Pacioles; and his motion for reconsideration. The facts are undisputed. On March 13, 1992, Miguelita died intestate, leaving real properties with an estimated value of P10.5 million, stock investments worthP518,783.00, bank deposits amounting to P6.54 million, and interests in certain businesses. She was survived by her husband, petitioner herein, and their two minor children. Consequently, on August 20, 1992, petitioner filed with the RTC a verified petition for the settlement of Miguelitas estate. He prayed that (a)letters of administration be issued in his name, and (b) that the net residue of the estate be divided among the compulsory heirs. Miguelitas mother, Miguela Chuatoco-Ching, herein respondent, filed an opposition, specifically to petitioners prayer for the issuance of letters of administration on the grounds that (a) petitioner is incompetent and unfit to exercise the duties of an administrator; and (b) the bulk of Miguelitas estate is composed of paraphernal properties. Respondent prayed that the letters of [5] [6] administration be issued to her instead. Afterwards, she also filed a motion for her appointment as special administratrix. Petitioner moved to strike out respondents opposition, alleging that the latter has no direct and material interest in the estate, she not being a compulsory heir, and that he, being the surviving spouse, has the preferential right to be appointed as administrator [7] under the law. Respondent countered that she has direct and material interest in the estate because she gave half of her inherited properties to Miguelita on condition that both of them would undertake whatever business endeavor they decided to, in the capacity of [8] business partners. In her omnibus motion dated April 23, 1993, respondent nominated her son Emmanuel Ching to act as special administrator. On April 20, 1994, the intestate court issued an order appointing petitioner and Emmanuel as joint regular administrators of [10] the estate. Both were issued letters of administration after taking their oath and posting the requisite bond. Consequently, Notice to Creditors was published in the issues of the Manila Standard on September 12, 19, and 26, 1994. However, no claims were filed against the estate within the period set by the Revised Rules of Court. Thereafter, petitioner submitted to the intestate court an inventory of Miguelitas estate. inventory.
[11] [9] [4]

Emmanuel did not submit an

On May 17, 1995, the intestate court declared petitioner and his two minor children as the only compulsory heirs of [12] Miguelita. On July 21, 1995, petitioner filed with the intestate court an omnibus motion praying, among others, that an Order be issued directing the: 1)payment of estate taxes; 2) partition and distribution of the estate among the declared heirs; and 3) payment of attorneys fees. Respondent opposed petitioners motion on the ground that the partition and distribution of the estate is premature and precipitate, considering that there is yet no determination whether the properties specified in the inventory are conjugal, [14] paraphernal or owned in a joint venture. Respondent claimed that she owns the bulk of Miguelitas estate as an heir and coowner. Thus, she prayed that a hearing be scheduled. On January 17, 1996, the intestate court allowed the payment of the estate taxes and attorneys fees but denied petitioners prayer for partition and distribution of the estate, holding that it is indeed premature. The intestate court ratiocinated as follows:
[13]

On the partition and distribution of the deceaseds properties, among the declared heirs, the Court finds the prayer of petitioner in this regard to be premature. Thus, a hearing on oppositors claim as indicated in her opposition to the instant petition is necessary to determine whether the properties listed in the amended complaint filed by petitioner are entirely conjugal or the paraphernal properties of the deceased, or a co-ownership between the oppositor and the petitioner in their partnership venture. Petitioner filed a motion for reconsideration but it was denied in the Resolution dated May 7, 1996. Forthwith, petitioner filed with the Court of Appeals a petition for certiorari seeking to annul and set aside the intestate courts Order dated January 17, 1996 and Resolution dated May 7, 1996 which denied petitioners prayer for partition and distribution of the estate for being premature, indicating that it (intestate court) will first resolve respondents claim of ownership. The Appellate Court dismissed the petition for certiorari, holding that in issuing the challenged Order and Resolution, the intestate court did not commit grave abuse of discretion. The Appellate Court ruled: Regarding the second issue raised, respondent judge did not commit grave abuse of discretion in entertaining private respondents unsupported claim of ownership against the estate. In fact, there is no indication that the probate court has already made a finding of title or ownership. It is inevitable that in probate proceedings, questions of collation or of advancement are involved for these are matters which can be passed upon in the course of the proceedings. The probate court in exercising its prerogative to schedule a hearing, to inquire into the propriety of private respondents claim, is being extremely cautious in determining the composition of the estate. This act is not tainted with an iota of grave abuse of discretion. Petitioner moved for a reconsideration but it was likewise denied. Hence, this petition for review on certiorari anchored on the following assignments of error: I RESPONDENT COURTS DECISION WHICH AFFIRMS THE INTESTATE COURTS ORDER IS A GRAVE ERROR FOR BEING CONTRARY TO THE SETTLED JURISPRUDENCE AND POLICY OF THE LAW THAT ESTATE PROCEEDINGS MUST BE SETTLED EXPEDITIOUSLY. II RESPONDENT COURT COMMITTED GRAVE ERROR IN SUSTAINING THE INTESTATE COURTS ORDER TO CONDUCT HEARING ON THE ISSUE OF OWNERSHIP CLAIM AGAINST THE ESTATE, AS SAID FUNCTION IS OUTSIDE AND BEYOND THE JURISDICTION OF THE INTESTATE COURT. III RESPONDENT COURT GRAVELY ERRED IN AFFIRMING THE INTESTATE COURTS ORDER AND RESOLUTION NOTWITHSTANDING THAT RESPONDENT CHINGS OWNERSHIP CLAIMS ARE CONFLICTING, FRIVOLOUS AND BASELESS. The fundamental issue for our resolution is: May a trial court, acting as an intestate court, hear and pass upon questions of ownership involving properties claimed to be part of the decedents estate? The general rule is that the jurisdiction of the trial court either as an intestate or a probate court relates only to matters having to do with the settlement of the estate and probate of will of deceased persons but does not extend to the determination of [15] questions of ownership that arise during the proceedings. The patent rationale for this rule is that such court exercises special [16] and limited jurisdiction. A well-recognized deviation to the rule is the principle that an intestate or a probate court may hear and pass upon questions of ownership when its purpose is to determine whether or not a property should be included in the inventory. In such situations the [17] adjudication is merely incidental and provisional. Thus, in Pastor, Jr. vs. Court of Appeals, we held: x x x As a rule, the question of ownership is an extraneous matter which the probate court cannot resolve with finality. Thus, for the purpose of determining whether a certain property should or should not be included in the inventory of estate properties, the probate court may pass upon the title thereto, but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve title.

