JUDGMENT CASES
a while. (R. App. p. 27)
G.R. No. L-17721 October 16, 1961
GREGORIO APELARIO, doing business under the style "GREGORIO
TRADING," plaintiff-appelleee,
vs.
INES CHAVEZ & COMPANY, LTD., doing business under the style "FIDELITY
MOTOR SUPPLY COMPANY, LTD., and INES CHAVEZ, defendants-appellants.
Egnacio M. Orendain for plaintiff-appellee.
Mariano H. de Joya for defendants-appellants.
REYES, J.B.L., J.:
Appeal from a judgment on the pleadings rendered by the Court of First Instance of
Manila on June 8, 1959 in its Case No. 39822, and certified by the Court of Appeals
to this Court on the ground that only questions of law are involved.
The record shows that on April 8, 1959, plaintiff Gregorio Apelario filed a complaint
against Ines Chavez & Company, Ltd., a limited partnership, and its general partner,
Ines Chavez. It was therein averred, in substance, that on or about October 28, 1958,
the defendant partnership had purchased on credit from plaintiff ten sets of axle
assemblies for the sum of P2,400.00 (par. 3); that on December 6, 1958, defendant
delivered in payment to the plaintiff two postdated cash checks for P1,200.00 each,
drawn against the Philippine Bank of Commerce (par. 4); that when the checks were
presented for payment, they were dishonored for lack of funds, whereupon the
defendant took back the checks and replaced them with two other checks, also
postdated, for the same amount as before (par. 5); that these checks were also
dishonored (par. 6); that the plaintiff, on February 23, 1959, demanded payment in
cash, but defendant refused to pay (par. 7); that because of such malicious and wilfull
refusal, plaintiff had to engage the services of counsel for an agreed fee of P750.00
(par. 8); that defendant was about to remove and dispose of its properties with
intent to defraud the plaintiff, wherefore a writ of attachment became necessary
(par. 9); and prayer was made for judgment in favor of plaintiff and against the
defendant for the sum of P2,400.00, with legal interest from the filing of the
complaint, and for P750.00 attorney's fees, with expenses and costs. Plaintiff also
moved and duly obtained a writ of attachment.
Defendants obtained the lifting of the attachment by filing a counterbond on April
14, 1959; and on May 7, 1959, they filed an answer admitting the allegations of
paragraphs 1 and 6 of the complaint, admitting that plaintiff had demanded payment
of P2,400, but pleaded that —
defendants could not pay the plaintiff, because they have so many accounts
receivable which have not yet been paid to them, of which fact the
defendant was duly informed by the plaintiff and thereby requested to wait
Defendants further averred having no knowledge or information of the allegations
of paragraph 8 of the complaint concerning the attorneys' fees; denied having
performed any act of removal or disposal of its property, branding plaintiff's
allegations in paragraph 9 to be false and malicious; and prayed for dismissal of the
complaint.
Upon motion of the plaintiff, and over the objection of defendants, the trial court
rendered judgment on the pleadings, sentencing defendants to pay P2,400, plus legal
interest from the filing of the complaint; and P500 attorney's fees.
Defendants appealed, and now claim that it was error for the lower court to have
rendered judgment on the pleadings, because the answer raised material issues.
We find no merit in the appeal. As pointed out in the judgment complained of the
defendants-appellants had admitted all the material allegations of the complaint
concerning the existence of the debt and its non-payment. The pleaded excuse, that
they had requested plaintiff to wait because appellants' many accounts receivable
had not yet been collected, is clearly no defense, for a debtor can not delay payment
due just to suit its convenience, and the creditor is not an underwriter of his debtor's
business unless so stipulated.
The denial of the averment concerning the stipulated fees of plaintiff's attorney
tendered no genuine issue, for even without such allegations, it was discretionary in
the court to allow reasonable attorneys' fees by way of damages, if it found just and
equitable to allow their recovery (Civ. Code, Art. 2208). In this case, allowance of
such fees was justified since defendant admitted having issued to the creditor checks
without funds, not once but twice. It is well to note the P750 attorney's fees claimed
by plaintiff were reduced to P500 only.
Nor does the denial of the complaint's averments concerning the fraudulent removal
and disposition of defendant's property constitute a bar to a judgment on the
pleadings, since the defendant neither claimed nor asked for any damages on
account of the issuance and levy of the writ of attachment.
G.R. No. L-28140 March 19, 1970
CAPITOL MOTORS CORPORATIONS, plaintiff-appellee,
vs.
NEMESIO I. YABUT, defendant-appellant.
Jose A. David, Jr. for plaintiff-appellee.
R. Correa for defendant-appellant.
VILLAMOR, J.:
Appeal on a question of law from the judgment of the Court of First Instance of Rizal
in its Civil Case. No. Q-9869.
On March 1, 1966, Capitol Motors Corporations filed a complaint against Nemesio I.
Yabut. It was therein averred that on April 24, 1965, the defendant executed in favor
of the plaintiff a promissory note (copy of which was attached to the complaint) for
the sum of P30,134.25, payable in eighteen (18) equal monthly installments with
interest at 12% per annum, the first installment to become due on June 10, 1965,
that it was stipulated in the promissory note that should the defendant fail to pay
two (2) successive installments, the principal sum remaining unpaid would
immediately become due and demandable and the defendant would, by way of
attorney's fees and costs of collection, be obligated to the plaintiff for an additional
sum equivalent to 25% of the principal and interest due; that as of February 23,
1966, the sum remaining unpaid on the promissory note was P30,754.79, including
accrued interest; that the defendant defaulted in the payment of two (2) successive
installments, and likewise failed to pay the interest due on the promissory note; and
that in spite of demands by the plaintiff, the defendant failed and refused to pay the
said principal sum and interest due. Prayer was made that the defendant be ordered
to pay the plaintiff the sum of P30,754.79, as well as the interest due thereon from
February 23, 1966, and an additional sum equivalent to 25% of the amount due, plus
costs.
On April 27, 1966, and within the reglementary period, the defendant, through his
counsel, filed an answer which reads:
DEFENDANT through counsel alleges:
1. Paragraph 1 of the complaint is admitted.
2. Paragraphs 2, 3, 4, 5, 6 and 7 of the complaint are specifically
denied for lack of knowledge sufficient to form a belief as to the
truth thereof.
WHEREFORE, it is respectfully prayed that the Complaint be
dismissed with costs against the plaintiff.
On June 16, 1966, the plaintiff filed a motion for judgment on the pleadings, on the
ground that the defendant, not having set forth in his answer the substance of the
matters relied upon by him to support his denial, had failed to deny specifically the
material allegations of the complaint, hence, must be deemed to have admitted them.
The defendant did not file an opposition to the motion. On September 13, 1966, after
hearing on the motion, the court issued an order granting the said motion and
considering the case submitted for decision on the basis of the pleadings; and on
January 9, 1967, the court rendered judgment granting in toto the plaintiff's prayer
in its complaint.
In this appeal, defendant-appellant contends that the court a quo erred in
considering him as having failed to deny specifically the material allegations of the
complaint, and, consequently, in deciding the case on the basis of the pleadings.
Citing Moran, Comments on the Rules of Court, Vol. I, 1963 Ed., p. 281, he argues that
since Section 10, Rule 8 of the Revised Rules of Court, recognizes three (3) modes of
specific denial, namely: (1) by specifying each material allegation of fact in the
complaint the truth of which the defendant does not admit, and, whenever
practicable, setting forth the substance of the matters which he will rely upon to
support his denial or (2) by specifying so much of an averment in the complaint as
is true and material and denying only the remainder or (3) by stating that the
defendant is without knowledge or information sufficient to form a belief as to the
truth of a material averment in the complaint, which has the effect of a denial, and
he has adopted the third mode of specific denial, his answer tendered an issue, and,
consequently the court a quo could not render a valid judgment on the pleadings.
This appeal is without merit.
We agree with defendant-appellant that one of the modes of specific denial
contemplated in Section 10, Rule 8, is a denial by stating that the defendant is
without knowledge or information sufficient to form a belief as to the truth of a
material averment in the complaint. The question, however, is whether paragraph 2
of defendant-appellant's answer constitutes a specific denial under the said rule. We
do not think so. In Warner Barnes & Co., Ltd. vs. Reyes, et al., G.R. No. L-9531, May 14,
1958 (103 Phil., 662), this Court said that the rule authorizing an answer to the effect
that the defendant has no knowledge or information sufficient to form a belief as to
the truth of an averment and giving such answer the effect of a denial, does not apply
where the fact as to which want of knowledge is asserted, is so plainly and
necessarily within the defendant's knowledge that his averment of ignorance must
be palpably untrue. In said case the suit was one for foreclosure of mortgage, and a
copy of the deed of mortgage was attached to the complaint; thus, according to this
Court, it would have been easy for the defendants to specifically allege in their
answer whether or not they had executed the alleged mortgage. The same thing can
be said in the present case, where a copy of the promissory note sued upon was
attached to the complaint. The doctrine in Warner Barnes & Co., Ltd. was reiterated
in J. P. Juan & Sons, Inc. vs. Lianga Industries, Inc., G.R. No. L-25137, July 28, 1969 (28
SCRA 807). And in Sy-quia vs. Marsman, G.R. No. L-23426, March 1, 1968 (22 SCRA
927), this Court said:
With regard to the plea of lack of knowledge or information set
up in paragraph 3 of the answer, this Court's decision in Warner
Barnes vs. Reyes, 103 Phil. 662, 665, is authority for the
proposition that this form of denial must be availed of with
sincerity and good faith, not for the purpose of confusing the
other party, nor for purposes of delay. Yet, so lacking in sincerity
and good faith is this part of the answer that defendants-
appellants go to the limit of denying knowledge or information as
to whether they (defendants) were in the premises (Marsman
Bldg.) on January 4, 1961, as averred in paragraph 4 of the
complaint. Yet whether such a fact was or was not true could not
be unknown to these defendants.
In National Marketing Corporation vs. De Castro, 106 Phil. 803 (1959), this Court
held:
Furthermore, in his answer to the appellee's complaint, he
merely alleged that 'he has no knowledge or information
sufficient to form a belief as to the truth of the matters contained
in paragraphs 3, 4, 5 and 6 so much so that he denies specifically
said allegations.' A denial is not specific simply because it is so
qualified. (Sections 6 and 7, Rule 9; El Hogar Filipino vs. Santos
Investments, Inc., 74 Phil. 79; Baetamo vs. Amador, 74 Phil. 735;
Dacanay vs. Lucero, 76 Phil. 139; Lagrimas vs. Lagrimas, 95 Phil.
113). Material averments in a complaint, other than those as to
the amount of damage, are deemed admitted when not
specifically denied. (Section 8, Rule 9,) The court may render
judgment upon the pleadings if material averments in the
complaint are admitted. (Section 10, Rule 35; Baetamo vs.
Amador, supra, Lichauco vs. Guash, 76 Phil. 5; Lati vs. Valmores,
G.R. No. L-6877, 30 March 1954.)
It becomes evident from all the above doctrines that a mere allegation of ignorance
of the facts alleged in the complaint, is insufficient to raise an issue; the defendant
must aver positively or state how it is that he is ignorant of the facts so alleged.
(Francisco, The Revised Rules of Court in the Philippines, Vol. I, p. 417, citing Wood
vs. Staniels, 3 Code Rep. 152 and Vassalt vs. Austin, 32 Cal. 597.)
Thus, in at least two (2) cases where this Court ruled that judgment on the pleadings
was not proper, it will be seen that the reason was that in each case the defendants
did something more than merely alleging lack of knowledge or information
sufficient to form a belief. In Arrojo vs. Caldoza, et al., G.R. No. L-17454, July 31, 1963
(8 SCRA 547), the defendants, in their answer to the complaint for recovery of
possession of a parcel of land, did not merely allege that they had no knowledge or
information sufficient to form a belief as to the truth of the material allegations in
the complaint, but added the following: "The truth of the matter is that the
defendants have not occupied or taken any property belonging to the plaintiff. They
took possession and ownership only of the land belonging to them, which properties
were possessed and owned originally by their predecessors-in-interest, who were
the parents of the defendants ...." In Benavides vs. Alabastro, G.R. No. L-19762,
December 23, 1964 (12 SCRA 553), the defendant's answer did not only deny the
material allegations of the complaints but also set up certain special and affirmative
defenses the nature of which called for presentation of evidence.
There are two other reasons why the present appeal must fail. First. The present
action is founded upon a written instrument attached to the complaint, but
defendant-appellant failed to deny under oath the genuineness and due execution of
the instrument; hence, the same are deemed admitted. (Section 8, Rule 8 of the
Revised Rules of Court; Songo vs. Sellner, 37 Phil. 254; Philippine Commercial &
Industrial Bank vs. ELRO Development Corporation, et al., G.R. No. L-30830, August
22, 1969 [29, SCRA 38]; J. P. Juan & Sons, Inc. vs. Lianga Industries, Inc., supra.)
Second. Defendant-appellant did not oppose the motion for judgment on the
pleadings filed by plaintiff appellee; neither has he filed a motion for reconsideration
of the order of September 13, 1966, which deemed the case submitted for decision
on the pleadings, or of the decision rendered on January 9, 1967. In Santiago vs.
Basilan Lumber Company, G.R. No. L-15532, October 31, 1963 (9 SCRA 349), this
Court said:
It appears that when the plaintiff moved to have the case decided
on the pleadings, the defendant interposed no objection and has
practically assented thereto. The defendant, therefore, is deemed
to have admitted the allegations of the complaint, so that there
was no necessity for the plaintiff to submit evidence of his claim.
PREMISES CONSIDERED, the judgment appealed from is affirmed, with cost against
defendant-appellant.
G.R. No. L-10884 March 31, 1959
PHILIPPINE NATIONAL BANK, plaintiff-appellee,
vs.
PHILIPPINE LEATHER CO. INC., ET AL., defendants-appellants.
Castaño and Ampil for appellants.
Ramon B. de los Reyes for appellee.
PADILLA, J.:
In its complaint filed in the Court of First Instance of Manila, the plaintiff alleges that
on 1 September 1952 the defendant Philippine Leather Co., Inc. applied for a
commercial letter of credit in the sum of $14,814.80, in U.S. currency, under the
terms and conditions set forth in an application filed by the defendants in favor of
the Turner Tanning Machinery Co. of Peabody, Massachusetts, U.S.A. to cover the full
invoice value of certain machineries and their accessories; that on 3 October 1952
the plaintiff approved the application "subject to 30% deposit and the joint and
several signatures of Mr. Isidoro Tinoco and Mrs. Soledad L. Basa" which conditions
were complied with; that on 8 October 1952, the plaintiffs issued Letter of Credit No.
51469 in favor of the Turner Tanning Machinery Company; that on 15 November
1952 the Turner Tanning Machinery Co., drew upon the letter of credit the sum of
$14,549.17, U.S. currency; that upon arrival in the Philippines of the machineries and
their accessories imported by the defendants under a trust receipt, that on 23
January 1953 the plaintiff presented to the defendants for payment the draft drawn
by the Turner Tanning Machinery Co., upon Letter of Credit No. 51469 which was
accepted by them; that after the draft had matured on 23 April 1953 the plaintiff
made numerous demands upon the defendants to pay the amount of the draft and
the charges due thereon but the defendants failed and refused to pay; and that as of
15 October 1953, the outstanding balance of the defendants on the draft is
P22,787.79, Philippine currency, plus interest thereon at the rate of P4.89135 daily
until fully paid. It alleges further that on 30 January 1953 the defendant Philippine
leather Co., Inc., applied for a commercial letter of credit in the sum of $2,587.50, U.S.
currency, under the terms and conditions set forth in an application filed by the
defendants in favor of Bay State Chemical Co., of Boston, Massachusetts, U.S.A., to
pay for the importation of color dye; that the plaintiff approved the application
"subject to 30% deposit and the joint and several signatures of Mr. Isidoro Tinoco
and Mrs. Soledad L. Basa," which conditions were complied with; that thereafter the
plaintiff issued Letter of Credit No. 53753 in favor of the Bay State chemical Co., that
on 12 March 1953 the Bay State Chemical Co., drew upon the letter of credit the sum
of $2,482.40, U.S. currency; that the draft drawn by the Bay State Chemical Co., was
presented by the plaintiff to the defendants for payment; that the defendants failed
and refused to pay the amount of the draft and the charges due thereon; that because
of the failure and refusal of the defendants to pay their obligation, the plaintiff
delivered the documents of the shipment to the Luzon Brokerage Co., and requested
it to claim and store the shipment in its bonded warehouse, for which service and
storage the defendants are liable to the Luzon Brokerage Co.; that as of 15 October
1953; the outstanding balance of the defendants on the draft is P4,503.05, Philippine
currency, plus interest thereon at the rate of P.083569 daily until fully paid.
The plaintiff prays that after hearing judgment be rendered ordering the defendants
to pay it the sum of P22,787.79, with daily interest thereon at the rate of P4.89135
from 15 October 1953 until fully paid; 10% of the said amount as attorney's fee;
P4,503.05, with daily interest thereon at the rate of P0.83569 from 15 October 1953
until fully paid; the amount of storage and other charges that the Luzon Brokerage
Co., would charge the plaintiff for the handling and storage of the merchandise
imported by the defendants under Letter of Credit No. 53753; and the costs of the
suit. The plaintiff further prays that pending hearing and final judgment, a writ of
attachment be issued commanding the Sheriff of the City of Manila to levy upon
attachment on the properties of the defendants as security for the satisfaction of any
judgment that it may secure against them.
In their answer filed on 28 December 1953 the defendants admit the plaintiff's
averments except as to the correctness of the amounts due on the two drafts, the
correctness of which they were still checking, and for that reason lacking sufficient
knowledge or information to form a belief as to the truth and veracity of the amounts
due on the two drafts, they deny the amounts claimed by the plaintiff to be due from
them.
On 25 June 1954 the plaintiff filed a motion for summary judgment on the ground
that since the defendants had admitted the material averments of its complaint
except as to the correctness of the amounts due, the defendant's answer did not
tender a genuine issue. The plaintiff attached to its motion an affidavit subscribed
and sworn to by Ceferino Saavedra, Manager of the Special Assets Department of the
plaintiff, in charge of all outstanding accounts of its debtors, stating the payments
made by the defendants on their account and the exact total amount due from them.
On 7 October 1954 the Court granted the plaintiff's motion and rendered judgment
ordering the defendants, jointly and severally, to pay —
. . . the plaintiff in the first cause of action, the amount of P22,787.79, with
a daily interest of P4.89135 from October 15, 1953 up to full payment
thereof, and 10% of the amount due for attorney's fees. On the second
cause of action, defendants shall pay, jointly and severally, the sum of
P4,503.05, with a daily interest of P0.83569 from October 15, 1953 until
full payment thereof.
Defendants shall also pay the costs.
The defendants appealed to the Court of Appeals. The latter certified the case to this
Court for the reason that only questions of law are raised.
Rule 36 provides:
 Section 1. Summary judgment for claimant. — A party seeking to recover
upon a claim, counterclaim, or crossclaim or to obtain a declaratory relief
may, at any time after the pleading in answer thereto has been served,
move with affidavits for a summary judgment in his favor upon all or any
part thereof.

