BALLATAN v.

CA
-Land Owner in Good faith, Builder in Good faith scenario -The right to choose between
appropriating the improvement or selling the land on which the improvement of the builder, planter or
sower stands, is given to the owner.

-If the option chooses is to sell the lot, the price must be fixed at the prevailing market value at the
time of payment.

FACTS:
Eden Ballatan, together with other petitioners, is living in and registered owners of Lot No. 24.
Respondent Winston Go is living in and registered owners of Lot No. 25 and 26. And Li Ching Yao is
living in and the registered owner of Lot. 27. The Lots are adjacent to each other.

When Ballatan constructed her house in her lot, she noticed that the concrete fence and side
pathway of the adjoining house of respondent Winston Go encroached on the entire length of the
eastern side of her property. She was informed by her contractor of this discrepancy, who then told
respondent Go of the same. Respondent, however, claims that his house was built within the
parameters of his fathers lot; and that this lot was surveyed by engineer Jose Quedding, the
authorized surveyor of Araneta Institute of Agriculture (AIA). Petitioner called the attention of AIA on
the matter and so the latter authorized another survey of the land by Engineer Quedding. The latter
then did the survey twice which led to the conclusion that Lots Nos 25, 26 (owned by respondent Go)
and 27 (owned by Li Ching Yao) moved westward to the eastern boundary of Lot 24 (owned by
petitioner Ballatan.) (it was later on discovered by the courts that Go encroached 42 square meters
from the property of Ballatan and Yao encroached 37 square meters on Gos property, all of which
were in GOOD FAITH) Ballatan made written demands to the respondent to dismantle and move
their improvements and since the latter wasnt answering the petitioner filed accion publiciana in
court. Gos filed their Answer with Third-Party Complaint impleading as third party defendants
respondents Li Ching Yao, the AIA and Engineer Quedding.

RTC ruled in favor of the petitioner ordering respondent Go to demolish their improvements and pay
damages to Petitioner but dismissing the third-party complaint. CA affirmed the dismissal of the third
party-complaint as to AIA but reinstated the the complaint against Yao and the Engineer. CA also
affirmed the demolition and damages awarded to petitioner and added that Yao should also pay
respondent for his encroachment of respondent Gos property. Jose Quedding was also ordered to
pay attorneys fees for his negligence which caused all this fuzz.
ISSUE: What is the proper remedy in this situation
(everyone was in good faith)?

RULING:
Art 448 is the proper remedy (Lower Courts are wrong in awarding the damages). It was established
in the case that the parties had no knowledge of the encroachment until Ballatan noticed it there all
of them were builders in Good faith. In that scenario they have two options. 1st option is that the land
owner will buy the improvements and the 2nd option is to oblige the builders to buy the land given
that the value of the land is not considerably more than the buildings or tree; other wise the owner
may remove the improvements thereon.

The builder, planter or sower, however, is not obliged to purchase the land if its value is considerably
more than the building, planting or sowing. In such case, the builder, planter or sower must pay rent
to the owner of the land. If the parties cannot come to terms over the conditions of the lease, the
court must fix the terms thereof. The right to choose between appropriating the improvement or
selling the land on which the improvement of the builder, planter or sower stands, is given to the
owner. If the option chooses is to sell the lot, the price must be fixed at the prevailing market value at
the time of payment.

Petitioner was given by SC 30 days to decide on what to do or which right to exercise. Likewise, Go
was also given time to do the regarding Yaos encroachment. Engineer Quedding was still asked to
pay attorneys fees.

SECOND DIVISION

[G.R. No. 94980. May 15,1996]

LITTON MILLS; INC., petitioner, vs. COURT OF APPEALS and

GELHAAR UNIFORM COMPANY, INC., respondents.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; SUMMONS; A COURT NEED

NOT GO BEYOND THE ALLEGATIONS IN THE COMPLAINT TO
 DETERMINE WHETHER OR NOT A DEFENDANT FOREIGN
CORPORATION IS DOING BUSINESS FOR THE PURPOSE OF RULE
14, SECTION 14; CASE AT BAR. A court need not go beyond the
allegations in the complaint to determine whether or not a defendant
foreign corporation is doing business for the purpose of Rule 14, 14. In the
case at bar, the allegation that Empire, for and in behalf of Gelhaar,
ordered 7,770 dozens of soccer jerseys from Litton and for this purpose
Gelhaar caused the opening of an irrevocable letter of credit in favor of
Litton is a sufficient allegation that Gelhaar was doing business in the
Philippines.

2. ID.; ID.; ID.; SERVICE OF SUMMONS; VALID IN CASE AT BAR. In

accordance with Rule 14, 14, service upon Gelhaar could be made in
three ways: (1) by serving upon the agent designated in accordance with
law to accept service of summons; (2) if there is no resident agent, by
service on the government official designated by law to that effect; and (3)
by serving on any officer or agent of said corporation within
the Philippines. Here, service was made through Gelhaars agent, the
Empire Sales Philippines Corp. There was, therefore, a valid service of
summons on Gelhaar, sufficient to confer on the trial court jurisdiction over
the person of Gelhaar.

APPEARANCES OF COUNSEL

Juanitas, Perez, Gonzales, Bolos & Associates for petitioner.

Sycip Salazar Hernandez & Gatmaitan for private respondent.

DECISION
MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals annulling

the order of the Regional Trial Court which denied private respondents plea
that it is a foreign corporation not doing business in the Philippines and
therefore not subject to the jurisdiction of Philippine courts.

Petitioner Litton Mills, Inc. (Litton) entered into an agreement with Empire
Sales Philippines Corporation (Empire), as local agent of private respondent
Gelhaar Uniform Company (Gelhaar), a corporation organized under the laws
of the United States, whereby Litton agreed to supply Gelhaar 7,770 dozens
of soccer jerseys. The agreement stipulated that be fore it could collect from
the bank on the letter of credit, Litton must present an inspection certificate
issued by Gelhaars agent in the Philippines, Empire Sales, that the goods
were in satisfactory condition.

Litton sent four shipments totalling 4,770 dozens of the soccer jerseys
between December 2 and December 30, 1983. A fifth shipment, consisting of
2,110 dozens of the jerseys, was inspected by Empire from January 9
to January 19, 1984, but Empire refused to issue the required certificate of
inspection.

Alleging that Empires refusal to issue a certificate was without valid

reason, Litton filed a complaint with the Regional Trial Court of Pasig (Branch
158) on January 23,1984, for specific performance. Litton alleged that under
the terms of the letter of credit, the goods should be shipped not later than
January 30, 1984; that the vessel stipulated to carry the shipment was
scheduled to receive the cargo only on January 27, 1984; and that the letter of
credit itself was due to expire on February 14, 1984. Litton sought the
issuance of a writ of preliminary mandatory injunction to compel Empire to
issue the inspection certificate covering the 2,110 dozen jerseys and the
recovery of compensatory and exemplary damages, costs, attorneys fees and
other just and equitable relief.

The trial court issued the writ on January 25, 1984. The next day, Empire
issued the inspection certificate, so that the cargo was shipped on time.

On February 8, 1984, Atty. Remie Noval filed in behalf of the defendants a

Motion For Extension of Time To File An Answer/Responsive Pleading. He
filed on February 17, February 22, March 2, March 14, March 26, April 5, April
16, May 2, May 16, May 31, all in 1984, ten other motions for extension, all of
which were granted by the court, with the exception of the last, which the
Court denied. On his motion, the court later reconsidered its order of denial
and admitted the answer of the defendants. On September 10, 1984, Atty.
Noval filed the pretrial brief for the defendants.

On January 29,1985, the law firm of Sycip, Salazar, Feliciano and

Hernandez entered a special appearance for the purpose of objecting to the
jurisdiction of the court over Gelhaar. On February 4,1985, it moved to dismiss
the case and to quash the summons on the ground that Gelhaar was a foreign
corporation not doing business in the Philippines, and as such, was beyond
the reach of the local courts.

It contended that Litton failed to allege and prove that Gelhaar was doing
business in the Philippines, which they argued was required by the ruling
in Pacific Micronisian Lines, Inc. v. Del Rosario, before summons could be
1

served under Rule 14, 14.

It likewise denied the authority of Atty. Noval to appear for Gelhaar and
contended that the answer filed by Atty. Noval on June 15, 1984 could not
bind Gelhaar and its filing did not amount to Gelhaars submission to the
jurisdiction of the court.

Litton opposed the motion. On the other hand, Empire moved to dismiss
on the ground of failure of the complaint to state a cause of action since the
complaint alleged that Empire only acted as agent of Gelhaar; that it was
made party-defendant only for the purpose of securing the issuance of an
inspection certificate; and that it had already issued such certificate and the
shipment had already been shipped on time.

For his part, Atty. Remie Noval claimed that he had been authorized by
Gelhaar to appear for it in the case; that he had in fact given legal advice to
Empire and his advice had been transmitted to Gelhaar; that Gelhaar had
been furnished a copy of the answer; that Gelhaar denied his authority only on
December of 1984; and that the belated repudiation of his authority could be
only an afterthought because of problems which had developed between
Gelhaar and Empire. (Gelhaar refused to pay Empire for its services as
agent). Nevertheless, Atty. Noval withdrew his appearance with respect to
Gelhaar.

On September 24, 1986, the trial court issued an order denying for lack of
merit Gelhaars motion to dismiss and to quash the summons. It held that
Gelhaar was doing business in the Philippines, and that the service of
summons on Gelhaar was therefore valid. Gelhaar filed a motion for
reconsideration, but its motion was denied.

Gelhaar then filed a special civil action of certiorari with the Court of
Appeals, which on August 20, 1990, set aside the orders of the trial court. The
appellate court held that proof that Gelhaar was doing business in the
Philippines should have been presented because, under the doctrine
of Pacific Micronisian, this is a condition sine qua non for the service of
summons under Rule 14, 14 of the Rules of Court, and

that it was error for the trial court to rely on the mere allegations of the
complaint.

The appellate court held that neither did the trial court acquire jurisdiction
over Gelhaar through voluntary submission because the authority of Atty.
Noval to represent Gelhaar had been questioned. Pursuant to Rule 138, 21,
the trial court should have required Atty. Noval to prove his authority.

Consequently, the appellate court ordered the trial court to issue anew
summons to be served on Empire Sales Philippines Corporation, after the
allegation in the complaint that Gelhaar was doing business in the Philippines
had been established. Hence this petition.

Litton contends that jurisdiction over Gelhaar was acquired by the trial
court by the service of summons through Gelhaars agent and, at any rate, by
the voluntary appearance of Atty. Remie Noval as counsel of Gelhaar.

We sustain petitioners contention based on the first ground, namely, that

the trial court acquired jurisdiction over Gelhaar by service of summons upon
its agent pursuant to Rule 14, 14.

First. The appellate court invoked the ruling in Pacific Micronisian, in which
it was stated that the fact of doing business must first be established before
summons can be served in accordance with Rule 14, 14. The Court of
Appeals quoted the following portion of the opinion in that case:

The above section [referring to Rule 14, Section 14] provides for three
modes of effecting service upon a private corporation, namely: [enumerates
the three modes of service of summons]. But, it should be noted, in order that
service may be effected in the manner above stated, said section also
requires that the foreign corporation be one which is doing business in
the Philippines. This is a sine qua non requirement. This fact must first be
established in order that summons can be made and jurisdiction
acquired. (Italics by the Court of Appeals)2
 In the later case of Signetics Corporation v. Court of Appeals, however, we
3

clarified the holding in Pacific Micronisian, thus:

The petitioner opines that the phrase, (the) fact (of doing business in the Philippines)
must first be established in order that summons be made and jurisdiction acquired,
used in the above pronouncement, would indicate that a mere allegation to that effect
in the complaint is not enough there must instead be proof of doing business. In any
case, the petitioner points out, the allegations themselves did not sufficiently show the
fact of its doing business in the Philippines.

It should be recalled that jurisdiction and venue of actions are, as they should so be,
initially determined by the allegations of the complaint. Jurisdiction cannot be made
to depend on independent pleas set up in a mere motion to dismiss, otherwise
jurisdiction would become dependent almost entirely upon the defendant. The fact of
doing business must then, in the first place, be established by appropriate allegations
in the complaint. This is what the Court should be seen to have meant in the Pacific
Micronisian case. The complaint, it is true, may have been vaguely structured but,
taken correlatively, not disjunctively as the petitioner would rather suggest, it is not
really so weak as to be fatally deficient in the above requirement. . . .

Hence, a court need not go beyond the allegations in the complaint to

determine whether or not a defendant foreign corporation is doing business
for the purpose of Rule 14, 14. In the case at bar, the allegation that Empire,
for and in behalf of Gelhaar, ordered 7,770 dozens of soccer jerseys from
Litton and for this purpose Gelhaar caused the opening of an irrevocable letter
of credit in favor of Litton is a sufficient allegation that Gelhaar was doing
business in the Philippines.

Second. Gelhaar contends that the contract with Litton was a single,
isolated transaction and that it did not constitute doing business. Reference is
made to Pacific Micronisian in which the only act done by the foreign company
was to employ a Filipino as a member of the crew on one of its ships. This
court held that the act was an isolated, incidental or casual transaction, not
sufficient to indicate a purpose to engage in business.

It is not really the fact that there is only a single act done that is material.
The other circumstances of the case must be considered. Thus, in Wang
Laboratories, Inc. v. Mendoza, it was held that where a single act or
4

transaction of a foreign corporation is not merely incidental or casual but is of

such character as distinctly to indicate a purpose on the part of the foreign
corporation to do other business in the state, such act will be considered as
constituting doing business. This Court referred to acts which were in the
5

ordinary course of business of the foreign corporation.

In the case at bar, the trial court was certainly correct in holding that
Gelhaars act in purchasing soccer jerseys to be within the ordinary course of
business of the company considering that it was engaged in the manufacture
of uniforms. The acts noted above are of such a character as to indicate a
purpose to do business.

In accordance with Rule 14, 14, service upon Gelhaar could be made in
three ways: (1) by serving upon the agent designated in accordance with law
to accept service of summons; (2) if there is no resident agent, by service on
the government official designated by law to that effect; and (3) by serving on
any officer or agent of said corporation within the Philippines. Here, service
6

was made through Gelhaars agent, the Empire Sales Philippines Corp. There
was, therefore, a valid service of summons on Gelhaar, sufficient to confer on
the trial court jurisdiction over the person of Gelhaar.

Third. On the question, however, of whether the appearance of Atty. Noval

in behalf of Gelhaar was binding on the latter, we hold that the Court of
Appeals correctly ruled that it was not.

Atty. Noval admits that he was not appointed by Gelhaar as its counsel.
What he claims is simply that Gelhaar knew of the filing of the case in the trial
court and of his representation but Gelhaar did not object. Atty. Noval
contends that there was thus a tacit confirmation of his authority.

Gelhaar claims, however, that it was only sometime in December, 1994

when it found out that the answer which Atty. Noval had filed in June was also
made in its behalf. Gelhaar in fact sent a telex message dated January 15,
1985 to its counsel, the Sycip law firm, stating

WE NEVER AUTHORIZED THE RETENTION OF MR. NOVAL ON OUR

BEHALF. WE HAVE NEVER EXCHANGED CORRESPONDENCE NOR HAD
ANY TELEPHONE CONVERSATIONS WITH HIM RE ANY ASPECT OF THIS
CASE, INCL. HIS FEES. WE ARE TOLD THAT HE HAS FILED AN ANSWER TO
LTNS (Littons) COMPLT. PURPORTEDLY ON OUR BEHALF BUT HE HAS
NEVER DISCUSSED THAT ANSWER WITH US NOR EVEN SENT US A DRAFT
OR THE FINAL VERSION OF SUCH ANSWER. WE ARE SENDING SWORN
AFFIDAVITS TO THIS EFFECT BY COURIER. 7

Atty. Noval has not denied any of these statements. He claims that the
advisory opinions he had rendered in the case was sent to Gelhaar by the
president of Empire, Enoch Chiu, and that he was informed by Chiu that
Gelhaar had been advised on all developments in the case and the necessity
of filing an answer, and that a copy of the answer he had filed was furnished
Gelhaar.

All this is, however, merely hearsay. Noval does not claim that he ever
directly conferred with Gelhaar regarding the case. There is no evidence to
show that he notified Gelhaar of his appearance in its behalf, or that he
furnished Gelhaar with copies of pleadings or the answer which he filed in its
behalf.

No voluntary appearance by Gelhaar can, therefore, be inferred from the

acts of Atty. Noval. Nor can Atty. Novals representations in the answer he
considered binding on Gelhaar. Gelhaar should be allowed a new period for
filing its own answer.

WHEREFORE, the decision of the Court of Appeals is REVERSED. The

order of the trial court denying the motion to dismiss is hereby REINSTATED,
with the MODIFICATION that Gelhaar is given a new period of ten (10) days
for the purpose of filing its answer.

SO ORDERED.

Signetics Corp. v. CA Digest

G.R. No. 105141 August 31, 1993
Ponente: Vitug, J.:

Service of Summons on Foreign Corporations

Facts:
1. The petitioner, Signetics was organized under the laws of the United States of America.
Through Signetics Filipinas Corporation (SigFil), a wholly-owned subsidiary, Signetics
entered into lease contract over a piece of land with Fruehauf Electronics Phils., Inc.
(Freuhauf).

2. Freuhauf sued Signetics for damages, accounting or return of certain machinery,

equipment and accessories, as well as the transfer of title and surrender of possession of the
buildings, installations and improvements on the leased land, before the RTC of Pasig (Civil
Case No. 59264). Claiming that Signetics caused SigFil to insert in the lease contract the
words "machineries, equipment and accessories," the defendants were able to withdraw these
assets from the cost-free transfer provision of the contract.