The Court of Appeals relied heavily on the above principle in sustaining the jurisdiction of the intestate court to conduct a hearing on respondents claim. Such reliance is misplaced. Under the said principle, the key consideration is that the purpose of the intestate or probate court in hearing and passing upon questions of ownership is merely to determine whether or not a property should be included in the inventory. The facts of this case show that such was not the purpose of the intestate court. First, the inventory was not disputed. In fact, in her Manifestation and Opposition expressly adopted the inventory prepared by petitioner, thus:
[18]

dated September 18, 1995, respondent

6. She adopts the inventory submitted by the petitioner in his Amended Compliance dated October 6, 1994, and filed only on November 4, 1994 not October 5, 1995 as erroneously asserted in Par. 12 of the Omnibus Motion. Oppositor, however, takes exception to the low valuation placed on the real estate properties and reserves her right to submit a more accurate and realistic pricing on each. Respondent could have opposed petitioners inventory and sought the exclusion of the specific properties which she believed or considered to be hers. But instead of doing so, she expressly adopted the inventory, taking exception only to the low valuation placed on the real estate properties. And second, Emmanuel, respondents son and representative in the settlement of Miguelitas estate, did not submit his own inventory. His mandate, as co-administrator, is to submit within three (3) months after his appointment a true inventory and [19] appraisal of all the real and personal estate of the deceased which have come into his possession or knowledge. He could have submitted an inventory, excluding therefrom those properties which respondent considered to be hers. The fact that he did not endeavor to submit one shows that he acquiesced with petitioners inventory. Obviously, respondents purpose here was not to obtain from the intestate court a ruling of what properties should or should not be included in the inventory. She wanted something else, i.e., to secure from the intestate court a final determination of her claim of ownership over properties comprising the bulk of Miguelitas estate. The intestate court went along with respondent on [20] this point as evident in its Resolution dated May 7, 1996, thus: On petitioners motion for partition and distribution of the estate of the late Miguelita Ching Pacioles, it is believed that since oppositor had interposed a claim against the subject estate, the distribution thereof in favor of the heirs could not possibly be implemented as there is still a need for appropriate proceedings to determine the propriety of oppositors claim. It must be mentioned that if it is true that oppositor owns the bulk of the properties, which she allegedly placed/registered in the name of the deceased for convenience, Oppositor, therefore, has a material and direct interest in the estate and hence, should be given her day in Court. It is apparent from the foregoing Resolution that the purpose of the hearing set by the intestate court was actually to determine the propriety of oppositors (respondents) claim. According to the intestate court, if it is true that the oppositor (respondent) owns the bulk of (Miguelitas) properties, then it means that she has a material and direct interest in the estate and, hence, she should be given her day in court. The intended day in court or hearing is geared towards resolving the propriety of respondents contention that she is the true owner of the bulk of Miguelitas estate. Surely, we cannot be deluded by respondents ingenious attempt to secure a proceeding for the purpose of resolving her blanket claim against Miguelitas estate. Although, she made it appear that her only intent was to determine the accuracy of petitioners inventory, however, a close review of the facts and the pleadings reveals her real intention. Clearly, the RTC, acting as an intestate court, had overstepped its jurisdiction. Its proper course should have been to maintain a hands-off stance on the matter. It is well-settled in this jurisdiction, sanctioned and reiterated in a long line of decisions, that when a question arises as to ownership of property alleged to be a part of the estate of the deceased person, but claimed by some other person to be his property, not by virtue of any right of inheritance from the deceased but by title adverse to that of the deceased and his estate, such question cannot be determined in the course of an intestate or probate proceedings. The intestate or probate court has no jurisdiction to adjudicate such contentions, which must be submitted to the court in the exercise of its general [21] jurisdiction as a regional trial court. Jurisprudence teaches us that: [A] probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to properties claimed to be a part of the estate and which are claimed to belong to outside parties. All that the said court could do as regards said properties is to determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. If there is no dispute, well and good, but if there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action for a final determination of the conflicting claims of title because the [22] probate court cannot do so.

Hence, respondents recourse is to file a separate action with a court of general jurisdiction. The intestate court is not the appropriate forum for the resolution of her adverse claim of ownership over properties ostensibly belonging to Miguelita's estate. Now, even assuming that the intestate court merely intended to make a provisional or prima facie determination of the issue of ownership, still respondents claim cannot prosper. It bears stressing that the bulk of Miguelitas estate, as stated in petitioners inventory, comprises real estates covered by the Torrens System which are registered either in the name of Miguelita alone or with petitioner. As such, they are considered the owners of the properties until their title is nullified or modified in an appropriate [23] ordinary action. We find this Courts pronouncement inBolisay vs. Alcid relevant, thus: It does not matter that respondent-administratrix has evidence purporting to support her claim of ownership, for, on the other hand, petitioners have a Torrens title in their favor, which under the law is endowed with incontestability until after it has been set aside in the manner indicated in the law itself, which, of course, does not include, bringing up the matter as a mere incident in special proceedings for the settlement of the estate of deceased persons. x x x x x x In regard to such incident of inclusion or exclusion, We hold that if a property covered by Torrens Title is involved, the presumptive conclusiveness of such title should be given due weight, and in the absence of strong compelling evidence to the contrary, the holder thereof should be considered as the owner of the property in controversy until his title is nullified or modified in an appropriate ordinary action, particularly, when as in the case at bar, possession of the property itself is in the persons named in the title. x x x Corrolarily, P.D. 1529, otherwise known as, The Property Registration Decree, proscribes collateral attack against Torrens Title, hence: Section 48. Certificate not subject to collateral attack. A certificate of title shall not be subject to collateral attack. It cannot be altered, modified or cancelled except in a direct proceeding in accordance with law. Significantly, a perusal of the records reveals that respondent failed to present convincing evidence to bolster her bare assertion of ownership. We quote her testimony, thus: Q: I now direct your attention to paragraph (5) appearing on page 1 of this sworn statement of yours which I quote: In accordance with the Chinese tradition and culture in the distribution of properties to the legal heirs, we decided to give only a token to our daughter Miguelita and leave the rest to our only son Emmanuel, with the undertaking that being the son he will take full responsibility of the rest of the family despite his marriage. Madame witness, do you recall having stated that in your sworn statement? A: Yes sir, but it was not carried out. Q What was actually given to your daughter Miguelita is only a token, is that right? A: Not a token, sir, but one half of the share of the estate was given to Lita and the other half was given to Emmanuel. Q: What went to Emmanuel was also , is that right? A: Yes, sir. Q: What makes up the one half share of Lita, if you recall? A: What was given to her were all checks, sir, but I cannot remember any more the amount. x x x x x x

Q: Summing up your testimony, Madame, you cannot itemize the one half share of the estate of Miguelita, is that right? A: Yes, sir. Q: Was there any document covering this partition of the estate among you, Emmanuel and Miguelita with respect to the estate of your late husband? A: If I only knew that this will happen

Q: Samakatuwid po ay walang dokumento? A: Wala po.

