Cases Used:

Basis of Relief granted by Court; Averments contained in body;

Prayer

the court may determine. its adequacy for allowance of

relief on the basis of the averments contained in the body of
the pleading
may grant relief although there is no prayer because the
prayer is not even considered an essential part of a pleading.
Case/s:
Vda. De Manalo vs. Court of Appeals, et al., 349 SCRA 136.
Barnuevo vs. Fuster, 29 Phil. 600
Certificate of Title; Conclusiveness with respect to ownership of land
Petitioner also argues that the plotting made by NLTDRA was anomalous
because Survey Plan FP-1540, on which private respondents title was based,
could not be located. This argument lacks merit. The law does not require
resorting to a survey plan to prove the true boundaries of a land covered by a
valid certificate of title; the title itself is the conclusive proof of the realtys metes
and bounds. Section 47 of the Land Registration Act, or Act No. 496, provides
that (t)he original certificates in the registration book, any copy thereof duly
certified under the signature of the clerk, or the register of deeds of the province
or city where the land is situated, and the seal of the court, and also the owners
duplicate certificate, shall be received as evidence in all the courts of the
Philippine Islands and shall be conclusive as to all matters contained therein
except so far as otherwise provided in this Act. It has been held that a certificate
of title is conclusive evidence with respect to the ownership of the land described
therein and other matters which can be litigated and decided in land registration
proceedings.
Case/s:
Carvajal vs. CA, 280 SCRA 351[1997]
Constructive Dismissal
There may be constructive dismissal if an act of clear
discrimination, insensibility, or disdain by an employer becomes
so unbearable on the part of the employee that it could foreclose
any choice by him except to forego his continued employment.
Case/s:

Hyatt Taxi Services, Inc. vs. Catinoy, 359 SCRA 686, G.R. No. 143204
Escheat
Case/s:
In Re: Estate of Lao Sayco, 21 PHIL 445.
Laches and Prescription; Applicability and Requisites in registered land
In a number of cases, the Court has held that an action to
recover registered land covered by the Torrens System may not be
barred by laches. Laches cannot be set up to resist the
enforcement of an imprescriptible legal right. Laches, which is a
principle based on equity, may not prevail against a specific
provision of law, because equity, which has been defined as justice
outside legality, is applied in the absence of and not against
statutory law or rules of procedure.
In recent cases, however, the court held that while it is true
that a Torrens title is indefeasible and imprescriptible, the registered
landowner may lose his right to recover possession of his
registered property by reason of laches.
Yet, even if we apply the doctrine of laches to registered
lands, it would still not bar petitioners claim. It should be stressed
that laches is not concerned only with the mere lapse of time. The
following elements must be present in order to constitute laches:
(1) conduct on the part of the defendant, or of one under
whom he claims, giving rise to the situation of which complaint is
made for which the complaint seeks a remedy;
(2) delay in asserting the complainants rights, the
complainant having had knowledge or notice, of the defendants
conduct and having been afforded an opportunity to institute a suit;
(3) lack of knowledge or notice on the part of the defendant
that the complainant would assert the right on which he bases his
suit; and
(4) injury or prejudice to the defendant in the event relief is
accorded to the complainant, or the suit is not held to be barred.
Case/s:
The Heirs of Anacleto B. Nieto vs. The Municipality of Meycauayan
Bulacan 540 SCRA 100 [1997]

Motion for Reconsideration

1. The subject Motion actually consists of two

motions, a Motion for New Trial and a Motion for
Reconsideration. While the Court agrees that the
Motion for New Trial lacks merit for the reason that
the documents sought to be presented are not newly
discovered evidence, the Court does not agree that
the Motion for Reconsideration is pro forma.
The Court is guided by the rulings in Coquilla v.
Commission on Elections, to wit:
x x x The mere reiteration in a motion
for reconsideration of the issues raised by
the parties and passed upon by the court
does
not
make
a
motion pro
forma; otherwise, the movants remedy would
not be a reconsideration of the decision but a
new trial or some other remedy. But, as we
have held in another case:
Among the ends to which a motion for
reconsideration is addressed, one is precisely
to convince the court that its ruling is
erroneous and improper, contrary to the law or
the evidence; and in doing so, the movant has
to dw ell of necessity upon the issues passed
upon
by
the
court . If
a
motion
for
reconsideration may not discuss these issues, the
consequence would be that after a decision is
rendered, the losing party would be confined to
filing only motions for reopening and new trial.