3. Service of summons was made on Signetics through TEAM Pacific Corp. on the basis of
the allegation that Signetics is a "subsidiary of US PHILIPS CORPORATION, and may be
served summons at Philips Electrical Lamps, Inc., Las Pias, Metro Manila and/or c/o
Technology Electronics Assembly & Management (TEAM) Pacific Corporation, Electronics
Avenue, FTI Complex, Taguig, Metro Manila," service of summons was made on Signetics
through TEAM Pacific Corporation.

4. Petitioner filed a motion to dismiss the complaint on the ground of lack of jurisdiction
over its person. Invoking Section 14, Rule 14, of the Rules of Court and the rule laid down
in Pacific Micronisian Line, Inc., v. Del Rosario and Pelington to the effect that the fact of
doing business in the Philippines should first be established in order that summons could be
validly made and jurisdiction acquired by the court over a foreign corporation.

5. The RTC denied the Motion to dismiss. While the CA affirmed RTC. Hence this
petition. The petitioner argues that what was effectively alleged in the complaint as an
activity of doing business was "the mere equity investment" of petitioner in SigFil, which the
petitioner insists, had theretofore been transferred to TEAM holdings, Ltd.

Issue: Whether or not the lower court, had correctly assumed jurisdiction over the
petitioner, a foreign corporation, on its claim in a motion to dismiss, that it had since
ceased to do business in the Philippines.

YES.

1. Signetics cannot, at least in this early stage, assail, on the one hand, the veracity and
correctness of the allegations in the complaint and proceed, on the other hand, to prove its
own, in order to hasten a peremptory escape. As explained by the Court in Pacific
Micronisian, summons may be served upon an agent of the defendant who may not
necessarily be its "resident agent designated in accordance with law." The term "agent", in
the context it is used in Section 14, refers to its general meaning, i.e., one who acts on behalf
of a principal.
The allegations in the complaint have thus been able to amply convey that not only is TEAM
Pacific the business conduit of the petitioner in the Philippines but that, also, by the charge of
fraud, is none other than the petitioner itself.

2. The rule is that, a foreign corporation, although not engaged in business in the Philippines,
may still look up to our courts for relief; reciprocally, such corporation may likewise be
"sued in Philippine courts for acts done against a person or persons in the Philippines"
(Facilities Management Corporation v. De la Osa), provided that, in the latter case, it would
not be impossible for court processes to reach the foreign corporation, a matter that can later
be consequential in the proper execution of judgment. Hence, a State may not exercise
jurisdiction in the absence of some good basis (and not offensive to traditional notions of fair
play and substantial justice) for effectively exercising it, whether the proceedings are in
rem, quasi in rem or in personam.

[G.R. No. L-5189. September 21, 1953.]

GAUDENCIO SERRANO, Plaintiff-Appellant, vs. DONATA

CABRERA and TEODATO MAKABULOS, Defendants-Appellees.

DECISION

PADILLA, J.:

Gaudencio Serrano was the lessee of a parcel of land containing an

area of 24 hectares, more or less, situated in the municipality of La
Paz, Province of Tarlac. Donata Cabrera was the lessor, having
inherited the parcel of land from her deceased father Eusebio
Cabrera, the original lessor. Teodato Makabulos is her husband. The
term of the lease was six agricultural years beginning 1 May 1941
and the yearly rental agreed upon was 290 cavans of palay. On 13
December 1946, the lessor brought an action (civil case No. 141 of
the Court of First Instance of Tarlac) to recover rentals due and
unpaid for the agricultural years 1943-44, 1944-45, 1945-46 and
1946-47 amounting to P13,620. A writ of attachment was issued in
that case. On 18 December, the complaint was dismissed without
costs upon a motion couched in the following terms

MOCION DE SOBRESEIMIENTO
 Comparece la demandante por su infrascrito Abogado y al Hon.
Juzgado respetuosamente pide:

Que en vista de que el demandado Gaudencio Serrano ha

pagado y satisfecho por completo las reclamaciones de la
demandante segn las alegaciones de la demanda, la
demandante ya no tiene motivos de accion contra el
demandado y por lo tanto procede sobreseer la causa.

Por lo tanto, de acuerdo con la Regla 30, Seccion 1, la

demandante da por sobreseida esta causa.

Tarlac, Tarlac, Diciembre 16, 1946.

(Fdo.) TOMAS BESA

Abogado de la demandante

Tarlac, Tarlac

CONFORMES:

(Fdo.) DONATA CABRERA DE MACABULOS

Demandante

(Fdo.) GAUDENCIO SERRANO

Demandado

(pp. 50-51, Amended Record on Appeal.)

Alleging and claiming that what he had paid to her was in excess of
what was due her for unpaid rentals the lessee brought an action
(civil case No. 213 of the same Court) against the lessor and her
husband to annul the proceedings in civil case No. 141, and to
recover such excess payment of rentals. The excess amounts
allegedly paid and sought to be recovered are P1,286.40 for 1945-
46; P696 for 1946-47; P193 for court fees in connection with the
attachment issued in the first case. He also prays that the
promissory note for P1,000 executed and delivered by him to her be
cancelled or returned to him and that she together with her
husband be ordered to pay him P20,000 for damages suffered as a
result of the filing of the action against him and attachment of his
property.

The defendants moved for the dismissal of the complaint on the

ground of res judicata and failure to state a cause of action.

The Court dismissed the complaint on the ground of res judicata.

The plaintiff has appealed.

It is contended that the dismissal of the complaint in the first action

upon the ground that as the defendant had paid and satisfied fully
all her claims she no longer had any action against him, before the
filing of the answer, was without prejudice, as provided for in
section 1, Rule 30. It is also claimed that a thing received by one
who has no right to it and which has been delivered due to error
must be returned, as provided for in article 1895 of the Civil Code.

Section 1, Rule 30, cannot be invoked in this case, because a

dismissal of the action without order of the Court, which is without
prejudice, is one by the plaintiff before the filing of an answer by
the defendant. It means that such dismissal would not preclude the
plaintiff from bringing another action against the same defendant on
the same subject matter. Such dismissal under the rule does not bar
the institution of an action by the defendant which he could have
brought in the action against him by means of a counter-claim or
cross-claim. The dismissal in the first case was upon motion of the
plaintiff consented to by the defendant and the ground was that the
latter had paid and satisfied all the claims of the former, as prayed
for in her complaint. Neither are the provisions of article 1895 of the
Civil Code 1 on solutio indebiti applicable to the case, because what
was received by the plaintiff and delivered by the defendant was the
result of a compromise. Article 1809 of the Civil Code 2 provides
that "Compromise is a contract by which each of the parties in
interest, by giving, promising, or retaining something avoids the
provocation of a suit or terminates one which has already been
instituted." Article 1816 of the Civil Code provides that "A
compromise shall have, with respect to the parties, the same
authority as res adjudicata; . . . " 3 The order appealed from is
affirmed, with cost against the appellant.
G.R. No. L-49705-09 February 8, 1979

TOMATIC ARATUC, SERGIO TOCAO, CISCOLARIO DIAZ, FRED TAMULA, MANGONTAWAR

GURO and BONIFACIO LEGASPI, petitioners,
vs.
The COMMISSION ON ELECTIONS, REGIONAL BOARD OF CANVASSERS for Region XII
(Central Mindanao), ABDULLAH DIMAPORO, JESUS AMPARO, ANACLETO BADOY, et
al., respondents.

Nos. L-49717-21 February 8,1979.

LINANG MANDANGAN, petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE REGIONAL BOARD OF CANVASSERS for Region XII,
and ERNESTO ROLDAN, respondents.

L-49705-09 Lino M. Patajo for petitioners.

Estanislao A. Fernandez for private respondents.

L-49717-21 Estanislao A. Fernandez for petitioner.

Lino M. Patajo for private respondent.

Office of the Solicitor General, for Public respondents.

BARREDO, J.:

Petition in G. R. Nos. L-49705-09 for certiorari with restraining order and preliminary injunction filed
by six (6) independent candidates for representatives to tile Interim Batasang Pambansa who had
joined together under the banner of the Kunsensiya ng Bayan which, however, was not registered as
a political party or group under the 1976 Election Code, P.D. No. 1296, namely Tomatic Aratuc,
Sorgio Tocao, Ciscolario Diaz, Fred Tamula, Mangontawar Guro and Bonifacio Legaspi her referred
to as petitioners, to review the decision of the respondent Commission on Election (Comelec)
resolving their appeal from the Of the respondent Regional Board of Canvasses for Region XII
regarding the canvass of the results of the election in said region for representatives to the I.B.P.
held on April 7, 1978. Similar petition in G.R. Nos. L49717-21, for certiorari with restraining order and
preliminary injunction filed by Linang Mandangan, abo a candidate for representative in the same
election in that region, to review the decision of the Comelec declaring respondent Ernesto Roldan
as entitled to be proclaimed as one of the eight winners in said election.

The instant proceedings are sequels of Our decision in G.R. No. L- 48097, wherein Tomatic Aratuc et
al. sought the suspension of the canvass then being undertaken by respondent dent Board in
Cotabato city and in which canvass, the returns in 1966 out of a total of 4,107 voting centers in the
whole region had already been canvassed showing partial results as follows:
NAMES OF NO.
CANDIDATES
OF
VOTE
S

1. Roldan, 225,67
Ernesto (KB) 4

2. Valdez, 217,78
Estanislao 9
(KBL)

3. Dimporo, 199,24
Abdullah 4
(KBL)

4. Tocao, 199,06
Sergio (KB) 2

5. Badoy, 198,96
Anacleto 6
(KBL)

6. Amparo, 184,76
Jesus (KBL) 4

7. 183,64
Pangandama 6
n,
Sambolayan
(KBL)

8. Sinsuat, 182,45
Datu Blah
(KBL) 7

9. Baga, 171,65
Tomas (KBL) 6

10. Aratuc, 165,79

Tomatic (KB) 5

11. 165,03
Mandangan, 2
Linang(KB)

12. Diaz, 159,97

Ciscolario 7
(KB)

13. Tamalu, 153,73

Fred (KB) 4

14. Legaspi 148,20

Bonifacio (KB) 0

15. Guro, 139,38

Mangontawar 6
(KB)

16. Loma, 107,45

Nemesio (KB) 5

17. 101,35
Macapeges,
 Malamama 0
(Independent)

(Votes Of the independent candidates who actually were not in contention omitted)" (Page 6,
Record, L-49705-09.)

A supervening panel headed by Commissioner of Elections, Hon- Venancio S. Duque, had

conducted of the complaints of the petitioners therein of alleged irregularities in the election records
in all the voting centers in the whole province of Lanao del Sur, the whole City of Marawi, eight (8)
towns of Lanao del Norte, namely, Baloi, Karomatan, Matungao, Munai, Nunungan, Pantao Ragat,
Tagoloan and Tangcal, seven (7) towns in Maguindanao, namely, Barrira, Datu Piang, Dinaig,
Matanog Parang, South Upi and Upi, ten (10) towns in North Cotabato, namely, Carmen, Kabacan,
Kidapwan, Magpet, Matalam Midsayap, Pigcawayan, Pikit, Pres. Roxas and Tulonan, and eleven
(11) towns in Sultan Kudarat, namely, Bagumbayan, Columbia Don Mariano Marcos, Esperanza,
Isulan, Kalamansig, Lebak, Lutayan, Palimbang, President Quirino and Tacurong, by reason for
which, petitioners had asked that the returns from said voting centers be excluded from the canvass.
Before the start of the hearings, the canvass was suspended but after the supervisory panel
presented its report, on May 15, 1978, the Comelec lifted its order of suspension and directed the
resumption of the canvass to be done in Manila. This order was the one assailed in this Court. We
issued a restraining order.

After hearing the parties, the Court allowed the resumption of the canvass but issued the following
guidelines to be observed thereat:

1. That the resumption of said canvass shall be held in the Comelec main office in
Manila starting not later than June 1, 1978;

2. That in preparation therefor, respondent Commission on Elections shall see to it

that all the material election paragraph corresponding to all the voting center involved
in Election Nos. 78-8, 78-9, 78-10, 78-11 and 78-12 are taken to its main office in
Manila, more particularly, the ballot boxes, with the contents, used during the said
elections, the books of voters or records of voting and the lists or records of
registered voters, on or before May 31, 1978;

3. That as soon as the corresponding records are available, petitioners and their
counsel shall be allowed to examine the same under such security measures as the
respondent Board may determine, except the contents of the ballot boxes which shall
be opened only upon orders of either the respondent Board or respondent
Commission, after the need therefor has become evident, the purpose of such
examination being to enable petitioners, and their counsel to expeditiously determine
which of them they would wish to be scrutinized and passed upon by the Board as
supporting their charges of election frauds and anomalies, petitioners and their
counsel being admonished in this connection, that no dilatory tactics should be in by
them and that only such records substantial objections should be offered by them for
the scrutiny by the Board;

4. That none of the election returns reffered to in the petition herein shall be
canvassed without first giving the herein petitioners ample opportunity to make their
specific objections thereto, if they have any, and to show sufficient basis for the
 rejection of any of the returns, and, in this connection, the respondent Regional
Board of Canvassers should give due consideration to the points raised in the
memorandum filed by said petitioners with the Commission on Election in the above
cases dated April 26, 1978;

5. That should it appear to the board upon summary scrutiny of the records to be
offered by petitioners indication that in the voting center actually held and/or that
election returns were prepared either before the day of the election returns or at any
other time, without regard thereto or that there has been massive substitution of
voters, or that ballots and/or returns were prepared by the same groups of persons or
individuals or outside of the voting centers, the Board should exclude the
corresponding returns from the canvass;

6. That appeals to the commission on Election of the Board may be made only after
all the returns in question in all the above, the above five cases shall have been
passed upon by the Board and, accordingly, no proclamation made until after the
Commission shall have finally resolved the appeal without prejudice to recourse to
this court, if warranted as provided by the Code and the Constitution, giving the
parties reasonable time therefor;

7. That the copies of the election returns found in the corresponding ballot boxes
shall be the one used in the canvass;

8. That the canvass shall be conducted with utmost dispatch, to the end that a
proclamation, if feasible, may be made not later than June 10, 1978; thus, the
canvass may be terminated as soon as it is evident that the possible number of votes
in the still uncanvassed returns with no longer affect the general results of the
elections here in controversy;

9. That respondent Commission shall promulgate such other directive not

inconsistent with this resolution y necessary to expedite the proceedings herein
contemplated and to accomplish the purposes herein intended. (Pp. 8-9, Record.

On June 1, 1978, upon proper motion, said guidelines were modified:

... in the sense that the ballot boxes for the voting centers just referred to need not be
taken to Manila, EXCEPT those of the particular voting centers as to which the
petitioners have the right to demand that the corresponding ballot boxes be opened
in order that the votes therein may be counted because said ballots unlike the
election returns, have not been tampered with or substituted, which instances the
results of the counting shall be specified and made known by petitioners to the
Regional Board of Canvassers not later than June 3, 1978; it being understood, that
for the purposes of the canvass, the petitioners shall not be allowed to invoke any
objection not already alleged in or comprehend within the allegations in their
complaint in the election cases above- mentioned. (Page 8, Id.)

Thus respondent Board proceeded with the canvass, with the herein petitioners presenting
objections, most of them supported by the report of handwriting and finger print experts who had
examined the voting records and lists of voters in 878 voting centers, out of 2,700 which they
specified in their complaints or petitions in Election Cases 78-8, 78-9, 78-10, 78-11 and 7812 in the
Comelec. In regard to 501 voting centers, the records cf. which, consisting of the voters lists and
voting records were not available- and could not be brought to Manila, petitions asked that the
results therein be completely excluded from the canvass. On July 11, 1978, respondent Board
terminated its canvass and declared the result of the voting to be as follows:

NAME OF VOT
CANDIDATE
ES
OBT
AIN

VALDEZ, 436,
Estanislao 069

DIMAPORO, 429,
Abdullah 351

PANGANDA 406,
MAN, 106
Sambolayan

SINSUAT, 403,
Blah 445

AMPARO, 399,
Jesus 997

MANDANGA 387,
N, Linang 025

BAGA, 386,
Tomas 393

BADOY,Anac 374,
leto 933
 ROLDAN, 275,
Ernesto 141

TOCAO, 239,
Sergio 914

ARATUC, 205,
Tomatic 829

GURO, 190,
Mangontawa 489
r

DIAZ, 190,
Ciscolario 077

TAMULA, 180,
Fred 280

LEGASPI, 174,
Bonifacio 396

MACAPEGE 160,
S, Malamana 271

(Pp. 11-12,
Record.)

Without loss of time, the petitioners brought the resolution of respondent Board to the Comelec.
Hearing was held on April 25, 1978, after which , the case was declared submitted for decision.
However, on August 30,1978, the Comelec issued a resolution stating inter alia that :
 In order to enable the Commission to decide the appeal properly :

a. It will have to go deeper into the examination of the voting records and registration
records and in the case of voting centers whose voting and registration records
which have not yet been submitted for the Commission to decide to open the ballot
boxes; and

b. To interview and get statements under oath of impartial and disinterested persons
from the area to determine whether actual voting took place on April 7, 1978, as well
as those of the military authorities in the areas affects (Page 12). Record, L-49705-
09 .)