[24]

She further testified as follows: Q: Among the properties listed like the various parcels of land, stocks, investments, bank accounts and deposits both here and abroad, interests and participation in IFS Pharmaceuticals and Medical Supplies, Inc. and various motor vehicles, per your pleasure, Madam Witness, how should these properties be partitioned or what should be done with these properties? According to you earlier, you are agreeable for the partition of the said properties with Emil on a 50-50 basis, is that right? A: Kung ano po ang sa akin, iyon ang dapat na bumalik sa akin, sir. Q Halimbawa ay ano po iyon? Real estate properties, parcels of land located in Pag-Asa, in Silangan, in San Lazaro, in Sta. Cruz, in San Francisco del Monte and shares of stock. Alinsunod sa inyo, paano po ang dapat na partihan o hatian ninyo ni Emil? A: Kung ano ang sa akin x x x x x x

Q Ang tanong ko po sa inyo ay ganito, ito po ba ang inyong iminungkahi kay Emil? Ito po ba ang inyong paghahatian or hindi? A: Iyo akin talaga na hindi nila pinaghirapan, sir.
[25]

Unfortunately, respondent could not even specify which of the properties listed in petitioners inventory belong to her. Neither could she present any document to prove her claim of ownership. The consistently changing basis of her claim did nothing to improve her posture. Initially, she insisted that the bulk of Miguelitas estate is composed of paraphernal [26] properties. Sensing that such assertion could not strengthen her claim of ownership, she opted to change her submission and declare that she and Miguelita were business partners and that she gave to the latter most of her properties to be used in a joint [27] business venture. Respondent must have realized early on that if the properties listed in petitioners inventory are paraphernal, then Miguelita had the absolute title and ownership over them and upon her death, such properties would be vested to her [28] compulsory heirs, petitioner herein and their two minor children. At any rate, we must stress that our pronouncements herein cannot diminish or deprive respondent of whatever rights or properties she believes or considers to be rightfully hers. We reiterate that the question of ownership of properties alleged to be [29] part of the estate must be submitted to the Regional Trial Court in the exercise of its general jurisdiction. WHEREFORE, the instant petition is GRANTED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 41571 are hereby REVERSED. SO ORDERED. Panganiban, (Chairman), Carpio-Morales, and Garcia, JJ., concur. Corona, J., on leave.

ALABAN vs. COURT OF APPEALS This is a petition for review of the Resolutions of the Court of Appeals (CA) in CA-G.R. SP No. 69221, dismissing petitioners petition for annulment of judgment.
[1] [2]

On 8 November 2000, respondent Francisco Provido (respondent) filed a petition, docketed as SP Proc. No. 00-135, for the [3] probate of the Last Will and Testament of the late Soledad Provido Elevencionado (decedent), who died on 26 October 2000 in [4] Janiuay, Iloilo. Respondent alleged that he was the heir of the decedent and the executor of her will. On 30 May 2001, the [5] Regional Trial Court (RTC), Branch 68, in P.D. Monfort North, Dumangas, Iloilo, rendered its Decision, allowing the probate of the [6] will of the decedent and directing the issuance of letters testamentary to respondent.

More than four (4) months later, or on 4 October 2001, herein petitioners filed a motion for the reopening of the probate [7] proceedings. Likewise, they filed an opposition to the allowance of the will of the decedent, as well as the issuance of letters [8] testamentary to respondent, claiming that they are the intestate heirs of the decedent. Petitioners claimed that the RTC did not acquire jurisdiction over the petition due to non-payment of the correct docket fees, defective publication, and lack of notice to the other heirs. Moreover, they alleged that the will could not have been probated because: (1) the signature of the decedent was forged; (2) the will was not executed in accordance with law, that is, the witnesses failed to sign below the attestation clause; (3) the decedent lacked testamentary capacity to execute and publish a will; (4) the will was executed by force and under duress and improper pressure; (5) the decedent had no intention to make a will at the time of affixing of her signature; and (6) she did not know the properties to be disposed of, having included in the will properties which no longer belonged to her. Petitioners prayed that the [9] letters testamentary issued to respondent be withdrawn and the estate of the decedent disposed of under intestate succession.

On 11 January 2002, the RTC issued an Order denying petitioners motion for being unmeritorious. Resolving the issue of jurisdiction, the RTC held that petitioners were deemed notified of the hearing by publication and that the deficiency in the payment of docket fees is not a ground for the outright dismissal of the petition. It merely required respondent to pay the [11] deficiency. Moreover, the RTCs Decision was already final and executory even before petitioners filing of the motion to [12] reopen.

[10]

Petitioners thereafter filed a petition with an application for preliminary injunction with the CA, seeking the annulment of the RTCs Decision dated 30 May 2001 and Order dated 11 January 2002. They claimed that after the death of the decedent, petitioners, together with respondent, held several conferences to discuss the matter of dividing the estate of the decedent, with respondent agreeing to a one-sixth (1/6) portion as his share. Petitioners allegedly drafted a compromise agreement to implement the division of the estate. Despite receipt of the agreement, respondent refused to sign and return the same. Petitioners opined that respondent feigned interest in participating in the compromise agreement so that they would not [14] suspect his intention to secure the probate of the will. They claimed that they learnt of the probate proceedings only in July of 2001, as a result of which they filed their motion to reopen the proceedings and admit their opposition to the probate of the will only on 4 October 2001. They argued that the RTC Decision should be annulled and set aside on the ground of extrinsic fraud and [15] lack of jurisdiction on the part of the RTC.

[13]

In its Resolution promulgated on 28 February 2002, the CA dismissed the petition. It found that there was no showing that petitioners failed to avail of or resort to the ordinary remedies of new trial, appeal, petition for relief from judgment, or other [17] appropriate remedies through no fault of their own. Moreover, the CA declared as baseless petitioners claim that the proceedings in the RTC was attended by extrinsic fraud. Neither was there any showing that they availed of this ground in a motion [18] for new trial or petition for relief from judgment in the RTC, the CA added. Petitioners sought reconsideration of theResolution, [19] but the same was denied by the CA for lack of merit.

[16]

Petitioners now come to this Court, asserting that the CA committed grave abuse of discretion amounting to lack of jurisdiction when it dismissed their petition for the alleged failure to show that they have not availed of or resorted to the remedies of new trial, appeal, petition for relief from judgment or other remedies through no fault of their own, and held that petitioners were not denied

their day in court during the proceedings before the RTC. In addition, they assert that this Court has yet to decide a case involving Rule 47 of the Rules of Court and, therefore, the instant petition should be given due course for the guidance of the bench and [21] bar.