Indeed, in the cases where a motion for

reconsideration
was
held
to
be pro
forma, the motion was so held because (1)
it was a second motion for reconsideration,
or (2) it did not comply with the rule that
the motion must specify the fi ndings and
conclusions alleged to be contrary to law or
not supported by the evidence, or (3) it

failed to substantiate the alleged errors, or

(4) it merely alleged that the decision in
question was contrary to law, or (5) the
adverse
party
was
not
given
notice
thereof. The 16-page motion for reconsideration
fi led
by
petitioner
in
the
COMELEC en
banc suff ers from none of the foregoing defects,
and it was error for the COMELEC en banc to rule
that petitioners motion for reconsideration
was pro forma because the allegations raised
therein are a mere rehash of his earlier
pleadings or did not raise new matters. Hence,
the fi ling of the motion suspended the running of
the 30-day period to fi le the petition in this
case, which, as earlier shown, was done within
the reglementary period
provided
by
law. (Emphasis supplied)

and in Marina
Appeals, thus:

Properties

Corporation

v.

Court

Under our rules of procedure, a party

adversely aff ected by a decision of a trial court
may move for reconsideration thereof on the
following grounds: (a) the damages awarded
are excessive; (b) the evidence or contrary
to law, making express reference to the
pertinent evidence or legal provisions. It
is settled that although a motion for
reconsideration
may
merely
reiterate
issues already passed upon by the court,
that by itself does not make it pro
forma and is immaterial because what is
essential is compliance with the requisites of
the Rules. xxx.
x x x x
Where the circumstances of a case do
not show an intent on the part of the
pleader to merely delay the proceedings,
and his motion reveals a bona fi de eff ort

of

to
present
additional
matters
or
to
reiterate his arguments in a diff erent
light, the courts should be slow to declare
the
same
outright
as pro
forma. The
doctrine relating to pro forma motions has a
direct bearing upon the movants valuable right
to appeal. It would be in the interest of justice
to accord the appellate court the opportunity to
review the decision of the trial court on the
merits than to abort the appeal by declaring
the motion pro forma, such that the period to
appeal
was
not
interrupted
and
had
consequently lapsed. (Emphasis supplied)
2. Should the questioned interlocutory order be

subject to attack only on one ground, as in the case of

the default declaration herein involved, a motion for
reconsideration against the order complained of would
necessarily and inevitably contain a repetition of the
ground previously alleged. In so doing, the movant is
praying the court to give his motion a second look, in
the hope that the court would realize its supposed
error, correct the same, and thereby preclude the
necessity of seeking relief in a higher tribunal.
3.
It goes without saying, however that every
court has the power and indeed the duty to review and
amend or reverse its findings and decisions when its
attention is timely called to any error or defect therein.
Case/s:

1. PNB VS. PANEDA 515 SCRA 639, 647-649

2. BA Finance Corporation vs. Pineda 119 SCRA 493, 503
3. Luzon Brokerage vs. CA, 176 SCRA 483, 491, as reiterated
in Fernan vs. Court of Appeals, 181 SCRA 546, 551
Trademarks; descriptive word can be used as part of a
coined mark
While a descriptive term or phrase may not be registered as a trademark or trade name by
itself, it may be used as part of a coined word or mark, and as a consequence, may lose its

generic or descriptive element. The coined word may then be registered as trademark or
tradename. For instance, the word pas is generic or descriptive and may not, by itself,
be registered as a mark. However, as used to form the coined word Salompas, pas
loses its descriptive property and the resulting coined word can be monopolized and
registered as a trademark.
Case/s:
Marvez Commerical Co. Inc. vs. Petra Hawpia & Co., 18 SCRA 1178 (1966).
Payment of Wages; Who has burden of proving

1. Even the fact that a plaintiff admits that some

payments have been made does not change the burden
of proof. The defendant [employer] still has the burden
of establishing payments beyond those admitted by
plaintiffs.
2.
x x x one who pleads payment has the burden of
proving it. The reason for the rule is that the
pertinent personnel files, payrolls, records,
remittances and other similar documents which
will show that overtime, differentials, service
incentive leave, and other claims of workers
have been paid are not in the possession of the
worker but in the custody and absolute control
of the employer. Thus, the burden of showing
with legal certainty that the obligation has
been discharged with payment falls on the
debtor, in accordance with the rule that one who
pleads payment has the burden of proving it. x x x1

Case/s:
1. Jimenez et al., vs. NLRC, G.R. No. 116960, April 2,
1996.
2. Dansart Security Force & Allied Services Company vs. Bagoy, 622
SCRA 694, G.R. No. 168495, July 2, 2010
Possession; Recovery
The action to recover property pertains to the owner of the thing, and he
may proceed not only against the person in actual possession but against
1