On December 11, 1978, the Comelec required the parties "to file their respective written comments
on the reports they shall periodically receive from the NBI-Comelec team of finger-print and
signature experts within the inextendible period of seven (7) days from their receipt thereof".
According to counsel for Aratuc, et al., "Petitioners submitted their various comments on the report 4,
the principal gist of which was that it would appear uniformly in all the reports submitted by the
Comelec-NBI experts that the registered voters were not the ones who voted as shown by the fact
that the thumbprints appearing in Form 1 were different from the thumbprints of the voters in Form 5.
" But the Comelec denied a motion of petitioners asking that the ballot boxes corresponding to the
voting centers the record of which are not available be opened and that a date be set when the
statements of witnesses referred to in the August 30, 1978 resolution would be taken, on the ground
that in its opinion, it was no longer necessary to proceed with such opening of ballot boxes and
taking of statements.

For his part, counsel for petitioner M in G.R. No. L-49717-21 filed with Comelec on December
19,1978 a Memorandum. To quote from the petition:

On December 19, 1978, the KBL, through counsel, filed a Memorandum for the
Kilusang Bagong Lipunan (KBL) Candidates on the Comelec's Resolution of
December 11, 1978, a xerox copy of which is attached hereto and made a part
hereof as Annex 2, wherein they discussed the following topics: (I) Brief History of
the President Case; (II) Summary of Our Position and Submission Before the
Honorable commission; and (III) KBL's Appeal Ad Cautelam. And the fourth topic,
because of its relevance to the case now before this Honorable Court, we hereby
quote for ready reference:

IV

OUR POSITION WITH RESPECT TO THE

ESOLUTION OF THE HONORABLE

COMMISSION OF DECEMBER 11, 1978

We respectfully submit that the Resolution of this case by this Honorable

Commission should be limited to the precincts and municipalities involved in the
KB'S Petitions in Cases Nos. 78-8 to 78-12, on which evidence had been submitted
by the parties, and on which the KB submitted the reports of their handwriting-print.
Furthermore, it should be limited by the appeal of the KB. For under the Supreme
Court Resolution of May 23, 1978, original jurisdiction was given to the Board, with
 appeal to this Honorable Commission-Considerations of other matters beyond these
would be, in our humble opinion, without jurisdiction.

For the present, we beg to inform this Honorable Commission that we stand by the
reports and findings of the COMELEC/NBI experts as submitted by them to the
Regional Board of Canvassers and as confirmed by the said Regional Board of
Canvassers in its Resolution of July 11, 1978, giving the 8 KBL candidates the
majorities we have already above mentioned. The Board did more than make a
summary scrutiny of the records' required by the Supreme Court Resolution,
Guideline No. 5, of May 23, 1978. Hence, if for lack of material time we cannot file
any Memorandum within the non-extendible period of seven (7) days, we would just
stand by said COMELEC/NBI experts' reports to the Regional Board, as confirmed
by the Board (subject to our appeal ad cautelam).

The COMELEC sent to the parties copies of the reports of the NBI-COMELEC
experts. For lack of material time due to the voluminous reports and number of voting
centers involved, the Christmas holidays, and our impression that the COMELEC will
exercise only its appellate jurisdiction, specially as per resolution of this Honorable
Court of May 23, 1978 (in G.R. No. L-48097), we, the KBL, did not comment any
more on said reports. (Pp. 5-6, Record, L-49717-21.)

On January 13, 1979, the Comelec rendered its resolution being assailed in these cases, declaring
the final result of the canvass to be as follows:

CANDIDATES V
O
T
E
S

VALDEZ, 31
Estanislao 9,
51
4

DIMAPOR 28
O, 9.
Abdullah 75
1

AMPARO, 28
Jesus 6,
18
 0

BADOY, 28
Anacleto 5,
98
5

BAGA, 27
Tomas 1,
47
3

PANGAN 27
DAMAN, 1,
Sambolay 39
an 3

SINSUAT, 26
Blah 9,
90
5

ROLDAN, 26
Ernesto 8,
28
7

MANDAN 25
GAN, 1,
Linang 22
6

TACAO, 22
Sergio 9,
12
 4

DIAZ, 18
Ciscolario 7,
98
6

ARATUC, 18
Tomatic 3,
31
6

LEGASPI, 17
Bonifacio 8,
56
4

TAMULA, 17
Fred 7,
27
0

GURO, 16
Mangonta 3,
war 44
9

LOMA, 12
Nemesio 9,
45
0

(Page 14,
Record, L-
49705-
 09.)

It is alleged in the Aratuc petition that:

The Comelec committee grave abuse of dicretion, amounting to lack of jurisdiction:

1. In not pursuing further the examination of the registration records and voting
records from the other voting centers questioned by petitioners after it found proof of
massive substitute voting in all of the voting records and registration records
examined by Comelec and NBI experts;

2. In including in the canvass returns from the voting centers whose book of voters
and voting records could not be recovered by the Commission in spite of its repeated
efforts to retrieve said records;

3. In not excluding from the canvass returns from voting centers showing a very high
percentage of voting and in not considering that high percentage of voting, coupled
with massive substitution of voters is proof of manufacturing of election returns;

4. In denying petitioners' petition for the opening of the ballot boxes from voting
centers whose records are not available for examination to determine whether or not
there had been voting in said voting centers;

5. In not Identifying the ballot boxes that had no padlocks and especially those that
were found to be empty while they were shipped to Manila pursuant to the directive
of the Commission in compliance with the guidelines of this Honorable Court;

6. In not excluding from the canvass returns where the results of examination of the
voting records and registration records show that the thumbprints of the voters in CE
Form 5 did not correspond to those of the registered voters as shown in CE Form 1;

7. In giving more credence to the affidavits of chairmen and members of the voting
centers, municipal treasurers and other election officials in the voting centers where
irregularities had been committed and not giving credence to the affidavits of
watchers of petitioners;

8. In not including among those questioned before the Board by petitioners those
included among the returns questioned by them in their Memorandum filed with the
Commission on April 26, 1978, which Memorandum was attached as Annex 'I' to their
petition filed with this Honorable Court G.R. No. L-48097 and which the Supreme
Court said in its Guidelines should be considered by the Board in the course of the
canvass (Guidelines No. 4). (Pp. 15-16, Record, Id.)

On the other hand, the Mandangan petition submits that the Comelec comitted the following errors:

1. In erroneously applying the earlier case of Diaz vs. Commission on Elections

(November 29, 1971; 42 SCRA 426), and particularly the highly restrictive criterion
that when the votes obtained by the candidates with the highest number of votes
exceed the total number of highest possible valid votes, the COMELEC ruled to
exclude from the canvass the election return reflecting such rests, under which the
COMELEC excluded 1,004 election returns, involving around 100,000 votes, 95 % of
which are for KBL candidates, particularly the petitioner Linang Mandangan, and
which rule is so patently unfair, unjust and oppressive.

2. In not holding that the real doctrine in the Diaz Case is not the total exclusion of
election returns simply because the total number of votes exceed the total number of
highest possible valid votes, but 'even if all the votes cast by persons Identified as
registered voters were added to the votes cast by persons who can not be definitely
ascertained as registered or not, and granting, ad arguendo, that all of them voted for
respondent Daoas, still the resulting total is much below the number of votes credited
to the latter in returns for Sagada, 'and that 'of the 2,188 ballots cast in Sagada,
nearly one-half (1,012) were cast by persons definitely Identified as not registered
therein or still more than 40 % of substitute voting which was the rule followed in the
later case of Bashier/Basman (Diaz Case, November 19,1971,42 SCRA 426,432).

3. In not applying the rule and formula in the later case of Bashier and Basman vs.
Commission on Election(February 24, 1972, 43 SCRA 238) which was the one
followed by the Regional Board of Canvassers, to wit:

In Basman vs Comelec (L-33728, Feb. 24, 1972) the Supreme Court

upheld the Supreme Court upheld the ruling of the Commission
setting the standard of 40 % excess votes to justify the exclusion of
election returns. In line with the above ruling, the Board of
Canvassers may likewise set aside election returns with 40 %
substitute votes. Likewise, where excess voting occured and the
excess was such as to destroy the presumption of innocent mistake,
the returns was excluded.

(COMELEC'S Resolution, Annex I hereof, p. 22), which this Honorable Court must
have meant when its Resolution of May 23, 1978 (G.R. No. 7), it referred to "massive
substitution of voters.

4. In examining, through the NBI/COMELEC experts, the records in more than 878
voting centers examined by the KB experts and passed upon by the Regional Board
of Canvassers which was all that was within its appellate jurisdiction is examination
of more election records to make a total of 1,085 voting centers (COMELEC'S
Resolution, Annex 1 hereof, p. 100), being beyond its jurisdiction and a denial of due
process as far as the KBL, particularly the petitioner Mandangan, were concerned
because they were informed of it only on December, 1978, long after the case has
been submitted for decision in September, 1978; and the statement that the KBL
acquiesced to the same is absolutely without foundation.

5. In excluding election returns from areas where the conditions of peace and order
were allegedly unsettled or where there was a military operation going on
immediately before and during election and where the voter turn out was high (90 %
to 100 %), and where the people had been asked to evacuate, as a ruling without
jurisdiction and in violation of due process because no evidence was at all submitted
by the parties before the Regional Board of Canvasssers. (Pp. 23-25, Record, L-
47917-21.)
Now before discussing the merits of the foregoing contentions, it is necessary to clarify first the
nature and extent of the Supreme Court's power of review in the premises. The Aratuc petition is
expressly predicated on the ground that respondent Comelec "committed grave abuse of discretion,
amounting to lack of jurisdiction" in eight specifications. On the other hand, the Mandangan petition
raises pure questions of law and jurisdiction. In other words, both petitions invoked the Court's
certiorari jurisdiction, not its appellate authority of review.

This is as it should be. While under the Constitution of 1935, "the decisions, orders and rulings of the
Commission shall be subject to review by the Supreme Court" (Sec. 2, first paragraph, Article X) and
pursuant to the Rules of Court, the petition for "certiorari or review" shall be on the ground that the
Commission "has decided a question of substance not theretofore determined by the Supreme
Court, or has decided it in a way not in accord with law or the applicable decisions of the Supreme
Court" (Sec. 3. Rule 43), and such provisions refer not only to election contests but even to pre-
proclamation proceedings, the 1973 Constitution provides somewhat differently thus: "Any decision,
order or ruling of the Commission may be brought to the Supreme Court on certiorari by the
aggrieved party within thirty days from his receipt of a copy thereof" (Section 11, Article XII c), even
as it ordains that the Commission shall "be the sole judge of all contests relating to the elections,
returns and qualifications of all members of the National Assembly and elective provincial and city
official" (Section 2(2).)

Correspondingly, the ElectionCode of 1978, which is the first legislative constructionof the pertinent
constitutional provisions, makes the Commission also the "sole judge of all pre-proclamation
controversies" and further provides that "any of its decisions, orders or rulings (in such contoversies)
shall be final and executory", just as in election contests, "the decision of the Commission shall be
final, and executory and inappealable." (Section 193)

It is at once evident from these constitutional and statutory modifications that there is a definite
tendency to enhance and invigorate the role of the Commission on Elections as the independent
constitutinal body charged with the safeguarding of free, peaceful and honest elections. The framers
of the new Constitution must be presumed ot have definite knowledge of what it means to make the
decisions, orders and rulings of the Commission "subject to review by the Supreme Court". And
since instead of maintaining that provision intact, it ordained that the Commission's actuations be
instead "brought to the Supreme Court on certiorari", We cannot insist that there was no intent to
change the nature of the remedy, considering that the limited scope of certiorari, compared to a
review, is well known in remedial law.

Withal, as already stated, the legislative construction of the modified peritinent constitutional
provision is to the effect that the actuations of the Commission are final, executory and even
inappealable. While such construction does not exclude the general certiorari jurisdiction of the
Supreme Court which inheres in it as the final guardian of the Constitution, particularly, of its
imperious due process mandate, it correspondingly narrows down the scope and extent of the
inquiry the Court is supposed to undertake to what is strictly the office of certiorari as distinguished
from review. We are of the considered opinion that the statutory modifications are consistent with the
apparent new constitional intent. Indeed, it is obvious that to say that actuations of the Commission
may be brought to the Supreme Court on certiorari technically connotes something less than saying
that the same "shall be subject to review by the Supreme Court", when it comes to the measure of
the Court's reviewing authority or prerogative in the premises.

A review includes digging into the merits and unearthing errors of judgment, while certiorari deals
exclusively with grave abuse of discretion, which may not exist even when the decision is otherwise
erroneous. certiorari implies an indifferent disregard of the law, arbitrariness and caprice, an
omission to weight pertinent considerations, a decision arrived at without rational deliberation. While
the effecdts of an error of judgment may not differ from that of an indiscretion, as a matter of policy,
there are matters taht by their nature ought to be left for final determination to the sound discretion of
certain officers or entities, reserving it to the Supreme Court to insure the faithful observance of due
process only in cases of patent arbitrariness.

Such, to Our mind, is the constitutional scheme relative to the Commission on Elections. Conceived
by the charter as the effective instrument to preserve the sanctity of popular suffrage, endowed with
independence and all the needed concommittant powers, it is but proper that the Court should
accord the greatest measure of presumption of regularity to its course of action and choice of means
in performing its duties, to the end that it may achieve its designed place in the democratic fabric of
our government. Ideally, its members should be free from all suspicions of partisan inclinations, but
the fact that actually some of them have had stints in the arena of politics should not, unless the
contrary is shown, serve as basis for denying to its actuations the respect and consideration that the
Constitution contemplates should be accorded to it, in the same manner that the Supreme Court
itself which from time to time may have members drawn from the political ranks or even from military
is at all times deemed insulated from every degree or form of external pressure and influence as well
as improper internal motivations that could arise from such background or orientation.

We hold, therefore that under the existing constitution and statutory provisions, the certiorari
jurisdiction of the Court over orders, and decisions of the Comelec is not as broad as it used to be
and should be confined to instances of grave abuse of discretion amounting to patent and
substantial denial of due process. Accordingly, it is in this light that We the opposing contentions of
the parties in this cases.

THE MANDANGAN CASE

Being more simple in Our view, We shall deal with the petition in G.R. No. L-49717-21 first.

The errors assigned in this petition boil down to two main propositions, namely, (1) that it was an
error of law on the part of respondent Comelec to have applied to the extant circumstances hereof
the ruling of this Court in Diaz vs. Comelec 42 SCRA 426 instead of that of Bashier vs. Comelec 43
SCRA 238; and (2) that respondent Comelec exceeded its jurisdiction and denied due process to
petitioner Mandangan in extending its inquiry beyond the election records of "the 878 voting centers
examined by the KB experts and passed upon by the Regional Board of Canvassers" and in
excluding from the canvass the returns showing 90 to 100 % voting, from voting centers where
military operations were by the Army to be going on, to the extent that said voting centers had to be
transferred to the poblaciones the same being by evidence.

Anent the first proposition, it must be made clear that the Diaz and Bashier rulings are not mutually
exclusive of each other, each being an outgrowth of the basic rationale of statistical improbability laid
down in Lagumbay vs. Comelec and , 16 SCRA 175. Whether they be apply together or separately
or which of them be applied depends on the situation on hand. In the factual milieu of the instant
case as found by the Comelec, We see no cogent reason, and petitioner has not shown any, why
returns in voting centers showing that the votes of the candidate obtaining highest number of votes
of the candidate obtaining the highest number of votes exceeds the highest possible number of valid
votes cast therein should not be deemed as spurious and manufactured just because the total
number of excess votes in said voting centers were not more than 40 %. Surely, this is not the
occasion, consider the historical antecedents relative to the highly questionable manner in which
elections have been bad in the past in the provinces herein involved, of which the Court has judicial
notice as attested by its numerous decisions in cases involving practically every such election, of the
Court to move a whit back from the standards it has enunciated in those decisions.
In regard to the jurisdictional and due process points raised by herein petitioner, it is of decisive
importance to bear in mind that under Section 168 of the Revised Election Code of 1978, "the
Commission (on Elections) shall have direct control and supervision on over the board of
canvassers" and that relatedly, Section 175 of the same Code provides that it "shall be the sole
judge of all pre-proclamation controversies." While nominally, the procedure of bringing to the
Commission objections to the actuations of boards of canvassers has been quite loosely referred to
in certain quarters, even by the Commission and by this Court, such as in the guidelines of May
23,1978 quoted earlier in this opinion, as an appeal, the fact of the matter is that the authority of the
Commission in reviewing such actuations does not spring from any appellate jurisdiction conferred
by any specific provision of law, for there is none such provision anywhere in the Election Code, but
from the plenary prerogative of direct control and supervision endowed to it by the above-quoted
provisions of Section 168. And in administrative law, it is a too well settled postulate to need any
supporting citation here, that a superior body or office having supervision and control over another
may do directly what the latter is supposed to do or ought to have done.

Consequently, anything said in Lucman vs. Dimaporo, 33 SCRA 387, cited by petitioner, to the
contrary notwithstanding, We cannot fault respondent Comelec for its having extended its inquiry
beyond that undertaken by the Board of Canvass On the contrary, it must be stated that Comelec
correctly and commendably asserted its statutory authority born of its envisaged constitutional duties
vis-a-vis the preservation of the purity of elections and electoral processes and p in doing what
petitioner it should not have done. Incidentally, it cannot be said that Comelec went further than even
what Aratuc et al. have asked, since said complaints had impugned from the outset not only the
returns from the 878 voting centers examined by their experts but all those mentioned in their
complaints in the election cases filed originally with the Comelec enumerated in the opening
statements hereof, hence respondent Comelec had that much field to work on.