[20]

For his part, respondent claims that petitioners were in a position to avail of the remedies provided in Rules 37 and 38, as they [22] in fact did when they filed a motion for new trial. Moreover, they could have resorted to a petition for relief from judgment since [23] they learned of the RTCs judgment only three and a half months after its promulgation. Respondent likewise maintains that no extrinsic fraud exists to warrant the annulment of the RTCs Decision, since there was no showing that they were denied their day in court. Petitioners were not made parties to the probate proceedings because the decedent did not institute them as her [24] heirs. Besides, assuming arguendo that petitioners are heirs of the decedent, lack of notice to them is not a fatal defect since [25] personal notice upon the heirs is a matter of procedural convenience and not a jurisdictional requisite. Finally, respondent charges petitioners of forumshopping, since the latter have a pending suit involving the same issues as those in SP No. 00-135, that [26] is SP No. 1181 filed before Branch 23, RTC of General Santos City and subsequently pending on appeal before the CA in CA-G.R. [27] No.74924.

It appears that one of the petitioners herein, Dolores M. Flores (Flores), who is a niece of the decedent, filed a petition for letters of administration with the RTC of General Santos City, claiming that the decedent died intestate without any issue, survived by five groups of collateral heirs. Flores, armed with a Special Power of Attorney from most of the other petitioners, prayed for her appointment as administratrix of the estate of the decedent. The RTC dismissed the petition on the ground of lack of jurisdiction, stating that the probate court in Janiuay, Iloilo has jurisdiction since the venue for a petition for the settlement of the estate of a decedent is the place where the decedent died. This is also in accordance with the rule that the first court acquiring jurisdiction shall [28] continue hearing the case to the exclusion of other courts, the RTC added. On 9 January 2002, Flores filed a Notice of [29] [30] Appeal and on 28 January 2002, the case was ordered forwarded to the CA.

Petitioners maintain that they were not made parties to the case in which the decision sought to be annulled was rendered and, thus, they could not have availed of the ordinary remedies of new trial, appeal, petition for relief from judgment and other appropriate remedies, contrary to the ruling of the CA. They aver that respondents offer of a false compromise and his failure to [31] notify them of the probate of the will constitute extrinsic fraud that necessitates the annulment of the RTCs judgment.

The petition is devoid of merit.

Section 37 of the Rules of Court allows an aggrieved party to file a motion for new trial on the ground of fraud, accident, mistake, or excusable negligence. The same Rule permits the filing of a motion for reconsideration on the grounds of excessive award of damages, insufficiency of evidence to justify the decision or final order, or that the decision or final order is [32] contrary to law. Both motions should be filed within the period for taking an appeal, or fifteen (15) days from notice of the judgment or final order.

Meanwhile, a petition for relief from judgment under Section 3 of Rule 38 is resorted to when a judgment or final order is entered, or any other proceeding is thereafter taken, against a party in any court through fraud, accident, mistake, or excusable negligence. Said party may file a petition in the same court and in the same case to set aside the judgment, order or proceeding. It [33] must be filed within sixty (60) days after the petitioner learns of the judgment and within six (6) months after entry thereof.

A motion for new trial or reconsideration and a petition for relief from judgment are remedies available only to parties in the proceedings where the assailed

judgment is rendered. In fact, it has been held that a person who was never a party to the case, or even summoned to appear [35] therein, cannot avail of a petition for relief from judgment.

[34]

However, petitioners in this case are mistaken in asserting that they are not or have not become parties to the probate proceedings.

Under the Rules of Court, any executor, devisee, or legatee named in a will, or any other person interested in the estate [36] may, at any time after the death of the testator, petition the court having jurisdiction to have the will allowed. Notice of the time and place for proving the will must be published for three (3) consecutive weeks, in a newspaper of general circulation in the [37] [38] province, as well as furnished to the designated or other known heirs, legatees, and devisees of the testator. Thus, it has been held that a proceeding for the probate of a will is one in rem, such that with the corresponding publication of the petition the court's [39] jurisdiction extends to all persons interested in said will or in the settlement of the estate of the decedent.

Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings in the whole [40] world as a party in the case and vests the court with jurisdiction to hear and decide it. Thus, even though petitioners were not mentioned in the petition for probate, they eventually became parties thereto as a consequence of the publication of the notice of hearing.

As parties to the probate proceedings, petitioners could have validly availed of the remedies of motion for new trial or reconsideration and petition for relief from judgment. In fact, petitioners filed a motion to reopen, which is essentially a motion for new trial, with petitioners praying for the reopening of the case and the setting of further proceedings. However, the motion was denied for having been filed out of time, long after the Decision became final and executory.

Conceding that petitioners became aware of the Decision after it had become final, they could have still filed a petition for relief from judgment after the denial of their motion to reopen. Petitioners claim that they learned of the Decision only on 4 October 2001, or almost four (4) months from the time theDecision had attained finality. But they failed to avail of the remedy.

For failure to make use without sufficient justification of the said remedies available to them, petitioners could no longer [41] resort to a petition for annulment of judgment; otherwise, they would benefit from their own inaction or negligence.

Even casting aside the procedural requisite, the petition for annulment of judgment must still fail for failure to comply with the substantive requisites, as the appellate court ruled.

An action for annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled [42] was rendered. The purpose of such action is to have the final and executory judgment set aside so that there will be a renewal of litigation. It is resorted to in cases where the ordinary remedies of new trial, appeal, petition for relief from judgment, or other [43] appropriate remedies are no longer available through no fault of the petitioner, and is based on only two grounds: extrinsic fraud, [44] and lack of jurisdiction or denial of due process. A person need not be a party to the judgment sought to be annulled, and it is only essential that he can prove his allegation that the judgment was obtained by the use of fraud and collusion and he would be [45] adversely affected thereby.

An action to annul a final judgment on the ground of fraud lies only if the fraud is extrinsic or collateral in [46] character. Fraud is regarded as extrinsic where it prevents a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured. The overriding consideration when extrinsic fraud is alleged is that the fraudulent scheme of the prevailing litigant prevented a party [47] from having his day in court.

To sustain their allegation of extrinsic fraud, petitioners assert that as a result of respondents deliberate omission or concealment of their names, ages and residences as the other heirs of the decedent in his petition for allowance of the will, they were not notified of the proceedings, and thus they were denied their day in court. In addition, they claim that respondents offer of a false compromise even before the filing of the petition prevented them from appearing and opposing the petition for probate.

The Court is not convinced.

According to the Rules, notice is required to be personally given to known heirs, legatees, and devisees of the testator. A perusal of the will shows that respondent was instituted as the sole heir of the decedent. Petitioners, as nephews and nieces of the [49] decedent, are neither compulsory nor testate heirs who are entitled to be notified of the probate proceedings under the Rules. Respondent had no legal obligation to mention petitioners in the petition for probate, or to personally notify them of the same.

[48]

Besides, assuming arguendo that petitioners are entitled to be so notified, the purported infirmity is cured by the publication of the notice. After all, personal notice upon the heirs is a matter of procedural convenience and not a jurisdictional [50] requisite.