Dansart Security Force & Allied Services Company vs. Bagoy, 622 SCRA 694, G.R. No. 168495, July 2,
2010.

anyone unlawfully detaining it. The possessor has the presumption of title in his
favor, but if the plaintiff can prove his title as owner and establish the identity of
the property claimed as his, he will be entitled to recover the property, even if the
possession seems legalized by a conveyance.
Case/s:
Mendoza vs. Fulgencio, 8 PHIL. 243; Cleto vs. Salvador, 11 PHIL. 416; Vargas
vs. Egamino, 12 PHIL. 56; Samson vs. Salvilla, 12 Phil. 497; Peres vs. Cortes,
15 PHIL. 211; Salacup vs. Rambac, 17 PHIL. 21; Cid vs. Peralta, 24 PHIL. 142
Presumption of Death
Both provisions, as their language plainly implies, are intended as
a substitute for facts and so are not to be available when there are facts.
With particular reference to section 69 (ii) of Rule 123, "the situation
which it presents is one in which the facts are not only unknown but
unknowable. By hypothesis, there is no specific evidence as to the time of
death . . . ." . . . it is assumed that no evidence can be produced. . . . Since
the facts are unknown and unknowable, the law may apply the law of
fairness appropriate to the different legal situation that arises." (IX
Wigmore on Evidence, 1940 ed., 483.)
In In re Wallace's Estate, 220 Pac. 683, which the Court of Appeals
cited the applied with the respect to the deaths of the Navarro girls,
pointing out that "our rule is taken from the Fourth Division of Sec. 1936
of the California Code of Civil Procedure," the Supreme Court of
California said:
When the statute speaks of "particular
circumstances from which it can be inferred"
that one died before the other it means that
there are circumstances from which the fact of
death by one before the other may be inferred
as a relation conclusion from the facts proven.
The statute does not mean circumstances
which would show, or which would tend to
show, probably that one died before the other.
Grand Lodge A.O.W.W. vs. Miller, 8 Cal. App. 28,
96 Pac. 22. When by circumstantial evidence
alone, a party seeks to prove a survivorship
contrary to the statutory presumption, the
circumstances by which it is sought to prove
the survivorship must be such as are
competent and sufficient when tested by the
general rules of evidence in civil cases. The
inference of survivorship cannot rest

upon mere surmise, speculation, or

conjecture.
As
was
said
in
Grand
Lodge vs. Miller, supra, "if the matter is left to
probably, then the statute of the presumption."
(emphasis ours)
It is manifest from the language of section 69 (ii) of Rule 123 and
of that of the foregoing decision that the evidence of the survivorship need
not be direct; it may be indirect, circumstantial, or inferential. Where there
are facts, known or knowable, from which a rational conclusion can be
made, the presumption does not step in, and the rule of preponderance of
evidence controls.
xxx

xxx

xxx

In conclusion the presumption that Angela Joaquin de Navarro

died before her son is based purely on surmises, speculations, or
conjectures without any sure foundation in the evidence. The opposite
theory that the mother outlived her son is deduced from established
facts which, weighed by common experience, engender the inference as a
very strong probability. Gauged by the doctrine of preponderance of
evidence by, which civil cases are decided, this inference ought to prevail.
It can not be defeated as in an instance, cited by Lord Chief Justice
Kenyon, "bordering on the ridiculous, where in an action on the game
laws it was suggested that the gun with which the defendant fired was not
charged with shot, but that the bird might have died in consequence of the
fight." (1 Moore on Facts, 63, citing Wilkinson vs. Payne, 4 T. R. 468.)
Case/s:
Joaquin vs. Navarro (93 PHIL 257)
Trademarks; descriptive word can be used as part of a composite mark
1. A composite mark is a mark consisting of two or more elements or a
combination of words, phrases or words and designs or symbols or color schemes. In
determining whether a composite mark may be monopolized and registered as a
trademark or trade name, the component elements are not to be considered as separate
and apart; the design or mark as a whole, the combination of all elements, must be looked
into. For the commercial impression of a trade name is derived from it as a whole, not
from its elements, separate and considered in detail. If the composite mark as a whole
serves the function of the office of a trademark, then it may be monopolized or registered
as a trademark, even though one or more components thereof may not, be themselves, be
validly appropriated as such because they are generic or descriptive of the goods.
2. The generally accepted rule that a symbol or figure which represents something
in universal use by the public generally or by a particular class of people may not be