The same principle should apply in respect to the ruling of the Commission regarding the voting
centers affected by military operations. It took cognizance of the fact, not considered by the board of
canvass, that said voting centers had been transferred to the poblaciones. And, if only for purposes
of pre-proclamation proceedings, We are persuaded it did not constitute a denial of due process for
the Commission to have taken into account, without the need or presentation of evidence by the
parties, a matter so publicly notorious as the unsettled situation of peace and order in localities in the
provinces herein involved that their may perhaps be taken judicial notice of, the same being capable
of unquestionable demonstration. (See 1, Rule 129)

In this connection, We may as well perhaps, say here as later that regrettably We cannot, however,
go along with the view, expressed in the dissent of our respected Chief Justice, that from the fact
that some of the voting centers had been transferred to the poblaciones there is already sufficient
basis for Us to rule that the Commission should have also subjected all the returns from the other
voting centers of the some municipalities, if not provinces, to the same degree of scrutiny as in the
former. The majority of the Court feels that had the Commission done so, it would have fallen into
the error by petitioner Mandangan about denial of due process, for it is relatively unsafe to draw
adverse conclusions as to the exact conditions of peace and order in those other voting centers
without at list some prima facie evidence to rely on considering that there is no allegation, much less
any showing at all that the voting centers in question are so close to those excluded by the Comelec
on as to warrant the inescapable conclusion that the relevant circumstances by the Comelec as
obtaining in the latter were Identical to those in the former.

Premises considered the petition in G.R. Nos. L-49717-21 is hereby dismiss for lack of merit.

THE ARATUC ET AL. PETITION

Of the eight errors assigned by herein petitioners earlier adverted to, the seventh and the sight do
not require any extended disquisition. As to the issue of whether the elections in the voting centers
concerned were held on April 7, 1978, the date designated by law, or earlier, to which the seventh
alleged error is addressed, We note that apparently petitioners are not seriously pressing on it
anymore, as evidenced by the complete absence of any reference thereto during the oral argument
of their counsel and the practically cavalier discussion thereof in the petition. In any event, We are
satisfied from a careful review of the analysis by the Comelec in its resolution now before Us that it
took pains to consider as meticulously as the nature of the evidence presented by both parties would
permit all the contentions of petitioners relative to the weight that should be given to such evidence.
The detailed discussion of said evidence is contained in not less than nineteen pages (pp. 70-89) of
the resolution. In these premises, We are not prepared to hold that Comelec acted wantonly and
arbitrarily in drawing its conclusions adverse to petitioners' position. If errors there are in any of those
conclusions, they are errors of judgment which are not reviewable in certiorari, so long as they are
founded on substantial evidence.

As to eighth assigned error. the thrust of respondents, comment is that the results in the voting
centers mentioned in this assignment of error had already been canvassed at the regional canvass
center in Cotabato City. Again, We cannot say that in sustaining the board of canvassers in this
regard, Comelec gravely abused its discretion, if only because in the guidelines set by this Court,
what appears to have been referred to is, rightly or wrongly, the resumption only of the canvass,
which does not necessarily include the setting aside and repetition of the canvass already made in
Cotabato City.

The second and fourth assignments of error concern the voting centers the corresponding voters'
record (C.E. Form 1) and record of voting, (C.E. Form 5) of which have never been brought to
Manila because they, were not available The is not clear as to how many are these voting centers.
According to petitioners they are 501, but in the Comelec resolution in question, the number
mentioned is only 408, and this number is directly challenged in the petition. Under the second
assignment, it is contended that the Comelec gravely abused its discretion in including in the
canvass the election returns from these voting centers and, somewhat alternatively, it is alleged as
fourth assignment that the petitioners motion for the opening of the ballot boxes pertaining to said
voting centers was arbitraly denied by respondent Comelec.

The resolution under scrutiny explains the situation that confronted the Commission in regard to the
408 voting centers reffered to as follows :

The Commission had the option of excluding from the canvass the election returns
under category. By deciding to exclude, the Commission would be summarily
disenfranchising the voters registered in the voting centers affected without any
basis. The Commission could also order the inclusion in the canvass of these
elections returns under the injunction of the Supreme Court that extremes caution
must be exercised in rejecting returns unless these are palpably irregular. The
Commission chose to give prima facie validity to the election returns mentioned and
uphold the votes cast by the voters in those areas. The Commission held the view
that the failure of some election officials to comply with Commission orders(to submit
the records) should not parties to such official disobedience. In the case of Lino Luna
vs. Rodriguez, 39 Phil. 208, the Supreme Court ruled that when voters have honestly
cast their ballots, the same should not be nullified because the officers appointed
under the law to direct the election and guard the purity of the ballot have not
complied with their duty. (cited in Laurel on Elections, p. 24)

On page 14 of the comment of the Solicitor General, however, it is stated that:

 At all events, the returns corresponding to these voting centers were examined by
the Comelec and 141 of such returns were excluded, as follows:

SUMMARY

PROVINCE TOTAL EXCLUDED INCLUDED

Lanao del Norte 30 30

Lanao del Sur 342 137 205

Maguindanao 21 1 20

North Cotabato 7 1 6

Sultan Kudarat 12 2 10

totals ----- 412 141 271

(Page 301, Record.)

This assertion has not been denied by petitioners.

Thus, it appears that precisely use of the absence or unavailability of the CE Forms 1 and 5
corresponding to the more than 400 voting centers concerned in our present discussion the Comelec
examined the returns from said voting centers to determine their trustworthiness by scrutinizing the
purported relevant data appearing on their faces, believing that such was the next best thing that
could be done to avoid total disenfranchisement of the voters in all of them On the Other hand,
Petitioners' insist that the right thing to do was to order the opening of the ballot boxes involved.

In connection with such opposing contentions, Comelec's explanation in its resolution is:

... The commission had it seen fit to so order, could have directed the opening of the
ballot boxes. But the Commission did not see the necessity of going to such length in
a that was in nature and decided that there was sufficient bases for the revolution of
the appeal. That the Commission has discretion to determine when the ballot boxes
 should be opened is implicit in the guidelines set by the Supreme Court which states
that '. . . the ballot bones [which] shall be opened only upon orders of either the
respondent Board or respondent Commission, after the need therefor has become
evident ... ' (guideline No. 3; emphasissupplied). Furthermore, the Court on June 1,
1978, amended the guidelines that the "ballot boxes for the voting centers ... need
not be taken to Manila EXCEPT those of the centers as to which the petitioners have
the right to demand that the corresponding ballot boxes be opened ... provided that
the voting centers concerned shall be specified and made known by petitioners to
the Regional Board of Canvassers not later than June 3,1978 ... ' (Emphasis
supplied). The KB, candidates did not take advantage of the option granted them
under these guidelines.( Pp 106-107, Record.)

Considering that Comelec, if it had wished to do so, had the facilities to Identify on its own the voting
centers without CE Forms I and 5, thereby precluding the need for the petitioners having to specify
them, and under the circumstances the need for opening the ballot boxes in question should have
appeared to it to be quite apparent, it may be contended that Comelec would have done greater
service to the public interest had it proceeded to order such opening, as it had announced it had
thoughts of doing in its resolution of August 30, 1978. On the other hand, We cannot really blame the
Commission too much, since the exacting tenor of the guidelines issued by Us left it with very little
elbow room, so to speak, to use its own discretion independently of what We had ordered. What
could have saved matters altogether would have been a timely move on the part of petitioners on or
before June 3, 1978, as contemplated in Our resolution. After all come to think of it, that the possible
outcome of the opening of the ballot boxes would favor the petitioners was not a certainty the
contents them could conceivably boomerang against them, such as, for example, if the ballots
therein had been found to be regular and preponderantly for their opponents. Having in mind that
significantly, petitioners filed their motion for only on January 9, 1979, practically on the eve of the
promulgation of the resolution, We hold that by having adhered to Our guidelines of June 1, 1978,
Comelec certainly cannot be held to be guilty of having gravely abused its discretion, in examining
and passing on the returns from the voting centers reffered to in the second and fourth assignments
of error in the canvass or in denying petitioners' motion for the of the ballot boxes concerned.

The first, third and sixth assignment of involve related matters and maybe discussed together. They
all deal with the inclusion in or exclusion from the canvass of returns on the basis of the percentage
of voting in specified voting centers and the corresponding findings of the Comelec on the extent of
substitute voting therein as indicated by the result of either the technical examination by experts of
the signatures and thumb-prints of the voters threat.

To begin with, petitioners' complaint that the Comelec did not examine and study 1,694 of the
records in an the 2,775 voting centers questioned by them is hardly accurate. To be more exact, the
Commission excluded a total of 1,267 returns coming under four categories namely: 1,001 under the
Diaz, supra, ruling, 79 because of 90-100 % turnout of voters despite military operations, 105
palpably manufactured owe and 82 returns excluded by the board of canvass on other grounds.
Thus, 45.45 % of the of the petitioners were sustained by the Comelec. In contrast, in the board of
canvassers, only 453 returns were excluded. The board was reversed as to 6 of these, and 821
returns were excluded by Comelec over and above those excluded by the board. In other words, the
Comelec almost doubled the exclusions by the board.

Petitioners would give the impression by their third assignment of error that Comelec refused to
consider high percentage of voting, coupled with mass substitute voting, as proof that the pertinent
returns had been manufactured. That such was not the case is already shown in the above
specifications. To add more, it can be gleaned from the resolution that in t to the 1,065 voting centers
in Lanao del Sur and Marawi City where a high percentage of voting appeared, the returns from the
867 voting centers were excluded by the Comelec and only 198 were included a ratio of roughly 78
% to 22 %. The following tabulation drawn from the figures in the resolution shows how the Comelec
went over those returns center by center and acted on them individually:

90% 100% VOTING

MARAWI CITY AND LANAO DEL SUR

NO. OF V/C THAT V/C WITH 90% to 100%

MUNICIPALITIES FUNCTIONED VOTING

No. Ex Incl
of clu ud
V/C de ed
d

M 15 112 10 5
a 1 7
r
a
w
i
C
i
t
y

B 28 28 27 1
a
c
o
l
o
d

G
r
a
n
d
e

B 53 53 49 4
a
l
a
b
a
g
a
n

B 22 22 15 7
a
l
i
n
d
o
n
g

B 29 20 13 7
a
y
a
n
g

B 37 33 29 4
i
n
i
d
a
y
a
n

B 41 10 10 0
u
a
d
i
p
o
s
o

B
u
n
t
o
n

B 24 23 21 2
u
b
o
n
g

B 21
u (Al
m l
b ex
a clu
r de
a d)
n

B 35 33 32 1
u
t
i
g

C 23 21 21 0
a
l
a
n
o
g
a
s
D 42 39 38 1
i
t
s
a
a
n
-
R
a
m
a
i
n

G 39 38 23 15
a
n
a
s
s
i

L 64 63 47 16
u
m
b
a

B
a
y
a
b
a
o

L 30 28 17 11
u
m
b
a
t
a
n

L 37 33 28 5
u
m
b
a
y
a
n
a
g
u
e

M 14 13 6 7
a
d
a
l
u
m

M 20 20 5 15
a
d
a
m
b
a

M 57 55 53 2
a
g
u
i
n
g

M 59 47 5 42
a
l
a
b
a
n
g

M 79 63 41 22
a
r
a
n
t
a
o

M 37 35 32 3
a
r
u
g
o
n
g

M 27 26 24 2
a
s
i
u

P 15 13 9 4
a
g
a
y
a
w
a
n
P 39 39 36 3
i
a
g
a
p
o

P 44 44 42 2
o
o
n
a
-
B
a
y
a
b
a
o

P 23 20 20 0
u
a
l
a
s

S 36 32 21 11
a
g
u
i
a
r
a
n

S 35 31 31 0
u
l
t
a
n

G
u
m
a
n
d
e
r

T 24 21 15 6
a
m
p
a
r
a
n

T 31 31 31 0
a
r
a
k
a

T 23 19 19 0
u
b
a
r
a
n

T
O
T
A
L
 S
:

M
a
r
a
w
i
&

L 1, 1,06 86 19
a 21 5 7 8
n 8
a
o

d
e
l
S
u
r

We are convinced, apart from presuming regularity in the performance of its duties, that there is
enough showing in the record that it did examine and study the returns and pertinent records
corresponding to all the 2775 voting centers subject of petitioners' complaints below. In one part of
its resolution the Comelec states:

The Commission as earlier stated examined on its own the Books of Voters
(Comelec Form No. 1) and the Voters Rewards Comelec Form No. 5) to determine
for itself which of these elections form needed further examination by the COMELEC-
NBI experts. The Commission, aware of the nature of this pre-proclamation
controversy, believes that it can decide, using common sense and perception,
whether the election forms in controversy needed further examination by the experts
based on the presence or absence of patent signs of irregularity. (Pp. 137-138,
Record.)

In the face of this categorical assertion of fact of the Commission, the bare charge of petitioners that
the records pertaining to the 1,694 voting centers assailed by them should not create any ripple of
serious doubt. As We view this point under discussion, what is more factually accurate is that those
records complained of were not examined with the aid of experts and that Comelec passed upon the
returns concerned "using common sense and perception only." And there is nothing basically
objectionable in this. The defunct Presidential Senate and House Electoral Tribunals examine
passed upon and voided millions of votes in several national elections without the assistance of
experts and "using" only common sense and perception". No one ever raised any eyebrows about
such procedure. Withal, what we discern from the resolution is that Comelec preliminary screened
the records and whatever it could not properly pass upon by "using common sense and perception"
it left to the experts to work on. We might disagree with he Comelec as to which voting center should
be excluded or included, were We to go over the same records Ourselves, but still a case of grave
abuse of discretion would not come out, considering that Comelec cannot be said to have acted
whimsically or capriciously or without any rational basis, particularly if it is considered that in many
respects and from the very nature of our respective functions, becoming candor would dictate to Us
to concede that the Commission is in a better position to appreciate and assess the vital
circumstances closely and accurately. By and large, therefore, the first, third and sixth assignments
of error of the petitioners are not well taken.

The fifth assignment of error is in Our view moot and academic. The Identification of the ballot boxes
in defective condition, in some instances open and allegedly empty, is at best of secondary import
because, as already discussed, the records related thereto were after all examined, studied and
passed upon. If at all, deeper inquiry into this point would be of real value in an electoral protest.

CONCLUSION

Before closing, it may not be amiss to state here that the Court had initially agreed to dispose of the
cases in a minute resolution, without prejudice to an extended or reasoned out opinion later, so that
the Court's decision may be known earlier. Considering, however, that no less than the Honorable
Chief Justice has expressed misgivings as to the propriety of yielding to the conclusions of
respondent Commission because in his view there are strong considerations warranting farther
meticulous inquiry of what he deems to be earmarks of seemingly traditional faults in the manner
elections are held in the municipalities and provinces herein involved, and he is joined in this pose
by two other distinguished colleagues of Ours, the majority opted to ask for more time to put down at
least some of the important considerations that impelled Us to see the matters in dispute the other
way, just as the minority bidded for the opportunity to record their points of view. In this manner, all
concerned will perhaps have ample basis to place their respective reactions in proper perspective.

In this connection, the majority feels it is but meet to advert to the following portion of the
ratiocination of respondent Board of Canvassers adopted by respondent Commission with approval
in its resolution under question:

First of all this Board was guided by the legal doctrine that canvassing boards must
exercise "extreme caution" in rejecting returns and they may do so only when the
returns are palpably irregular. A conclusion that an election return is obviously
manufactured or false and consequently should be disregarded in the canvass must
be approached with extreme caution, and only upon the most convincing proof. Any
plausible explanation one which is acceptable to a reasonable man in the light of
experience and of the probabilities of the situation, should suffice to avoid outright
nullification, with the resulting t of those who exercised their right of suffrage. (Anni
vs. Isquierdo et at L-35918, Jude 28,1974; Villavon v. Comelec L-32008, August
31,1970; Tagoranao v. Comelec 22 SCRA 978). In the absence of strong evidence
establishing the spuriousness of the return, the basis rule of their being accorded
prima facie status as bona fide reports of the results of the count of the votes for
canvassing and proclamation purposes must be applied, without prejudice to the
question being tried on the merits with the presentation of evidence, testimonial and
real in the corresponding electoral protest. (Bashier vs. Comelec L-33692, 33699,
33728, 43 SCRA 238, February 24, 1972). The decisive factor is that where it has
been duly de ed after investigation and examination of the voting and registration
records hat actual voting and election by the registered voters had taken place in the
questioned voting centers, the election returns cannot be disregarded and excluded
 with the resting disenfranchisement of the voters, but must be accorded prima facie
status as bona fide reports of the results of the voting for canvassing and registration
purposes. Where the grievances relied upon is the commission of irregularities and
violation of the Election Law the proper remedy is election protest. (Anni vs.
Isquierdo et al. Supra). (P. 69, Record, L-49705-09).

The writer of this opinion has taken care to personally check on the citations to be doubly sure they
were not taken out of context, considering that most, if not all of them arose from similar situations in
the very venues of the actual milieu of the instant cases, and We are satisfied they do fit our chosen
posture. More importantly, they actually came from the pens of different members of the Court,
already retired or still with Us, distinguished by their perspicacity and their perceptive prowess. In the
context of the constitutional and legislative intent expounded at the outset of this opinion and evident
in the modifications of the duties and responsibilities of the Commission on Elections vis-a-vis the
matters that have concerned Us herein, particularly the elevation of the Commission as the "sole
judge of pre-proclamation controversies" as well as of all electoral contests, We find the afore-
quoted doctrines compelling as they reveal through the clouds of existing jurisprudence the pole star
by which the future should be guided in delineating and circumscribing separate spheres of action of
the Commission as it functions in its equally important dual role just indicated bearing as they do on
the purity and sanctity of elections in this country.

In conclusion, the Court finds insufficient merit in the petition to warrant its being given due course.
Petition dismissed, without pronouncement as to costs. Justices Fernando, Antonio and Guerrero
who are presently on official missions abroad voted for such dismissal.