SEC. 3. Motion and proceedings thereon. — The motion shall be served at

least ten days before the time specified for the hearing. The adverse party
prior to the day of hearing may serve opposing affidavits. The judgment
sought shall be rendered forthwith if the pleadings, depositions, and
admissions or file, together with the affidavits, show that, except as to the
amount of damages, there is no genuine issue as to any of the material fact
and that the moving party is entitled to a judgment as a matter of law.

SEC. 5. Form of affidavits. — Supporting and opposing affidavits shall be

made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein. Sworn or certified copies
of all papers of parts thereof referred to in an affidavit shall be attached
thereto or served therewith.

The defendant's answer that as to the first cause of action they—

. . . are still checking on the correctness of the alleged balance outstanding

against them and in favor of the plaintiff; consequently, for lack of
knowledge or information sufficient to form a belief as to the truth and
veracity of the averments embodied in paragraph 7 thereof, they hereby
specifically deny the allegations therein stated;

and that so to the second cause of action they—

. . . are checking on the veracity and correctness of the balance allegedly

outstanding in favor of the plaintiff manifested in paragraph 6 of the same,
they, by virtue thereof, specifically deny it for lack of knowledge and belief
as to the truth of the allegations embodied in the aforestated paragraph.

does not tender a genuine issue. In fact they admit that they are indebted to the
plaintiff. As the affidavit subscribed and sworn to by the Manager of the Special
Assets Department of the plaintiff, in charge of all outstanding accounts of its
debtors, attached to the motion for summary judgment, furnishes the Court with the
payments made by the defendants on their account and the amount due from them,
which they failed to oppose by counter affidavits, the plaintiff is entitled to summary
judgment.1