exclusively be appropriated as a trademark is not absolute. The rule is generally

applicable only when the symbol or figure is used by itself. However, it the symbol or
figure is used in combination with other distinguishing elements, the design as a whole
may be exclusively appropriated and registered as a trademark.
Case/s:
1. Inchausti & Co. vs. Song Fo & Co., 21 PHIL. 272 (1912); Ong Ai Gui v. Director of
Patents, 96 PHIL. 673.
2. Forbes, Munn & Co. vs. Ang San To, 40 PHIL. 272 (1919).
Seventy-one years ago, in Alonso v. Villamor, 30 this Court described the nature and object of litigation and in the
process laid down the standards by which judicial contests are to be conducted in this jurisdiction. It said:

A litigation is not a game of technicalities in which one, more deeply schooled and
skilled in the subtle art of movement and position, entraps and destroys the other. It
is, rather a contest in which each contending party fully and fairly lays before the
court the facts in issue and then brushing aside as wholly trivial and indecisive all
imperfections of form and technicalities of procedure, asks that justice be done on
the merits. Lawsuits, unlike duels, are not to be won by a rapier's thrust. Technicality,
when it deserts its proper office as an aid to justice and becomes its great hindrance
and chief enemy, deserves scant consideration from courts. There should be no
vested right in technicalities. . . .

This case illustrates the application of the legal precept that the law aids the vigilant, not
those who slumber on their rights. Vigilantibus, sed non dormientibus jura subverniunt. 2
Motions conform to rules

ALCARAZ VS. JUDGE ASDALA, A.M. No. RTJ-11-2272, Feb 16, 2011.
The Rules of Court require every written motion, except those that the court
may act upon without prejudicing the rights of an adverse party, to be set for
hearing by its proponent.[36] When a motion ought to be heard, the same rules
prescribe that it must be served to the adverse party with a notice of
hearing.[37]
The substance of a notice of hearing is, in turn, laid out in Section 5 of
Rule 15 of the Rules of Court. The provision states:[38]
Section 5. Notice of hearing. The notice of hearing shall
be addressed to all the parties concerned, and shall specify the
time and date of the hearing which must not be later than ten
(10) days after the filing of the motion. (Emphasis supplied)

Salandanan vs. CA, G.R. No. 127783, June 05, 1998

In the case at bench, it is clear that the notice of hearing in Emelitas

motion for execution pending appeal did not comply with the foregoing
standards.
First. Rather than being addressed to the adverse party, the notice of
hearing in Emelitas motion was directed to the Branch Clerk of Court. Such
gaffe actually contradicts a basic purpose of the notice requirementi.e., to
inform an adverse party of the date and time of the proposed hearing.
Second. The notice of hearing did not specify a date and time of hearing. In
fact, there was nothing in the notice that even suggests that the proponent
intended to set a hearing with the trial court in the first place. As may be
observed, the notice is merely an instruction for the clerk of court to submit
the motion for the consideration and approval of the trial court immediately
upon receipt or at any time convenient with the said court. The notice of
hearing in Emelitas motion does not, in reality, give any kind of notice.
Jurisprudence had been categorical in treating a litigious motion
without a valid notice of hearing as a mere scrap of paper.[39] In the classic
formulation of Manakil v. Revilla,[40] such a motion was condemned as:
x x x [n]othing but a piece of paper filed with the court. It presented no
question which the court could decide. The court had no right to
consider it, nor had the clerk any right to receive it without a
compliance with Rule 10 [now Sections 4 and 5 of Rule 15]. It was not,
in fact, a motion. It did not comply with the rules of the court. It did not
become a motion until x x x the petitioners herein fixed a time for hearing
of said alleged motion. (Emphasis supplied).

An important aspect of the above judicial pronouncement is the absence of

any duty on the part of the court to take action on a motion wanting a valid
notice of hearing. After all, the Rules of Court places upon the movant, and
not with the court, the obligations both to secure a particular date and time
for the hearing of his motion[41] and to give a proper notice thereof on the
other party.[42] It is precisely the failure of the movant to comply with these
obligations, which reduces an otherwise actionable motion to a mere scrap
of paper not deserving of any judicial acknowledgment.
A motion to dismiss is not a responsive pleading for purposes of amendment of
complaint

Marcos Araneta vs. CA, G.R. No. 154096, 8/22/08

As may be recalled, the CA veritably declared as reversibly erroneous

the admission of the amended complaint. The flaw in the RTCs act of
admitting the amended complaint lies, so the CA held, in the fact that the
filing of the amended complaint on July 17, 2000 came after the RTC had
ordered with finality the dismissal of the original complaints. According to
petitioners, scoring the CA for its declaration adverted to and debunking its
posture on the finality of the said RTC order, the CA failed to take stock of
their motion for reconsideration of the said dismissal order.
We agree with petitioners and turn to the governing Sec. 2 of Rule 10
of the Rules of Court which provides:
SEC. 2. Amendments as a matter of right. A party may
amend his pleading once as a matter of right at any time before a
responsive pleading is served or in the case of a reply, at any time
within ten (10) days after it is served.