G.R. No. 173797 August 31, 2007

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
EMMANUEL ROCHA alias "Nopoy" and RUEL RAMOS alias "Aweng," Accused-Appellants.

RESOLUTION

CHICO-NAZARIO, J.:

On 12 May 1994, an Information was filed against herein accused-appellants Emmanuel Rocha y
Yeban alias Nopoy (Rocha) and Ruel Ramos y Alcober alias Aweng (Ramos), along with Romeo
Trumpeta y Aguaviva (Trumpeta), in the Regional Trial Court (RTC) of Quezon City, Branch 215.
Another accused, Eustaquio Cenita y Omas-As (Cenita), was impleaded in the Amended
Information. The Amended Information alleged a crime committed as follows:

That on or about the 28th day of September, 1993, in Quezon City, Philippines, the above-named
accused, conspiring and confederating with several others, whose true identities, whereabouts and
personal circumstances have not as yet been ascertained and mutually helping one another, all
armed with high power (sic) guns, with intent to gain and by means of violence and intimidation
against person (sic), did then and there, wilfully, unlawfully and feloniously rob the Bank of the
Philippine Islands (BPI) represented by ALEX BABASA, JR. in the following manner, to wit: on the
date and place aforementioned, while Alex Babasa, Jr. was placing the money contained in two (2)
duffle bags inside the vault of the armored van, with the two (2) security guards on the watch, the
said accused pursuant to their conspiracy and with intent to kill, opened fire at them hitting S/G
ROGER TARROQUIN and S/G TITO HOMERES, thereby inflicting upon them serious and mortal
wounds which were the immediate cause of their death and thereafter, accused took, robbed and
carried away the said two (2) duffle bags containing P1.5 million pesos, Philippine Currency, and the
12 gauge shotgun with SN 1048245 worth P11,000.00 issued to S/G Roger Tarroquin and the cal. 38
revolver with SN 23238 worth P6,500.00 issued to S/G Tito Henares and owned by Eaglestar
Security Services, Incorporated to the damage and prejudice of the offended parties in the amount
aforementioned and to the heirs of the said victims. 1

On 6 February 1996, the RTC promulgated its Decision in Criminal Case No. Q-93-49474 finding
Trumpeta, Cenita and herein accused-appellants Rocha and Ramos guilty of the crime of Robbery
with Homicide, and imposing upon them the penalty of reclusion perpetua. The RTC disposed of the
case as follows:

WHEREFORE, the accused ROMEO TRUMPETA y AGUAVIVA, EMMANUEL RIOCHA y YEBAN,

RUEL RAMOS y ALCOBER and EUSTAQUIO CENITA y OMAS-AS, are found GUILTY of the crime
of Robbery With Homicide as charged, the prosecution having proven their guilt beyond reasonable
doubt. In accordance with Article 294 of the Revised Penal Code, paragraph 1 thereof, all of the
above-named accused are sentenced to suffer the penalty of reclusion perpetua with all the
accessory penalties attendant thereto. They could have been sentenced to death but for the fact that
the death penalty was suspended, then the crime was committed. 2

In addition, all the accused are jointly and severally ordered to pay the heirs of deceased Roger
Tarroquin and Tito Henares P50,000.00 each, respectively. Further, all the accused are jointly and
severally ordered to indemnify the Bank of the Philippine Islands the sum of P1,600,000. With costs
against the accused.3

Trumpeta, Cenita and accused-appellants appealed to this Court. On 13 September 1999, however,
Trumpeta filed an Urgent Motion to Withdraw Appeal,4 which was granted by this Court on 11
October 1999.5 On 29 May 2001, Cenita filed his own Urgent Motion to Withdraw Appeal,6 which was
granted by this Court on 15 August 2001.7

On 25 August 2004, pursuant to the Decision of this Court in People v. Mateo, 8 we transferred the
case to the Court of Appeals.

On 31 March 2006, the Court of Appeals promulgated its Decision9 in CA-G.R. CR H.C. No. 01765
affirming with clarification the Decision of the RTC, thus:

Wherefore, the appealed Decision is AFFIRMED with CLARIFICATION. Appellants Emmanuel

Rocha @ "Nopoy" and Ruel Ramos @ "Aweng" are found guilty as co-principals in the crime of
Robbery with Homicide and each is hereby sentenced to suffer the penalty of reclusion perpetua.
Each one of them is ordered to pay civil indemnity in the amount of [Fifty Thousand Pesos]
(P50,000.00) each to the heirs of Roger Tarroquin and Tito Homeres. All other aspects of the
appealed Decision are MAINTAINED.10

On 18 April 2006, accused-appellants Rocha and Ramos, through the Public Attorneys Office
(PAO), appealed the Decision of the Court of Appeals to this Court.

On 13 September 2006, this Court required the parties to submit their respective supplemental
briefs.
On 14 November 2006, accused-appellant Rocha, having been detained for more than seventeen
years, filed a Motion to Withdraw Appeal, stating that he intends to apply for parole. He also
manifested that his co-accused on this case, Romeo Trumpeta and Estaquio Cenita, had already
withdrawn their appeal.

On 14 February 2007, plaintiff-appellee People of the Philippines, through the Solicitor General, filed
a Comment opposing accused-appellant Rochas Motion to Withdraw Appeal.

On 28 February 2007, accused-appellant Ramos followed suit and filed his own Manifestation with
Motion to Withdraw Appeal. He likewise manifested that he had already served fourteen years in
prison and that all his other co-accused had already withdrawn their appeal, and applied for
executive clemency to avail himself of parole.11

We are therefore determining herein whether or not the Motions to Withdraw Appeal of accused-
appellants Rocha and Ramos should be granted.

According to the plaintiff-appellee,

8. It is well-settled that in cases where the penalty imposed is reclusion perpetua, appeal in
criminal cases to this Honorable Court is a matter of right. A review of the trial courts
judgment of conviction is automatic and does not depend on the whims of the convicted
felon. It is mandatory and leaves the reviewing court without any option.

9. In U.S. v. Laguna [17 Phil. 533 (1910)], this Honorable Court first enunciated the rationale
behind the Courts power of automatic review. The High Court ratiocinated:

The requirement that the Supreme Court pass upon a case in which capital punishment has
been imposed by the sentence of the trial court is one having for its object simply and solely
the protection of the accused. Having received the highest penalty which the law imposes,
he is entitled under that law to have the sentence and all the facts and circumstances upon
which it is founded placed before the highest tribunal of the land to the end that its justice
and legality may be clearly and conclusively determined. Such procedure is merciful. It gives
a second chance of life. Neither the courts nor the accused can waive it. It is a positive
provision of the law that brooks no interference and tolerates no evasions. (emphasis
supplied)

10. No less than this Honorable Court recognizes the value of human life that it provided an
intermediate appeal or review in favor of the accused. In People vs. Mateo, this Honorable
Court held:

While the Fundamental Law requires a mandatory review by the Supreme Court of cases
where the penalty imposed is reclusion perpetua, life imprisonment, or death, nowhere,
however has it proscribed an intermediate review. If only to ensure utmost circumspection
before the penalty of death, reclusion perpetua or life imprisonment is imposed, the court
now deems it wise and compelling to provide in these cases a review by the Court of
Appeals before the case is elevated to the Supreme Court. Where life and liberty are at
stake, all possible avenues to determine his guilt or innocence must be accorded an
accused, and no care in the evaluation of the facts can ever be undone. A prior
determination by the court of Appeals on, particularly, the factual issues, would minimize the
 possibility of an error in judgment. If the court of Appeals should affirm the penalty of death,
reclusion perpetua or life imprisonment, it could then render judgment imposing the
corresponding penalty as the circumstances so warrant, refrain from entering judgment and
elevate the entire records of the case to the Supreme Court for its final disposition.

11. Appellants motion to withdraw appeal, therefore, contravenes this Honorable Courts
power to automatically review a decision imposing the penalty of reclusion perpetua or life
imprisonment. Neither appellant nor this Honorable Court can waive by mere motion to
withdraw appeal, the Courts power to review the instant case.

12. Based on the above disquisition, the review by this Honorable court of appellants
conviction is mandatory and the withdrawal of his appeal can not be granted as it will
contravene the applicable rules and jurisprudence. 12

Plaintiff-appellee also claims that accused-appellant Rochas motion is "actually a scheme to evade
the supreme penalty of reclusion perpetua"13 and that it is "obviously merely an afterthought
designed to trifle not only with our procedural law, but more importantly, our judicial
system."14 Plaintiff-appellee continues that "if indeed, appellant Emmanuel Rocha was acting in good
faith, he should have withdrawn his appeal at the first opportunity. Instead, he waited for the
intermediate review of the RTC Decision to be first resolved and after an unfavorable decision
thereon that he now decides to withdraw his appeal." 15

We resolve to grant the Motions of accused-appellants Rocha and Ramos.

The confusion in the case at bar seems to stem from the effects of the Decision of this Court in
People v. Mateo.16 In Mateo, as quoted by plaintiff-appellee, it was stated that "[w]hile the
Fundamental Law requires a mandatory review by the Supreme Court of cases where the penalty
imposed is reclusion perpetua, life imprisonment, or death, nowhere, however, has it proscribed an
intermediate review."17 A closer study of Mateo, however, reveals that the inclusion in the foregoing
statement of cases where the penalty imposed is reclusion perpetua and life imprisonment was only
for the purpose of including these cases within the ambit of the intermediate review of the Court of
Appeals: "[this] Court now deems it wise and compelling to provide in these cases [cases where the
penalty imposed is reclusion perpetua, life imprisonment or death] review by the Court of Appeals
before the case is elevated to the Supreme Court."18

We had not intended to pronounce in Mateo that cases where the penalty imposed is reclusion
perpetua or life imprisonment are subject to the mandatory review of this Court. In Mateo, these
cases were grouped together with death penalty cases because, prior to Mateo, it was this Court
which had jurisdiction to directly review reclusion perpetua, life imprisonment and death penalty
cases alike. The mode of review, however, was different. Reclusion perpetua and life imprisonment
cases were brought before this Court via a notice of appeal, while death penalty cases were
reviewed by this Court on automatic review. Thus, the erstwhile Rule 122, Sections 3 and 10,
provided as follows:

SEC. 3. How appeal taken.

(a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing a notice
 of appeal with the court which rendered the judgment or final order appealed from and by
serving a copy thereof upon the adverse party.

(b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be by petition for review under Rule 42.

(c) The appeal to the Supreme Court in cases where the penalty imposed by the Regional
Trial Court is reclusion perpetua, or life imprisonment, or where a lesser penalty is imposed
but for offenses committed on the same occasion or which arose out of the same occurrence
that gave rise to the more serious offense for which the penalty of death, reclusion
perpetua, or life imprisonment is imposed, shall be by filing a notice of appeal in accordance
with paragraph (a) of this section.

(d) No notice of appeal is necessary in cases where the death penalty is imposed by the
Regional Trial Court. The same shall be automatically reviewed by the Supreme Court as
provided in section 10 of this Rule.

xxxx

SEC. 10. Transmission of records in case of death penalty. In all cases where the death penalty is
imposed by the trial court, the records shall be forwarded to the Supreme Court for automatic review
and judgment within five (5) days after the fifteenth (15) day following the promulgation of the
judgment or notice of denial of a motion for new trial or reconsideration. The transcript shall also be
forwarded within ten (10) days after the filing thereof by the stenographic reporter.

After the promulgation of Mateo on 7 June 2004, this Court promptly caused the amendment of the
foregoing provisions, but retained the distinction of requiring a notice of appeal for reclusion
perpetua and life imprisonment cases and automatically reviewing death penalty cases. Thus, Rule
122, Sections 3 and 10, as amended by A.M. No. 00-5-03-SC (which took effect on 15 October
2004), now provides:

SEC. 3. How appeal taken.

(a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction, shall be by notice of appeal
filed with the court which rendered the judgment or final order appealed from and by serving
a copy thereof upon the adverse party.

(b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be by petition for review under Rule 42.

(c) The appeal in cases where the penalty imposed by the Regional Trial Court is reclusion
perpetua, or life imprisonment, or where a lesser penalty is imposed but for offenses
committed on the same occasion or which arose out of the same occurrence that gave rise
to the more serious offense for which the penalty of death, reclusion perpetua, or life
imprisonment is imposed, shall be by notice of appeal in accordance with paragraph (a) of
this Rule.
 (d) No notice of appeal is necessary in cases where the Regional Trial Court imposed the
death penalty. The Court of Appeals automatically review the Judgment provided in section
10 of this Rule.

xxxx

SEC. 10. Transmission of records in case of death penalty. In all cases where the death penalty is
imposed by the trial court, the records shall be forwarded to the Court of Appeals for automatic
review and judgment within twenty days but not earlier than fifteen days from the promulgation of the
judgment or notice of denial of a motion for new trial or reconsideration. The transcript shall also be
forwarded within ten (10) days after the filing thereof by the stenographic reporter.

Neither does the Constitution require a mandatory review by this Court of cases where the penalty
imposed is reclusion perpetua or life imprisonment. The constitutional provision quoted in Mateo
merely gives this Court jurisdiction over such cases:

Up until now, the Supreme Court has assumed the direct appellate review over all criminal cases in
which the penalty imposed is death, reclusion perpetua or life imprisonment (or lower but involving
offenses committed on the same occasion or arising out of the same occurrence that gave rise to the
more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is
imposed). The practice finds justification in the 1987 Constitution

Article VIII, Section 5. The Supreme Court shall have the following powers:

"(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in:

"x x x xxx xxx

"(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher." 19

For a clear understanding of this provision, the full text thereof provides:

Section 5. The Supreme Court shall have the following powers:

1. Exercise original jurisdiction over cases affecting ambassadors, other public ministers and
consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus.

2. Review, revise, reverse, modify, or affirm on appeal or certiorari as the law or the Rules of
Court may provide, final judgments and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or

executive agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question.

b. All cases involving the legality of any tax, impost, assessment, or toll, or any
penalty imposed in relation thereto.
 c. All cases in which the jurisdiction of any lower court is in issue.

d. All criminal cases in which the penalty imposed is reclusion perpetua or higher.

e. All cases in which only an error or question of law is involved.

3. Assign temporarily judges of lower courts to other stations as public interest may require.
Such temporary assignment shall not exceed six months without the consent of the judge
concerned.

4. Order a change of venue or place of trial to avoid a miscarriage of justice.

5. Promulgate rules concerning the protection and enforcement of constitutional rights,

pleading, practice, and procedure in all courts, the admission to the practice of law, the
Integrated Bar, and legal assistance to the underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform
for all courts of the same grade, and shall not diminish, increase, modify substantive rights.
Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court.

6. Appoint all officials and employees of the Judiciary in accordance with the Civil Service
Law.

In this provision, only paragraphs (1) and (2) speak of jurisdiction over cases. However, this
Constitutional provision does not enumerate cases involving mandatory review. Indeed, it would
almost be silly to claim that this Court is mandatorily required to review all cases in which the
jurisdiction of any lower court is in issue. Instead, the significance of the enumeration of this Courts
jurisdiction in paragraphs (1) and (2) is that while Section 2 of the same Article VIII of the
Constitution gives to Congress the power to define, prescribe and apportion the jurisdiction of
various courts, it denies to Congress the power to deprive this Court of jurisdiction over cases
enumerated in Section 5.20

Since the case of accused-appellants is not subject to the mandatory review of this Court, the rule
that neither the accused nor the courts can waive a mandatory review is not applicable.
Consequently, accused-appellants separate motions to withdraw appeal may be validly granted.

The granting of a Motion to Withdraw Appeal, however, is addressed to the sound discretion of the
Court. After a case has been submitted to the court for decision, the appellant cannot, at his election,
withdraw the appeal.21 In People v. Casido,22 we denied the accused-appelants Urgent Motion to
Withdraw Appeal therein:

It is then clear that the conditional pardons separately extended to the accused-appellants were
issued during the pendency of their instant appeal.

In the resolution of 31 January 1995 in People vs. Hinlo, this Court categorically declared the
"practice of processing applications for pardon or parole despite pending appeals" to be "in clear
violation of law."
Earlier, in our resolution of 21 March 1991 in People vs. Sepada, this Court signified in no uncertain
terms the necessity of a final judgment before parole or pardon could be extended.

Having observed that the pronouncements in the aforementioned cases remained unheeded, either
through deliberate disregard or erroneous applications of the obiter dictum in Monsanto vs. Factoran
or the ruling in People vs. Crisola, this Court, in its resolution of 4 December 1995 in People vs.
Salle, explicitly declared:

We now declare that the "conviction by final judgment" limitation under Section 19, Article VII of the
present Constitution prohibits the grant of pardon, whether full or conditional, to an accused during
the pendency of his appeal from his conviction by the trial court. Any application therefor, if one is
made, should not be acted upon or the process toward its grant should not be begun unless the
appeal is withdrawn. Accordingly, the agencies or instrumentalities of the Government concerned
must require proof from the accused that he has not appealed from his conviction or that he has
withdrawn his appeal. Such proof may be in the form of a certification issued by the trial court or the
appellate court, as the case may be. The acceptance of the pardon shall not operate as an
abandonment or waiver of the appeal, and the release of an accused by virtue of a pardon,
commutation of sentence, or parole before the withdrawal of an appeal shall render those
responsible therefor administratively liable. Accordingly, those in custody of the accused must not
solely rely on the pardon as a basis for the release of the accused from confinement.

xxxx

This rule shall fully bind pardons extended after 31 January 1995 during the pendency of the
grantees appeal. (Italics supplied)

It follows then that the conditional pardons granted in this case to accused-appellants William Casido
and Franklin Alcorin are void for having been extended on 19 January 1996 during the pendency of
their instant appeal.