The judgment appealed from is affirmed, with costs against the appellants.
POST JUDGMENT CASES
EPIFANIO L. CASOLITA, SR., ARTHUR AQUINO, BENITO GATPATAN, JR., HENRY
RELOSA, EDGAR LA TORRE, BERNARDO OCAG and CECILIA
VIERNES, petitioners, vs. THE COURT OF APPEALS, THE REGIONAL
TRIAL COURT OF MANILA, NATIONAL CAPITAL REGION, BRANCH 34,
Presided by Judge Romulo A. Lopez, and ATROP, INC., respondents.
RESOLUTION
FRANCISCO, J.:
On March 28, 1990, private respondent ATROP, INC., a domestic corporation,
filed a complaint against herein petitioners with the Regional Trial Court of Manila,
for recovery of possession of a parcel of land located at #731 Magallanes cor. Victoria
Street, Intramuros, Manila. ATROP, INC. claimed ownership, in fee simple, of said
parcel of land under TCT No. 68927 of the Registry of Deeds of Manila.[1] In answer
thereto, petitioner Casolita through his counsel, Atty. Jose L. Aguilar, alleged that he
and his family had been in continuous possession of the land since 1953, having been
designated as caretaker by the supposed real owners Ramon LeQuina and Portia
Pueo. The other petitioners, represented by Atty. Benito Gatpatan, Jr. filed their
answer unequivocally adopting and incorporating the allegations of Casolita in his
answer to the complaint. They further asserted that they were not squatters on the
land as they occupied the same in open, public, adverse and continuous possession
for more than ten years invoking Article 1134 of the Civil Code in relation to the
existing land reform code. Thereafter, trial ensued. On August 5, 1993, the lower
court[2] rendered a decision[3] in favor of ATROP, INC., ordering the defendants to
vacate the premises, to remove the structures they built, and to pay compensation
for the use of the land, attorneys fees and costs. Atty. Aguilar received a copy of the
decision but failed to file a notice of appeal. On the other hand, Atty. Gatpatan Jr. filed
a notice of appeal on August 23, 1993.
In its omnibus motion to dismiss the appeal and for the issuance of a writ of
execution, dated September 29, 1993, ATROP INC., argued that as far as petitioner
Casolita was concerned, the decision had become final and executory for his counsel,
Atty. Aguilar, received a copy thereof without filing a notice of appeal. As to the other
petitioners, ATROP INC., observed that while they timely filed the notice of appeal
the notice was fatally defective for they did not serve the same to the counsel of
ATROP, INC. In its October 18, 1993 Order, the lower court[4] granted the omnibus
motion to dismiss and ordered the issuance of a writ of execution.[5]
Atty. Alfredo C. Baylon, Jr. thereafter filed a notice of appearance as counsel for
all the defendants[6] and moved for reconsideration of the October 18, 1993 Order
alleging that the dismissal of the notice of appeal and the issuance of the writ of
execution x x x is repugnant to the principle of due process as it amounted to denial
of justice, citing Alonzo vs. Villamor.[7] He contended that petitioners Casolita, et. al.,
were not properly notified of the August 5, 1993, decision since Atty. Aguilar had
withdrawn as counsel due to poor health; hence, the decision had not become final
and executory. As a last ditch effort, said counsel, for the first time, alleged that the
issuance of the writ of execution x x x would be violative of Article VII of the Urban
Development and Housing Act of 1992, particularly Section 28, paragraph 2 thereof,
without, however, elaborating why. On November 10, 1993, the lower court denied
the motion for reconsideration and the motion to admit appeal. Thus:
There are two Notices of Appeal submitted by two different lawyers without
particularizing which among the defendants they represent. The Notice submitted
by Atty. Gatpatan, Jr. was received on August 23, 1993 and records show that Atty.
Gatpatan, Jr. received the copy of the decision on August 17, 1993, hence, well
within the period of fifteen-day to interpose an Appeal. Said lawyer represented
at the trial the following defendants: himself, Arthur Aquino, Carlito Santosm,
Henry Relosa, Edgar La Torre, Bernardo Ocag and Cecilia Viernes, leaving
defendant Epifanio Casolita who was represented by Atty. Aquilar. Another Notice
of Appeal was filed by a certain Atty. Alfredo C. Bayhon, Jr. [should be
Baylon], who at the trial was not a counsel of records for any defendant. Atty.
Bayhon, Jr. formally appeared only, per his appearance received by this Court
on November 3, 1993, long after the lapse of fifteen-day period to Appeal,
computed from the time Atty. Aguilar received a copy of the decision on August
25, 1993. This Court presupposes that Atty. Bayhyon, Jr. represents the defendant
Casolita only. The records, however, does not show that Atty. Aguilar ever
withdrew from the case, hence, the appearance of Atty. Bayhon, Jr. is improper
and cannot be recognized by this Court, there being no showing that Atty.
Aguilar withdrew from the case.
When the plaintiff [herein private respondent] submitted a Motion to Dismiss
Appeal and for Issuance of a Writ of Execution on the ground that the Notice of
Appeal is defective not having been served either on plaintiff or its counsel, no
opposition was filed. That was why the Court granted the motion and issued the
Writ prayed for.
The records show likewise, that Atty. Bayhon, Jr. submitted a Motion for
Reconsideration of the Order of this Court dismissing the Appeal of Atty.
Gatpatan, Jr., and granting execution. The motion for reconsideration
deserves scant consideration, because the lawyer who filed it has no
personality in the case. Moreover, the notice to the adverse counsel of the Notice
of Appeal is a mandatory requirement for perfecting an Appeal.
WHEREFORE, there being no merit to the motion, the same is hereby denied,
and this denial is final.
The Motion to Admit Appeal filed by Atty. Bayhon, Jr. is denied likewise.
SO ORDERED.[8] (Emphasis Added)
A notice to vacate the premises having been made, the petitioners through
Atty. Baylon filed before respondent Court of Appeals a petition via Rule 65 of the
Rules of Court and Section 9 of Batas Pambansa Blg. 129 seeking the annulment of
the October 18, 1993 and November 10, 1993 Orders of the lower court.[9] On May
27, 1994, the Court of Appeals dismissed the petition. Hence, this petition. The Court
gave due course to this petition and required the parties to submit their respective
memoranda.
Petitioners contend that the Court of Appeals committed grave abuse of
discretion tantamount to lack of jurisdiction in denying their petition for certiorari
based on their failure to furnish private respondent with a copy of the notice of
appeal. Such omission, they insist, was a mere technicality which should be cast
aside to attain substantial justice. The contention lacks merit.
Under the previous rule, an appeal may be taken by serving upon the adverse
party and filing with the trial court within thirty (30) days from notice of order or
judgment, a notice of appeal, an appeal bond, and a record on appeal. This provision
was amended by Batas Pambansa Blg. 129, particularly Section 39 thereof, by
deleting the need to file an appeal bond and record on appeal, except in multiple
appeals and in special proceedings, and by fixing the period of appeal to fifteen (15)
days. The entire original record of the case instead is transmitted to the appellate
court. Appeals from final judgments or orders of the Regional Trial Court are now
taken to public respondent Court of Appeals by simply filing a notice of
appeal.[10] The simplification of the procedure for elevating to a higher court final
judgments or orders of the lower courts correspondingly underscored the
importance of the notice of appeal. The adverse party may only be apprised initially
of the pendency of an appeal by the notice of appeal. To deprive him of such notice
is tantamount to depriving him of his right to be informed that the judgment in his
favor is being challenged. This requirement should be complied with so that he may
be afforded the opportunity to register his opposition to the notice of appeal if he so
desires.[11] And service of the notice of appeal upon him may not be dispensed with
on the basis of the appellants whims and caprices, as in this case. We quote with
approval, in this connection, respondent courts ruling, thus:
The judicial position on the requirement that a notice of appeal be served upon the
adverse party is articulated in the early case of Philippine Resources Development
Corp. vs. Narvasa, 4 SCRA 414 (1962), when the Supreme Court stated:
Under Section 3, Rule 41, of the Rules of Court, an appeal may be taken by serving
upon the adverse party and filing with the trial court within 30 days from notice of
the judgment a notice of appeal, appeal bond, and a record on appeal. This section
clearly requires that not only shall the three documents be filed with the court
within the period of 30 days but that copies thereof shall be served upon the adverse
party. This requirement is made in order that the adverse party may not only
be notified of the intention of the appellant to take the case to the appellate
court, but also to afford him an opportunity to register his opposition to any of
them if he desires to do so.
As posited and as aptly argued in the private respondents brief, the requirement is
not a mere technicality but goes into procedural due process which, in the absence
of opposition from the petitioners (Annex A, Petition), despite proper notice and
opportunity to do so (Annexes 2 and 3 Comment), cannot be countenanced as basis
for alleged grave abuse of discretion. Moreover, the motion to reconsider the order
of dismissal was filed by counsel not of record, no proper substitution having been
made.[12] (Emphasis supplied)
Petitioners additionally aver that respondent court also abused its discretion
amounting to lack of jurisdiction when it held that Atty. Baylon had no personality
in this case despite his formal appearance as counsel for petitioner Casolita. We hold,
however, that respondent court neither committed an error nor abused its
discretion in upholding the lower courts denial of Casolitas motion for
reconsideration, motion to admit appeal and notice of appeal on the ground that
Atty. Baylon was not Casolitas counsel of record. The records show that Atty. Aguilar
was petitioner Casolitas counsel of record. Even Atty. Gatpatan Jr. impliedly
recognized his separate representation when he adopted the allegations in the
answer filed for said petitioner by Atty. Aguilar. That Atty. Aguilar was the counsel
of petitioner Casolita was noted by the lower court in its Order of November 10,
1993. This was buttressed by the fact that Casolita was furnished a copy of the
decision through said counsel of record. The failure of Atty. Aguilar to file a notice of
appeal binds Casolita which failure the latter can not now disown on the basis of his
bare allegation and self-serving pronouncement that the former was ill. A client is
bound by his counsels mistakes and negligence.[13] And neither may Atty. Baylons
unsupported claim that petitioner Casolita was in Cavite at the time the decision of
the lower court can be given credence. Indeed, the unrebutted observation of private
respondent cast serious doubt over Atty. Baylons unsubstantiated claims. Thus:
It is noteworthy that the Motion for Reconsideration, (wherein this
alleged withdrawal of Aguilar, etc., are raised for the first time by Baylon) is not
verified (under oath) by either Casolita or Aguilar.
More, it is difficult to conceive that Casolita, did not learn of the adverse judgment,
when copy thereof was received by Gatpatan. Gatpatan has been collaborating with
Aguilar, in the instant case, and is a personal friend of Casolita. In fact, Gatpatan is
a neighbor of Casolita. In fact, Gatpatan, Aguilar, and Casolita had been acting in
unison, all throughout the lengthy trial of the instant case.
How can Casolita claim that he was unaware of the adverse decision, until October
23, 1993 (when Gatpatan received [the] same, as early as August 19, 1993?) [14]
It is a settled rule that a lawyer may not simply withdraw his appearance in a
case without a formal petition filed in the case. Substitution of counsel must be made
in accordance with Rule 138 of the Rules of Court, to wit:
Sec. 26. Change of Attorneys. - An attorney may retire at any time from any action or
special proceeding, by the written consent of his client filed in court. He may also
retire at any time from an action or special proceeding, without the consent of the
client, should the court, on notice to the client and attorney, and on hearing,
determine that he ought to be allowed to retire. In case of substitution, the name of
the attorney newly employed shall be entered on the docket of the court in place of
the former one, and written notice of the change shall be given to the adverse party. x
xx.
There having no proper substitution of counsel, Atty. Baylon, as correctly noted by
the lower court, has no personality in the case.
Procedural rules, we reiterate, are tools designed to facilitate the adjudication
of cases. While the Court, in some instances, allows a relaxation in the application of
the rules, this, we stress, was never intended to forge a bastion for erring litigants to
violate the rules with impunity. The liberality in the interpretation and application
of the rules applies only in proper cases and under justifiable causes and
circumstances. While it is true that litigation is not a game of technicalities, it is
equally true that every case must be prosecuted in accordance with the prescribed
procedure to insure an orderly and speedy administration of justice. The instant
case is no exception to this rule.[15]
As regards petitioners residual contention that the decision of the lower court
and the notice to vacate contravened the provisions of Republic Act No. 7279,
otherwise known as the Urban Development and Housing Act of 1992, which
petitioners addressed for the first time in their memorandum, the same does not
deserve serious consideration. It is a rule that issues not properly brought and
ventilated below may not be raised for the first time on appeal,[16] save in
exceptional circumstances none of which, however, obtain in this case.
WHEREFORE, the instant petition is hereby DENIED.
MELBA MONCAL ENRIQUEZ, petitioner, vs. HON. COURT OF APPEALS and
VICTORINA TIGLE, respondents.
RESOLUTION
QUISUMBING, J.:
This is a petition to review the decision[1] of the Court of Appeals dated July 20,
1999, in CA-G.R. SP No. 50360, affirming the orders of the Regional Trial Court of
Dumaguete City, Branch 31, in Civil Case No. 12044. In its order [2] dated October 6,
1998, the RTC dismissed herein petitioners appeal from the decision of the
Municipal Circuit Trial Court (MCTC) of Bayawan-Basay, Negros Oriental in Civil
Case No. 1062 for ejectment, and denied petitioners motion for reconsideration in
its order[3] dated October 30, 1998. Petitioner also assails the resolution [4] of the
appellate court dated September 24, 1999, denying her motion for reconsideration.
The factual antecedents of this petition are as follows:
On February 29, 1996, herein respondent Victorina Tigle filed an action for
unlawful detainer against herein petitioner Melba Moncal Enriquez before the MCTC
of Bayawan-Basay, Negros Oriental. Tigles complaint, which was docketed as Civil
Case No. 1062, alleged inter alia, that on December 14, 1994, she bought a parcel of
land known as Lot No. 377, located at Tinego, Bayawan, Negros Oriental from
Engracia Macaraya. Prior to the sale, Enriquez was staying at said lot by mere
tolerance of Macaraya. Enriquez was given an option to buy said lot but she refused
to exercise it. After the sale, Tigle then made demands on Enriquez to vacate the
property, but Enriquez adamantly refused.
In her Answer with Counterclaim filed before the MCTC, Enriquez averred that
the subject property is owned in common by the heirs of Felix Moncal and any sale
by Macaraya (one of the heirs of Felix Moncal) could only refer to Macarayas
undivided 1/7 share of the lot. Since said 1/7 share of Macaraya is still unidentified,
the same cannot be a subject of ejectment pursuant to Article 434[5] of the Civil Code.
In its decision dated June 2, 1997, the MCTC of Bayawan-Basay, decreed:
ACCORDINGLY, in the light of the foregoing considerations, this Court hereby
renders judgment in favor of the plaintiff to be in physical, actual, and prior
possession of the parcel of land described in Paragraph 3 of the Complaint
unlawfully occupied by defendant MELBA MONCAL ENRIQUEZ, and plaintiff is
entitled to the reliefs prayed for in the Complaint as follows:
1. Declaring plaintiff VICTORINA TIGLE to be in actual, physical and prior possession
of the premises of the parcel of land mentioned in Paragraph 3 of the Complaint
consisting of ONE HUNDRED SEVENTY NINE (179) square meters, more or less, or
SUB-LOT NO. 2-A, of LOT NO. 2, mentioned in Par. 5, Page 2 of EXH. B;
2. Ordering defendant MELBA MONCAL ENRIQUEZ, her agents, representatives, and
all other persons acting in her behalf to immediately vacate the premises of the
parcel of land mentioned in Par. 5, Page 2, EXH. B, otherwise known as SUB-LOT NO.
2-A of LOT NO. 2;
3. To remove and/or demolish all workings, constructions and improvements
illegally built and/or constructed in the parcel of land mentioned in Par. 5, Page 2, of
EXH. B, otherwise known as SUB-LOT NO. 2-A of LOT NO.2;
4. Ordering defendant MELBA MONCAL ENRIQUEZ to pay to plaintiff the sum
of P3,000.00 by way of litigation expenses;
5. Ordering the defendant MELBA MONCAL ENRIQUEZ to pay to plaintiff the sum
of P10,000.00 by way of attorneys fees;
6. However, for failure to allege and pray for reasonable compensation and fair
rental value for the use and occupation of the premises of the parcel of land
mentioned in land mentioned in Par. 5, Page 2, of EXH. B, known as SUB-LOT NO. 2-
A of LOT NO.2, the same is deemed waived;
7. On the other hand, moral and exemplary damages are not allowed in ejectment
cases;
8. Any allegations by way of Counterclaim are dismissed for lack of sufficient basis.
SO ORDERED.[6]
Enriquez seasonably appealed to the RTC of Dumaguete City. In its order of