As the aforequoted provision makes it abundantly clear that the

plaintiff may amend his complaint once as a matter of right, i.e., without
leave of court, before any responsive pleading is filed or served. Responsive
pleadings are those which seek affirmative relief and/or set up defenses,
[32]
like an answer. A motion to dismiss is not a responsive pleading for
purposes of Sec. 2 of Rule 10. [33] Assayed against the foregoing perspective,
the RTC did not err in admitting petitioners amended complaint, Julita and
Francisca not having yet answered the original complaints when the
amended complaint was filed. At that precise moment, Irene, by force of
said Sec. 2 of Rule 10, had, as a matter of right, the option of amending her
underlying reconveyance complaints. As aptly observed by the RTC, Irenes
motion to admit amended complaint was not even necessary. The Court
notes though that the RTC has not offered an explanation why it saw fit to
grant the motion to admit in the first place.
In Alpine Lending Investors v. Corpuz, the Court, expounding on the
propriety of admitting an amended complaint before a responsive pleading is
filed, wrote:

[W]hat petitioner Alpine filed in Civil Case No. C-20124

was a motion to dismiss, not an answer. Settled is the rule
that a motion to dismiss is not a responsive pleading for purposes
of Section 2, Rule 10. As no responsive pleading had been filed,
respondent could amend her complaint in Civil Case No. C20124 as a matter of right. Following this Courts ruling
in Breslin v. Luzon Stevedoring Co. considering that respondent
has the right to amend her complaint, it is the correlative duty of
the trial court to accept the amended complaint;
otherwise, mandamus would lie against it. In other words, the trial
courts duty to admit the amended complaint was purely
ministerial. In fact, respondent should not have filed a motion to
admit her amended complaint.[34]

It may be argued that the original complaints had been dismissed

through the June 29, 2000 RTC order. It should be pointed out, however, that
the finality of such dismissal order had not set in when Irene filed the
amended complaint on July 17, 2000, she having meanwhile seasonably
sought reconsideration thereof. Irenes motion for reconsideration was only
resolved on August 25, 2000. Thus, when Irene filed the amended complaint
on July 17, 2000, the order of dismissal was not yet final, implying that there
was strictly no legal impediment to her amending her original complaints
Divisions of the CA cannot render a decision contrary to that of
another division.
Esperas vs. CA 10/2/2000
Notwithstanding the formulation of four issues by petitioner, we only
have to resolve one issue, whether or not respondent Second Division
of the Court of Appeals erred and abused its discretion when it took
cognizance of an appeal allegedly already barred by prior judgment and
in so doing, reversed a decision of another division of the same court.
When the Second Division of the Court of Appeals issued its
resolution promulgated May 13, 1994, denying petitioner's prayer to
dismiss the appeal,[9] it stated that petitioner had the mistaken
impression that CA- G.R. CV No. 29581, before it, and CA-G.R. SP No.
22695, decided by the Special Eighth Division, elevated to the Supreme
Court as G.R. No. 101461 are one and the same. The Second Division