In the case at bar, however, we see no reason to deny accused-appellants Motions to Withdraw
Appeal. There is no showing that accused-appellants had already applied for parole at the time of
the filing of their Motions to Withdraw Appeal. On the contrary, they stated in their motions that they
merely intend to apply for the same.

Plaintiff-appellee claims that the present Motion to Withdraw Appeal is actually a scheme to evade
the penalty of reclusion perpetua and is meant to trifle with our judicial system. Plaintiff-appellee,
however, does not explain how the withdrawal of appeal can be used by accused-appellants for
these purposes. It seems that plaintiff-appellee is expecting that the granting of the Motions to
Withdraw Appeal would nullify the Court of Appeals Decision, on the understanding that the Court of
Appeals cannot enter judgments on cases remanded to them pursuant to Mateo. Such conclusion,
however, is applicable only where the death penalty is imposed. Rule 124, Section 13 of the Rules of
Court, which was likewise amended in A.M. No. 00-5-03-SC pursuant to Mateo, provides:

Section 13. Certification or appeal of case to the Supreme Court. (a) Whenever the Court of
Appeals finds that the penalty of death should be imposed, the court shall render judgment but
refrain from making an entry of judgment and forthwith certify the case and elevate its entire record
to the Supreme Court for review.
 (b) Where the judgment also imposes a lesser penalty for offenses committed on the same
occasion or which arose out of the same occurrence that gave rise to the more severe
offense for which the penalty of death is imposed, and the accused appeals, the appeal
should be included in the case certified for review to the Supreme Court.

(c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a
lesser penalty, it shall render and enter judgment imposing such penalty. The judgment may
be appealed to the Supreme Court by notice of appeal filed with the Court of Appeals.

Plaintiff-appellee must have likewise observed that accused-appellants intend to apply not only for
parole, but also for executive clemency. This is shown by the Manifestation and Motion to Withdraw
Appeal of accused-appellant Ramos, where he affirmed that he intends to follow his co-accused who
had already "applied for executive clemency to avail of parole."

It should be kept in mind that accused-appellants could not avail themselves of parole if their appeal
is dismissed, unless they also apply for executive clemency and ask for the commutation of their
reclusion perpetua sentences. Republic Act No. 4108, as amended, otherwise known as the
Indeterminate Sentence Law, does not apply to persons convicted of offenses punishable with death
penalty or life imprisonment. In several cases,23 we have considered the penalty of reclusion
perpetua as synonymous to life imprisonment for purposes of the Indeterminate Sentence Law, and
ruled that said law does not apply to persons convicted of offenses punishable with the said penalty.
As further discussed by Associate Justice Dante Tinga in his Concurring Opinion in People v.
Tubongbanua24:

Parole is extended only to those convicted of divisible penalties. Reclusion perpetua is an indivisible
penalty, with no minimum or maximum period. Under section 5 of the Indeterminate Sentence Law, it
is after "any prisoner shall have served the minimum penalty imposed on him," that the Board of
Indeterminate Sentence may consider whether such prisoner may be granted parole. There being no
"minimum penalty" imposable on those convicted to reclusion perpetua, it follows that even prior to
the enactment of Rep. Act No. 9346, persons sentenced by final judgment to reclusion perpetua
could not have availed of parole under the Indeterminate Sentence Law.

This Court cannot review, much less preempt, the exercise of executive clemency under the pretext
of preventing the accused from evading the penalty of reclusion perpetua or from trifling with our
judicial system. Clemency is not a function of the judiciary; it is an executive function. 25 Thus, it is the
President, not the judiciary, who should exercise caution and utmost circumspection in the exercise
of executive clemency in order to prevent a derision of the criminal justice system. We cannot and
shall not deny accused-appellants Motions to Withdraw Appeal just because of their intention of
applying for executive clemency. With the Constitution bestowing upon the Executive the power to
grant clemency,26 it behooves the Court to pass the ball to the President and let her determine the
fate of accused-appellants.

In sum, the mandatory review by this Court is only required for cases where the penalty imposed is
death. Where the penalty imposed is reclusion perpetua or life imprisonment, a review of the trial
court decision is conducted only when the accused files a notice of appeal. Neither the Decision of
this Court in Mateo nor the abolition of the death penalty has changed this. As the penalty imposed
by the trial court and the Court of Appeals in the case at bar is reclusion perpetua, the review by this
Court is not mandatory and, therefore, the accused-appellants can validly withdraw their appeal.
The granting of a Motion to Withdraw Appeal is addressed to the sound discretion of the Court. In
1avvphi1

the case at bar, we see no reason to deny accused-appellants Motion to Withdraw Appeal. Plaintiff-
appellees allegation that the Motion was for the purpose of evading the penalty of reclusion
perpetua and trifling with our judicial system is unsubstantiated, as the Court of Appeals imposition
of reclusion perpetua, unlike an imposition of the death penalty, may be entered by said appellate
court even without another review by this Court. Neither should we deny the Motions just because of
accused-appellants intention to apply for executive clemency, since the granting of such executive
clemency is within the prerogative of the Executive Department, and not of this Court.

IN VIEW OF THE FOREGOING, the respective Motions to Withdraw Appeal of accused-appellants

Emmanuel Rocha and Ruel Ramos are GRANTED, and the Court of Appeals Decision dated 31
March 2006 in CA-G.R. CR-H.C. No. 01765 is hereby deemed FINAL AND EXECUTORY.

SO ORDERED.

G.R. No. L-49320 June 29, 1984

FJR GARMENTS INDUSTRIES, petitioner,

vs.
COURT OF APPEALS and KAPISANANG MAGKAKAPIT-BAHAY DAMAYAN AT ABULUYAN,
INC., respondent.

Braulio R. G. Tansinsin for petitioner.

Dolorsindo L. Paner for private respondent.

AQUINO, J.:

The issue in this case is whether the lessee should be allowed to pay the docket fee and file an
appeal bond after the 15-day period.

The city court of Pasay City on March 11, 1978 rendered a decision ordering Kapisanang
Magkakapitbahay Damayan at Abuluyan, Inc. to vacate the lots located at the corner of Leveriza
Street and Buendia Avenue, Pasay City, to restore the owner, FJR Garments Industries, to the
possession thereof and to pay the accumulated back rentals as of November, 1977 in the sum of
P87,110.55 and the monthly rental of P2,250 from December, 1977 until the lots are vacated and
P5,000 as attorney's fees (p. 29, CA Rollo).

That decision was served on Kapisanan on July 6, 1978. Nine days thereafter, or on July 15, 1978,
Kapisanan filed a notice of a appeal but it did not pay the docket fee of P20 and the appeal bond of
P50 and post the supersedeas bond of P107,860, as required by sections 2 and 3, Rule 40 in
relation to section 8, Rule 70 and section 5 (12), Rule 141, Rules of Court.

On August 3, 1978, or 28 days after service of the decision, the city court "disapproved" Kapisanan's
appeal. Without filing any motion for reconsideration, Kapisanan filed the next day in the Court of
First Instance of Pasay City a petition for relief from judgment on the ground of mistake and
excusable negligence consisting of the alleged misinterpretation made by a member of Kapisanan in
paying only the postage stamps for the notice mailed to adverse counsel instead of the docket fee
and appeal bond.

The lower court in its order of August 25, 1978 dismissed the petition for relief because of its finding
that Kapisanan's failure to appeal was due to its inexcusable neglect (p. 50, CA Rollo).

Kapisanan filed on August 28, 1978 a petition for certiorari in the Court of Appeals to annul the lower
court's order of August 25 (p. 8, CA Rollo). It may be argued that, as only a legal issue is involved, it
should have appealed to this Court under Republic Act No. 5440 which superseded Rule 42 of the
Rules of Court. The Appellate Court reversed the lower court's decision and directed the city court to
allow Kapisanan to perfect its appeal within ten days from the finality of its judgment.

We hold that the failure of Kapisanan to perfect its appeal was not a pardonable oversight. It is not
entitled to relief from judgment because there was no fraud or excusable neglect which prevented it
from seasonably appealing to the Court of First Instance. Moreover, its petition had no affidavit of
merits.

Furthermore, its failure to file a supersedeas bond rendered the city court's judgment immediately
executory.

The fact that even before the expiration of the 15-day period the city court declared Kapisanan's
appeal "moot and academic" is of no moment since the fact is that during that period the lessee did
not attempt to pay the docket fee and appeal bond.

The Appellate Court's reference to liberality in the interpretation of the Rules of Court in the matter of
appeals refers to the material data rule found in section 6 of Rule 41. This case does not involve the
material data rule.

Rules of court prescribing the time within which certain acts must be done, or certain proceedings
taken, are absolutely indispensable to the prevention of needless delays and the orderly and speedy
discharge of judicial business. Strict compliance with such rules is mandatory and imperative. (Shioji
vs. Harvey, 43 Phil. 333, 341; Alvero vs. De la Rosa, 76 Phil. 428). lwphl@it

WHEREFORE, the decision of the Court of Appeals is reversed and set aside with costs against
respondent Kapisanan.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 86738 November 13, 1991

NESTLE PHILIPPINES, INC., petitioner,
vs.
COURT OF APPEALS and SECURITIES AND EXCHANGE COMMISSION, respondents.

Nepomuceno, Hofilena & Guingona for petitioner.

FELICIANO, J.:p

Sometime in February 1983, the authorized capital stock of petitioner Nestle Philippines Inc.
("Nestle") was increased from P300 million divided into 3 million shares with a par value of P100.00
per share, to P600 million divided into 6 million shares with a par value of P100.00 per share. Nestle
underwent the necessary procedures involving Board and stockholders approvals and effected the
necessary filings to secure the approval of the increase of authorized capital stock by respondent
Securities and Exchange Commission ("SEC"), which approval was in fact granted. Nestle also paid
to the SEC the amount of P50,000.00 as filing fee in accordance with the Schedule of Fees and
Charges being implemented by the SEC under the Corporation Code. 1

Nestle has only two (2) principal stockholders: San Miguel Corporation and Nestle S.A. The other
stockholders, who are individual natural persons, own only one (1) share each, for qualifying
purposes, i.e., to qualify them as members of the Board of Directors being elected thereto on the
strength of the votes of one or the other principal shareholder.

On 16 December 1983, the Board of Directors and stockholders of Nestle approved resolutions
authorizing the issuance of 344,500 shares out of the previously authorized but unissued capital
stock of Nestle, exclusively to San Miguel Corporation and to Nestle S.A. San Miguel Corporation
subscribed to and completely paid up 168,800 shares, while Nestle S.A. subscribed to and paid up
the balance of 175,700 shares of stock.

On 28 March 1985, petitioner Nestle filed a letter signed by its Corporate Secretary, M.L. Antonio,
with the SEC seeking exemption of its proposed issuance of additional shares to its existing principal
shareholders, from the registration requirement of Section 4 of the Revised Securities Act and from
payment of the fee referred to in Section 6(c) of the same Act. In that letter, Nestle requested
confirmation of the correctness of two (2) propositions submitted by it:

1. That there is no need to file a petition for exemption under Section 6(b) of the
Revised Securities Act with respect to the issuance of the said 344,600 additional
shares to our existing stockholders out of our unissued capital stock; and

2. That the fee provided in Section 6(c) of [the Revised Securities] Act is not
applicable to the said issuance of additional shares. 2

The principal, indeed the only, argument presented by Nestlewas that Section 6(a) (4) of the Revised
Securities Act which provides as follows:

Sec. 6. Exempt transactions. a) The requirement of registration under subsection

(a) of Section four of this Act shall not apply to the sale of any security in any of the
following transactions:
 xxx xxx xxx

(4) The distribution by a corporation, actively engaged in the business authorized by

its articles of incorporation, of securities to its stockholders or other security holders
as a stock dividend or other distribution out of surplus; or the issuance of securities to
the security holder or other creditors of a corporation in the process of a bona fide
reorganization of such corporation made in good faith and not for the purpose of
avoiding the provisions of this Act, either in exchange for the securities of such
security holders or claims of such creditors or partly for cash and partly in exchange
for the securities or claims of such security holders or creditors; or the issuance of
additional capital stock of a corporation sold or distributed by it among its own
stockholders exclusively, where no commission or other remuneration is paid or
given directly or indirectly in connection with the sale or distribution of such
increased capital stock. (Emphasis supplied)

embraces "not only an increase in the authorized capital stock but also the issuance of additional
shares to existing stockholders of the unissued portion of the unissued capital stock". 3 Nestle urged that
interpretation upon the following argument.

The use of the term "increased capital stock" should be interpreted to

refer to additional capital stockor equity participation of the existing stockholders as a
consequence of either an increase of the authorized capital stock or the issuance of
unissued capital stock. If the intention of the pertinent legal provision [were] to limit
the exemption to subscription to proposed increases in the authorized capital stock of
a corporation, we see no reason why the law should not have been more specific or
accurate about it. It certainly should have mentioned "increase in the authorized
capital stock of the corporation" rather than merely the expression "the issuance of
additional capital stock 4 (Emphasis supplied)

Nestle expressly represented in the same letter that all the additional shares proposed to be issued
would be issued only to San Miguel Corporation and Nestle S.A. and that no commission or other
form of remuneration had been given, directly or indirectly, in connection with the issuance or
distribution of such additional shares of stock.

In respect of its claimed exemption from the fee provided for in Section 6(c) of the Revised
Securities Act, Nestle contended that since Section 6 (a) (4) of the statute declares (in Nestle's view)
the proposed issuance of 344,500 previously authorized but unissued shares of Nestle's capital
stock to its existing shareholders as an exempt transaction, the SEC could not collect fees for "the
same transaction" twice. Nestle adverted to its payment back in 21 February 1983 of the amount of
P50,000.00 as filing fees to the SEC when it applied for and eventually received approval of the
increase of its authorized capital stock effected by Board and shareholder action last 16 December
1983.

In a letter dated 26 June 1986, the SEC through its then Chairman Julio A. Sulit, Jr. responded
adversely to petitioner's requests and ruled that the proposed issuance of shares did not fall under
Section 6 (a) (4) of the Revised Securities Act, since Section 6 (a) (4) is applicable only where there
is an increase in the authorized capital stock of a corporation. Chairman Sulit held, however, that the
proposed transaction could be considered by the Commission under the provisions of Section 6 (b)
of the Revised Securities Act which reads as follows:
 (b) The Commission may, from time to time and subject to such terms and conditions
as it may prescribe, exempt transactions other than those provided in the preceding
paragraph, if it finds that the enforcement of the requirements of registration under
this Act with respect to such transactions is not necessary in the public interest and
for the protection of the investors by reason of the small amount involved or the
limited character of the public offering.

The Commission then advised petitioner to file the appropriate request for exemption and to pay the
fee required under Section 6 (c) of the statute, which provides:

(c) A fee equivalent to one-tenth of one per centum of the maximum aggregate price
or issued value of the securities shall be collected by the Commission for granting a
general or particular exemption from the registration requirements of this Act.

Petitioner moved for reconsideration of the SEC ruling, without success.

On 3 July 1987, petitioner sought review of the SEC ruling before this Court which, however, referred
the petition to the Court of Appeals.

In a decision dated 13 January 1989, the Court of Appeals sustained the ruling of the SEC.

Dissatisfied with the Decision of the Court of Appeals, Nestle is now before this Court on a Petition
for Review, raising the very same issues that it had raised before the SEC and the Court of Appeals.

Examining the words actually used in Section 6 (a) (4) of the Revised Securities Act, and bearing in
mind common corporate usage in this jurisdiction, it will be seen that the statutory phrase "issuance
of additional capital stock" is indeed infected with a certain degree of ambiguity. This phrase may
refer either to: a) the issuance of capital stock as part of and in the course of increasing the
authorized capital stock of a corporation; or (b) issuance of already authorized but still unissued
capital stock. By the same token, the phrase "increased capital stock" found at the end of Section 6
(a) (4), may refer either: 1) to newly or contemporaneously authorized capital stock issued in the
course of increasing the authorized capital stock of a corporation; or 2) to previously authorized but
unissued capital stock.

Under Section 38 of the Corporation Code, a corporation engaged in increasing its authorized capital
stock, with the required vote of its Board of Directors and of its stockholders, must file a sworn
statement of the treasurer of the corporation showing that at least twenty-five percent (25%) of "such
increased capital stock" has been subscribed and that at least twenty-five percent (25%) of the
amount subscribed has been paid either in actual cash or in property transferred to the corporation.
In other words, the corporation must issue at least twenty-five percent (25%) of the newly or
contemporaneously authorized capital stock in the course of complying with the requirements of the
Corporation Code for increasing its authorized capital stock.

In contrast, after approval by the SEC of the increase of its authorized capital stock, and from time to
time thereafter, the corporation, by a vote of its Board of Directors, and without need of either
stockholder or SEC approval, may issue and sell shares of its already authorized but still unissued
capital stock to existing shareholders or to members of the general public. 5
Both the SEC and the Court of Appeals resolved the ambiguity by construing Section 6 (a) (4) as
referring only to the issuance of shares of stock as part of and in the course of increasing the
authorized capital stock of Nestle. In the case at bar, since the 344,500 shares of Nestle capital
stock are proposed to be issued from already authorized but still unissued capital stock and since
the present authorized capital stock of 6,000,000 shares with a par value of P100.00 per share
is not proposed to be further increased, the SEC and the Court of Appeals rejected Nestle's petition.

We believe and so hold that the construction thus given by the SEC and the Court of Appeals to
Section 6 (a) (4) of the Revised Securities Act must be upheld.