February 16, 1998, the RTC directed respective counsel for the parties to submit
within fifteen (15) days from receipt of this order their respective memoranda
and/or briefs.[7] The RTC stated that upon expiration of the period to submit
memoranda, it shall decide the case on the basis of the entire record of the
proceedings in the court of origin and/or such brief(s) as may have been filed.[8]
The counsel for Enriquez failed to comply with the order to submit a
memorandum. On October 6, 1998, the RTC issued the following order:
For failure of defendant-appellant to file and submit a memorandum within the
reglementary period as required by Rule 40, Section 7 (b),[9] her appeal is dismissed.
Upon finality of this order, the Clerk of Court is hereby directed to remand the
records of this case to the lower court for execution of judgment.
SO ORDERED.[10]
Enriquez then moved for reconsideration, manifesting that she was adopting
her position paper in the MCTC as her memorandum.
 On October 30, 1998, the RTC denied Enriquezs motion on the ground that the
records does (sic) not show of such manifestation.[11]
Enriquez then elevated the matter to the Court of Appeals, which docketed her
petition as CA-G.R. SP No. 50360. The appellate court found the primary issue to be
procedural in character, namely: the correctness of the order of the RTC dismissing
herein petitioners appeal for failure to file her memorandum on appeal.
On July 20, 1999, the appellate court decided CA-G.R. SP No. 50360 as follows:
WHEREFORE, premises considered, the instant petition is hereby DISMISSED for
lack of merit.
SO ORDERED.[12]
The appellate court held that under Section 7, Rule 40 of the 1997 Rules of Civil
Procedure (the filing of a memorandum) is a mandatory obligation on the part of the
appellant, such that, the failure to do so warrants a concomitant dismissal of the
appeal.[13]
Enriquez moved for reconsideration of the appellate courts decision, but this
was denied by the Court of Appeals in its order of September 24, 1999.[14]
Hence, the instant petition before us. Petitioner raises the following issues:
1. HAS THE HONORABLE COURT OF APPELAS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION OR ARE ITS DECISION
(ANNEX N) AND RESOLUTION (ANNEX P) APPEALED FROM NOT IN ACCORD WITH
THE RULES AND APPLICABLE DECISIONS OF THIS HONORABLE SUPREME COURT?
2. AND, THAT IN ORDER TO SERVE THE ENDS OF JUSTICE AND PREVENT
MISCARRIAGE OF JUSTICE, SHOULD THE ORDER DATED OCTOBER 6, 1998 (ANNEX
I); ORDER DATED OCTOBER 30, 1998 (ANNEX K); THE DECISION (ANNEX N) AND
RESOLUTION (ANNEX P), BE ALL PLEASE SET ASIDE AND THE COMPLAINT FILED
IN THE MCTC OF BAYAWAN-BASAY (ANNEXES C TO C-3) BE PLEASE ORDERED
TERSELY DISMISSED WITH COSTS AGAINST THE RESPONDENT AND THE
RESPONDENT BE ORDERED TO PAY TO THE PETITIONER THE MONETARY
COUNTERCLAIMS INTERPOSED IN THE ANSWER WITH COUNTERCLAIM
(ANNEXES D TO D-7)?[15]
Stated simply, the sole issue for our resolution is: Did the Court of Appeals
commit a reversible error in sustaining the order of the RTC which dismissed
petitioners appeal for failure to file memorandum on appeal?
Petitioner faults the appellate court with grave error of law when it failed to
rule that the RTC should have decided her appeal before it in accordance with Rule
40, Section 7 (c)[16] of the 1997 Rules of Civil Procedure. She avers that the appellate
court erred when it did not rule that the RTC should have decided the case, based on
the record of the MCTC proceedings, instead of sustaining the order to dismiss for
failure to file memorandum.
Private respondent counters that an appellants failure to file the memorandum
required under Rule 40, Section 7, compelled the RTC to dismiss the case. She points
out that an appealed case cannot be decided on the merits without an appellants
memorandum, as the assignment of errors by the appellant is vital to the decision of
the case. This is different from the situation where it is the appellee who fails to file
his memorandum, as in this instance, the RTC may decide the case based on the
records of the proceedings in the court of origin and the appellants memorandum.
Moreover, the failure to file a memorandum by the appellant manifests lack of
interest to pursue her appeal.
Rule 40, Section 7 of the 1997 Rules of Civil Procedure is a new provision. Said
section is based on Section 21 (c) and (d) [17] of the Interim Rules Relative to the
Implementation of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129) with
modifications. These include the following changes: (a) the appellant is required to
submit a memorandum discussing the errors imputed to the lower court within
fifteen (15) days from notice, and the appellee is given the same period counted from
receipt of the appellants memorandum to file his memorandum; (b) the failure of
the appellant to file a memorandum is a ground for the dismissal of the appeal. [18]
Rule 40, Section 7 (b) provides that, it shall be the duty of the appellant to
submit a memorandum and failure to do so shall be a ground for dismissal of the
appeal. The use of the word shall in a statute or rule expresses what is mandatory
and compulsory.[19] Further, the Rule imposes upon an appellant the duty to submit
his memorandum. A duty is a legal or moral obligation, mandatory act,
responsibility, charge, requirement, trust, chore, function, commission, debt,
liability, assignment, role, pledge, dictate, office, (and) engagement.[20] Thus, under
the express mandate of said Rule, the appellant is duty-bound to submit his
memorandum on appeal. Such submission is not a matter of discretion on his
part. His failure to comply with this mandate or to perform said duty will compel the
RTC to dismiss his appeal.
In rules of procedure, an act which is jurisdictional, or of the essence of the
proceedings, or is prescribed for the protection or benefit of the party affected is
mandatory.[21] As private respondent points out, in appeals from inferior courts to
the RTC, the appellants brief is mandatory for the assignment of errors is vital to the
decision of the appeal on the merits. This is because on appeal only errors
specifically assigned and properly argued in the brief or memorandum will be
considered, except those affecting jurisdiction over the subject matter as well as
plain and clerical errors.[22] Otherwise stated, an appellate court has no power to
resolve an unassigned error, which does not affect the courts jurisdiction over the
subject matter, save for a plain or clerical error.[23]
It is true that the Rules should be interpreted so as to give litigants ample
opportunity to prove their respective claims and that a possible denial of substantial
justice due to legal technicalities should be avoided.[24] But it is equally true that an
appeal being a purely statutory right, an appealing party must strictly comply with
the requisites laid down in the Rules of Court.[25] In other words, he who seeks to
avail of the right to appeal must play by the rules.[26] This the petitioner failed to do
when she did not submit her memorandum of appeal in Civil Case No. 12044 as
required by Rule 40, Section 7 of the 1997 Rules of Civil Procedure. That she lost her
case is not the trial courts fault but her own.
In sum, we find that the Court of Appeals committed no reversible error of law
when it upheld (a) the order of the RTC dismissing herein petitioners appeal in Civil
Case No. 12044, and (b) its order denying reconsideration.
WHEREFORE, the instant petition is DENIED, and the assailed decision and
resolution of the Court of Appeals in CA-G.R. SP No. 50360 are AFFIRMED.
SO ORDERED.
G.R. No. 97535 August 4, 1995
MANILA ELECTRIC COMPANY, petitioner,
vs.
LA CAMPANA FOOD PRODUCTS, INC., Judge BENIGNO T. DAYAW, Presiding
Judge, RTC, Branch 80, Quezon City, and Deputy Sheriff JOSE MARTINEZ, RTC,
Branch 96, Quezon City, respondents.
ROMERO, J.:
A complaint was filed on August 21, 1990, by private respondent La Campana Food
Products, Inc. (hereinafter La Campana) against petitioner Manila Electric Company
(hereinafter Meralco) for recovery of a sum of money with preliminary injunction
after it was served a notice of disconnection by the latter for alleged non-payment
of the following billings: (a) the differential billing in the sum of P65,619.26,
representing the value of electric energy used but not registered in the meter due to
alleged tampering of the metering installation discovered on September 22, 1986;
and (b) the underbilling in the sum of P169,941.29 (with a balance of P28,323.55)
rendered from January 16, 1987, to December 16, 1987, due to meter multiplier
failure.
Summons and a copy of the complaint were duly served upon Meralco on August 23,
1990.
The case, docketed as Civil Case No. Q-90-6480, was initially assigned on August 21,
1990 to Branch 78 of the Regional Trial Court of Quezon City presided over by Judge
Percival M. Lopez, but was re-raffled on September 25, 1990 to Branch 80, presided
over by public respondent Judge Benigno T. Dayaw, after Judge Lopez inhibited
himself from hearing the case upon Meralco's oral motion.
On September 7, 1990, Meralco filed a motion for extension of time of fifteen days
from said date within which to file an answer to the complaint at the Office of the
Clerk of Court after the clerk of Branch 78 allegedly refused to receive the same
because the case had already been re-raffled. The motion however, was not acted
upon because it did not contain a notice of hearing as required by Sections 4 and 5,
Rule 15 of the Rules of Court.
Meralco's "Answer With Counterclaim" was actually received at Branch 78 only on
September 21, 1990 which is beyond the period to answer but within the requested
extension.
On account of Meralco's failure to file an answer to the complaint within the
reglementary period which expired on September 7, 1990, La Campana filed on
September 28, 1990 an "Ex-Parte Motion, to Declare Defendant in Default," which
Judge Dayaw granted in an order of default dated October 8, 1990.
After hearing and receiving La Campana's evidence ex parte, the court a
quo rendered a decision dated November 20, 1990, the decretal portion of which
reads thus:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff as
against the defendant, ordering:
1) Defendant to reconnect within twenty-four (24) hours from receipt of a
copy of this decision the disconnected electric service in plaintiff's building
situated at No. 13 Serrano Laktaw St., Quezon City under Account No.
05373-0470-17 and/or plaintiff is hereby authorized to engage the
services of a duly licensed electrician to reconnect the said electric service
at the expense of the defendant;
2) Defendant to return the amount of P141,617.74 with 12% interest per
annum from the time that the same was paid by plaintiff to defendant, until
the same is fully reimbursed; [and]
3) [Defendant] To pay attorney's fees in the amount of P50,000.00 plus
costs of suit.
SO ORDERED.
Instead of appealing the said decision to the Court of Appeals under Section 2, Rule
41 of the Rules of Court, Meralco filed on December 3, 1990, a "Motion to Set Aside
Judgment by Default and/or for New Trial" on the ground that it filed an answer to
the complaint and that the judgment by default was obtained by fraud.
In an order dated January 10, 1991, Judge Dayaw denied the said motion and opined
that Meralco cannot presume that its motion for extension will be granted by the
court, especially in this case where its motion for extension was defective in that it
did not contain any notice of date and place of hearing. He also stated that the motion
to set aside judgment by default and/or for new trial was a pro forma motion
because it did not set forth the facts and circumstances which allegedly constituted
the fraud upon which the motion was grounded.
On January 28, 1991, Meralco filed a notice of appeal. This was opposed by La
Campana on the ground that it was filed out of time since the motion to set aside
judgment by default and/or for new trial did not stop the running of the period to
appeal, which expired on December 14, 1990, or fifteen days from the time Meralco
received the decision on November 29, 1990.
The trial court, in an order dated February 22, 1991, denied Meralco's notice of
appeal and granted the motion for execution earlier filed by La Campana. On March
11, 1991, respondent Judge appointed respondent Deputy Sheriff Jose Martinet of
Branch 96 of the same court as special sheriff to enforce/implement the writ of
execution which was issued on March 12, 1991.
Meralco filed the instant petition for certiorari and prohibition with prayer for the
issuance of a restraining order and/or preliminary injunction on March 15, 1991,
claiming that Judge Dayaw committed grave abuse of discretion in rendering his
decision dated November 20, 1990. On March 20, 1991, the Court's First Division
issued a temporary restraining order in favor of Meralco.
After examining the trial court's assailed decision and orders, as well as the
pleadings and evidence presented below, we are convinced that respondent Judge
committed no abuse of discretion, much less grave abuse of discretion, in the
proceedings below.
The attention of Meralco is drawn to the fact that it indeed failed to indicate in its
motion for extension of time to file an answer a notice of place and date of hearing,
an omission for which it could offer no explanation. As we declared in the case
of Gozon, et al. v. Court of Appeals:1
It is well-entrenched in this jurisdiction that a motion which does not meet
the requirements of Sections 4 and 5 of Rule 15 of the Rules of Court is
considered a worthless piece of paper which the clerk has no right to
receive and the court has no authority to act upon.
Meralco was aware of the importance of such a notice since it insisted in its motion
to set aside judgment by default and/or for new trial that it should have received
notice of hearing of the motion to declare it in default which La Campana filed ex
parte. La Campana correctly rebutted this argument by citing the early case
of Pielago v.Generosa2 where the Court, in applying Section 9, Rule 27 of the old
Rules of Court (now covered by Section 9 of Rule 13), laid down the doctrine that a
defendant who fails to file an answer within the time provided by the Rules of Court
is already in default and is no longer entitled to notice of the motion to declare him
in default.
Thus, when it filed in Branch 78 its answer with counterclaim on September 21,
1990, fourteen days after the expiration of the period within which to file an answer,
Meralco was already in default and, naturally, it had to bear all the legal
consequences of being in default.
The judgment by default of November 20, 1990 was based solely on the evidence
presented by La Campana. No abuse of discretion attended such decision because,
as stated above, Meralco was already in default.
The records indicate that Meralco was not certain at this juncture what remedy to
adopt: a motion to set aside the judgment by default or a motion for new trial?
Meralco chose to play it safe by using the "and/or" option.
It must be clarified that under the Rules, what an aggrieved party seeks to set aside
is the order of default, an interlocutory order which is, therefore, not appealable, and
not the judgment by default, which is a final disposition of the case and appealable
to the Court of Appeals. Notice that in the following pertinent provisions, the Rules
expressly state that what may be set aside is the order of default, while the judgment
itself may be appealed to a higher court:
Sec. 3. Relief from order of default. — A party declared in default may at
any time after discovery thereof and before judgment file a motion under
oath to set aside the order of default upon proper showing that his failure
to answer was due to fraud, accident, mistake or excusable neglect and that
he has a meritorious defense. In such case the order of default may be set
aside on such terms and conditions as the judge may impose in the interest
of justice. [Rule 18]
Sec. 9. Service upon party in default. — No service of papers other than
substantially amended or supplemental pleadings and final orders or
judgments shall be necessary on a party in default unless he files a motion
to set aside the order of default, in which event he shall be entitled to notice
of all further proceedings regardless of whether the order of default is set
aside or not. [Rule 13]
Sec. 2. Judgments or orders subject to appeal. —
xxx xxx xxx
A party who has been declared in default may likewise appeal from the
judgment rendered against him as contrary to the evidence or to the law,
even if no petition for relief to set aside the order of default has been
presented by him in accordance with Rule 38. [Rule 41] [Emphasis
supplied]
Granting arguendo that the motion to set aside judgment by default was proper, it
was still correctly denied by respondent Judge for failure to show that Meralco's
omission to answer was due to any of the causes mentioned in Section 3 of Rule 18.
At best, the motion only stressed that it was filed on September 21, 1990, within the
requested period of extension, which, as earlier discussed, cannot be presumed to
be granted.
On the other hand, as a motion for new trial grounded on fraud, Meralco's motion
likewise fails to convince. The fraud it claims is in the ex-parte motion of La Campana
to declare it in default. Meralco claims that the reason for the ex-parte motion was
"to deprive the defendant of the opportunity to oppose it, knowing that defendant
actually filed its answer." But how could La Campana have known about the answer
with counterclaim when it was actually received only on October 8, 1990, as
evidenced by the registry return receipt attached to Meralco's Annex "H,"3while
the ex-parte motion to declare Meralco in default was filed much earlier on
September 27, 1990? "Fraud, as a ground for new trial, must be extrinsic or
collateral, that is, it is the kind of fraud which prevented the aggrieved party from
having a trial or presenting his case to the court, or was used to procure the
judgment without fair submission of the controversy."4 Meralco's failure to go to
trial in this case is solely attributable to its failure to comply with the Rules of Court.