explains that the petition dismissed with finality by this Court was a
special civil action distinct from the case before it which is an ordinary
appeal. It explained that the appeal the trial court itself considered
perfected, does not deserve outright dismissal since the dismissal of
such perfected appeal would not conform to law nor jurisprudence. To
support its contention, respondent court relied alone on Aguirre vs. The
Honorable Court of First Instance of Leyte, Branch III, et. al., 192 SCRA
454, 456-457 (1990).
In our view, public respondent misapplied Aguirre. It is true that like
the instant case, Aguirre involved a timely notice of appeal to the Court
of Appeals from the decision of the trial court; an approval by the trial
court of the record on appeal and appeal bond; the perfection of the
appeal; a motion to dismiss the appeal for failure to prosecute the
appeal; dismissal by a trial court of an appeal for failure to prosecute; an
opposition to the motion to dismiss on the ground that the trial court had
lost jurisdiction in view of the perfection of the appeal; a resolution
granting the motion to dismiss the appeal for failure to prosecute the
appeal;
and
a
petition
for certiorari before
the
Supreme
Court. Thus ends the kinship between Aguirre and the present case. For
unlike Aguirre, this case involves another appeal of the same case
resulting to a reversal of a previous final adjudication by a division of
another of equal rank.
In Aguirre, we made three pronouncements. One, that an appeal
from the decision of the Court of First Instance, (now Regional Trial
Court) to the Court of Appeals may be dismissed for failure to
prosecute. Two, that once an appeal has been perfected, the trial court
loses jurisdiction over the case and the proper court which must dismiss
an appeal for failure to prosecute upon motion of the appellant himself
or upon the court's own motion is the Court of Appeals and not the Court
of First Instance. Three, that the order granting private respondents'
motion to dismiss appeal for failure of petitioners to prosecute their
appeal is not merely an order for the protection of the rights of the
parties but is an order which disposes the case.[10] This is the extent of
our pronouncements in Aguirre and only under these instances
is Aguirre pertinent to this case.
In his petition before us now, petitioner asserts that respondent
Second Division erred in not denying the appeal in CA-G.R. CV No.
29581 on the ground that said appeal is barred by res judicata. He
avers that CA-G.R. SP No. 22695 and CA-G.R. CV No. 29581 have the
same parties, the same facts and the same issues in the

controversy. He submits that CA-G.R. SP No. 22695 was already

decided with finality when the Special Eighth Division ruled that private
respondent's appeal from the decision of the trial court was dismissed
for failure to prosecute the appeal for an unreasonable length of
time. He claims that the Court of Appeals' oversight in requiring the
parties in Civil Case No. 7623 to submit appeal briefs was an error
which private respondents took advantage of with full knowledge that
the grant of the Special Eighth Division of the motion to dismiss the
appeal put an end to the Civil Case No. 7623 after the petition
for certiorari was dismissed by the Supreme Court for being filed out of
time.
We agree with petitioner. When we dismissed the petition for review
on certiorari of the resolution of the Special Eighth Division granting the
motion to dismiss the appeal, the decision of the Regional Trial Court
became the law of the case and constituted a bar to any re-litigation of
the same issues in any other proceeding under the principle of res
judicata.
There are four essential conditions which must concur for res
judicata to effectively apply: (1) the judgment sought to bar the new
action must be final; (2) the decision must have been rendered by a
court having jurisdiction over the subject matter and the parties; (3) the
disposition of the case must be a judgment on the merits; and (4) there
must be between the first and second action, identity of parties, identity
of subject matter, and identity of causes of action. [11] From the
aforementioned particulars, it is unquestionable that the first three
requisites are present. The adjudication by the Special Eighth Division
was a final adjudication by a competent court with jurisdiction.
On the fourth requisite, between CA-G.R. SP. No. 22695 and CAG.R. CV No. 29581, there is identity of parties, subject matter, and
causes of action. There is no question with respect to the presence of
identical parties and subject matter. Regarding identity of the causes of
action, the ultimate test to ascertain such identity is said to be whether
or not the same evidence fully supports and establishes both the
present cause of action and the former cause of action. [12] Clearly, in the
present case, the same evidence in the special civil action will have to
be re-examined to support the cause of action in the ordinary
appeal. Thus, there is identity also of the causes of action.
That one case is a special civil action and the other an ordinary
appeal is of no moment here. The application of doctrine of res

judicata cannot be eluded merely by such nomenclature. Varying the

form of the actions or engaging a different method of presenting the
issue will not escape application of the doctrine. [13] The fact remains
that the Resolution of the Court of Appeals, Second Division, effectively
reversed the final orders of the Special Eighth Division. That reversal, if
countenanced, would result in the re-litigation of the same case
involving the same issues, parties, and subject matter.
All these would show that the Second Division acted with grave
abuse of discretion when it denied petitioner's prayer to dismiss the
ordinary appeal, for it meant effectively reversing final orders of another
division of co-equal rank
Refusal to inhibit is grave abuse of discretion
ALEJO vs. JUDGE BUTED 12/10/07

Petitioners are now before this Court contending that respondent judge
committed grave abuse of discretion tantamount to lack or excess of
jurisdiction in refusing to act on their Motion to Inhibit.
Eventually, after the present petition was filed with this Court, respondent
judge issued an Order[3] dated August 9, 2002 denying the petitioners Motion
to Inhibit for lack of just and valid reason.
Section 1, Rule 137 of the Revised Rules of Court, provides:
SEC. 1. Disqualification of judges. No judge or judicial officer
shall sit in any case in which he, or his wife, or child is
pecuniarily interested as heir, legatee, creditor, or otherwise, or in
which he is related to either party within the sixth degree of
consanguinity or affinity, or to counsel within the fourth degree,
computed according to the rules of the civil law, or in which he
has been executor, administrator, guardian, trustee or counsel, or
in which he has presided in any inferior court when his ruling or
decision is the subject of review, without the written consent of all
parties in interest, signed by them and entered upon the record.
A judge may, in the exercise of his sound discretion, disqualify
himself from sitting in a case, for just or valid reasons other than
those mentioned above.