The non-inclusion of petitioners names in the petition and the alleged failure to personally notify them of the proceedings do not constitute extrinsic fraud. Petitioners were not denied their day in court, as they were not prevented from participating in the proceedings and presenting their case before the probate court.

One other vital point is the issue of forum-shopping against petitioners. Forum-shopping consists of filing multiple suits in different courts, either simultaneously or successively, involving the same parties, to ask the courts to rule on the same or related [51] causes and/or to grant the same or substantially same reliefs, on the supposition that one or the other court would make a [52] favorable disposition. Obviously, the parties in the instant case, as well as in the appealed case before the CA, are the same. Both cases deal with the existence and validity of the alleged will of the decedent, with petitioners anchoring their cause on the state of intestacy. In the probate proceedings, petitioners position has always been that the decedent left no will and if she did, the will does not comply with the requisites of a valid will. Indeed, that position is the bedrock of their present petition. Of course, respondent maintains the contrary stance. On the other hand, in the petition for letters of administration, petitioner Flores prayed for her appointment as administratrix of the estate on the theory that the decedent died intestate. The petition was dismissed on the ground of lack of jurisdiction, and it is this order of dismissal which is the subject of review in CA-G.R. No. 74924. Clearly, therefore, there is forum-shopping. Moreover, petitioners failed to inform the Court of the said pending case in their certification against forumshopping. Neither have they done so at any time thereafter. The Court notes that even in the petition for annulment of judgment, petitioners failed to inform the CA of the pendency of their appeal in CA-G.R. No. 74924, even though the notice of appeal was filed way before the petition for annulment of judgment was instituted. WHEREFORE, the petition is DENIED. Costs against petitioners.

TAN vs. GEDORIO (2008) This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the Decision dated 29 July 2004 of the Court of Appeals in CA-G.R. SP No. 79335. The assailed Decision of the Court of Appeals affirmed the [2] Order dated 17 July 2003 of the Regional Trial Court (RTC) of Ormoc City in SP. PROC. No. 4014-0 denying reconsideration of its Order dated 12 June 2003 whereby it appointed Romualdo D. Lim as special administrator to the estate of the late Gerardo Tan. The factual and procedural antecedents of this case are as follows: Gerardo Tan (Gerardo) died on 14 October 2000, leaving no will. On 31 October 2001, private respondents, who are claiming to be the children of Gerardo Tan, filed with the RTC a Petition for the issuance of letters of administration. The Petition was docketed as Special Proceeding No. 4014-0 and was raffled to Branch 12. Petitioners, claiming to be legitimate heirs of Gerardo Tan, filed an Opposition to the Petition. Private respondents then moved for the appointment of a special administrator, asserting the need for a special administrator to take possession and charge of Gerardos estate until the Petition can be resolved by the RTC or until the appointment of a regular administrator. They prayed that their attorney-in-fact, Romualdo D. Lim (Romualdo), be appointed as the special administrator. Petitioners filed an Opposition to private respondents Motion for Appointment, arguing that none of the private respondents can be appointed as the special administrator since they are not residing in the country. Petitioners contend further that Romualdo does not have the same familiarity, experience or competence as that of their co-petitioner Vilma C. Tan (Vilma) who was already acting as de facto administratrix of his estate since his death. On 18 March 2002, Atty. Clinton Nuevo (Nuevo), as court-appointed commissioner, issued directives to Vilma, in her capacity as de facto administratrix, to wit: b.1.) requiring the de facto administratrix Ms. Vilma Tan to deposit in the fiduciary account of the Court all money and or cash at hand or deposited in the bank(s) which rightfully belong to the estate of the decedent within five (5) days from receipt hereof; b.2.) requiring the same administratrix to deposit in the same account the proceeds of all sugarcane harvest or any crop harvest, if any, done in the past or is presently harvesting or about to undertake, which belong to the estate of the decedent; b.3.) relative to the foregoing, the same de facto administratrix is also required to submit a financial report to the Commission as regards the background of the cash at hand or deposited in bank(s), if any, the expenses incurred in course of her administration and other relevant facts including that of the proceeds of the sugarcane/crop harvest, which submission will be done upon deposit of the foregoing with the court as above[3] required. More than a year later or on 23 May 2003, the RTC, acting on the private respondents Urgent Ex-parte Motion to resolve pending incident, gave Vilma another 10 days to comply with the directive of Atty. Nuevo. Again, no compliance has been made. Consequently, on 12 June 2003, RTC Judge Eric F. Menchavez issued an Order appointing Romualdo as special administrator of Gerardos Estate, the fallo of which states: Foregoing considered, the motion for the appointment of a special administrator is hereby GRANTED. Mr. Romualdo D. Lim is hereby appointed as Special Administrator and shall immediately take possession and charge of the goods, chattels, rights, credits and estate of the deceased and preserve the same for the executor or administrator afterwards appointed, upon his filing of a bond in the amount of P50,000.00 and upon approval of [5] the same by this Court. Petitioners filed on 19 June 2003 a Motion for Reconsideration of the foregoing Order, claiming that petitioner Vilma should be the one appointed as special administratix as she was allegedly next of kin of the deceased. On 17 July 2003, respondent Judge Francisco Gedorio (Gedorio), in his capacity as RTC Executive Judge, issued an [6] Order denying petitioners Motion for Reconsideration.
[4] [1]

Petitioners instituted with the Court of Appeals a Petition for Certiorari and Prohibition assailing the 17 July 2003 Order, again insisting on petitioner Vilmas right to be appointed as special administratix. Petitioners likewise prayed for the issuance of preliminary injunction and/or temporary restraining order (TRO) to enjoin Romualdo from entering the estate and acting as special administrator thereof. On 29 July 2004, the Court of Appeals issued a Decision denying petitioners Petition. On 6 December 2004, the Court of Appeals similarly denied the ensuing Motion for Reconsideration filed by petitioners, to wit: WHEREFORE, in view of all the foregoing premises, judgment is hereby rendered by us DENYING and [7] DISMISSING the petition filed in this case and AFFIRMING the assailed order in Special Proceeding No. 4014-0. On 22 January 2005, petitioners filed the instant Petition for Review on Certiorari assigning the following errors: I. THE COURT OF APPEALS AND THE COURT A QUO BOTH GRIEVOUSLY ERRED IN DENYING PETITIONERS PLEA TO BE GIVEN PRIMACY IN THE ADMINISTRATION OF THEIR FATHERS ESTATE.