We agree with respondent Judge that Meralco's motion to set aside judgment by
default and/or for new trial is a mere pro forma motion inasmuch as it does not
specify the facts constituting the alleged fraud which under the Rules must be
alleged with particularity.5 Being a pro forma motion, it did not interrupt the
running of the period to appeal. Accordingly, having received the decision on
November 29, 1990, Meralco had until December 14, 1990, within which to file a
notice of appeal. The notice of appeal which it filed on January 28, 1991, was clearly
filed out of time.

Having lost its right to appeal, Meralco cannot take refuge in the instant petition
for certiorari and prohibition. The Court has always maintained that the special civil
action of certiorari cannot be a substitute for a lost appeal, and there appears to be
no cogent reason why such policy should be waived in this case.

WHEREFORE, the instant petition for certiorari and prohibition is DISMISSED and
the TEMPORARY RESTRAINING ORDER issued on March 20, 1991, is hereby
DISSOLVED. The decision dated November 20, 1990, as well as the Orders dated
January 10, 1991 and March 11, 1991, issued by respondent Judge Dayaw in Civil
Case No. Q-90-6480 entitled "La Campana Food Products, Inc. v. Manila Electric
Company," are hereby declared FINAL. Accordingly, the Writ of Execution dated
March 12, 1991 is hereby declared VALID.

Costs against the petitioner.