In People v. Kho,[4] this Court held that the foregoing Rule contemplates two
kinds of inhibitions compulsory and voluntary. The first paragraph provides
that compulsory disqualification conclusively presumes that the judge
cannot actively or impartially sit on a case. The second paragraph, in turn,
leaves to the judges discretion whether he should desist from sitting in a case
for other just and valid reasons. A judge, however, does not enjoy a wide
latitude in the exercise of his discretion to inhibit himself from hearing a
case, as the inhibition must be for just and valid causes.[5]
In 1964, this Court, in People v. Gomez[6] and Mateo, Jr. v. Villaluz,[7] held
that a judge may voluntarily inhibit himself on grounds other than those
mentioned in paragraph 1, Section 1, Rule 137 and these grounds include
bias and partiality. In Pimentel v. Salonga,[8] the Court laid the following
guideposts for voluntary inhibition of judges:
A judge may not be legally prohibited from sitting in a litigation.
But when suggestion is made of record that he might be induced
to act in favor of one party or with bias or prejudice against a
litigant arising out of circumstance reasonably capable of inciting
such a state of mind, he should conduct a careful selfexamination. He should exercise his discretion in a way that the
peoples faith in the courts of justice is not impaired. A salutary
norm is that he reflects on the probability that a losing party might
nurture at the back of his mind the thought that the judge had
unmeritoriously tilted the scales of justice against him.

In a long line of cases,[9] this Court has unceasingly re-affirmed the standards
laid down in Pimentel.
It may be recalled that at the onset of the proceedings, petitioners sought a
change of venue in Criminal Cases Nos. 1316-P and 1317-P from Palayan
City to Metro Manila, due to fear for their lives and those of their
witnesses. The prosecution also pointed out that the RVG has the capability
of pressuring respondent judge. Despite its pending request for change of
venue,
respondent
judge
opted
to
continue
with
the
proceedings. Significantly, the grounds specified by movants in their Motion
to Inhibit are obviously meritorious.

Under the foregoing circumstances, the Salonga doctrine that judicial

discretion should be exercised in a way that the peoples faith in courts of
justice should not be impaired becomes relevant. Given the prosecutions
apparent lack of faith in respondent judge, she was placed in a difficult
position. Should she acquit the accused, her decision will appear to be
tainted with bias. Such a situation is highly detrimental, not only to the
image of the trial court, but to the integrity of the judicial system. Like
Caesars wife, a judge must be beyond suspicion and that he should maintain
nothing less than cold neutrality and impartiality. Otherwise, the wisest
course for a judge would be to disqualify himself.Thus, respondent judge
should have inhibited herself from further hearing Criminal Cases Nos.
1316-P and 1317-P
GEOTINA VS. GONZALEZ L-26310, 9/30/71
The refusal of the respondent judge to disqualify himself and his insistence to hear the criminal case in
the face of the express prohibition contained in section 1 of Rule 137, to our mind, constitute grave
abuse of discretion amounting to lack or excess of jurisdiction.

RESTITUTION IN MALVERSATION
Villacorta L-68268, Nov 12 1986
After a careful review of the evidence, we find that petitioner has successfully rebutted the prima
facie evidence of his misappropriation. The cash in petitioner's possession was found short of what he
should have had because of the disallowance by the Audit Team of certain items. Those items
comprising the alleged shortage were paid to government personnel either as wages, travelling
expenses, salaries, living allowances, commutations of leave, terminal leaves and for supplies.
Petitioner did not put such missing funds to personal uses. Proof of that being that when he demanded
payment from those officials and personnel, they redeemed their chits and made restitution.