II. THE COURT OF APPEALS LIKEWISE ERRED IN DENYING PETITIONERS PLEA FOR THE ISSUANCE OF A WRIT OF PRELIMINARY INJUNCTION AND/OR A TEMPORARY RESTRAINING ORDER AGAINST PRIVATE RESPONDENTS AND [8] THEIR ATTORNEY-IN-FACT.
[9]

On 14 February 2005, this Court issued a Resolution denying the Petition on the ground of late filing, failure to submit an affidavit of service of a copy of the Petition on the Court of Appeals and proof of such service, failure to properly verify the Petition, and failure to pay the deposit for the Salary Adjustment for the Judiciary (SAJ) fund and sheriffs fee. Upon Motion for [10] Reconsideration filed by petitioners, however, this Court issued on 18 July 2005 a Resolution reinstating the Petition. Petitioners contend that they should be given priority in the administration of the estate since they are allegedly the legitimate heirs of the late Gerardo, as opposed to private respondents, who are purportedly Gerardos illegitimate children. Petitioners rely on the doctrine that generally, it is the nearest of kin, whose interest is more preponderant, who is preferred in the choice of administrator of the decedents estate. Petitioners also claim that they are more competent than private respondents or their attorney-in-fact to administer Gerardos estate. Petitioners Vilma and Gerardo Jake Tan (Jake) claim to have lived for a long time and continue to reside on Gerardos estate, while respondents are not even in the Philippines, having long established residence abroad. Petitioners additionally claim that petitioner Vilma has been acting as the administratrix of the estate since Gerardos death on 14 October 2000 and is thus well steeped in the actual management and operation of the estate (which essentially consists of [12] agricultural landholdings). As regards the denial of petitioners plea for the issuance of a Writ of Preliminary Injunction and/or TRO, petitioners argue that such denial would leave Romualdo, private respondents attorney-in-fact, free to enter Gerardos estate and proceed to act as administrator thereof to the prejudice of petitioners. The appeal is devoid of merit. The order of preference petitioners speak of is found in Section 6, Rule 78 of the Rules of Court, which provides: SEC. 6. When and to whom letters of administration granted.If no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration shall be granted:
[11]

(a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (30) days after the death of the person to apply for administration or to request that administration be granted to some other person, it may be granted to one or more of the principal creditors, if competent and willing to serve; (c) If there is no such creditor competent and willing to serve, it may be granted to such other person as the court may select. However, this Court has consistently ruled that the order of preference in the appointment of a regular administrator as provided in [13] the afore-quoted provision does not apply to the selection of a special administrator. The preference under Section 6, Rule 78 of the Rules of Court for the next of kin refers to the appointment of a regular administrator, and not of a special administrator, as [14] theappointment of the latter lies entirely in the discretion of the court, and is not appealable. Not being appealable, the only remedy against the appointment of a special administrator is Certiorari under Rule 65 of the Rules of Court, which was what petitioners filed with the Court of Appeals. Certiorari, however, requires nothing less than grave abuse of discretion, a term which implies such capricious and whimsical exercise of judgment which is equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal [15] to perform a duty enjoined by law, or to act at all in contemplation of law. We agree with the Court of Appeals that there was no grave abuse of discretion on the part of respondent Judge Gedorio in affirming Judge Menchavezs appointment of Romualdo as special administrator. Judge Menchavez clearly considered petitioner Vilma for the position of special administratrix of Gerardos estate, but decided against her appointment for the following reasons: Atty. Clinton C. Nuevo, in his capacity as court appointed commissioner, directed oppositor Vilma Tan in the latters capacity as de fact[o] administratrix, to deposit in the fiduciary account of the court all money and cash at hand or deposited in the banks which rightfully belong to the estate within five days from receipt of the directive. Oppositor Vilma Tan was likewise directed to deposit in the same account the proceeds of all sugarcane harvest or any crop from the estate of the decedent. She was likewise directed to submit a financial report as regards the background of the cash on hand, if any, the expenses incurred in the course of her administration. The directive was issued by Atty. Nuevo on March 18, 2002 or more than a year ago. On May 23, 2003, this Court, acting on the urgent ex parte motion to resolve pending incident, gave Vilma Tan another ten days to comply with the directive of Atty. Nuevo. Again, no compliance has been made. This Court is called upon to preserve the estate of the late Gerardo Tan for the benefit of all heirs be that heir is (sic) the nearest kin or the farthest kin. The actuation of oppositor Vilma Tan does not satisfy the requirement of a special administrator who can effectively and impartially administer the estate of Gerardo Tan [16] for the best interest of all the heirs. (Emphases supplied.) Assuming for the sake of argument that petitioner Vilma is indeed better suited for the job as special administratrix, as opposed to Romualdo, who was actually appointed by the court as special administrator of Gerardos estate, the latters appointment, at best, would constitute a mere error of judgment and would certainly not be grave abuse of discretion. An error of judgment is one which the court may commit in the exercise of its jurisdiction, and which error is reviewable only by an appeal. On the other hand, an error of jurisdiction is one in which the act complained of was issued by the court, officer or a quasi-judicial body [17] without or in excess of jurisdiction, or with grave abuse of discretion which is tantamount to lack or excess of jurisdiction. The Court of Appeals could not have reversed a mere error of judgment in a Certiorari petition. Furthermore, petitioners were not able to sufficiently substantiate their claim that their co-petitioner Vilma would have been the more competent and capable choice to serve as the special administratrix of Gerardos estate. Contrary to petitioners bare assertions, both the RTC and the Court of Appeals found that the documented failure of petitioner Vilma to comply with the reportorial requirements after the lapse of a considerable length of time certainly militates against her appointment. We find immaterial the fact that private respondents reside abroad, for the same cannot be said as regards their attorneyin-fact, Romualdo, who is, after all, the person appointed by the RTC as special administrator. It is undisputed that Romualdo resides in the country and can, thus, personally administer Gerardos estate.

If petitioners really desire to avail themselves of the order of preference provided in Section 6, Rule 78 of the Rules of Court, so that petitioner Vilma as the supposed next of kin of the late Gerardo may take over administration of Gerardos estate, they should already pursue the appointment of a regular administrator and put to an end the delay which necessitated the appointment of a special administrator. The appointment of a special administrator is justified only when there is delay in granting letters, testamentary (in case the decedent leaves behind a will) or administrative (in the event that the decedent leaves behind no [18] will, as in the Petition at bar) occasioned by any cause. The principal object of the appointment of a temporary administrator is to preserve the estate until it can pass into the hands of a person fully authorized to administer it for the benefit of creditors and [19] heirs. In the case at bar, private respondents were constrained to move for the appointment of a special administrator due to the delay caused by the failure of petitioner Vilma to comply with the directives of the court-appointed commissioner. It would certainly be unjust if petitioner Vilma were still appointed special administratix, when the necessity of appointing one has been brought about by her defiance of the lawful orders of the RTC or its appointed officials. Petitioners submit the defense that petitioner Vilma was unable to comply with the directives of the RTC to deposit with the court the income of Gerardos estate and to provide an accounting thereof because of the fact that Gerardos estate had no income. This defense is clearly specious and insufficient justification for petitioner Vilmas non-compliance. If the estate truly did not have any income, petitioners should have simply filed a manifestation to that effect, instead of continuing to disregard the courts orders. Finally, as we are now resolving the case in favor of private respondents, there is no longer any need to discuss petitioners arguments regarding the denial by the appellate court of their prayer for the issuance of a writ of preliminary injunction and/or TRO. WHEREFORE, the instant Petition for Review on Certiorari is DENIED. The Decision dated 29 July 2004 of the Court of Appeals in CA-G.R. SP No. 79335 affirming the Order dated 17 July 2003 of the Regional Trial Court (RTC) of Ormoc City, in SP. PROC. No. 4014-0 denying reconsideration of its Order dated 12 June 2003, whereby it appointed Romualdo D. Lim as special administrator of the estate of Gerardo Tan, is AFFIRMED. Costs against petitioners. SO ORDERED.