SO ORDERED.
G.R. No. 82220 July 14, 1995
PABLITO MENESES and LORENZO MENESES, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, EDUARDO QUISUMBING, NORBERTO
QUISUMBING, HEIRS OF EMILIO QUISUMBING (Carlos, Manuel and Paz, all
surnamed Quisumbing), HEIRS OF FERNANDO QUISUMBING (Perla, Josefina,
Napoleon, Honorato, Remedios and Alfonso, all surnamed Quisumbing), HEIRS
OF MANUEL QUISUMBING, SR. (Petrona, Natividad, Manuel, Jr., Dolores and
Lilia, all surnamed Quisumbing) and HEIRS OF FRANCISCO QUISUMBING (Fe,
Johnny, Ma. Luisa, Norberto, Jimmy, Ma. Victoria, Elsa and Oscar, all surnamed
Quisumbing), all represented by Atty. Galileo Brion, respondents.
G.R. No. 82251 July 14, 1995
CESAR ALMENDRAL, petitioner,
vs.
EDUARDO QUISUMBING, respondent.
G.R. No. 83059 July 14, 1995
EDUARDO QUISUMBING, NORBERTO QUISUMBING, HEIRS OF EMILIO
QUISUMBING (Carlos, Manuel and Paz, all surnamed Quisumbing), HEIRS OF
FERNANDO QUISUMBING, (Perla, Josefina, Napoleon, Honorato, Remedios and
Alfonso, all surnamed Quisumbing), HEIRS OF MANUEL QUISUMBING, SR.
(Petrona, Natividad, Manuel, Jr., Dolores and Lilia, all surnamed Quisumbing)
and HEIRS OF FRANCISCO QUISUMBING (Fe, Johnny, Ma. Victoria, Elsa and
Oscar, all surnamed Quisumbing), petitioners,
vs.
HON. COURT OF APPEALS, PABLITO MENESES, LORENZO MENESES and
BRAULIO C. DARUM, respondents.
QUIASON, J.:
For review in these consolidated petitions is the Decision dated August 31, 1987 of
the Court of Appeals in CA-G.R. CV No. 07049 affirming the Decision dated March 26,
1984 of the Regional Trial Court, Branch 37, Calamba, Laguna, in Civil Case No. 474-
83-C which declared as null and void the original certificates of title and free patents
issued to Pablito Meneses over lots found by the court to be accretion lands forming
parts of the bigger accretion land owned by Ciriaca Arguelles Vda. de Quisumbing.
I On April 17, 1979, the Quisumbings filed Civil Case No. 07049 before the Court of
On March 1, 1977, Braulio C. Darum, then the District Land Officer of Los Baños,
Laguna, issued to Pablito Meneses Free Patent No. (IV-5) P-12807 and Original
Certificate of Title No. P-1268 covering Lot 1585 with an area of 417 square meters,
and Free Patent No (IV-5) 12808 and Original Certificate of Title No P-1269 for Lot
190 with an area of 515 square meters. Both lots are located in Los Baños, Laguna.
Pablito Meneses acquired said property from Silverio Bautista through a Deed of
Waiver and Transfer of Rights executed on May 5, 1975 in consideration of
Bautista's "love and affection" for and "some monetary obligations" in favor of
Pablito Meneses (Rollo, p. 45). After the execution of said document, Pablito Meneses
took possession of the land, introduced improvements thereon, declared the land as
his own for tax purposes and paid the corresponding realty taxes. In turn, Bautista
acquired the 900-square-meter land from his aunt, Sergia (Gliceria) M. Almeda. He
had been occupying the land since 1956.
On the other hand, the Quisumbing family traces ownership of the land as far back
as September 6, 1919 when their matriarch, Ciriaca Arguelles Vda. de Quisumbing
was issued Original Certificate of Title No. 989 covering a lot with an area of 859
square meters located in Los Baños, Laguna with the Laguna de Bay as its
northwestern boundary. The same parcel of land was registered on August 14, 1973
under Transfer Certificate of Title No. T-33393 in the names of Ciriaca's heirs:
Emilio, Manuel, Eduardo, Norberto, Perla, Josefina, Napoleon, Honorato, Remedios
and Alfonso, all surnamed Quisumbing.
In 1962, the Quisumbing instituted and accion publiciana in the then Court of First
Instance of Biñan, Laguna to recover possession over a portion of the property from
Dominga Villamor and Lorenzo Lanuzo docketed as Civil Case No. B-350. On January
3, 1966, the case was decided in favor of the Quisumbings. On appeal, the Court of
Appeals sustained the Quisumbings' right over the property.
In LRC Case No. B-327, the Quisumbings applied for registration and confirmation
of title over an additional area of 2,387 square meters which had gradually accrued
to their property by the natural action of the waters of Laguna de Bay. In its Decision
of September 28, 1978, the Court of First Instance of Biñan confirmed the
Quisumbings' title thereto which, after it was duly surveyed, was identified as Psu-
208327. The additional area was divided into two lots in the survey plan approved
by the Director of Lands on November 16, 1964. In ordering the confirmation and
registration of title on favor of the Quisumbings, the land registration court said:
. . . There is no doubt that the applicants' right to the property was
bolstered by the unappealed decision of the Court of Appeals in
Civil Case No. B-350 of this Court when the properties applied for
were classified as accretions made by the waters of the Laguna
Lake. . . . (G.R. No. 82229, Rollo, p. 20).
First Instance of Laguna, Branch VI, Calamba against Lorenzo and Pablito Meneses,
Braulio C. Darum and Cesar B. Almendral for nullification of the free patents and
titles issued to Pablito Meneses. They alleged that Lorenzo Menesis, then the Mayor
of Los Baños, using his brother Pablito as a "tool and dummy," illegally occupied
their "private accretion land" an August 6, 1976, and, confederating with District
Land Officer Darum and Land Inspector Cesar Almendral, obtained free patents and
original certificates of title to the land.
On March 26, 1984, the trial court rendered the decision finding that the lands
registered by the Meneses brothers are accretion lands to which the Quisumbings
have a valid right as owners of the riparian land to which nature had gradually
deposited the disputed lots. In so holding, the trial court relied heavily on the
decision of the Court of Appeals in Civil Case No. B-350, and quoted the following
portions of the appellate court's decision:
Plaintiffs-appellees are titled owners of a (sic) 859 square meters
of land under TCT No. 25978 of the Laguna Land Registry, the
northwest boundary of which is the Laguna de Bay.
It is ascertained that the northwest portion of Quisumbing's lot is
bounded by the Laguna de Bay. The nature of the Laguna de Bay
has long been settled in the case of Government of the Philippines
v. Colegio de San Jose (55 Phil. 423) when it held that:
Laguna de Bay is a body of water formed in
depression of the earth; it contains fresh
water coming from rivers and brooks and
springs, and is connected with Manila Bay by
the Pasig River. According to the definition
first quoted, Laguna de Bay is a lake.
Consequently, since Laguna de Bay is a lake, the authorities cited
by the appellants referring to seashore would not apply. The
provision of the law on waters will govern in determining the
natural bed or basin of the lake. And accordingly, to Art. 84 of the
Law of Waters of August 3, 1866:
Accretions deposited gradually upon land
contiguous to creeks, streams, rivers
and lakesby accessions or sediments from the
waters thereof, belong to the owners of such
lands.
Since the title indicate(s) that the northwest portion of the
property is bounded by Laguna de Bay, which is a lake, even if the
area where Lanuza's house and Villamor's house for that matter
is located is not included within the title, it must necessarily be
an accretion upon appellees' land by accessions or sediments
from the waters thereof which should belong to the owner of the
adjacent land. The authorities cited by the appellants treat of the
ownership of accretions by water of the sea under Title I.
Lakewaters being terrestrial waters, their ownership is governed
by Title II of the Law of Waters. As held in the Colegio de San Jose
case, the provisions of the Law of Waters regulating the
ownership and use of sea water are not applicable to the
ownership and use of lakes which are governed by different
provisions. As pointed out by the lower court, no act of
appropriation is necessary in order to acquire ownership of the
alluvial formation as the law does not require the same (Ignacio
Grande, et al. vs. Hon. Court of Appeals, et al., G.R. No. L-17652,
June 30, 1962 citing Roxas vs. Tuazon, 9 Phil. 408; Cortez vs. City
of Manila, 10 Phil. 567 and 3 Manresa, C.C. pp. 321-326, pp. 4-5)
(Records, pp. 80-84).
The trial court also found that the free patents issued to Pablito Meneses had been
procured through fraud, deceit and bad faith, citing the following facts as bases for
its conclusion: (1) The Deed of Waiver and Transfer of Rights allegedly executed by
Silverio Bautista in favor of Pablito Meneses was a simulated contract for lack of
consideration; (2) The said instrument was sworn to before Mayor Lorenzo Meneses
who had no authority to notarize deeds of conveyances; (3) Although the lots subject
of the deed of conveyance were placed in his brother's name, Mayor Meneses
actually exercised rights of ownership thereto; (4) Land Inspector Cesar Almendral
admitted having anomalously prepared the documents to support the free patent
applications of Pablito Meneses and, having personally filled up the blank forms,
signed them in the absence of the persons concerned; (5) Almendral kept the
documents in his possession from 1979 to 1980 despite orders from the Director of
Lands to produce and surrender the same; (6) District Land Officer Braulio Darum
approved the free patent applications and issued the questioned titles without the
required cadastral survey duly approved by the Director of Lands and despite the
pendency of LRC Case No. B-327 involving the contested lots; (7) Darum
represented the Bureau of Lands in LRC Case No. B-327 without authority from the
Director of Lands and after he had withdrawn his appearance in said case, persisted
in filing a motion to set aside the order for the issuance of a decree in favor of the
Quisumbings; (8) Darum and Almendral in bad faith, refused to produce the missing
original records of the free patent applications and their supporting documents; and
(9) When Darum was not yet an oppositor in LRC Case No. B-327, he admitted in his
letter to the Land Registration Commission that the contested lots are portions of
the land being claimed by the Quisumbings contrary to his later representation in
the joint answer to the petition that the subject lots are not portions of Lots 1 and 2,
Psu-208327 owned by the Quisumbings. Accordingly, the trial court disposed of the
case as follows:
WHEREFORE, judgment is hereby rendered:
1. Declaring that the lands covered by Pablito Meneses' Original
Certificate of Title No. P-1268/Free Patent No. 12807 (Exh. "J"),
covering Lot No. 1585, consisting of 417 square meters and
 Original Certificate of Title No. P-1269/Free Patent No. 12808
(Exh. "H"), covering Lot No. 190, consisting of 515 square meters,
both located at Los Baños, Laguna, as accretion lands forming
parts of a bigger accretion land owned by plaintiffs as declared in
a final judgment (Exh. "A"), rendered by the Court of First
Instance of Biñan, Laguna, in LRC Case No. B-327, which bigger
accretion land is directly adjacent to or at the back of plaintiffs'
riparian land, and consequently, declaring as null and void and
cancelled Original Certificate of Title No. P-1268/Free Patent No.
12807 and Original Certificate of Title No. P-1269/Free Patent
No. 12808;
2. Directing that the Register of Deeds of Laguna or his Deputy at
Calamba, Laguna, to make the corresponding entries of
cancellation in his Registry of the above mentioned Original
Certificate of Titles/Free Patents;
3. Directing defendants Lorenzo Meneses and Pablito Meneses
and all persons acting in their behalves to vacate the subject lands
and surrender the possession thereof to the plaintiffs
immediately; and
4. Directing the defendants to pay jointly and severally, the
plaintiffs the sums of:
a) P20,000.00, plus P500.00 per month from
January, 1977, until the subject property is
completely vacated, as actual and
compensatory damages;
b) P350,000.00, as moral damages;
c) P70,000.00 as exemplary damages;
d) P40,000.00, as attorney's fees; and
e) the costs (Rollo, pp. 41-42).
Thereafter, the Quisumbings filed a motion for execution pending appeal which the
trial court granted in its Order of September 7, 1984 subject to the posting by the
Quisumbings of a bond in the amount of P500,000.00. The defendants
unsuccessfully moved for the reconsideration of said order.
The Quisumbings also filed before the Sandiganbayan a complaint against Pablito
Meneses, Silverio Bautista, Pablo Silva, Virgilio Cruz and Cesar Almendral for
violation of paragraphs (e) and (j), Section 3 of Republic Act No. 3019, for conspiring
in the approval and grant of the free patents over portions of Lots 1 & 2 of Psu-
208327 owned by the heirs of Ciriaca Arguelles Vda. de Quisumbing. In due course,
the Sandiganbayan rendered a decision finding the defendants guilty as charged. The
case was elevated to this Court but on August 27, 1987, the judgment of conviction
was affirmed (Meneses v. People, 153 SCRA 303 [1987]).
Meanwhile, the Meneses brothers and Darum appealed the decision in Civil Case No.
07049 to the Court of Appeals. On August 31, 1987, the Court of Appeals found the
appeal to be without merit and affirmed in toto the lower court's decision.
The defendants-appellants filed two motions for the reconsideration of the appellate
court's decision but it was denied in the Resolution of February 23, 1988 which in
pertinent part stated:
However, for humanitarian considerations, and considering the
appeal of the defendants-appellants for a reduction of the moral
and exemplary damages, We favor the reduction of the moral
damages from P350,000.00 to P50,000.00 and the exemplary
damages from P70,000.00 to P5,000.00. In all other respects, We
find no justification for modifying the dispositive portion of the
decision of the lower court (G.R. No. 82220, Rollo, p. 67).
Pablito and Lorenzo Meneses filed the instant petition for review on certiorari,
which was docketed as G.R. No. 82220. Cesar Almendral filed a motion in G.R. No.
82251 for a 45-day extension within which to file a petition for review on certiorari.
After this Court had granted them a 30-day extension, Almendral still failed to file
any petition. The Quisumbings also filed a petition for review on certiorari, docketed
as G.R. No. 83059, solely on the issue of the propriety of the reduction of the amount
of damages in the Court of Appeals' Resolution of February 23, 1988. Upon motion
of petitioners in G.R. No. 83059, the three petitions were consolidated in the
Resolution of August 1, 1988.
Petitioners in G.R. No. 82220 retell the same errors they had raised before the Court
of Appeals, contending in the main: (1) that the lands in question were not accretion
lands but lands of the public domain; (2) that no conspiracy to commit fraud, deceit
and bad faith attended the issuance of the free patent and titles to Pablito Meneses;
and (3) that the Deed of Waiver and Transfer of Rights was founded on a valid
consideration.
As regards the issue of whether the lands in question are accretion lands, petitioners
relied on the Decision of the Court of Appeals in Republic of the Philippines v. Braga,
CA-G.R. No. 55390-R, October 23, 1980, holding that the property involved therein
was part of the natural bed of the Laguna de Bay and therefore what had to be
determined was whether said property was covered by water when the lake was at
its highest depth.
Petitioners' assigned errors in G.R. No. 82220 are evidently factual issues which have
been thoroughly passed upon and settled both by the trial court and the appellate
court. Factual findings of the Court of Appeals are conclusive on the parties and not
reviewable by this Court (Coca-Cola Bottlers Philippines, Inc. v. Court of Appeals,
229 SCRA 533 [1994]) and they carry even more weight when the Court of Appeals
affirms the factual findings of the trial court (Binalay v. Manalo, 195 SCRA 374
[1991]). The jurisdiction of this Court is thus limited to reviewing errors of law
unless there is a showing that the findings complained of are totally devoid of
support in the record or that they are so glaringly erroneous as to constitute serious
abuse of discretion (BA Finance Corporation v. Court of Appeals, 229 SCRA 566
[1941]). We find no such showing in this case.
Petitioners' protestations notwithstanding the final decision of the Court of Appeals
in Civil Case No. B-350 has a bearing in the resolution of this case for while the lots
occupied by Villamor and Lanuzo may not be the very same lots petitioners are
claiming here, the two cases refer to the same accretion lands northwest of the
original land owned by the Quisumbings.
In the same vein, the decision of the land registration court in LRC Case No. B-327
ordering the confirmation and registration of title in favor of the Quisumbings over
2,387 square meters of accretion land is binding on petitioners in G.R. No. 82220. As
correctly pointed out by the Court of Appeals, said decision, being the result of a
proceeding in rem, binds the whole world, more so because it became final and
executory upon the Bureau of Lands' failure to interpose an appeal.
Since petitioners in G.R. No. 82220 claim that "the foreshore land known as Lots 190
and 1585 are part of Laguna de Bay" and therefore the Quisumbings "have no legal
right to claim the same as accretion land," we quote the following pertinent portions
of the decision in Republic v. Court of Appeals, 131 SCRA 532 (1984) which, although
the case deals with the registration of a reclaimed land along the Laguna de Bay, is
nonetheless enlightening:
Laguna de Bay is a lake. While the waters of a lake are also subject
to the same gravitational forces that cause the formation of tides
in seas and oceans, this phenomenon is not a regular daily
occurrence in the case of lakes. Thus, the alternation of high tides
and low tides, which is an ordinary occurrence, could hardly
account for the rise in the water level of the Laguna de Bay as
observed four to five months a year during the rainy season.
Rather, it is the rains which bring about the inundation of a
portion of the land in question. Since the rise in the water level
which causes the submersion of the land occurs during a shorter
period (four to five months a year) than the level of the water at
which the land is completely dry, the latter should be considered
as the "highest ordinary depth" of Laguna de Bay. Therefore, the
land sought to be registered is not part of the bed or basin of
Laguna de Bay. Neither can it be considered as foreshore land.
The Brief for the Petitioner Director of Lands cites an accurate
definition of a foreshore land, to wit:
. . . . that part of (the land) which is between
high and low water and left dry by the flux and
reflux of the tides.
The strip of land that lies between the high
and low water marks and that is alternately
wet and dry according to the flow of the tide.
As aptly found by the Court a quo, the submersion in water of a
portion of the land in question is due to the rains "falling directly
on or flowing into Laguna de Bay from different sources." Since
the inundation of a portion of the land is not due to "flux and
reflux of tides" it cannot be considered a foreshore land within
the meaning of the authorities cited by petitioner Director of
Lands. The land sought to be registered not being part of the bed
or basin of Laguna de Bay, nor a foreshore land as claimed by the
Director of Lands, it is not a public land and therefore capable of
registration as private property provided that the applicant
proves that he has a registerable title (at pp. 538-539).
Accretion as a mode of acquiring property under Article 457 of the Civil Code
requires the concurrence of these requisites: (1) that the deposition of soil or
sediment be gradual and imperceptible; (2) that it be the result of the action of the
waters of the river (or sea); and (3) that the land where accretion takes place is
adjacent to the banks of rivers (or the sea coast). While the trial court mainly relied
on the findings in Civil Case No. B-350 that the lands in controversy are accretion
lands and it has not determined on its own the presence of said requisites, it is too
late now for petitioners in G.R. No. 82220 to claim otherwise. Consequently, the
lands held to be accretion lands could only benefit the Quisumbings, who own the
property adjacent to the lands in controversy (Cruz v. Court of Appeals, 216 SCRA
350 [1992]).
Petitioners in G.R. No. 82220 also assert that the principle of indefeasibility of title
should favor them as the one-year period provided for by law to impugn their title
had elapsed. They also urged that, having been granted by the state, their title is
superior to that of the Quisumbings. We hold, however, that in the light of the fraud
attending the issuance of the free patents and titles of Pablito Meneses, said
assertions crumble. Such fraud was confirmed by this Court in Meneses v. People, 153
SCRA 303 (1987) which held the petitioners therein liable for violation of the Anti-
Graft and Corrupt Practices Act in the issuance of the same free patents and titles.
Unlike the petition in G.R. No. 82220, the petition in G.R. No. 83059 (questioning the
reduction of the damages awarded to the Quisumbings by the Court of Appeals in
the Resolution of February 23, 1988) is meritorious. The task of fixing the amount
of damages is primarily with the trial court (Air France v. Carrascoso, 18 SCRA 155
[1966]). While it is the appellate court's duty to review the same, a reduction of the
award of damages must pass the test of reasonableness. The Court of Appeals can
only modify or change the amount awarded as damages when they are palpably or
scandalously and reasonably excessive (Philippine Airlines, Inc. v. Court of Appeals,
226 SCRA 423 [1993]; Prudenciano v. Alliance Transport System, Inc., 148 SCRA 440
[1987]).

There is no justification for the radical reduction by the Court of Appeals of the
damages awarded by the trial court. Its action was premise merely on "humanitarian
considerations" and the plea of the defendants-appellants. We may agree with the
Court of Appeals in reducing the award after scrutinizing its factual findings only if
such findings are diametrically opposed to that of the trial court (Prudenciado v.
Alliance Transport System, Inc., supra). But as it is, the Court of Appeals affirmed
point by point the factual findings if the lower court upon which the award of
damages had been based.

We, therefore, see no reason to modify the award of damages made by the trial court.
Respondent Braulio C. Darum in G.R. No. 83059 must also be solidarily liable for said
damages in his capacity as a public officer. A public official is by law not immune
from damages in his personal capacity for acts done in bad faith which, being outside
the scope of his authority, are no longer protected by the mantle of immunity for
official actions (Vidad v. RTC of Negros, Br. 42, 227 SCRA 271 [1993]).

WHEREFORE, the petition in G.R. No. 82220 is DENIED while the petition in G.R. No.
83059 is GRANTED. The Decision dated August 31, 1987 of the Court of Appeals is
AFFIRMED while its Resolution of February 23, 1988 insofar as it reduces the
amount of damages awarded to the Quisumbing family is SET ASIDE. Costs against
petitioners in G.R. No. 82220 and respondent Braulio Darum in G.R. No. 83059.