In the first place, it is a principle too well established to require extensive documentation that the
construction given to a statute by an administrative agency charged with the interpretation and
application of that statute is entitled to great respect and should be accorded great weight by the
courts, unless such construction is clearly shown to be in sharp conflict with the governing statute or
the Constitution and other laws. As long ago as 1903, this Court said in In re Allen 6 that

[t]he principle that the contemporaneous construction of a statute by the executive

officers of the government, whose duty is to execute it, is entitled to great respect,
and should ordinarily control the construction of the statute by the courts, is so firmly
embedded in our jurisdiction that no authorities need be cited to support it. 7

The rationale for this rule relates not only to the emergence of the multifarious needs of a modern or
modernizing society and the establishment of diverse administrative agencies for addressing and
satisfying those needs; it also relates to accumulation of experience and growth of specialized
capabilities by the administrative agency charged with implementing a particular statute. 8 In Asturias
Sugar Central, Inc. v. Commissioner of Customs 9 the Court stressed that executive officials are presumed to have familiarized themselves
with all the considerations pertinent to the meaning and purpose of the law, and to have formed an independent, conscientious and
competent expert opinion thereon. The courts give much weight to contemporaneous construction because of the respect due the
government agency or officials charged with the implementation of the law, their competence, expertness, experience and informed
judgment, and the fact that they frequently are the drafters of the law they interpret. 10

In the second place, and more importantly, consideration of the underlying statutory purpose of
Section 6(a) (4) compels us to sustain the view taken by the SEC and the Court of Appeals. The
reading by the SEC of the scope of application of Section 6(a) (4) permits greater opportunity for the
SEC to implement the statutory objective of protecting the investing public by requiring proposed
issuers of capital stock to inform such public of the true financial conditions and prospects of the
corporation. By limiting the class of exempt transactions contemplated by the last clause of Section
6(a) (4) to issuances of stock done in the course of and as part of the process of increasing the
authorized capital stock of a corporation, the SEC is enabled to examine issuances by a corporation
of previously authorized but theretofore unissued capital stock, on a case-to-case basis, under
Section 6(b); and thereunder, to grant or withhold exemption from the normal registration
requirements depending upon the perceived level of need for protection by the investing public in
particular cases.

When capital stock is issued in the course of and in compliance with the requirements of increasing
its authorized capital stock under Section 38 of the Corporation Code, the SEC as a matter of course
examines the financial condition of the corporation, and hence there is no real need for exercise of
SEC authority under the Revised Securities Act. Thus, one of the multiple documentation
requirements under the current regulations of the SEC in respect of filing a certificate of increase of
authorized capital stock, is submission of "a financial statement duly certified by an independent
Certified Public Accountant (CPA) as of the latest date possible or as of the date of the meeting
when stockholders approved the increase/decrease in capital stock or thereabouts. 11 When all or part of
the newly authorized capital stock is proposed to be issued as stock dividends, the SEC requirements are even more exacting; they require,
in addition to the regular audited financial statements, the submission by the corporation of a "detailed or Long Form Report of the certifying
Auditor." Moreover, since approval of an increase in authorized capital stock by the stockholders holding two-thirds (2/3) of the outstanding
capital stock is required by Section 38 of the Corporation Code, at a stockholders meeting held for that purpose, the directors and officers of
the corporation may be expected to take pains to inform the shareholders of the financial condition and prospects of the corporation and of
the proposed utilization of the fresh capital sought to be raised.

Upon the other hand, as already noted, issuance of previously authorized but theretofore unissued
capital stock by the corporation requires only Board of Directors approval. Neither notice to nor
approval by the shareholders or the SEC is required for such issuance. There would, accordingly,
under the view taken by petitioner Nestle, no opportunity for the SEC to see to it that shareholders
(especially the small stockholders) have a reasonable opportunity to inform themselves about the
very fact of such issuance and about the condition of the corporation and the potential value of the
shares of stock being offered.

Under the reading urged by petitioner Nestle of the reach and scope of the third clause of Section
6(a) (4), the issuance of previously authorized but unissued capital stock
would automatically constitute an exempt transaction,without regard to the length of time which may
have intervened between the last increase in authorized capital stock and the proposed issuance
during which time the condition of the corporation may have substantially changed, and without
regard to whether the existing stockholders to whom the shares are proposed to be issued are only
two giant corporations as in the instant case, or are individuals numbering in the hundreds or
thousands.

In contrast, under the ruling issued by the SEC, an issuance of previously authorized but still
unissued capital stock may, in a particular instance, be held to be an exempt transaction by the SEC
under Section 6(b) so long as the SEC finds that the requirements of registration under the Revised
Securities Act are "not necessary in the public interest and for the protection of the investors" by
reason, inter alia, of the small amount of stock that is proposed to be issued or because the potential
buyers are very limited in number and are in a position to protect themselves. In fine, petitioner
Nestle's proposed construction of Section 6(a) (4) would establish an inflexible rule of automatic
exemption of issuances of additional, previously authorized but unissued, capital stock. We must
reject an interpretation which may disable the SEC from rendering protection to investors, in the
public interest, precisely when such protection may be most needed.

Petitioner Nestle's second claim for exemption is from payment of the fee provided for in Section 6
(c) of the Revised Securities Act, a claim based upon petitioner's contention that Section 6 (a) (4)
covers both issuance of stock in the course of complying with the statutory requirements of increase
of authorized capital stock and issuance of previously authorized and unissued capital stock.
Petitioner claims that to require it now to pay one-tenth of one percent (1%) of the issued value of
the 344,500 shares of stock proposed to be issued, is to require it to pay a second time for the same
service on the part of the SEC. Since we have above rejected petitioner's reading of Section 6 (a)
(4), last clause, petitioner's claim about the additional fee of one-tenth of one percent (1%) of the
issue value of the proposed issuance of stock (amounting to P34,450 plus P344.50 for other fees or
a total of P37,794.50) need not detain us for long. We think it clear that the fee collected in 21
February 1983 by the SEC was assessed in connection with the examination and approval of the
certificate of increase of authorized capital stock then submitted by petitioner. The fee, upon the
other hand, provided for in Section 6 (c) which petitioner will be required to pay if it does file an
application for exemption under Section 6 (b), is quite different; this is a fee specifically authorized by
the Revised Securities Act, (not the Corporation Code) in connection with the grant of an exemption
from normal registration requirements imposed by that Act. We do not find such fee either
unreasonable or exorbitant.

WHEREFORE, for all the foregoing, the Petition for Review on Certiorari is hereby DENIED for lack
of merit and the Decision of the Court of Appeals dated 13 January 1989 in C.A.-G.R. No. SP-13522,
is hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

Nestle Philippines Inc. vs. Court of Appeals

1991FACTS:San Miguel Corporation and Nestle S.A. are the two major stockholders of
Neslte.Nestle increased its authorized capital stock and was approved by SEC.
Thereafter,some unissued stocks were sold to San Miguel and Nestle. Nestle filed a
complaintwith the SEC, seeking to exempt the firm from the registration requirement
of Section4 of the Revised Securities Act and from payment of the fee referred to in
Section
6(c). The provision states that a corporation may be exempted from the requ
irement of registration if its issues additional capital stock among its own
stockholdersexclusively. Nestle argued that issuance of additional capital stock means
issuance of increased authorized capital stock. SEC held that for purposes of granting a
general orparticular exemption from the registration requirements, a request for
exemption anda fee equivalent to 0.1% of issued value or securities or stocks are
required.

ISSUE:Whether or not Nestle is entitled to exemption.

RULING:Nestle is not exempted from the fee provided for in Section 6 (c) of the
RevisedSecurities Act.Section 6(a) (4) permits greater opportunity for the SEC to
implement the statutory objective of protecting the investing public by requiring
proposed issuers of capitalstock to inform such public of the true financial conditions
and prospects of thecorporation. When capital stock is issued in the course of and in
compliance with therequirements of increasing its authorized capital stock under
Section 38 of theCorporation Code, the SEC as a matter of course examines the
financial condition of the corporation. Under the ruling issued by the SEC, an issuance
of previously authorized but still unissued capital stock may, in a particular instance, be
held to bean exempt transaction by the SEC under Section 6(b) so long as the SEC
finds thatthe requirements of registration under the Revised Securities Act are "not
necessary inthe public interest and for the protection of the investors" by reason,
inter alia,of the small amount of stock that is proposed to be issued or because the
potential buyersare very limited in number and are in a position to protect themselves.
Theconstruction of a statute by the executive officers of the government is entitled to
greatrespect and should be accorded great weight by the courts.
 [G.R. No. 144755. June 8, 2005]

SPOUSES ELISEO F. ESTARES and ROSENDA P.

ESTARES, petitioners, vs. COURT OF APPEALS, HON. DAMASO
HERRERA as Presiding Judge of the RTC, Branch 24, Bian,
Laguna PROMINENT LENDING & CREDIT CORPORATION,
PROVINCIAL SHERIFF OF LAGUNA and Sheriff IV ARNEL G.
MAGAT, respondents.

DECISION
AUSTRIA-MARTINEZ, J.:

Before us is a petition for certiorari and prohibition under Rule 65 of the

Rules of Court which assails the Decision and Resolution of the Court of
[1]

Appeals dated April 17, 2000 and July 7, 2000, respectively, in CA-G.R. SP
No. 56123.

The factual background of the case is as follows:

On May 21, 1999, petitioner Spouses Eliseo F. Estares and Rosenda P.

Estares (Estares spouses for brevity) filed a complaint for Damages and
Preliminary Prohibitory Injunction against private respondent Prominent
Lending & Credit Corporation (PLCC) before the Regional Trial Court, Branch
24, Bian, Laguna, docketed as Civil Case No. B-5476. [2]

They alleged that: on January 12, 1998, they obtained a loan from PLCC
for P800,000.00 secured by a real estate mortgage over a 363-square meter
parcel of land with improvements situated in the Municipality of Santa Rosa,
Laguna, covered by Transfer Certificate of Title (TCT) No. 99261; the
promissory note and the real estate mortgage were falsified because they
affixed their signatures on two blank documents; the monthly interest of 3.5%
and 3% penalty on each delayed monthly interest are different from the 18%
interest per annum to which they agreed to; for failure to pay their obligation
despite repeated demands, PLCC filed a petition for extrajudicial foreclosure
with the Office of the Provincial Sheriff of Laguna; and on June 8, 1999, the
Sheriff sent a Notice of Extrajudicial Sale to the Estares spouses.
 Accordingly, the Estares spouses sought to declare as null and void the
promissory note and the real estate mortgage for not reflecting their true
agreement. In the interim, they prayed for a temporary restraining order (TRO)
and/or writ of preliminary injunction to enjoin PLCC from taking possession of
the mortgaged property and proceeding with the extrajudicial sale scheduled
on July 13, 1999 at 10:00 a.m.

On June 30, 1999, the Estares spouses amended their complaint to

include the Register of Deeds of Laguna-Calamba Branch, the Provincial
Sheriff of Laguna and Sheriff IV Arnel G. Magat as party-defendants. [3]

On July 12, 1999, the trial court issued a TRO in favor of the Estares
spouses. The parties subsequently agreed to maintain the status quo until
[4]

August 20, 1999. [5]

On August 6, 1999, PLCC filed its Answer with Counterclaim alleging that
the Estares spouses were duly apprised of the terms and conditions of the
loan, including the rate of interest, penalties and other charges, in accordance
with the Truth in Lending Act or Republic Act No. 3765. It opposed the prayer
for restraining order on the ground that there is no factual and legal basis for
its issuance since the Estares spouses fear of eviction is false.
[6]

At the hearing on the Estares spouses application for a writ of preliminary

injunction, Rosenda P. Estares (Rosenda for brevity) testified that: the loan
proceeds of P637,000.00, received on January 12, 1998, was used in the
improvement and renovation of their boarding house; they did not question
PLCC in writing why they only received P637,000.00; when they received the
Statement of Account, they did not question the figures appearing therein;
when they received PLCCs demand letter, they went to the formers office not
to question the loans terms and conditions but merely to request for extension
of three months to pay their obligation. They adduced in evidence the
promissory note, real estate mortgage, statement of account, petition for
extrajudicial foreclosure and the notice of extrajudicial sale. The Estares
spouses then rested their case.

In opposition to the application for a writ of preliminary injunction, PLCC

presented its manager, Rey Arambulo, who testified that the Estares spouses
were duly apprised of the terms and conditions of the loan, including the rate
of interest, penalties and other charges, in accordance with the Truth in
Lending Act or Republic Act No. 3765. It submitted the same evidence offered
by the Estares spouses, along with the latters credit application, the credit
investigation report, the receipts PLCC issued, and the disclosure statement
on the loan.

On August 18, 1999, the trial court denied the Estares spouses application
for a writ of preliminary injunction, holding that the latter failed to establish the
facts necessary for an injunction to issue. [7]

On August 31, 1999, the Estares spouses filed a motion for

reconsideration. During the hearing on the motion for reconsideration on
[8]

September 17, 1999, Eliseo P. Estares (Eliseo for brevity) moved that he be
allowed to testify on the circumstances of the loan but the trial court denied it.
The trial court deemed it best that he be presented during the trial on the
merits. On October 1, 1999, the trial court denied the motion for
[9]

reconsideration. [10]

On December 7, 1999, the Estares spouses filed a petition

for certiorari and prohibition in the Court of Appeals ascribing grave abuse of
discretion upon the trial court in issuing the Orders dated August 18, 1999 and
October 1, 1999 which denied their prayer for a writ of preliminary injunction
and motion for reconsideration, respectively. [11]

On December 14, 1999, without giving due course to the petition, the
Court of Appeals issued a Resolution requiring the PLCC to file its comment to
the petition. The action on the Estares spouses application for a TRO and writ
of preliminary injunction was deferred and held in abeyance until after receipt
of the comment. [12]

With no restraining order enjoining him, Sheriff Magat conducted an

auction sale on January 5, 2000, with PLCC as highest bidder
for P1,500,000.00. [13]

In its Comment dated January 15, 2000, PLCC claimed that the trial court
did not commit grave abuse of discretion in denying the Estares spouses
application for a writ of preliminary injunction since the latter failed to prove
their right to injunctive relief and the action sought to be enjoined has been
rendered moot by the auction sale conducted on January 5, 2000. [14]
 On April 17, 2000, the Court of Appeals dismissed the petition for lack of
merit, holding that the trial court did not abuse its discretion in denying the
Estares spouses application for a writ of preliminary injunction since the latter
failed to prove the requisites for the issuance thereof.
[15]

The Estares spouses then moved for reconsideration of the April 17, 2000
decision. In addition, they prayed that the auction sale on January 5, 2000, as
well as the minutes of auction sale and certificate of sale, be declared null and
void not only because there was no publication of the notice of auction sale
but the auction sale preempted the Court of Appeals in the disposition of the
case and was conducted in defiance of the Resolution dated December 14,
1999.[16]

On July 7, 2000, the Court of Appeals denied the Estares spouses motion
for reconsideration.[17]

On September 16, 2000, the Estares spouses filed the present petition
for certiorari and prohibition anchored on the following grounds:

THE COURT OF APPEALS ERRED IN NOT GRANTING A WRIT OF

PRELIMINARY INJUNCTION TO PREVENT RESPONDENTS PLCC AND
PROVINCIAL SHERIFF OF LAGUNA/ SHERIFF ARNEL MAGAT FROM
FORECLOSING THE MORTGAGE AND CONDUCTING THE AUCTION SALE
OF PETITIONERS PROPERTY AND/OR IN UPHOLDING THE ORDER DATED
AUGUST 18, 1999 OF JUDGE DAMASO A. HERRERA, RTC-BRANCH 24,
LAGUNA.

II

THE COURT OF APPEALS ERRED IN NOT DECLARING AS NULL AND VOID

AND/OR SETTING ASIDE THE AUCTION SALE OF THE PETITIONERS
HOUSE AND LOT CONDUCTED BY SHERIFF ARNEL MAGAT ON JANUARY
5, 2000 FOR LACK OF RE-PUBLICATION OF NOTICE OF EXTRA-JUDICIAL
SALE, FOR PRE-EMPTING THE COURT OF APPEALS IN DECIDING THE
CASE, AND FOR RENDERING THE PETITION IN CA-G.R. SP NO. 56123
MOOT AND ACADEMIC.

III
THE COURT OF APPEALS ERRED IN NOT DECLARING DENIAL OF DUE
PROCESS TO OVERSEAS CONTRACT WORKER ELISEO ESTARES WHEN
JUDGE DAMASO A. HERRERA REFUSED TO ALLOW HIM TO TESTIFY ON
THE CIRCUMSTANCES OF THEIR LOAN WITH PLCC. [18]

Anent the first ground, the Estares spouses insist that they firmly
established their right to injunctive relief. They claim that the promissory note,
credit application, disbursement voucher, disclosure statement and real estate
mortgage are falsified; the promissory note is not reflective of the true amount
of the loan, as well as the term, interest and charges thereon;
the P126,362.28 represent additional charges, not as part of the loan, that
were not agreed upon prior to or before the consummation of the loan; and
the amount of the loan and rate of interest stated in the falsified promissory
note are fictitious or simulated.

With respect to the second ground, they maintain that the auction sale
conducted on January 5, 2000 should be nullified because it lacked
republication of the notice of auction sale and it was conducted in violation of
the Court of Appeals Resolution dated December 14, 1999 which enjoined the
parties to maintain the status quo pending the filing by the respondents of
their Comment to the petition. They argue that PLCC and Sheriff Magat
preempted the Court of Appeals from resolving their petition by conducting the
auction sale on January 5, 2000.

As to the third ground, they aver that Eliseo was denied due process when
the trial court refused to allow him to testify during the hearing on the motion
for reconsideration. They contend that Eliseo, an overseas contract worker,
purposely took leave from work in the Middle East to testify on the
circumstances of the loan and his testimony was material to clarify the matter
of notarization of the real estate mortgage and show that said document was
falsified.