A.M. No. 2430 August 30, 1990 MAURO P. MANANQUIL, complainant, vs. ATTY. CRISOSTOMO C. VILLEGAS, respondent. Geminiano M. Eleccion for complainant. RESOLUTION CORTES, J.: In a verified complaint for disbarment dated July 5, 1982, Mauro P. Mananquil charged respondent Atty. Crisostomo C. Villegas with gross misconduct or malpractice committed while acting as counsel of record of one Felix Leong in the latter's capacity as administrator of the Testate Estate of the late Felomina Zerna in Special Proceedings No. 460 before then Court of First Instance of Negros Occidental. The complainant was appointed special administrator after Felix Leong died. In compliance with a resolution of this Court, respondent filed his comment to the complaint on January 20, 1983. After complainant filed his reply, the Court resolved to refer the case to the Solicitor General for investigation, report and recommendation. In a hearing conducted on May 15, 1985 by the investigating officer assigned to the case, counsel for the complainant proposed that the case be considered on the basis of position papers and memoranda to be submitted by the parties. Respondent agreed. Thus, the investigating officer required the parties to submit their respective position papers and memoranda, with the understanding that with or without the memoranda, the case will be deemed submitted for resolution after the expiration of 30 days. In compliance, both parties submitted their respective position papers; but no memorandum was filed by either party. Thereafter, the case was deemed submitted. In the pleadings submitted before the Court and the Office of the Solicitor General, complainant alleges that over a period of 20 years, respondent allowed lease contracts to be executed between his client Felix Leong and a partnership HIJOS DE JOSE VILLEGAS, of which respondent is one of the partners, covering several parcels of land of the estate, i.e. Lots Nos. 1124, 1228, 2221, 2402, 3939, 3942 and 3957 of the Tanjay Cadastre, under iniquitous terms and conditions. Moreover, complainant charges that these contracts were made without the approval of the probate court and in violation of Articles 1491 and 1646 of the new Civil Code. On the basis of the pleadings submitted by the parties, and other pertinent records of the investigation, the Solicitor General submitted his report dated February 21, 1990, finding that respondent committed a breach in the performance of his duties as counsel of administrator Felix Leong when he allowed the renewal of contracts of lease for properties involved in the testate proceedings to be undertaken in favor of HIJOS DE JOSE VILLEGAS without notifying and securing the approval of the probate court. However, the Solicitor General opined that there was no sufficient evidence to warrant a finding that respondent had allowed the properties to be leased in favor of his family partnership at a very low rental or in violation of Articles 1491 and 1646 of the new Civil Code. Thus, the Solicitor General recommended that respondent be suspended from the practice of law for a period of THREE (3) months with a warning that future misconduct on respondent's part will be more severely dealt with [Report and Recommendation of the Solicitor General, pp. 1-10; Rollo, pp. 37-46. Also, Complaint of the Solicitor General, pp. 1-3; Rollo, pp. 47-49]. As gleaned from the record of the case and the report and recommendation of the Solicitor General, the following facts are uncontroverted: That as early as March 21, 1961, respondent was retained as counsel of record for Felix Leong, one of the heirs of the late Felomina Zerna, who was appointed as administrator of the Testate Estate of the Felomina Zerna in Special No. 460 on May 22, 1961; That, a lease contract dated August 13, 1963 was executed between Felix Leong and the "Heirs of Jose Villegas" represented by respondent's brother-in-law Marcelo Pastrano involving, among others, sugar lands of the estate designated as Lot Nos. 1124, 1228, 2221, 2402, 3939, 3942 and 3957 of the Tanjay Cadastre; That Felix Leong was designated therein as administrator and "owner, by testamentary disposition, of 5/6 of all said parcels of land";

That, the lifetime of the lease contract was FOUR (4) sugar crop years, with a yearly rental of TEN PERCENT (10%) of the value of the sugar produced from the leased parcels of land; That, on April 20, 1965, the formal partnership of HIJOS DE JOSE VILLEGAS was formed amongst the heirs of Jose Villegas, of which respondent was a member; That, on October 18, 1965, another lease contract was executed between Felix Leong and the partnership HIJOS DE JOSE VILLEGAS, containing basically the same terms and conditions as the first contract, with Marcelo Pastrano signing once again as representative of the lessee; That, on March 14, 1968, after the demise of Marcelo Pastrano, respondent was appointed manager of HIJOS DE JOSE VILLEGAS by the majority of partners; That, renewals of the lease contract were executed between Felix Leong and HIJOS DE JOSE VILLEGAS on January 13, 1975 and on December 4, 1978, with respondent signing therein as representative of the lessee; and, That, in the later part of 1980, respondent was replaced by his nephew Geronimo H. Villegas as manager of the family partnership. Under the above circumstances, the Court finds absolutely no merit to complainant's charge, and the Solicitor General's finding, that respondent committed acts of misconduct in failing to secure the approval of the court in Special Proceedings No. 460 to the various lease contracts executed between Felix Leong and respondent's family partnership. Pursuant to Section 3 of Rule 84 of the Revised Rules of Court, a judicial executor or administrator has the right to the possession and management of the real as well as the personal estate of the deceased so long as it is necessary for the payment of the debts and the expenses of administration. He may, therefore, exercise acts of administration without special authority from the court having jurisdiction of the estate. For instance, it has long been settled that an administrator has the power to enter into lease contracts involving the properties of the estate even without prior judicial authority and approval [See Ferraris v. Rodas, 65 Phil. 732 (1938); Jocson de Hilado v. Nava, 69 Phil. 1 (1939); San Diego, Sr. v. Hombre, G.R No. L-19265, May 29, 1964, 11 SCRA 165]. Thus, considering that administrator Felix Leong was not required under the law and prevailing jurisprudence to seek prior authority from the probate court in order to validly lease real properties of the estate, respondent, as counsel of Felix Leong, cannot be taken to task for failing to notify the probate court of the various lease contracts involved herein and to secure its judicial approval thereto. Nevertheless, contrary to the opinion of the Solicitor General, the Court finds sufficient evidence to hold respondent subject to disciplinary sanction for having, as counsel of record for the administrator in Special Proceedings No. 460, participated in the execution in 1975 and 1978 of renewals of the lease agreement involving properties of the estate in favor of the partnership HIJOS DE JOSE VILLEGAS, of which respondent is a member and in 1968 was appointed managing partner. By virtue of Article 1646 of the new Civil Code, the persons referred to in Article 1491 are prohibited from leasing, either in person or through the mediation of another, the properties or things mentioned in that article, to wit: xxx xxx xxx (1) The guardian, the property of the person or persons who may be under his guardianship; (2) Agents, the property whose administration or sale may have been intrusted to them, unless the consent of the principal have been given; (3) Executors and administrators, the property of the estate under administration (4) Public officers and employees, the property of the State or of any subdivision thereof, or of any government owned or controlled corporation, or institution, the administration of which has been intrusted to them; this provision shall apply to judges and government experts who, in any manner whatsoever, take part in the sale;