SO ORDERED.
 On June 4, 1998, the RTC rendered a Decision ordering the petitioners to
CIPRIANO ENRIQUEZ, RAYMUNDO ENRIQUEZ, G.R. No. 139303 vacate the property and to surrender possession thereof to respondents.
CONCEPCION ENRIQUEZ, A copy of the Decision was received by counsel for petitioners on June 22,
assisted by her husband MATIAS QUITANES, TOMAS 1998. On July 3, 1998, they filed a Notice of Appeal with the RTC. It was approved on
ENRIQUEZ, LUIS DIAZ, CESAR DIAZ, MANUEL DIAZ, July 7, 1998.
DOMINGO ENRIQUEZ, ELPIDIO ENRIQUEZ, FILIPINA Present: On February 3, 1999, the Court of Appeals dismissed the appeal of
ENRIQUEZ, CASIMIRA DIZON, SATURNINO DIZON, petitioners for their failure to pay the appellate court docket fee, thus:
JOSE RAMOS, AMADO MISLANG, ANTONIO
QUITANEG, VILLAMOR QUITANEG, JIMMY CLAVO, PANGANIBAN, J., Chairman, For failure to pay docket fee, the appeal is deemed
OSCAR LABORCE, SEVILLA PIZARRO, ANGELITA SANDOVAL-GUTIERREZ, ABANDONED and DISMISSED, pursuant to Section 1(c), Rule 50,
PIZZARO, ISIDRO RICO, PIO FAMISAN, PANTALEON CORONA, Revised Rules of Court.
ABILLE, BEINVENIDO CORUM, MARTINA HISOLE, CARPIO MORALES, and
ERNA D. ENRIQUEZ, assisted by her GARCIA, JJ.
husband RITCHIE FLAUTA, and IGNACIO ENRIQUEZ, Petitioners filed a motion for reconsideration but it was denied by the
JR., Appellate Court in a Resolution dated July 7, 1999, thus:
Petitioners,
Per copy of the official receipt attached to appellants
- versus - Promulgated: motion for reconsideration, the docket fee was paid on
November 4, 1998 or 4 months after the notice of appeal was
MAXIMO ENRIQUEZ (now deceased), substituted by filed on July 3, 1998.
CARMEN AGANA, IGMIDIO ENRIQUEZ, CONCEPCION August 25, 2005 Consequently, appellants motion for reconsideration
ENRIQUEZ, CIPRIANO ENRIQUEZ, is hereby denied.
DIONISIONENRIQUEZ, MAXIMO ENRIQUEZ, CLEOFE
ENRIQUEZ, TOMAS ENRIQUEZ, RAYMUNDO In the instant petition for review, petitioners raise the following errors
ENRIQUEZ and NICOLAS ENRIQUEZ, allegedly committed by the Appellate Court:
Respondents. I. THE RESPONDENT COURT OF APPEALS SERIOUSLY
x---------------------------------------------------------------------------------------------x ERRED IN CONSIDERING PETITIONERS APPEAL AS DEEMED
ABANDONED AND DISMISSED FOR ALLEGED FAILURE OF
D E C I S I O N PETITIONERS TO PAY DOCKET FEE.
II. THE RESPONDENT COURT OF APPEALS GRAVELY
SANDOVAL-GUTIERREZ, J.: ERRED IN DENYING PETITIONERS MOTION FOR
RECONSIDERATION OF THE RESOLUTION CONSIDERING
Assailed in the instant petition for review on certiorari are the Resolutions PETITIONERS APPEAL AS DEEMED ABANDONED AND
dated February 3, 1999 and July 7, 1999 issued by the Court of Appeals in CA-G.R. DISMISSED ON THE GROUND THAT THE DOCKET FEE WAS PAID
CV UDK-7011 dismissing the appeal of petitioners for their failure to pay the ON NOVEMBER 4, 1998, OR FOUR (4) MONTHS AFTER THE
appellate court docket fee. NOTICE OF APPEAL WAS FILED ON JULY 3, 1998.
On November 17, 1988, Maximo Enriquez, later substituted by his heirs III. THE RESPONDENT COURT OF APPEALS IN ISSUING
(now respondents), filed with the Regional Trial Court (RTC), Branch 71 of Iba, THE AFORESAID RESOLUTIONS GAVE PREMIUM ON
Zambales a complaint for partition against petitioners, docketed as Civil Case No. TECHNICALITIES RATHER ON SUBSTANCE AND SUBSTANTIAL
RTC-568-1. The complaint involves a parcel of land situated at Amungan, Iba, same JUSTICE AND DISREGARDED THE MERITS OF PETITIONERS
province, covered by TCT No. T-28593, with an area of 44,984 square meters. He CASE.
alleged that he owns 10/18 undivided portion of the property, 9/18 by purchase
and 1/18 by inheritance; and that petitioners have been residing in the premises In sum, the issue is whether the Court of Appeals correctly dismissed the
without his knowledge and consent, thereby depriving him of his undivided share of petition for failure of the petitioners to pay appellate court docket fee.
the property. In dismissing petitioners appeal, the Court of Appeals cited Section 1(c),
Petitioners, in their answer, averred that Cipriano Enriquez, one of the Rule 50 of the Revised Rules of Court which provides:
petitioners, owns of the property, while the others are in possession of the other
areas with his knowledge and consent.
 Section 1. Grounds for dismissal of appeal. An appeal
may be dismissed by the Court of Appeals, on its own motion or
on that of the appellee, on the following grounds:
xxx
(c) Failure of the appellant to pay the docket and other
lawful fees as provided in Section 4 of Rule 41.
Petitioners admit that the governing Rule on their payment of appellate
court docket fee is Section 4, Rule 41 of the 1997 Rules of Civil Procedure, as
amended, which provides:
Section 4. Appellate court docket and other lawful fees.
Within the period for taking an appeal, the appellant shall pay to
the clerk of the court which rendered the judgment or final order
appealed from, the full amount of the appellate court docket and
other lawful fees. Proof of payment of said fees shall be
transmitted to the appellate court together with the original
record of the record or the record on appeal.
Underscoring the sentence Proof of payment of said fees shall be
transmitted to the appellate court together with the original record or the record on
appeal, petitioners maintain that the trial court must first send them a notice to pay
the appellate court docket fee and other lawful fees within the period for taking an
appeal. Hence, they waited for the notice for them to pay the appellate court docket
fee. When they did not receive any, they paid the docket fee to the trial court.
Consequently, they cannot be faulted if they paid the appellate court docket fee four
(4) months after their Notice of Appeal was approved on July 7, 1998.
Prior to the effectivity of the 1997 Rules of Civil Procedure, as amended,
payment of appellate court docket fee is not a prerequisite for the perfection of an
appeal. In Santos vs. Court of Appeals,[1] this Court held that although an appeal fee is
required to be paid in case of an appeal taken from the Municipal Trial Court to the
Regional Trial Court, it is not a prerequisite for the perfection of an appeal under
Sections 20[2] and 23[3] of the Interim Rules and Guidelines issued by this Court on
January 11, 1983 implementing the Judiciary Reorganization Act of 1981 (B.P. Blg.
129). Under these sections, there are only two requirements for the perfection of an
appeal, to wit: (a) the filing with the trial court of a notice of appeal within the
reglementary period; and (b) the expiration of the last day to appeal by any party.
However, the 1997 Rules of Civil Procedure, as amended, which took effect
on July 1, 1997, now require that appellate docket and other lawful fees must be paid
within the same period for taking an appeal. This is clear from the opening sentence
of Section 4, Rule 41 of the same Rules that, (W)ithin the period for taking an appeal,
the appellant shall pay to the clerk of the court which rendered the judgment or final
order appealed from, the full amount of the appellate court docket and other lawful
fees.
The use of the word shall underscores the mandatory character of the Rule.
The term shall is a word of command, and one which has always or which must be
given a compulsory meaning, and it is generally imperative or
mandatory.[4] Petitioners cannot give a different interpretation to the Rule and insist
that payment of docket fee shall be made only upon their receipt of a notice from the
trial court to pay. For it is a rule in statutory construction that every part of the
statute must be interpreted with reference to the context, i.e., that every part of the
statute must be interpreted together with the other parts, and kept subservient to
the general intent of the whole enactment.[5] Indeed, petitioners cannot deviate from
the Rule.
Also under Rule 41 of the same Rules, an appeal to the Court of Appeals
from a case decided by the RTC in the exercise of the latters original jurisdiction,
shall be taken within fifteen (15) days from the notice of judgment or final order
appealed from. Such appeal is made by filing a notice thereof with the court that
rendered the judgment or final order and by serving a copy of that notice upon the
adverse party. Furthermore, within this same period, appellant shall pay to the clerk
of court which rendered the judgment or final order appealed from, the full amount
of the appellate court docket and other lawful fees. The payment of docket fee within
this period is mandatory for the perfection of appeal. Otherwise, the appellate court
would not be able to act on the subject matter of the action, and the decision sought
to be appealed from becomes final and executory.[6]
Time and again, this Court has consistently held that payment of docket fee
within the prescribed period is mandatory for the perfection of an appeal. Without
such payment, the appellate court does not acquire jurisdiction over the subject
matter of the action and the decision sought to be appealed from becomes final and
executory.[7]
Petitioners argue that the Appellate Court, in issuing the assailed
Resolutions, gave premium to technicalities rather than substance and disregarded
the merits of the petition. They ask for a liberal construction of the Rules.
Appeal is not a right but a statutory privilege, thus, appeal must be made
strictly in accordance with the provision set by law.
The requirement of the law under Section 4, Rule 41 is clear. The payment of
appellate docket fee is not a mere technicality of law or procedure but an essential
requirement for the perfection of an appeal.[8]
The payment of the docket fee within the period is a condition sine qua
non for the perfection of an appeal. Contrary to petitioners submission, the payment
of the appellate court docket and other lawful fees is not a mere technicality of law
or procedure. It is an essential requirement, without which the decision or final
order appealed from would become final and executory as if no appeal was filed at
all.[9]
This Court has consistently ruled that litigation is not a game of
technicalities and that every case must be prosecuted in accordance with the
prescribed procedure so that issues may be properly presented and justly resolved.
The rules of procedure must be faithfully followed except only when, for persuasive
and weighting reasons, they may be relaxed to relieve a litigant of an injustice
commensurate with his failure to comply within the prescribed
procedure. Concomitant to a liberal interpretation of the rules of procedure
should be an effort on the part of the party invoking liberality to adequately
explain his failure to abide by the rules.[10]Anyone seeking exemption from the
application of the Rule has the burden of proving that exceptionally meritorious
instances exist which warrant such departure.[11]
In the present case, petitioners failed to establish any sufficient and
satisfactory reason to warrant a relaxation of the mandatory rule on the payment of
appellate court docket fee. Actually, the payment of the required docket fee was late
because of the erroneous interpretation of the Rule by petitioners counsel. Verily, to
grant their petition would be putting a premium on his ignorance or lack of
knowledge of existing Rules. He should be reminded that it is his duty to keep
abreast of legal developments and prevailing laws, rules and legal
principles,[12] otherwise his clients will be prejudiced, as in this case.
In fine, the Court of Appeals did not err in dismissing petitioners appeal.

WHEREFORE, the instant petition for review on certiorari is DENIED.

Costs against petitioners.
SO ORDERED.
YUK LING ONG, Petitioner, v. BENJAMIN T. CO, Respondent.
DECISION
MENDOZA, J.:
In court proceedings, there is no right more cherished than the right of every litigant
to be given an opportunity to be heard. This right begins at the very moment that
summons is served on the defendant. The Rules of Court places utmost importance
in ensuring that the defendant personally grasp the weight of responsibility that will
befall him. Thus, it is only in exceptional circumstances that constructive
notification, or substituted service of summons, is allowed. If the server falls short
of the rigorous requirements for substituted service of summons, then the Court has
no other option but to strike down a void judgment, regardless of the consequences.
This is a petition for review on certiorari seeking to reverse and set aside the June
27, 2012 Decision1and the March 26, 2013 Resolution2 of the Court of Appeals (CA)
in CA-G.R. SP No. 106271, which denied the petition for annulment of judgment.
The Facts
Petitioner Yuk Ling Ong (petitioner), a British-Hong Kong national, and respondent
Benjamin Co (respondent), a Filipino citizen, were married on October 3, 1982 at
Ellinwood-Malate Church.3cralawlawlibrary
Sometime in November 2008, petitioner received a subpoena from the Bureau of
Immigration and Deportation (BID) directing her to appear before the said agency
because her permanent residence visa was being subjected to cancellation
proceedings. Reportedly, her marriage with respondent was nullified by the court.
When petitioner appeared before the BID, she was furnished with the copies of the
following documents: (1) petition for declaration of nullity of marriage filed as Civil
Case No. CV-01-0177; (2) petition for declaration of nullity of marriage docketed as
Civil Case No. 02-0306; (3) Decision,4 dated December 11, 2002, in Civil Case No. 02-
0306 of the Regional Trial Court, Branch 260 (RTC), Parañaque City, declaring the
marriage between petitioner and respondent as void ab initio; and (4) their
marriage contract5 with the subject decision annotated thereon. Petitioner was
perplexed that her marriage with respondent had been declared void ab initio.
The above documents showed that on April 26, 2001, respondent filed a petition for
declaration of nullity6 on the ground of psychological incapacity before the RTC,
which was docketed as Civil Case No. CV-01-0177. Respondent stated that
petitioner’s address was 600 Elcano St., Binondo, Manila. There was no showing of
its status, whether pending, withdrawn or terminated.
On July 19, 2002, respondent filed another petition for declaration of nullity 7 on the
ground of psychological incapacity before the RTC, docketed as Civil Case No. 02-
0306. Respondent indicated that petitioner’s address was 23 Sta. Rosa Street, Unit
B-2 Manresa Garden Homes, Quezon City. On July 29, 2002, the RTC issued
summons.8 In his Server’s Return,9 process server Rodolfo Torres, Jr. stated that, on
August 1, 2002, substituted service of summons with the copy of the petition was
effected after several futile attempts to serve the same personally on petitioner. The
said documents were received by Mr. Roly Espinosa, a security officer.
On December 11, 2002, the RTC rendered a decision 10 in Civil Case No. 02-0306
finding respondent’s marriage with petitioner as void ab initio on the ground of
psychological incapacity under Article 36 of the Family Code. It stated that summons
was served on petitioner on August 1, 2002, but she failed to file her responsive
pleading within the reglementary period. The public prosecutor also stated that
there were no indicative facts to manifest collusion. Thus, the RTC concluded that
petitioner was psychologically incapacitated to perform her essential marital
obligations.
Consequently, petitioner filed a petition for annulment of judgment11 under Rule 47
of the Rules of Court before the CA on November 24, 2008, claiming that she was
never notified of the cases filed against her. She prayed that the RTC decision, dated
December 11, 2002, in Civil Case No. 02-0306, be nullified on the grounds of
extrinsic fraud and lack of jurisdiction.
Petitioner alleged that first, respondent committed extrinsic fraud because, as seen
in Civil Case No. CV-01-0177, he deliberately indicated a wrong address to prevent
her from participating in the trial; second, jurisdiction over her person was not
acquired in Civil Case No. 02-0306 because of an invalid substituted service of
summons as no sufficient explanation, showing impossibility of personal service,
was stated before resorting to substituted service of summons; third, the alleged
substituted service was made on a security guard of their townhouse and not on a
member of her household; and fourth, she was not psychologically incapacitated to
perform her marital obligations.12cralawlawlibrary
Ruling of the Court of Appeals
On June 27, 2012, the CA rendered the assailed decision finding the petition for
annulment of judgment to be devoid of merit. It held that there was no sufficient
proof to establish that respondent employed fraud to insure petitioner’s non-
participation in the trial of Civil Case No. CV-01-0177.
Relying on Robinson v. Miralles,13the CA further ruled that the substituted service of
summons in Civil Case No. 02-0306 was valid. It found that there was a customary
practice in petitioner’s townhouse that the security guard would first entertain any
visitors and receive any communication in behalf of the homeowners. With this set-
up, it was obviously impossible for the process server to personally serve the
summons upon petitioner. It also declared that the process server’s return carries
with it the presumption of regularity in the discharge of a public officer’s duties and
functions.
Petitioner moved for reconsideration, but her motion was denied by the CA in its
Resolution,14 dated March 26, 2013.
Hence, this petition, anchored on the following
ISSUES