Quizo G.R. No. 77120 April 6, 1987

Besides, the Court is convinced that there is no sufficient evidence to show a prima facie case against
petitioner.
Article 217 of the Revised Penal Code provides that the failure of a public officer to have duly
forthcoming any public funds or property with which he is chargeable, upon demand by any duly
authorized officer, shall be prima facie evidence that he has put such missing funds or property to
personal uses. Hence, an accountable public officer may be convicted of malversation even if there is
no direct evidence of misappropriation and the only evidence is that there is a shortage in his accounts
which he has not been able to explain satisfactorily (De Guzman vs. People, 119 SCRA 337). This is
because the law establishes a presumption that mere failure of an accountable officer to produce
public funds which have come into his hands on demand by an officer duly authorized to examine his
accounts is prima facie evidence of conversion. However, the presumption is merely prima facie and a
rebuttable one. The accountable officer may overcome the presumption by proof to the contrary. If he
adduces evidence showing that, in fact, he has not put said funds or property to personal use, then
that presumption is at an end and the prima facie case destroyed (US vs. Catolico, 18 Phil. 504).

In the case at bar, petitioner successfully overthrew the presumption of guilt. He satisfactorily proved
that not a single centavo of the missing funds was used by him for his own personal interest, a fact
conceded by the Tanodbayan 'the bulk of the reported shortage actually referred to the items
disallowed by the Audit Team representing cash advances extended to co-employees. In fact,
evidence disclosed that the itemized list of the cash advances (Annex "B " of Motion for ReInvestigation and/or Reconsideration, p. 31, Rollo) was verified and found to be correct by an Auditing
Examiner, Petitioner explained that the granting of the cash advances was done in good faith, with no
intent to gain and borne out of goodwill considering that it was a practice tolerated in the office. Such
being the case, negligence evidentiary of malice or intent to defraud the government cannot be
imputed to him. Also to be considered is the circumstance that the actual cash shortage was only
P1.74 which, together with the disallowed items, was fully restituted within a reasonable time from date
of audit,

PREVENTION OF INCIPIENT CRIMINAL LIABILITY IN MALVERSATION

Guingona jr vs. city fiscal of manila, April 4, 1984.
Moreover, while it is true that novation does not extinguish criminal liability, it may however, prevent the
rise of criminal liability as long as it occurs prior to the filing of the criminal information in court. Thus,
in Gonzales vs. Serrano ( 25 SCRA 64, 69 [1968]) We held that:
t.hqw

As pointed out in People vs. Nery, novation prior to the filing of the criminal
information as in the case at bar may convert the relation between the parties
into an ordinary creditor-debtor relation, and place the complainant in estoppel to
insist on the original transaction or "cast doubt on the true nature" thereof.
Again, in the latest case of Ong vs. Court of Appeals (L-58476, 124 SCRA 578, 580-581 [1983] ), this
Court reiterated the ruling in People vs. Nery ( 10 SCRA 244 [1964] ), declaring that:
t.hqw

The novation theory may perhaps apply prior to the filling of the criminal information
in court by the state prosecutors because up to that time the original trust relation
may be converted by the parties into an ordinary creditor-debtor situation, thereby
placing the complainant in estoppel to insist on the original trust. But after the justice
authorities have taken cognizance of the crime and instituted action in court, the
offended party may no longer divest the prosecution of its power to exact the criminal
liability, as distinguished from the civil. The crime being an offense against the state,
only the latter can renounce it (People vs. Gervacio, 54 Off. Gaz. 2898; People vs.
Velasco, 42 Phil. 76; U.S. vs. Montanes, 8 Phil. 620).
It may be observed in this regard that novation is not one of the means recognized by
the Penal Code whereby criminal liability can be extinguished; hence, the role of
novation may only be to either prevent the rise of criminal habihty or to cast doubt on
the true nature of the original basic transaction, whether or not it was such that its
breach would not give rise to penal responsibility, as when money loaned is made to
appear as a deposit, or other similar disguise is resorted to (cf. Abeto vs. People, 90
Phil. 581; U.S. vs. Villareal, 27 Phil. 481).
In the case at bar, there is no dispute that petitioners Guingona and Martin executed a promissory note
on June 17, 1981 assuming the obligation of the bank to private respondent David; while the criminal
complaint for estafa was filed on December 23, 1981 with the Office of the City Fiscal. Hence, it is
clear that novation occurred long before the filing of the criminal complaint with the Office of the City
Fiscal.

NECESSITY OF DEMAND IN MALVERSATION

Estino G.R. Nos. 163957-58

While demand is not an element of the crime of malversation, [26] it is a requisite for
the application of the presumption. Without this presumption, the accused may still be
proved guilty under Art. 217 based on direct evidence of malversation. In this case,
the prosecution failed to do so. There is no proof that Pescadera misappropriated the
amount for his personal use.