(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees connected with the administration of justice, the property or rights in litigation or levied upon on execution before the court within whose jurisdiction or territory they exercise their respective functions; this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession. (6) Any others specially disqualified by law xxx xxx xxx [Article 1491 of the new Civil Code; Emphasis supplied.] The above disqualification imposed on public and judicial officers and lawyers is grounded on public policy considerations which disallow the transactions entered into by them, whether directly or indirectly, in view of the fiduciary relationship involved, or the peculiar control exercised by these individuals over the properties or rights covered [See Rubias v. Batiller, G.R. No. L-35702, May 29, 1973, 51 SCRA 120; Maharlika Publishing Corporation v. Tagle, G.R. No. 65594, July 9, 1986, 142 SCRA 553; Fornilda v. The Branch 164, RTC Fourth Judicial Region, Pasig, G.R. No. 72306, October 5, 1988, 166 SCRA 281 and January 24, 1989, 169 SCRA 351]. Thus, even if the parties designated as lessees in the assailed lease contracts were the "Heirs of Jose Villegas" and the partnership HIJOS DE JOSE VILLEGAS, and respondent signed merely as an agent of the latter, the Court rules that the lease contracts are covered by the prohibition against any acquisition or lease by a lawyer of properties involved in litigation in which he takes part. To rule otherwise would be to lend a stamp of judicial approval on an arrangement which, in effect, circumvents that which is directly prohibited by law. For, piercing through the legal fiction of separate juridical personality, the Court cannot ignore the obvious implication that respondent as one of the heirs of Jose Villegas and partner, later manager of, in HIJOS DE JOSE VILLEGAS stands to benefit from the contractual relationship created between his client Felix Leong and his family partnership over properties involved in the ongoing testate proceedings. In his defense, respondent claims that he was neither aware of, nor participated in, the execution of the original lease contract entered into between his client and his family partnership, which was then represented by his brother-in-law Marcelo Pastrano. And although he admits that he participated in the execution of subsequent renewals of the lease contract as managing partner of HIJOS DE JOSE VILLEGAS, he argues that he acted in good faith considering that the heirs of Filomena Zerna consented or acquiesced to the terms and conditions stipulated in the original lease contract. He further contends that pursuant to the ruling of the Court in Tuason v.Tuason [88 Phil. 428 (1951)] the renewal contracts do not fall within the prohibition of Articles 1491 and 1646 since he signed the same as a mere agent of the partnership. Respondent's contentions do not provide sufficient basis to escape disciplinary action from this Court. It taxes this Courts imagination that respondent disclaims any knowledge in the execution of the original lease contract between his client and his family partnership represented by his brother-in-law. Be that as it may, it cannot be denied that respondent himself had knowledge of and allowed the subsequent renewals of the lease contract. In fact, he actively participated in the lease contracts dated January 13, 1975 and December 4, 1978 by signing on behalf of the lessee HIJOS DE JOSE VILLEGAS. Moreover, the claim that the heirs of Filomena Zerna have acquiesced and consented to the assailed lease contracts does not militate against respondent's liability under the rules of professional ethics. The prohibition referred to in Articles 1491 and 1646 of the new Civil Code, as far as lawyers are concerned, is intended to curtail any undue influence of the lawyer upon his client on account of his fiduciary and confidential association [Sotto v. Samson, G.R. No. L-16917, July 31, 1962, 5 SCRA 733]. Thus, the law makes the prohibition absolute and permanent [Rubias v. Batiller, supra]. And in view of Canon 1 of the new Code of Professional Responsibility and Sections 3 & 27 of Rule 138 of the Revised Rules of Court, whereby lawyers are duty-bound to obey and uphold the laws of the land, participation in the execution of the prohibited contracts such as those referred to in Articles 1491 and 1646 of the new Civil Code has been held to constitute breach of professional ethics on the part of the lawyer for which disciplinary action may be brought against him [See Bautista v. Gonzalez, Adm. Matter No. 1625, February 12, 1990). Accordingly, the Court must reiterate the rule that the claim of good faith is no defense to a lawyer who has failed to adhere faithfully to the legal disqualifications imposed upon him, designed to protect the interests of his client [See In re Ruste, 70 Phil. 243 (1940); Also, Severino v. Severino, 44 Phil. 343 (1923)]. Neither is there merit in respondent's reliance on the case of Tuason v. Tuason [supra.] It cannot be inferred from the statements made by the Court in that case that contracts of sale or lease where the vendee or lessee is a partnership, of which a lawyer is a

member, over a property involved in a litigation in which he takes part by virtue of his profession, are not covered by the prohibition under Articles 1491 and 1646. However, the Court sustains the Solicitor General's holding that there is no sufficient evidence on record to warrant a finding that respondent allowed the properties of the estate of Filomena Zerna involved herein to be leased to his family partnership at very low rental payments. At any rate, it is a matter for the court presiding over Special Proceedings No. 460 to determine whether or not the agreed rental payments made by respondent's family partnership is reasonable compensation for the use and occupancy of the estate properties. Considering thus the nature of the acts of misconduct committed by respondent, and the facts and circumstances of the case, the Court finds sufficient grounds to suspend respondent from the practice of law for a period of three (3) months. WHEREFORE, finding that respondent Atty. Crisostomo C. Villegas committed acts of gross misconduct, the Court Resolved to SUSPEND respondent from the practice of law for four (4) months effective from the date of his receipt of this Resolution, with a warning that future misconduct on respondent's part will be more severely dealt with. Let copies of this Resolution be circulated to all courts of the country for their information and guidance, and spread in the personal record of Atty. Villegas. SO ORDERED.