1. Whether or not the Trial Court in Civil Case No. 02-0306 validly
acquired jurisdiction over the person of the petitioner.
2. Whether or not the facts proven by the petitioner constitute
extrinsic fraud within the purview of Rule 47 of the Rules of
Court.15
Petitioner argues that there was an invalid substituted service of summons. The
process server’s return only contained a general statement that substituted service
was resorted to “after several futile attempts to serve the same
personally,”16 without stating the dates and reasons of the failed attempts. Petitioner
also reiterates her argument that extrinsic fraud was employed.
In his Comment,17 filed on July 9, 2014, respondent contended that the server’s
return satisfactorily stated the reason for the resort to a substituted service of
summons on August 1, 2002; and it was improbable that petitioner failed to receive
the summons because it was sent to the same address which she declared in this
present petition.
Petitioner filed her Reply18 on October 8, 2014 reiterating her previous arguments.
The Court’s Ruling
The Court finds merit in the petition.
Annulment of judgment is a recourse equitable in character, allowed only in
exceptional cases as where there is no available or other adequate remedy. Rule 47
of the 1997 Rules of Civil Procedure, as amended, governs actions for annulment of
judgments or final orders and resolutions, and Section 2 thereof explicitly provides
only two grounds for annulment of judgment, that is, extrinsic fraud and lack of
jurisdiction.19 Annulment of judgment is an equitable principle not because it allows
a party-litigant another opportunity to reopen a judgment that has long lapsed into
finality but because it enables him to be discharged from the burden of being bound
to a judgment that is an absolute nullity to begin with.20cralawlawlibrary
Petitioner raises two grounds to support her claim for annulment of judgment: (1)
extrinsic fraud and (2) lack of jurisdiction. Her contention on the existence of
extrinsic fraud, however, is too unsubstantial to warrant consideration. The
discussion shall then focus on the ground of lack of jurisdiction.
Lack of jurisdiction on the part of the trial court in rendering the judgment or final
order is either lack of jurisdiction over the subject matter or nature of the action, or
lack of jurisdiction over the person of the petitioner. The former is a matter of
substantive law because statutory law defines the jurisdiction of the courts over the
subject matter or nature of the action. The latter is a matter of procedural law, for it
involves the service of summons or other processes on the
petitioner.21cralawlawlibrary
In the present case, petitioner contends that there was lack of jurisdiction over her
person because there was an invalid substituted service of summons. Jurisdiction
over the defendant is acquired either upon a valid service of summons or the
defendant's voluntary appearance in court.22 If the defendant does not voluntarily
appear in court, jurisdiction can be acquired by personal or substituted service of
summons as laid out under Sections 6 and 7 of Rule 14 of the Rules of Court, which
state:chanRoblesvirtualLawlibrary
Sec. 6. Service in person on defendant. - Whenever practicable, the summons shall
be served by handing a copy thereof to the defendant in person, or, if he refuses to
receive and sign for it, by tendering it to him.
Sec. 7. Substituted Service. - If, for justifiable causes, the defendant cannot be served
within a reasonable time as provided in the preceding section, service may be
effected (a) by leaving copies of the summons at the defendant's residence with
some person of suitable age and discretion then residing therein, or (b) by leaving
the copies at defendant's office or regular place of business with some competent
person in charge thereof.
The landmark case of Manotoc v. CA (Manotoc)23 thoroughly discussed the rigorous
requirements of a substituted service of summons, to wit: xxx
(1) Impossibility of Prompt Personal Service
xxx
For substituted service of summons to be available, there must be several attempts
by the sheriff to personally serve the summons within a reasonable period of one
month which eventually resulted in failure to prove impossibility of prompt
service. "Several attempts" means at least three (3) tries, preferably on at least
two different dates. In addition, the sheriff must cite why such efforts were
unsuccessful. It is only then that impossibility of service can be confirmed or
accepted.
(2) Specific Details in the Return
The sheriff must describe in the Return of Summons the facts and circumstances
surrounding the attempted personal service. The efforts made to find the defendant
and the reasons behind the failure must be clearly narrated in detail in the
Return. The date and time of the attempts on personal service, the inquiries
made to locate the defendant, the name/s of the occupants of the alleged
residence or house of defendant and all other acts done, though futile, to serve
the summons on defendant must be specified in the Return to justify
substituted service.
(3) A Person of Suitable Age and Discretion
xxx
The sheriff must therefore determine if the person found in the alleged dwelling or
residence of defendant is of legal age, what the recipient's relationship with the
defendant is, and whether said person comprehends the significance of the receipt
of the summons and his duty to immediately deliver it to the defendant or at least
notify the defendant of said receipt of summons. These matters must be clearly
and specifically described in the Return of Summons. (Emphases and
underscoring supplied)
The pronouncements of the Court in Manotoc have been applied to several
succeeding cases. In Pascual v. Pascual,24 the return of summons did not show or
indicate the actual exertion or positive steps taken by the officer or process server
in serving the summons personally to the defendant. Similarly, in Spouses Afdal v.
Carlos,25 the process server’s indorsements therein failed to state that the personal
service on the defendants was rendered impossible and that efforts were made to
find them personally. In both those cases, the Court ruled that the meticulous
requirements for substituted service of summons were not met.
There are cases, however, in which Manotoc was applied, but, nevertheless, it was
ruled that there was no lack of jurisdiction over the person of the defendant.
In Sagana v. Francisco,26 the diligent efforts exerted by the sheriff to locate the
respondent were determined, not only based on the sheriff's return, but also on the
process server's notation and case records. In the case of Wong v. Factor-
Koyama,27 on the other hand, even if the sheriff performed an invalid substituted
service of summons, jurisdiction over the person of defendant was obtained because
the latter had actively participated in trial, amounting to a voluntary appearance
under Section 20 of Rule 14.28cralawlawlibrary
In the case at bench, the summons in Civil Case No. 02-030629 was issued on July 29,
2002. In his server’s return,30 the process server resorted to substituted service of
summons on August 1, 2002. Surprisingly, the process server immediately opted for
substituted service of summons after only two (2) days from the issuance of the
summons. The server’s return stated the following:chanRoblesvirtualLawlibrary
SERVER’S RETURN
THIS IS TO CERTIFY THAT on August 1, 2002, substituted service of summons with
copy of petition, were effected to respondent, Yuk Ling H. Ong, at the Unit B-2, No.
23 Sta. Rosa St., Manresa Garden Homes, Manresa Garden City, Quezon City, after
several futile attempts to serve the same personally. The said documents were
received by Mr. Roly Espinosa of sufficient age and discretion, the Security Officer
thereat.
Therefore, respectfully returning to Court, original copy of summons, Duly Served,
this 2nd day of August, 2002.
RODOLFO P. TORRES, JR.
Process Server
(Emphasis supplied)
The server’s return utterly lacks sufficient detail of the attempts undertaken by the
process server to personally serve the summons on petitioner. The server simply
made a general statement that summons was effected after several futile attempts
to serve the same personally. The server did not state the specific number of
attempts made to perform the personal service of summons; the dates and the
corresponding time the attempts were made; and the underlying reason for each
unsuccessful service. He did not explain either if there were inquiries made to locate
the petitioner, who was the defendant in the case. These important acts to serve the
summons on petitioner, though futile, must be specified in the return to justify
substituted service.
The server’s return did not describe in detail the person who received the summons,
on behalf of petitioner. It simply stated that the summons was received “by Mr. Roly
Espinosa of sufficient age and discretion, the Security Officer thereat.” It did not
expound on the competence of the security officer to receive the summons.
Also, aside from the server’s return, respondent failed to indicate any portion of the
records which would describe the specific attempts to personally serve the
summons. Respondent did not even claim that petitioner made any voluntary
appearance and actively participated in Civil Case No. 02-0306.
The case of Robinson v. Miralles, cited by the CA, is not applicable. In that case, the
return described in thorough detail how the security guard refused the sheriff’s
entry despite several attempts. The defendant in the said case specifically instructed
the guard to prevent anybody to proceed to her residence. In the present case, the
attempts made by the process server were stated in a broad and ambiguous
statement.
The CA likewise erred in ruling that the presumption of regularity in the
performance of official duty could be applied in the case at bench. This presumption
of regularity, however, was never intended to be applied even in cases where there
are no showing of substantial compliance with the requirements of the rules of
procedure. Such presumption does not apply where it is patent that the sheriff’s or
server’s return is defective.31 As earlier explained, the server’s return did not comply
with the stringent requirements of substituted service of summons.
Given that the meticulous requirements in Manotoc were not met, the Court is not
inclined to uphold the CA’s denial of the petition for annulment of judgment for lack
of jurisdiction over the person of petitioner because there was an invalid substituted
service of summons. Accordingly, the decision in Civil Case No. 02-0306 must be
declared null and void.
The stricter rule in substituted service of summons was meant to address “[t]he
numerous claims of irregularities in substituted service which have spawned the
filing of a great number of unnecessary special civil actions of certiorari and appeals
to higher courts, resulting in prolonged litigation and wasteful legal
expenses.”32cralawlawlibrary
Although the decision in Civil Case No. 02-0306 was promulgated as early as
December 11, 2002, the Court must strike it down for lack of jurisdiction over the
person of petitioner. The favorable judgment enjoyed by respondent cannot be
categorized as a genuine victory because it was fought against an adversary, who
was ignorant of the existing dispute. Whatever prize bestowed upon the victor in
such a void decision must also be undone. Respondent, if he wishes to pursue, must
start from scratch and institute his action for declaration of nullity again; this time
with petitioner fully aware and ready for litigation.
WHEREFORE, the petition is GRANTED. The June 27, 2012 Decision and the March
26, 2013 Resolution of the Court of Appeals in CA-G.R. SP No. 106271 are
hereby REVERSED and SET ASIDE. The December 11, 2002 Decision of the
Regional Trial Court, Branch 260, Parañaque City is hereby declared VOID.
SO ORDERED.chanrobl
G.R. No. 100776 October 28, 1993
ALBINO S. CO, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
Antonio P. Barredo for petitioner.
The Solicitor General for the people.
NARVASA, C.J.:
In connection with an agreement to salvage and refloat asunken vessel — and in
payment of his share of the expenses of the salvage operations therein stipulated —
petitioner Albino Co delivered to the salvaging firm on September 1, 1983 a check
drawn against the Associated Citizens' Bank, postdated November 30, 1983 in the
sum of P361,528.00.1 The check was deposited on January 3, 1984. It was
dishonored two days later, the tersely-stated reason given by the bank being:
"CLOSED ACCOUNT."
A criminal complaint for violation of Batas Pambansa Bilang 222 was filed by the
salvage company against Albino Co with the Regional Trial Court of Pasay City. The
case eventuated in Co's conviction of the crime charged, and his being sentenced to
suffer a term of imprisonment of sixty (60) days and to indemnify the salvage
company in the sum of P361,528.00.
Co appealed to the Court of Appeals. There he sought exoneration upon the theory
that it was reversible error for the Regional Trial Court to have relied, as basis for its
verdict of conviction, on the ruling rendered on September 21, 1987 by this Court
in Que v. People, 154 SCRA 160 (1987)3 — i.e., that a check issued merely to
guarantee the performance of an obligation is nevertheless covered by B.P. Blg. 22.
This was because at the time of the issuance of the check on September 1, 1983, some
four (4) years prior to the promulgation of the judgment in Que v. Peopleon
September 21, 1987, the delivery of a "rubber" or "bouncing" check as guarantee for
an obligation was not considered a punishable offense, an official pronouncement
made in a Circular of the Ministry of Justice. That Circular (No. 4), dated December
15, 1981, pertinently provided as follows:
2.3.4. Where issuance of bouncing check is neither estafa nor
violation of B.P. Blg. 22.
Where the check is issued as part of an arrangement to guarantee
or secure the payment of an obligation, whether pre-existing or
not, the drawer is not criminally liable for either estafa or
violation of B.P. Blg. 22 (Res. No. 438, s. 1981, Virginia Montano
vs. Josefino Galvez, June 19, 1981; Res. No. 707, s. 1989; Alice
Quizon vs. Lydia Calingo, October 23, 1981, Res. No. 769, s. 1981,
Alfredo Guido vs. Miguel A. Mateo, et. al., November 17, 1981; Res.
No. 589, s. 1981, Zenaida Lazaro vs. Maria Aquino, August 7,
1981).
This administrative circular was subsequently reversed by another issued on August
8, 1984 (Ministry Circular No. 12) — almost one (1) year after Albino Co had
delivered the "bouncing" check to the complainant on September 1, 1983. Said
Circular No. 12, after observing inter alia that Circular No. 4 of December 15, 1981
appeared to have been based on "a misapplication of the deliberation in the
Batasang Pambansa, . . . (or) the explanatory note on the original bill, i.e. that the
intention was not to penalize the issuance of a check to secure or guarantee the
payment of an obligation," as follows:4
Henceforth, conforming with the rule that an administrative
agency having interpreting authority may reverse its
administration interpretation of a statute, but that its review
interpretation applies only prospectively (Waterbury Savings
Bank vs. Danaher, 128 Conn., 476; 20 a2d 455 (1941), in all cases
involving violation of Batas Pambansa Blg. 22 where the check in
question is issued after this date, the claim that the check is issued
as a guarantee or part of an arrangement to secure an obligation
collection will no longer be considered a valid defense.
Co's theory was rejected by the Court of Appeals which affirmed his conviction.
Citing Senarillos v. Hermosisima, 101 Phil. 561, the Appellate Court opined that
the Que doctrine did not amount to the passage of new law but was merely a
construction or interpretation of a pre-existing one, i.e., BP 22, enacted on April 3,
1979.
From this adverse judgment of the Court of Appeals, Albino Co appealed to this Court
on certiorari under Rule 45 of the Rules of Court. By Resolution dated September 9,
1991, the Court dismissed his appeal. Co moved for reconsideration under date of
October 2, 1991. The Court required comment thereon by the Office of the Solicitor
General. The latter complied and, in its comment dated December 13, 1991,
extensively argued against the merits of Albino Co's theory on appeal, which was
substantially that proffered by him in the Court of Appeals. To this comment, Albino
Co filed a reply dated February 14, 1992. After deliberating on the parties'
arguments and contentions, the Court resolved, in the interests of justice, to
reinstate Albino Co's appeal and adjudicate the same on its merits.
Judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the
Philippines," according to Article 8 of the Civil Code. "Laws shall
have no retroactive effect, unless the contrary is provided,"
declares Article 4 of the same Code, a declaration that is echoed
by Article 22 of the Revised Penal Code: "Penal laws shall have, a
retroactive effect insofar as they favor the person guilty of a
felony, who is not a habitual criminal . . .5
The principle of prospectivity of statutes, original or amendatory, has been applied
in many cases. These include: Buyco v. PNB, 961 2 SCRA 682 (June 30, 1961), holding
that Republic Act No. 1576 which divested the Philippine National Bank of authority
to accept back pay certificates in payment of loans, does not apply to an offer of
payment made before effectivity of the act; Largado v. Masaganda, et al., 5 SCRA 522
(June 30, 1962), ruling that RA 2613, s amended by RA 3090 on June, 1961, granting
to inferior courts jurisdiction over guardianship cases, could not be given retroactive
effect, in the absence of a saving clause; Larga v. Ranada, Jr., 64 SCRA 18, to the effect
that Sections 9 and 10 of Executive Order No. 90, amending Section 4 of PD 1752,
could have no retroactive application; People v. Que Po Lay, 94 Phil. 640, holding that
a person cannot be convicted of violating Circular No. 20 of the Central, when the
alleged violation occurred before publication of the Circular in the Official
Gazette; Baltazar v. C.A., 104 SCRA 619, denying retroactive application to P.D. No.
27 decreeing the emancipation of tenants from the bondage of the soil, and P.D. No.
316 prohibiting ejectment of tenants from rice and corn farmholdings, pending the
promulgation of rules and regulations implementing P.D. No. 27; Nilo v. Court of
Appeals, 128 SCRA 519, adjudging that RA 6389 whichremoved "personal
cultivation" as a ground for the ejectment of a tenant cannot be given retroactive
effect in the absence of a statutory statement for retroactivity; Tac-An v. CA, 129
SCRA 319, ruling that the repeal of the old Administrative Code by RA 4252 could
not be accorded retroactive effect; Ballardo v. Borromeo, 161 SCRA 500, holding that
RA 6389 should have only prospective application; (see also Bonifacio v. Dizon, 177
SCRA 294 and Balatbat v. CA, 205 SCRA 419).
The prospectivity principle has also been made to apply to administrative rulings
and circulars, to wit: ABS-CBN Broadcasting Corporation v. CTA, Oct. 12, 1981, 108
SCRA 142, holding that a circular or ruling of the Commissioner of Internal Revenue
may not be given retroactive effect adversely to a taxpayer: Sanchez v.COMELEC, 193
SCRA 317, ruling that Resolution No. 90-0590 of the Commission on Elections, which
directed the holding of recall proceedings, had no retroactive
application; Romualdez v. CSC, 197 SCRA 168, where it was ruled that CSC
Memorandum Circular No. 29, s. 1989 cannot be given retrospective effect so as to
entitle to permanent appointment an employee whose temporary appointment had
expired before the Circular was issued.
The principle of prospectivity has also been applied to judicial decisions which,
"although in themselves not laws, are nevertheless evidence of what the laws mean,
. . . (this being) the reason whyunder Article 8 of the New Civil Code, 'Judicial
decisions applying or interpreting the laws or the Constitution shall form a part of
the legal system . . .'"
So did this Court hold, for example, in Peo. v. Jabinal, 55 SCRA 607, 611:
It will be noted that when appellant was appointed Secret Agent
by the Provincial Government in 1962, and Confidential Agent by
the Provincial commander in 1964, the prevailing doctrine on the
matter was that laid down by Us in People
v. Macarandang (1959) and People v. Lucero (1958).6 Our
decision in People v. Mapa,7 reversing the aforesaid doctrine,
came only in 1967. The sole question in this appeal is: should
appellant be acquitted on the basis of Our rulings
in Macarandang and Lucero, or should his conviction stand in
view of the complete reverse of the Macarandang and Lucero
doctrine in Mapa? . . .
Decisions of this Court, although in themselves not laws, are
nevertheless evidence of what the laws mean, and this is the
reason why under Article 8 of the New Civil Code, "Judicial
decisions applying or interpreting the laws or the Constitution
shall form a part of the legal system . . ."The interpretation upon
a law by this Court constitutes, in a way, a part of the law as of the
date that law was originally passed, since this Court's
construction merely establishes the contemporaneous legislative
intent that the law thus construed intends to effectuate. The
settled rule supported by numerous authorities is a restatement
of the legal maxim "legis interpretation legis vim obtinet" — the
interpretation placed upon the written law by a competent court
has the force of law. The doctrine laid down
in Lucero and Macarandang was part of the jurisprudence, hence,
of the law, of the land, at the time appellant was found in
possession of the firearm in question and where he was
arraigned by the trial court. It is true that the doctrine was
overruled in the Mapa case in 1967, but when a doctrine of this
Court is overruled and a different view is adopted, the new
doctrine should be applied prospectively, and should not apply to
parties who had relied on, the old doctrine and acted on the faith
thereof. This is especially true in the construction and application
 of criminal laws, where it is necessary that the punishment of an
act be reasonably foreseen for the guidance of society.
So, too, did the Court rule in Spouses Gauvain and Bernardita Benzonan v. Court of
Appeals, et al. (G.R. No. 97973) and Development Bank of the Philippines v. Court of
Appeals, et al (G.R. No 97998), Jan. 27, 1992, 205 SCRA 515, 527-528:8
We sustain the petitioners' position, It is undisputed that the
subject lot was mortgaged to DBP on February 24, 1970. It was
acquired by DBP as the highest bidder at a foreclosure sale on
June 18, 1977, and then sold to the petitioners on September 29,
1979.
At that time, the prevailing jurisprudence interpreting section
119 of R.A. 141 as amended was that enunciated
in Monge and Tupas cited above. The petitioners Benzonan and
respondent Pe and the DBP are bound by these decisions for
pursuant to Article 8 of the Civil Code "judicial decisions applying
or interpreting the laws or the Constitution shall form a part of
the legal system of the Philippines." But while our decisions form
part of the law of the land, they are also subject to Article 4 of the
Civil Code which provides that "laws shall have no retroactive
effect unless the contrary is provided." This is expressed in the
familiar legal maxim lex prospicit, non respicit, the law looks
forward not backward. The rationale against retroactivity is easy
to perceive. The retroactive application of a law usually divests
rights that have already become vested or impairs the obligations
of contract and hence, is unconstitutional (Francisco vs. Certeza,
3 SCRA 565 [1061]).
The same consideration underlies our rulings giving only
prospective effect to decisions enunciating new doctrines. Thus,
we emphasized in People v. Jabinal, 55 SCRA 607 [1974]" . . . when
a doctrine of this Court is overruled and a different view is
adopted, the new doctrine should be applied prospectively and
should not apply to parties who had relied on the old doctrine
and acted on the faith thereof.
A compelling rationalization of the prospectivity principle of judicial decisions is
well set forth in the oft-cited case of Chicot County Drainage Dist. v. Baxter States
Bank, 308 US 371, 374 [1940]. The Chicot doctrine advocates the imperative
necessity to take account of the actual existence of a statute prior to its nullification,
as an operative fact negating acceptance of "a principle of absolute retroactive
invalidity.
Thus, in this Court's decision in Tañada v. Tuvera,9 promulgated on April 24, 1985
— which declared "that presidential issuances of general application, which have
not been published,shall have no force and effect," and as regards which declaration
some members of the Court appeared "quite apprehensive about the possible
unsettling effect . . . (the) decision might have on acts done in reliance on the validity
of these presidential decrees . . ." — the Court said:
. . . . The answer is all too familiar. In similar situation is in the
past this Court, had taken the pragmatic and realistic course set
forth in Chicot County Drainage District vs. Baxter Bank (308 U.S.
371, 374) to wit:
The courts below have proceeded on the theory that the Act of
Congress, having found to be unconstitutional, was not a law; that
it was inoperative, conferring no rights and imposing no duties,
and hence affording no basis for the challenged decree. Norton
vs. Shelby County, 118 US 425, 442; Chicago, I. & L. Ry. Co. v.
Hackett, 228 U. S. 559, 566. It is quite clear, however, that such
broad statements as to the effect of a determination of
unconstitutionality must be taken with qualifications. The actual
existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly
be ignored. The past cannot always be erased by a new judicial
declaration. The effect of the subsequent ruling as to invalidity
may have to be considered in various aspects — with respect to
particular conduct, private and official. Questions of rights
claimed to have become vested, of status, of prior determinations
deemed to have finality and acted upon accordingly, of public
policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions are
among the most difficult of those who have engaged the attention
of courts, state and federal, and it is manifest from numerous
decisions that an all-inclusive statement of a principle of absolute
retroactive invalidity cannot be justified.
Much earlier, in De Agbayani v. PNB, 38 SCRA 429 — concerning the effects of the
invalidation of "Republic Act No. 342, the moratorium legislation, which continued
Executive Order No. 32, issued by the then President Osmeña, suspending the
enforcement of payment of all debts and other monetary obligations payable by war
sufferers," and which had been "explicitly held in Rutter v. Esteban (93 Phil. 68
[1953] 10 . . . (to be) in 1953 'unreasonable and oppressive, and should not be
prolonged a minute longer . . ." — the Court made substantially the same
observations, to wit:11
. . . . The decision now on appeal reflects the orthodox view that
an unconstitutional act, for that matter an executive order or a
municipal ordinance likewise suffering from that infirmity,
cannot be the source of any legal rights or duties. Nor can it justify
any official act taken under it. Its repugnancy to the fundamental
 law once judicially declared results in its being to all intents and
purposes amere scrap of paper. . . . It is understandable why it
should be so, the Constitution being supreme and paramount.
Any legislative or executive act contrary to its terms cannot
survive.
Such a view has support in logic and possesses the merit of
simplicity. lt may not however be sufficiently realistic. It does not
admit of doubt that prior to the declaration of nullity such
challenged legislative or executive act must have been in force
and had to be compiled with. This is so as until after the judiciary,
in an appropriate case, declares its invalidity,, it is entitled to
obedience and respect. Parties may have acted under it and may
have changed theirpositions, what could be more fitting than that
in a subsequent litigation regard be had to what has been done
while such legislative or executive act was in operation and
presumed to be valid in all respects. It is now accepted as a
doctrine that prior to its being nullified, its existence is a fact must
be reckoned with. This is merely to reflect awareness that
precisely because the judiciary is the governmental organ which
has the final say on whether or not a legislative or executive
measure is valid, a, period of time may have elapsed before it can
exercise the power of judicial review that may lead to a
declaration of nullity. It would be to deprive the law of its quality
of fairness and justice then, if there be no recognition of what had
transpired prior to such adjudication.
In the language of an American Supreme Court decision: 'The
actual existence of a statute, prior to such a determination [of
unconstitutionality], is an operative fact and may have
consequences which cannot justly be ignored. The past cannot
always be erased by a new judicial declaration. The effect of the
subsequent ruling as to invalidity may have to be considered in
various aspects, — with respect to particular relations, individual
and corporate, and particular conduct, private and official (Chicot
County Drainage Dist. v. Baxter States Bank, 308 US 371, 374
[1940]). This language has been quoted with approval in a
resolution in Araneta v. Hill (93 Phil. 1002 [1953]) and the
decision in Manila Motor Co. Inc. v. Flores (99 Phil. 738 [1956]).
An even more recent instance is the opinion of Justice Zaldivar
speaking for the Court in Fernandez v. Cuerva and Co. (L-21114,
Nov. 28, 1967, 21 SCRA 1095).
Again, treating of the effect that should be given to its decision in Olaguer v. Military
Commission No 34, 12 — declaring invalid criminal proceedings conducted during the
martial law regime against civilians, which had resulted in the conviction and
incarceration of numerous persons — this Court, in Tan vs. Barrios, 190 SCRA 686,
at p. 700, ruled as follows:
In the interest of justice and consistently, we hold that Olaguer
should, in principle, be applied prospectively only to future cases
and cases still ongoing or not yet final when that decision was
promulgated. Hence, there should be no retroactive nullification
of final judgments, whether of conviction or acquittal, rendered
by military courts against civilians before the promulgation of the
Olaguer decision. Such final sentences should not be disturbed by
the State. Only in particular cases where the convicted person or
the State shows that there was serious denial of constitutional
rights of the accused, should the nullity of the sentence be
declared and a retrial be ordered based on the violation of the
constitutional rights of the accused and not on the Olaguer
doctrine. If a retrial is no longer possible, the accused should be
released since judgment against him is null on account of the
violation of his constitutional rights and denial of due process.
xxx xxx xxx
The trial of thousands of civilians for common crimes before the
military tribunals and commissions during the ten-year period of
martial rule (1971-1981) which were created under general
orders issued by President Marcos in the exercise of his
legislative powers is an operative fact that may not just be
ignored. The belated declaration in 1987 of the
unconstitutionality and invalidity of those proceedings did not
erase the reality of their consequences which occurred long
before our decision in Olaguer was promulgated and which now
prevent us from carrying Olaguer to the limit of its logic. Thus did
this Court rule in Municipality of Malabang v. Benito, 27 SCRA
533, where the question arose as to whether the nullity of
creation of a municipality by executive order wiped out all the
acts of the local government abolished. 13
It would seem then, that the weight of authority is decidedly in favor of the
proposition that the Court's decision of September 21, 1987 in Que v. People, 154
SCRA 160 (1987) 14 that a check issued merely to guarantee the performance of an
obligation is nevertheless covered by B.P. Blg. 22 — should not be given
retrospective effect to the prejudice of the petitioner and other persons situated,
who relied on the official opinion of the Minister of Justice that such a check did not
fall within the scope of B.P. Blg. 22.
Inveighing against this proposition, the Solicitor General invokes U.S. v. Go Chico, 14
Phil. 128, applying the familiar doctrine that in crimes mala prohibita, the intent or
motive of the offender is inconsequential, the only relevant inquiry being, "has the
law been violated?" The facts in Go Chico are substantially different from those in the
case at bar. In the former, there was no official issuance by the Secretary of Justice
or other government officer construing the special law violated; 15 and it was there
observed, among others, that "the defense . . . (of) an honest misconstruction of the
law under legal advice" 16 could not be appreciated as a valid defense. In the present
case on the other hand, the defense is that reliance was placed, not on the opinion of
a private lawyer but upon an official pronouncement of no less than the attorney of
the Government, the Secretary of Justice, whose opinions, though not law, are
entitled to great weight and on which reliance may be placed by private individuals
is reflective of the correct interpretation of a constitutional or statutory provision;
this, particularly in the case of penal statutes, by the very nature and scope of the
authority that resides in as regards prosecutions for their violation.17 Senarillos
vs.Hermosisima, supra, relied upon by the respondent Court of Appeals, is crucially
different in that in said case, as in U.S. v. Go Chico, supra, no administrative
interpretation antedated the contrary construction placed by the Court on the law
invoked.

This is after all a criminal action all doubts in which, pursuant to familiar,
fundamental doctrine, must be resolved in favor of the accused. Everything
considered, the Court sees no compelling reason why the doctrine of mala
prohibita should override the principle of prospectivity, and its clear implications as
herein above set out and discussed, negating criminal liability.

WHEREFORE, the assailed decisions of the Court of Appeals and of the Regional Trial
Court are reversed and set aside, and the criminal prosecution against the accused-
petitioner is DISMISSED, with costs de oficio.

SO ORDERED