On October 2, 2000, the Court granted the TRO prayed for in the petition
and required the respondents to comment thereon. [19]

In its Comment dated October 25, 2000, PLCC asserts that the petition
should be dismissed for being deficient on both procedural and substantive
aspects.
 As to the procedural aspect, PLCC posits that the petition is filed beyond
the sixty-day period required by the rules and therefore filed out of time. PLCC
further claims that the verification and certification of non-forum shopping are
both insufficient. The verification speaks of a Pre-Trial Brief while the
certification of non-forum shopping was executed only by Rosenda.

As to the substance of the petition, PLCC argues that the Estares spouses
failed to establish their right to injunctive relief; the validity of the January 5,
2000 auction sale was brought only in the motion for reconsideration which is
improper because it is a factual issue best addressed to the trial court; Sheriff
Magat did not preempt the Court of Appeals in deciding CA-G.R. SP No.
56123 when he conducted the auction sale on January 5, 2000 because the
Resolution dated December 14, 1999 of the said court did not suspend or
restrain the sheriff from conducting the foreclosure sale; Eliseo was not denied
due process because he sought to testify on factual matters in the hearing on
their motion for reconsideration which is improper as factual matters are best
brought and proved during the trial on the merits of the case.

The Court gave due course to the petition and required the parties to
submit their respective memoranda which they complied with.
[20] [21]

Before ruling on the issues raised in the petition, it is necessary to dwell on

the procedural aspects of the case.

From a reading of the grounds on which the instant petition

for certiorari and prohibition are based, it is readily apparent that the Estares
spouses are appealing a decision of the Court of Appeals by resorting to Rule
65, when their remedy should be based on Rule 45 of the Rules of Court. A
petition for review under Rule 45 is not similar to a petition for certiorari under
Rule 65.

Under Rule 45, decisions, final orders or resolutions of the Court of

Appeals in any case, i.e., regardless of the nature of the action or proceedings
involved, may be appealed to us by filing a petition for review on certiorari,
which would be but a continuation of the appellate process over the original
case. In contrast, a special civil action under Rule 65 is an independent
[22]

action based on the specific grounds therein provided and proper only if there
is no appeal or any plain, speedy and adequate remedy in the ordinary course
of law. Thus, certiorari cannot be availed of as a substitute for the lost
[23]

remedy of an ordinary appeal. [24]

By their own account, the Estares spouses received the Order dated July
7, 2000 denying their motion for reconsideration from the Court of Appeals on
July 18, 2000. Instead of filing a petition for review with this Court within 15
days thereof or until August 2, 2000, they filed this special civil action by
registered mail on September 16, 2000 or 60 days from receipt of the Order
dated July 7, 2000. By then, they had already lost the remedy of appeal. By
availing of a wrong remedy, the instant petition should have merited outright
dismissal.

Concerning the verification, we note that Rosenda stated therein that she
caused the preparation of the foregoing Pre-Trial Brief but we consider the
same as a slight error and honest mistake in the preparation of the petition. In
any event, the purpose of requiring a verification is simply to secure an
assurance that the allegations of the petition have been made in good faith; or
are true and correct, not merely speculative. This requirement is simply a
[25]

condition affecting the form of pleadings, and noncompliance therewith does

not necessarily render it fatally defective. Indeed, verification is only a formal,
[26]

not a jurisdictional, requirement. [27]

With regard to the certification of non-forum shopping signed only by

Rosenda, the rule is that the certificate of non-forum shopping must be signed
by all the petitioners or plaintiffs in a case and the signing by only one of them
is insufficient because a lone signatory cannot be presumed to have personal
knowledge of the matters required to be stated in the attestation. [28]

However, the Court has also stressed that the rules on forum shopping,
which were designed to promote and facilitate the orderly administration of
justice, should not be interpreted with such absolute literalness as to subvert
its own ultimate and legitimate objective which is simply to prohibit and
penalize the evils of forumshopping. The fact that the rules on
[29]

forumshopping require strict compliance merely underscores its mandatory

nature that it cannot be dispensed with or its requirements altogether
disregarded, but it does not thereby interdict substantial compliance with its
provisions under justifiable circumstances. [30]
 We find that the execution by Rosenda of the certificate of non-forum
shopping in behalf of her co-petitioner and husband, Eliseo, constitutes
substantial compliance with the Rules. After all they share a common interest
in the property involved since it is conjugal property, and the petition
questioning the propriety of the decision of the Court of Appeals originated
from an action brought by the spouses, and is clearly intended for the benefit
of the conjugal partnership. Considering that the husband was at that time an
overseas contract worker working in Algeria, whereas the petition was
prepared in Sta. Rosa, Laguna, a rigid application of the rules on
forumshopping that would disauthorize the wifes signing the certification in her
behalf and that of her husband is too harsh and clearly uncalled for. [31]

In any event, we find that this petition must still be dismissed as the Court
of Appeals did not commit any grave abuse of discretion amounting to want or
excess of jurisdiction in dismissing the petition.

Generally, injunction is a preservative remedy for the protection of

substantive rights or interests. It is not a cause of action in itself but merely a
provisional remedy, an adjunct to a main suit. The controlling reason for the
existence of the judicial power to issue the writ is that the court may thereby
prevent a threatened or continuous irremediable injury to some of the parties
before their claims can be thoroughly investigated and advisedly adjudicated.
It is to be resorted to only when there is a pressing necessity to avoid injurious
consequences which cannot be remedied under any standard of
compensation. The application of the writ rests upon an alleged existence of
an emergency or of a special reason for such an order before the case can be
regularly heard, and the essential conditions for granting such temporary
injunctive relief are that the complaint alleges facts which appear to be
sufficient to constitute a cause of action for injunction and that on the entire
showing from both sides, it appears, in view of all the circumstances, that the
injunction is reasonably necessary to protect the legal rights of plaintiff
pending the litigation.
[32]

The Estares spouses had the burden in the trial court to establish the
following requirements for them to be entitled to injunctive relief: (a) the
existence of their right to be protected; and (b) that the acts against which the
injunction is to be directed are violative of such right. To be entitled to an
[33]

injunctive writ, the petitioner must show, inter alia, the existence of a clear and
unmistakable right and an urgent and paramount necessity for the writ to
prevent serious damage. Thus, an injunctive remedy may only be resorted to
[34]

when there is a pressing necessity to avoid injurious consequences which

cannot be remedied under any standard compensation. [35]

In the present case, the Estares spouses failed to establish their right to
injunctive relief. They do not deny that they are indebted to PLCC but only
question the amount thereof. Their property is by their own choice
encumbered by a real estate mortgage. Upon the nonpayment of the loan,
which was secured by the mortgage, the mortgaged property is properly
subject to a foreclosure sale.

Rosendas testimony sealed the fate of the necessity of the writ of

preliminary injunction. She admitted that: they did not question PLCC in
writing why they only received P637,000.00; they did not question the figures
appearing in the Statement of Account when they received it; and, when they
received PLCCs demand letter, they went to the formers office not to question
the loans terms and conditions but merely to request for extension of three
months to pay their obligation. She acknowledged that they only raised the
[36]

alleged discrepancy of the amount loaned and the amount received, as well
as the blank documents which they allegedly signed, after PLCC initiated the
foreclosure proceedings. [37]

It must be stressed that the assessment and evaluation of evidence in the

issuance of the writ of preliminary injunction involve findings of facts ordinarily
left to the trial court for its conclusive determination. As such, a trial courts
[38]

decision to grant or to deny injunctive relief will not be set aside on appeal
unless the court abused its discretion. In granting or denying injunctive relief,
a court abuses its discretion when it lacks jurisdiction, fails to consider and
make a record of the factors relevant to its determination, relies on clearly
erroneous factual findings, considers clearly irrelevant or improper factors,
clearly gives too much weight to one factor, relies on erroneous conclusions of
law or equity, or misapplies its factual or legal conclusions. [39]

In the present case, the Estares spouses clearly failed to prove that they
have a right protected and that the acts against which the writ is to be directed
are violative of said right. Hence, the Court of Appeals did not commit a grave
abuse of its discretion amounting to excess or lack of jurisdiction in dismissing
petitioners petition for certiorari.
 There is likewise no merit to the claim that the Court of Appeals gravely
abused its discretion when it denied the prayer to nullify the auction sale held
on January 5, 2000 for lack of republication of the notice of auction sale and
for preempting the Court of Appeals in deciding the case and rendering the
petition in CA-G.R. SP No. 56123 moot and academic.

The absence of republication of the notice of auction sale is a factual

matter which by the weight of judicial precedents cannot be inquired into by
this Court in a petition for certiorari. It is best addressed to the attention of the
trial court and taken up in the trial of the case, necessitating presentation of
evidence by both parties. The propriety of the auction sale is a matter which
the trial court is in the best position to determine. For it is basic
that certiorari under Rule 65 is a remedy narrow in scope and inflexible in
character. It is not a general utility tool in the legal workshop. It offers only a
[40]

limited form of review. Its principal function is to keep an inferior tribunal within
its jurisdiction. It can be invoked only for an error of jurisdiction, that is, one
[41]

where the act complained of was issued by the court, officer or a quasi-judicial
body without or in excess of jurisdiction, or with grave abuse of discretion
which is tantamount to lack or in excess of jurisdiction, not to be used for any
[42]

other purpose, such as to cure errors in proceedings or to correct erroneous

[43]

conclusions of law or fact. Again suffice it to say that the only issue settled
[44]

here is the propriety of the non-issuance of a writ of preliminary injunction

pending the final outcome of the case.

As to petitioners assertion that the Court of Appeals in its Resolution dated

December 14, 1999 impliedly directed the parties to maintain the status quo,
we deemed it worthy to quote in full the said Resolution, thus:

Without necessarily giving due course to the petition, the Court requires the
respondents to file their comment (not motion to dismiss) within ten (10) days from
notice, which may be treated as their Answer should the petition be given due course.

Respondents are likewise ordered to show cause in the same Comment why a
temporary restraining order and writ of preliminary injunction should not be issued.

The action of the petitioners application for a temporary restraining order and writ of
preliminary injunction is deferred and held in abeyance until after receipt of
respondents Comment. [45]
Clearly, the Court of Appeals did not give due course to the petition but merely
required PLCC to comment thereon. The Court of Appeals did not enjoin the
conduct of the auction sale. In any case, the necessity for the issuance of the
writ of injunction has been found wanting.

Lastly, the Estares spouses claim that Eliseo was denied due process
when the trial court refused to allow him to testify during hearing on the motion
for reconsideration deserves scant consideration.

It must be remembered that a writ of preliminary injunction is generally

based solely on initial and incomplete evidence. The evidence submitted
during the hearing on an application for a writ of preliminary injunction is not
conclusive or complete for only a sampling is needed to give the trial court an
idea of the justification for the preliminary injunction pending the decision of
the case on the merits. [46]

We note that it was the Estares spouses choice to present only Rosenda
to testify on the circumstances of the loan at the hearing on their application
for a writ of preliminary injunction and they cannot assert that Eliseo should
have been accorded that opportunity during the hearing on the motion for
reconsideration. The essence of due process is found in the
reasonable opportunity to be heard and submit any evidence one may have in
support of one's defense. What the law proscribes is the lack
of opportunity to be heard. As long as a party is given the opportunity to
[47]

defend his interests in due course, he would have no reason to complain, for it
is this opportunity to be heard that makes up the essence of due process.
Eliseo cannot complain that he was deprived of due process since he is
[48]

given the full opportunity to testify on the circumstances of the loan during the
trial of the main case.[49]

All told, no grave abuse of discretion could therefore be imputed to the

Court of Appeals in dismissing petitioners petition for certiorari with prohibition,
for lack of merit.

WHEREFORE, the instant petition for certiorari and prohibition is

DISMISSED. The assailed Decision and Resolution of the Court of Appeals
dated April 17, 2000 and July 7, 2000, respectively, in CA-G.R. SP No. 56123
are AFFIRMED in all respects. The temporary restraining order issued by this
Court is lifted. Costs against petitioners.
 SO ORDERED.

CEZAR vs. RICAFORT-BAUTISTA G.R. No. 136415 October 31, 2006

FACTS:

On November 11, 1996, private respondent Specified Materials

Corporationfiled a Complaint for collection of sum of money against
petitioner arising from thelatter's failure to pay the construction materials it
purportedly purchased under
ac r e d i t l i n e e x t e n d e d b y p r i v a t e r e s p o n d e n t . A f t e r t h e f i l i n g o f
t h e c o m p l a i n t , summons was issued to petitioner and this was served by
Sheriff Juan C. Marquez.As petitioner failed to file his answer to the
complaint, private respondent movedthat he be declared in default.
Said motion was favorably acted upon by publicrespondent and
private respondent was able to present its evidence. On May
15,1997, private respondent filed a Motion to Admit Amended Complaint. A
copy
of them o t i o n a n d t h e A m e n d e d C o m p l a i n t w e r e p e r s o n a l l y r e c e i
ved by petitioner ase v i d e n c e d b y h i s s i g n a t u r e s t h e r e o n . T
h e A m e n d e d C o m p l a i n t w a s o r d e r e d admitted. On Septembe
r 9 , 1 9 9 7 , p u b l i c r e s p o n d e n t i s s u e d i t s n o w a s s a i l e d decision.
By way of special appearance, on November 3, 1997, petitioner filed
aMotion to Set Aside Decision arguing that the trial court did not acquire
jurisdictiono v e r h i s p e r s o n . T h i s m o t i o n
was denied. Petitioner then filed before the
CA aP e t i t i o n f o r A n n u l m e n t o f J u d g m e n t , P r e l i m i n a r y I n j
u n c t i o n w i t h P r a y e r f o r TRO.
Petition was dismissed. Petitioner filed a motion for reconsideration but thesa
me was denied. According to the CA, under Section 1, Rule 47, the
annulment of a judgment or final order or resolution in civil actions of the
RTC may be availed of only when the ordinary remedies of new trial,
appeal, petition for relief or other appropriate remedies are no longer
available through no fault of the petitioner. Theinstant petition for annulment
was filed before CA on November 24, 1997.
Clearly,p e t i t i o n e r h a d o t h e r r e m e d i e s a v a i l a b l e w h e n h e f i l e d t h
e i n s t a n t p e t i t i o n f o r annulment.

Petitioner then filed before the SC a Petition for Review on

Certiorari of t h e r e s o l u t i o n s o f t h e C A b u t t h e s a m e w a s d e n i e d
f o r f a i l u r e t o c o m p l y w i t h procedural requirements. The resolution
became final and executory on September7, 1998. On November 10,
1998, private respondent filed a Motion for Execution before the trial
court. The records disclose that the November 19, 1998 hearing didn o t
push through and in fact, it was
r e s c h e d u l e d a c o u p l e o f m o r e t i m e s p e r agreement of the parties.
Finally, on December 18, 1998, public respondent grantedprivate
respondent's Motion for Execution. Hence, this petition.

ISSUE:
WON the RTC acquired jurisdiction over the person of the petitioner
byvirtue of substituted service of summons.

RULING:
The Rules of Court requires that, whenever practicable, summons must
beserved by handing a copy thereof to the defendant in person. In case the
defendantr e f u s e s t o r e c e i v e a n d s i g n f o r i t , b y t e n d e r i n g t
h e s u m m o n s t o h i m o r h e r . However, in the event that summons
cannot be served within a reasonable time, the Rules permit that
substituted service may be resorted to. In the case at bar, thesheriff
employed the substituted service of summons. The defect, however, in
them a n n e r
in which he implemented this mode of service of summons is r
e a d i l y apparent on the face of the return. It must be emphasized
that laws providing formodes other than the personal service of
summons must be strictly followed
ino r d e r f o r t h e c o u r t t o a c q u i r e j u r i s d i c t i o n o v e r t h e p e r
s o n o f r e s p o n d e n t o r defendant. Compliance therewith should ap
pear affirmatively on the return. The essence of this requirement was
enunciated in the case of Keister v. Navarro.
The summons must be served to the defendant in person. It is only when
the defendantcannot be served personally within a reasonable time
that a substituted
servicem a y b e m a d e . I m p o s s i b i l i t y o f p r o m p t s e r v i c e s h o u l d b e
s h o w n b y s t a t i n g t h e efforts made to find the defendant personally and
the fact that such efforts
failed. This statement should be made in the proof of service. This is necessa
ry becausesubstituted service is in derogation of the usual method of
service. It has been heldthat this method of service is "in derogation of
the common law; it is a methodextraordinary in character, and
hence may be used only as prescribed and in
thecircumstances authorized by statute." Thus, under the controlling
decisions, thestatutory requirements of substituted service must be
followed strictly, faithfullyand fully, and any substituted service other
than that authorized by the statute isconsidered ineffective.
As the sheriff's return in the present
case does not contain any statementwith regard to the impossibility of
personal service the same is patently defective and so the
presumptiono f r e g u l
arity in the performance of official functions will not lie.
Nevertheless, jurisdiction was validly acquired by the trial court. Altho
ugh thesubstituted service upon him of summons was defective, said
defect wascured by his voluntary appearance. As the records of
this case
disclose,a f t e r p r i v a t e r e s p o n d e n t m o v e d f o r t h e e x e c u t i o
n o f t h e t r i a l c o u r t ' s decision, petitioner filed a motion for a
re-setting of the court's hearingt h e r e o n . I n
Flores v. Zurbito,
appearance in whatever form withoutexpressly objecting to the
jurisdiction of the court over the person, is
as u b m i s s i o n t o t h e j u r i s d i c t i o n o f t h e c o u r t o v e r
t h e p e r s o n o f t h e defendant.